School District No. 48 v. Fair Dismissal Appeals Board

512 P.2d 799, 14 Or. App. 35, 1973 Ore. App. LEXIS 856

Opinions

PORT, J.

Plaintiff School District No. 48, following an order of defendant Pair Dismissal Appeals Board reversing its dismissal of a teacher, Peter Paul, filed a petition in the circuit court for Marion County seeking a writ of review of the Pair Dismissal Appeals Board order. The Pair Dismissal Appeals Board moved to quash the petition for writ of review on the ground, inter alia, that the exclusive means of judicial review of the challenged order is by direct appeal to this court pursuant to the Administrative Procedures Act. ORS ch 183. The court allowed the motion and quashed the writ. Plaintiff appeals.

①

The present Pair Dismissal Law, ORS 342.805 to 342.955, was largely rewritten and the Fair Dismissal Appeals Board was first provided in Oregon Laws 1971, ch 570, p 1013. Prior to the 1971 session the law was known as the Teacher Tenure Law, former OES 342.805 to 342.955. OES 342.905 now provides an appeal procedure to the Fair Dismissal Appeals Board for a dismissed teacher such as defendant. The last subsection, subsection (8), states:

“Nothing in OES 342.200 and 342.805 to 342.955 precludes a permanent teacher or a district school board from obtaining a writ of review as provided in OES 34.010 to 34.100 after a hearing pursuant to this section for the purpose of reviewing the findings and order, if any, of the Fair Dismissal Appeals Board.” OES 342.905 (8).②

OES 183.480 on the other hand also provides for judicial review of contested cases under the Administrative Procedures Act. The 1971 legislature by Oregon Laws 1971, ch 734, p 1773, also substantially rewrote the Administrative Procedures Act (OES 183.310 through 183.500). That statute, inter alia, states:

“(1) (b) Judicial review of final orders of agencies shall be solely as provided by OES 183.480 to 183.500.

“(2) Jurisdiction for judicial review of contested cases is conferred upon the Court of Appeals * * *.” OES 183.480.

It is conceded that this case is a contested case within the meaning of the statute. OES 183.310 (2) (a).

In Berry Transport, Inc. v. Heltzel, 202 Or 161, 165, 272 P2d 965 (1954), the Supreme Court stated:

“In the construction of statutes, when construction is necessary or propér, the primary and governing rule to he followed and the one that is law and binding upon the court is to ascertain and declare the legislative intent. All other rules of statutory construction are secondary in importance and are simply guides to aid in the application of' the primary rule * *

See also, McAlmond v. Myers, Corbett, 262 Or 521, 500 P2d 457 (1972)

Since OES 342.905 (8). and OES 183.480 ■ appear to he in conflict, their history requires consideration. Examination of the testimony before the 1971 legis7 iature is helpful. Attorney General Lee Johnson, whose office in conjunction’ with the Oregon State Bar drafted the amendments to the Administrative Procedures Act, including 'OES Í83.480, stated at the Senate Judiciary Committee meeting on May 14, 1971, that the drafters’ underlying purpose was to provide a simple uniform procedure. An assistant attorney .general stated to the House Committee on the Judiciary on April 1, 1971, that “* # * As a general principle on this bill, if the Oregon Constitution or the agency law requires a hearing, this hill sets the procedures thereby * # *

Prior to the 1971 revisions to OES 183.010 to 183*-500, OES 183.480 (1) (a) provided:

“Except as otherwise provided specifically by . statute, any party to. an agency proceeding aggrieved by' a final decision ..in a contested case* whether such decision is affirmative or negative in form, is entitled to judicial review thereof under ORS 183.310 to 183.510.” (Emphasis supplied.)

The italicized language was omitted in the 1971 revision and that section now reads:

“(1) (a) Any person adversely affected or aggrieved by an order or any party to an agency proceeding is entitled to judicial review of a final order, whether such order is affirmative or negative in form, under ORS 183.480 to 183.500. A petition for rehearing or reconsideration need not be filed as a condition of judicial review unless specifically otherwise provided by statute or agency rule.”

