BUTTLER, J.
Defendants appeal from an order of the circuit court which they contend substantially deprives them of their ability to perform their statutory duty with respect to proceedings to determine whether plaintiff’s license to practice dentistry should be suspended or revoked.
On May 19,1977, after several months of investigation, defendant State Board of Dental Examiners (the Board) determined that there was reason to believe that plaintiff’s license should be revoked, and sent a Notice of Proposed Revocation of Dental License and an accompanying Accusation to plaintiff. The Notice set a hearing on the charges for June 10, 1977. Plaintiff sought from the Board a postponement of the hearing. The Board denied the request and advised plaintiff that if he insisted on having more time to prepare for the hearing, the Board would suspend his license pending the hearing. On June 3,1977, plaintiff filed a suit seeking injunctive relief against the Board which would delay the hearing and enjoin the Board from suspending plaintiff’s license pending the hearing. On June 7,1977, the Board granted postponement of the hearing, but suspended plaintiff’s license in the interim. On June 9, 1977, the circuit court enjoined the temporary suspension, and ordered a hearing be commenced within 60 days.
Thereafter plaintiff filed an amended and supplemental complaint alleging prejudice on the part of Board members and requesting a permanent injunction against the Board which would prevent it from undertaking a disciplinary hearing with respect to charges against plaintiff. An order to show cause wTas issued on August 4, 1977, directing defendants to appear on August 12,1977, for a hearing to determine whether an order would issue enjoining it, "pending a determination of this case, from holding any hearing * * * concerning the proposed revocation of plaintiff’s license to practice dentistry.”
After the hearing, the court found generally in favor of plaintiff, and specifically found "that defendants have pre-judged the merits of the charges against the plaintiff in the license revocation proceeding adversely to the plaintiff; that defendants have had such extensive prior official contact with the case that they are incapable of deciding the merits of the case fairly, impartially and in accordance with the standard of proof required by law.” The court concluded that plaintiff was entitled to equitable relief in order to protect his right to due process of law, and therefore ordered that three named senior state judges be appointed to hear and decide the issues involved in the proceeding to determine whether plaintiff’s license should be revoked, and that the administrative trial be held before the designated judges at the Multnomah County Courthouse in Portland, Oregon, as soon as reasonably possible.
Defendants appeal from that order even though it was not entered after a final hearing on the merits, and even though it does not, in express terms, enjoin defendants from proceeding with its scheduled hearing.
They contend, we think correctly, that the effect of the order is to preclude their conducting a hearing in this matter permanently,
and therefore is appeal-able. ORS 19.010(2)(a).
ORS ch 679 establishes a State Board of Dental Examiners, and gives the Board broad powers with
respect to the licensing of dentists, and the suspension and revocation of licenses. Incident to those powers, the Board is authorized to employ investigators for the investigation and prosecution of alleged violations and enforcement of the Act (ORS 679.250(3)),
to initiate and conduct investigations and hearings on all matters relating to the practice of dentistry including the discipline of licensees and to issue subpoenas, etc. ORS 679.250(8).
The Administrative Procedures Act (APA) (ORS ch 183) is made applicable to all hearings and judicial review of board determinations. ORS 183.430(2)
authorizes an agency, which includes any
state board (ORS 183.310(1)), to suspend a license pending a hearing when the agency finds a "serious danger to the public health or safety and sets forth specific reasons for such findings.” The amended and supplemental complaint alleges that defendants commenced and personally directed an investigation of plaintiff’s dental practice, that they have heard, seen and considered substantially all of the evidence that is to be used against plaintiff, that they employed a lawyer to act as prosecuting attorney and permitted such attorney to participate in their consideration of the case, voted to commence proceedings to revoke plaintiff’s license and found that plaintiff’s continued dental practice posed "a serious danger to public health” pursuant to ORS 183.430(2). It then alleges:
"By reason of the foregoing, defendants are biased against plaintiff and are not impartial. They have had such extensive prior official contact with the case that they are incapable of fairly and openly considering evidence presented at a hearing on the case. They have pre-judged the merits of the charges against plaintiff and they have adopted procedures and positions, as hereinbefore specified, which necessarily have deprived and, unless enjoined, will deprive plaintiff of due process of law.”
