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Von Weidlein International Inc. v. Young

October 3, 1973

VON WEIDLEIN INTERNATIONAL, INC. ET AL, PETITIONERS,
v.
YOUNG ET AL, RESPONDENTS



On petitioners' motion for stay of administrative order of the Oregon Liquor Control Commission, filed September 28, 1973.

Alex L. Parks, White, Sutherland, Parks & Heath, and David F. Rennie, Portland, for the motion.

In Banc. Schwab, C.J.

Schwab

Petitioners, two Oregon corporations, seek judicial review of orders of the Oregon Liquor Control Commission that cancelled licenses that had previously been issued to them. The Oregon Liquor Control Commission's cancellation orders are, by their terms, effective October 5, 1973. Petitioners have moved for a stay of the Oregon Liquor Control Commission's orders until this court determines the petition for judicial review. At this point the only matter before us is petitioners' motion for a stay.

License cancellation proceedings before the Oregon Liquor Control Commission are contested cases

within the meaning of the Administrative Procedures Act. ORS 183.310 (2)(c). Following an agency decision in a contested case, ORS 183.480 governs judicial review of such a decision. ORS 183.480 (3) provides:

"The filing of the petition [for judicial review] shall not stay enforcement of the agency order, but the agency may do so, or the reviewing court may order a stay upon the giving of a bond or other undertaking or upon such other terms as it deems proper * * *."

ORS 183.480 (3) grants authority to stay an agency order to both the agency involved and to this court. Does this mean that a party seeking a stay has an unfettered choice of whether to move for a stay before the agency or before this court? We think not. We now hold that ORS 183.480 (3) requires that a party who wants an agency order in a contested case stayed pending judicial review should first move for a stay before the administrative agency that issued that order.

There are numerous advantages to requiring applications for stays to first be presented to the agency involved. The agency will, of course, be much more familiar with the facts. The agency can bring its expertise to bear on questions raised by a motion for a stay, just as the agency brings its expertise to bear on other questions it must decide. Should the agency deny a stay, its order to that effect "may be accompanied by an opinion," ORS 183.470, which could make further consideration of the question of a stay pending judicial review by this court more meaningful. Finally, to paraphrase Morgan v. Portland Traction Co., 222 Or 614, 331 P2d 344 (1958), while a motion for a stay would be addressed to the sound discretion

of the agency, we should not assume that its discretion will be abused. See, 222 Or at 633.

As best can be determined from the motion and supporting exhibits now before us, petitioners did not file a motion for a stay pending judicial review before the Oregon Liquor Control Commission. In the future such a failure will be sufficient grounds to deny a motion for a stay filed in this court. However, since the language of ORS 183.480 (3) is relatively new, since that statute does not appear to have been previously interpreted by an appellate court, and since the interpretation we have here adopted is not necessarily the only possible reading of ORS 183.480 (3), in this case we will not deny petitioners' motion for a stay because of their failure to first make such an ...


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