The Supreme Court in Wampler v. Dept. of State Police, 224 Or 439, 442-44, 355 P2d 238 (1960), considered the former statute in a case where a member of the state police sought judicial review of an order of dismissal entered against him by the trial board of the Department of State Police. In holding that the petitioner was not entitled to review under the former Administrative Procedures Act, the court said:

“The problem can be easily resolved if we examine the first sentence of ORS 183.480 (1). This sentence is prefaced by the following exclusionary phrase: ‘Except as otherwise provided specifically by statute * * The procedure for the review of a decision of the police trial board is otherwise specifically provided by a statute; that is, by ORS 181.350, supra. If this exception made by ORS 183.480, supra, is to be given any effect, it demands that we must look to the statutes to determine if there is any specific provision for review and if such a provision is found we must then exempt that method of review from the operation of ORS 183.480.

“We are not unmindful of the language in the last sentence of ORS 183.480 (1). It reads.: ‘Judicial review of decisions in contested cases by parties shall be solely as provided by ORS 183.310 to 183.510.’ Admittedly, this section could have been more artfully drawn. On the surface this last sentence appears to contradict the sentence which precedes it. However, inconsistencies are not favored in the law and our statutes require us to adopt an interpretation which gives meaning to every provision of the statute if such is possible. ORS 174.010. State Highway Commission v. Rawson, 210 Or 593, 611, 312 P2d 849 (1957); Anthony v. Veatch, 189 Or 462, 502, 220 P2d 493, 221 P2d 575 (1950); City of Portland v. Duntley, 185 Or 365, 380, 203 P2d 640 (1949).

“Applying these rules we find there- is a construction of ORS 183.480 (1) which gives both sentences a logical and rational meaning. Prior to the enactment of the Administrative Procedure Aci there existed a variety of state agencies and of hearing procedures. It is likely that the legislature desired to provide for two possible situations: /agencies such as the state police which had a distinct method of review and agencies which might operate under provisions for hearings but lack any definite provisions for review. The exception contained in the first sentence preserved the existing review procedures. The statement in the last sentence operated upon what remained and -limited review procedures in other cases to that expressed in the Administrative Procedure Act.

“In the light of this analysis we must conchado "that the petitioner employed the wrong review procedure and brought his petition in the wrong forum

* * * »

It is clear, then, that the Wampler decision was based on the former language, “Except as otherwise provided specifically by statute.” Former ORS 183.-480 (1). Since that clause has now been eliminated from the statute, the Act must now be construed in the light of that amendment.

Davis, Administrative Law Treatise 822, § 24.07 (1970 Supp), states:

“The many states which still rely upon the extraordinary remedies as means for review of administrative action are needlessly inflicting on themselves a body of sick law. The cure for the disease of a plurality of remedies is a statute providing for a single remedy.”

The Wampler case was the subject of lengthy comment in three law review articles. Linde, Public Law — 1960 Oregon Survey, 40 Or L Rev 249 (1961); Adams, Wampler v. Department of State Police: Opportunity, Not Disaster, 41 Or L Rev 118 (1962); Linde, The Wampler Disaster — A Reply, 41 Or L Rev 177 (1962).

In the last of the three articles the author concludes :

“* * * Certainly I can add nothing to the dispassionate and judicious evaluation of the writs expressed in Davis, Administrative Law Treatise:

<£# # # # *

“ ‘The fountainhead of evils in state systems for review of administrative action is the plurality of remedies. The needless plurality is complicated to an unbelievable extent by uncertainties about each of the extraordinary remedies. The cure for plurality is a single remedy. The cure for the extraordinary remedies is complete abolition, both in form and in substance. All reviewable administration action should be reviewable by petition for review, whether the action is judicial, legislative, executive, of something else, . . . The manner or [sic] review and the relief afforded may depend upon the nature of the administrative action, but .the form, of proceeding should not.

“ ‘Legislation should provide for a single form of proceeding for review of administrative action in the courts of each state.’