In short, plaintiff’s claim is that defendants did what the law authorized them to do, and because of defendants’ finding that plaintiff’s continued practice of dentistry posed "a serious danger to the public health,” (in the language of ORS 183.430(2)), and set forth the reasons therefor in its temporary suspension order (as required by that statute), defendants had prejudged the case such that plaintiff could not have a fair and impartial trial by defendants of the issues.
Plaintiff does not allege that the statutory scheme is unconstitutional, so that issue is not before us. We note, however, that the United States Supreme Court upheld a similar statutory scheme in
Withrow v. Larkin,
421 US 35, 95 S Ct 1456, 43 L Ed 2d 712 (1975), and that we rejected a presumption of impermissible bias
where the same body performs the investigative, prosecutorial and adjudicative phases of a contested case.
Palm Gardens, Inc. v.
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BUTTLER, J.
Defendants appeal from an order of the circuit court which they contend substantially deprives them of their ability to perform their statutory duty with respect to proceedings to determine whether plaintiff’s license to practice dentistry should be suspended or revoked.
On May 19,1977, after several months of investigation, defendant State Board of Dental Examiners (the Board) determined that there was reason to believe that plaintiff’s license should be revoked, and sent a Notice of Proposed Revocation of Dental License and an accompanying Accusation to plaintiff. The Notice set a hearing on the charges for June 10, 1977. Plaintiff sought from the Board a postponement of the hearing. The Board denied the request and advised plaintiff that if he insisted on having more time to prepare for the hearing, the Board would suspend his license pending the hearing. On June 3,1977, plaintiff filed a suit seeking injunctive relief against the Board which would delay the hearing and enjoin the Board from suspending plaintiff’s license pending the hearing. On June 7,1977, the Board granted postponement of the hearing, but suspended plaintiff’s license in the interim. On June 9, 1977, the circuit court enjoined the temporary suspension, and ordered a hearing be commenced within 60 days.
Thereafter plaintiff filed an amended and supplemental complaint alleging prejudice on the part of Board members and requesting a permanent injunction against the Board which would prevent it from undertaking a disciplinary hearing with respect to charges against plaintiff. An order to show cause wTas issued on August 4, 1977, directing defendants to appear on August 12,1977, for a hearing to determine whether an order would issue enjoining it, "pending a determination of this case, from holding any hearing * * * concerning the proposed revocation of plaintiff’s license to practice dentistry.”
After the hearing, the court found generally in favor of plaintiff, and specifically found "that defendants have pre-judged the merits of the charges against the plaintiff in the license revocation proceeding adversely to the plaintiff; that defendants have had such extensive prior official contact with the case that they are incapable of deciding the merits of the case fairly, impartially and in accordance with the standard of proof required by law.” The court concluded that plaintiff was entitled to equitable relief in order to protect his right to due process of law, and therefore ordered that three named senior state judges be appointed to hear and decide the issues involved in the proceeding to determine whether plaintiff’s license should be revoked, and that the administrative trial be held before the designated judges at the Multnomah County Courthouse in Portland, Oregon, as soon as reasonably possible.
Defendants appeal from that order even though it was not entered after a final hearing on the merits, and even though it does not, in express terms, enjoin defendants from proceeding with its scheduled hearing.
They contend, we think correctly, that the effect of the order is to preclude their conducting a hearing in this matter permanently,
and therefore is appeal-able. ORS 19.010(2)(a).
ORS ch 679 establishes a State Board of Dental Examiners, and gives the Board broad powers with
respect to the licensing of dentists, and the suspension and revocation of licenses. Incident to those powers, the Board is authorized to employ investigators for the investigation and prosecution of alleged violations and enforcement of the Act (ORS 679.250(3)),
to initiate and conduct investigations and hearings on all matters relating to the practice of dentistry including the discipline of licensees and to issue subpoenas, etc. ORS 679.250(8).
