Appeal from Circuit Court, Multnomah County. Phillip J. Roth, Judge. No. 370-781.
John W. Burgess, Special Assistant Attorney General, Salem, argued the cause for appellant. With him on the briefs were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Dale A. Rader, Portland, argued the cause for respondent. With him on the brief were Rader & Kitson, Portland.
Foley, Judge. Schwab, Chief Judge, specially concurring. Fort, Judge, joins in this specially concurring opinion.
This is an appeal by the Oregon State Board of Nursing from an order of the circuit court for Multnomah County setting aside an order of that Board revoking respondent's license to practice professional nursing in Oregon.
The State Board of Nursing filed a complaint in which it was alleged that respondent had committed the following acts: (1) Employed her daughter, Karen Ryan (aka Karen Metko), as a registered nurse and permitted her to "perform the duties and serve as a registered nurse" at the Oregon City Nursing Home when Karen Ryan was not licensed in Oregon as a registered nurse and respondent "knew or had reason to know" that she was not so licensed; (2) employed and supervised Karen Ryan as a registered nurse and "permitted and instructed" her "to perform the duties and serve as a registered nurse" at the Gladstone Convalescent Hospital when Karen Ryan was not licensed in Oregon as a registered nurse and respondent "knew or had reason to know" of this fact; (3) recommended the employment of Karen Ryan as a registered nurse at Hillhaven Nursing Home in Portland when Karen Ryan was not licensed in Oregon as a registered nurse and respondent "knew or had reason to know" of this fact; and (4) recommended the employment of Karen Ryan as a registered nurse at Hearthstone Convalescent Center in Medford, Oregon, when Karen Ryan was not licensed in Oregon as a registered nurse and respondent "knew or had reason to know" of this fact.*fn1
The complaint further alleged that this conduct was in violation of ORS 678.111(7),*fn2 in that respondent's
acts "were and are conduct derogatory to the standards of professional nursing."
Respondent moved at the administrative hearing to dismiss the complaint on the grounds that ORS 678.111(7) is so vague and indefinite as to be incapable of interpretation, and also that the complaint failed to allege facts sufficient to constitute a cause of action. Respondent's motion was overruled, and a hearing was held. Following the hearing, the Board made written findings of fact and concluded from these findings that respondent's acts were "derogatory to the morals and standards of professional nursing and violated ORS 678.111(7)." The Board then entered its order revoking respondent's license.
Respondent appealed to the circuit court for Multnomah County pursuant to ORS 678.121.*fn3 After
a hearing at which respondent called five witnesses, the court set aside the Board's Findings, Conclusions, and Order. The court found that respondent's motion to dismiss the complaint should have been granted, that there was insufficient evidence to support any of the charges in the complaint, and that ORS 678.111(7) is unconstitutional. The Board appeals.
The trial court did not prepare an opinion in this case and thus it is difficult to ascertain on exactly what basis ORS 678.111(7) was found to be unconstitutional. The only indication appears in paragraph six of the Conclusions of Law, where the court states that the subsection "standing alone is ambiguous and incapable of interpretation, is too broad and undefined terms (sic) and is unconstitutional." Apparently, the trial court felt that unless the Oregon State Board of Nursing had previously adopted administrative rules specifically defining respondent's alleged conduct as derogatory to the standards ...