“The Oregon Administrative Procedure Act did not go this far, but it was a step in the right direction. Whatever diversity might or might not be found appropriate with respect to the degree of substitution of judicial for administrative judgment on various issues, much would be gained and nothing of value lost if litigants knew that they could safely rely on the APA’s procedure for obtaining judicial review of the actions of agencies covered by the act. Section 183.480 should not be repealed to complete the Wampler disaster. It should be revitalized.” 41 Or L Rev, supra at 181.

In revising the Administrative Procedures Act in the 1971 session other pertinent amendments included: (1) removing the review jurisdiction from the circuit court to the Court of Appeals; (2) revising the list of exempt agencies (ORS 183.315);③ and expressly conforming a large number of other agencies which previously had built-in review procedures④ to those provided by the Administrative Procedures Act.

Thus it is clear the legislature intended to vest in this court, rather than as theretofore in the circuit court, jurisdiction generally for the review of administrative agency orders.

We note that the 1971 legislature when it created the Pair Dismissal Appeals Board by Oregon Laws 1971, ch 570, p 1013, entitled the Fair Dismissal Law (section 2 thereof), simply kept former OES 342.945 (2) allowing use of the writ of review. OES 34.010 to 34.100. The minutes of the education committees do not reflect that any consideration was given to the obvious conflict with OES 183.480. This Act was passed on June 9, 1971, signed by the Governor on June 29,1971, and filed with the Secretary of State on June 29,1971.

Oregon Laws 1971, ch 734, pp 1773-1832, containing 188 sections which extensively amended the Administrative Procedures Act was passed on June 7,1971, approved by the Governor on Juiy 1,1971, and filed with the Secretary of State the same date. Since the Fair Dismissal Appeals Board was not yet in existence at the time Oregon Laws 1971, ch 734 was passed by the legislature, wé cannot infer from the failure to include OES 342.905 (8) in the general corn-forming amendment of its Section 21⑤ an intention not to omit it therefrom.

OES 174.050 tells.us:

“If at any session of the Legislative Assembly there are enacted two or more Acts amending the same section of the statutes, each of the Acts shall be given' effect to the extent that the amendments do not conflict in purpose. Otherwise, the Act last filed in the office of the Secretary of State shall control.”

We find the reasoning behind that rule persuasive in resolving otherwise apparently insoluble conflicts in legislation, though we deal here not with two conflicting amendments to the same statutory section, but rather with two inconsistent statutory provisions adopted by the same legislature, referring to judicial review of an administrative agency action.

The general purpose of the Administrative Procedures Act as amended by the 1971 legislature was to funnel reviews of administrative agencies directly to this court through the use of a uniform procedure and standardized scope of review.

We think the trial court correctly allowed the motion to quash.

Affirmed.

The School District Board also filed a petition, for direct review in this court pursuant to ORS 183.480. This matter is now pending in this court.

We note that Sec 6 of H.B. 2132, 1973 Legislative Assembly, amends subsection (8) of ORS 342.905 by striking it in its entirety and in lieu thereof adopts a new subsection (8) which reads as follows:

“(8) An appeal from action of the Fair Dismissal Appeals Board shall be taken in the manner provided in ORS 183.480.”

This bill was passed by both houses and was approved by the Governor on July 20, 1973. It contains in Sec 10 thereof an emergency clause.

The Fair Dismissal Appeals Board was not included as an exempt agency.

The Fair Dismissal Law statute was not included in the large number of conformed agency procedures contained in Oregon Laws 1971, ch 734, Sec 21, p 1786.

Sec 21 repealed some 87 sections in various administrative and related executive branch proceedings providing for their own review procedures. Hugh Smith, then Chairman of the Administrative Law Committee of the Oregon State Bar Association, stated to the House Judiciary Committee considering ch 734 the purpose of this effort:

“We have gone through the process of developing conforming amendments which means that every agency in the state has seen the conforming amendment * * *. They know that this thing :is coming through. The chance of our missing something that really is going to be deplorable we of the bar committee feel is very small * *