The Administrative Procedures Act (APA) (ORS ch 183) is made applicable to all hearings and judicial review of board determinations. ORS 183.430(2)
authorizes an agency, which includes any
state board (ORS 183.310(1)), to suspend a license pending a hearing when the agency finds a "serious danger to the public health or safety and sets forth specific reasons for such findings.” The amended and supplemental complaint alleges that defendants commenced and personally directed an investigation of plaintiff’s dental practice, that they have heard, seen and considered substantially all of the evidence that is to be used against plaintiff, that they employed a lawyer to act as prosecuting attorney and permitted such attorney to participate in their consideration of the case, voted to commence proceedings to revoke plaintiff’s license and found that plaintiff’s continued dental practice posed "a serious danger to public health” pursuant to ORS 183.430(2). It then alleges:
"By reason of the foregoing, defendants are biased against plaintiff and are not impartial. They have had such extensive prior official contact with the case that they are incapable of fairly and openly considering evidence presented at a hearing on the case. They have pre-judged the merits of the charges against plaintiff and they have adopted procedures and positions, as hereinbefore specified, which necessarily have deprived and, unless enjoined, will deprive plaintiff of due process of law.”
In short, plaintiff’s claim is that defendants did what the law authorized them to do, and because of defendants’ finding that plaintiff’s continued practice of dentistry posed "a serious danger to the public health,” (in the language of ORS 183.430(2)), and set forth the reasons therefor in its temporary suspension order (as required by that statute), defendants had prejudged the case such that plaintiff could not have a fair and impartial trial by defendants of the issues.
Plaintiff does not allege that the statutory scheme is unconstitutional, so that issue is not before us. We note, however, that the United States Supreme Court upheld a similar statutory scheme in
Withrow v. Larkin,
421 US 35, 95 S Ct 1456, 43 L Ed 2d 712 (1975), and that we rejected a presumption of impermissible bias
where the same body performs the investigative, prosecutorial and adjudicative phases of a contested case.
Palm Gardens, Inc. v. OLCC,
15 Or App 20, 514 P2d 888 (1973),
rev den
(1974).
Stripped of all embellishments, this proceeding involves only the issue of whether plaintiff is required to pursue and exhaust his administrative remedies under ORS ch 183
before the court has authority to act. Plaintiff contends that since ORS 183.480(3)
authorizes a suit if "the party will suffer substantial and irreparable harm if interlocutory relief is not granted,” the circuit court had jurisdiction to enjoin defendants’ suspending plaintiff’s license pending the Board hearing, and that once having acquired jurisdiction, a court of equity may grant any and all equitable relief it deems appropriate. We need not, and do not, decide whether defendants’ temporary suspension of plaintiff’s license was justified under the facts of this case. That question is not before us because that order is not a subject
of this appeal, and is not assigned as error in this court.
We do hold, however, that the circuit court had jurisdiction pursuant to ORS 183.480(3) to afford plaintiff "interlocutory relief” because no administra - tive remedy existed for such temporary relief, but it acquired jurisdiction for that limited purpose only. It did not have authority to go any further because plaintiff had not exhausted the remedies provided in ORS ch 183. We pointed out in
Bay River v. Envir. Quality Comm.,
26 Or App 717, 554 P2d 620,
rev den
(1976), that, "A party cannot ignore the judicial review provisions of the APA in favor of a general equitable or declaratory remedy.” 26 Or App at 720.
As long as a procedure under the APA exists which will permit plaintiff to make the challenges he now makes, he may not shortcut that procedure by seeking premature equitable relief. Such a procedure exists by judicial review on direct appeal to this court, even if plaintiff is unable to make a record before the Board. ORS 183.482(7).
The order of the circuit court from which this appeal is taken is reversed.
Reversed.