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School District No. 48 v. Fair Dismissal Appeals Board

July 16, 1973

SCHOOL DISTRICT NO. 48 ET AL, APPELLANTS,
v.
FAIR DISMISSAL APPEALS BOARD ET AL, RESPONDENTS



Appeal from Circuit Court, Marion County. Val D. Sloper, Judge. Court of Appeals No. 2212.

Martin B. Vidgoff, Portland, argued the cause for appellants. With him on the brief were Miller, Anderson, Nash, Yerke & Wiener, and Mark C. McClanahan, Portland.

Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondents Fair Dismissal Appeals Board, Joe B. Richards, Robert Busch and Bruce Stewart. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Nicholas D. Zafiratos, Astoria, argued the cause and filed the brief for respondent Peter Paul.

Fort, Judge. Schwab, Chief Judge. Thornton, Judge, dissenting.

Fort

Plaintiff School District No. 48, following an order of defendant Fair 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 Fair Dismissal Appeals Board order. The Fair 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.*fn1

The present Fair 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 ORS 342.805 to 342.955. ORS 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 ORS 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 ORS 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." ORS 342.905 (8).*fn2

ORS 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 (ORS 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 ORS 183.480 to 183.500.

"(2) Jurisdiction for judicial review of contested cases is conferred upon the Court of Appeals * * *." ORS 183.480.

It is conceded that this case is a contested case within the meaning of the statute. ORS 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 proper, the primary and governing rule to be 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 ORS 342.905 (8) and ORS 183.480 appear to be in conflict, their history requires consideration. Examination of the testimony before the 1971 legislature is helpful. Attorney General Lee Johnson, whose office in conjunction with the Oregon State Bar drafted the amendments to the Administrative Procedures Act, including ORS 183.480, 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 bill sets the procedures thereby * * *."

Prior to the 1971 revisions to ORS 183.010 to 183.500, ORS 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 ...


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