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Deyette v. Portland Community College

Court of Appeals of Oregon

September 11, 2019

Michael DEYETTE and Arlen Porter Smith, Petitioners,
v.
PORTLAND COMMUNITY COLLEGE, Respondent.

         On respondent's motion to reconsider order fled March 12, 2019, petitioners' response fled April 19, 2019, and respondent's reply fled June 28, 2019.

          P.K. Runkles-Pearson and Miller Nash Graham & Dunn LLP for motion and reply.

          Harrison Latto for response.

          Before DeVore, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

         Case Summary:

         Petitioners seek judicial review of an academic policy adopted by Portland Community College (PCC), asserting that the policy is a "rule" within the meaning of ORS 183.310(9), and, therefore, invalid because it was not adopted through formal rulemaking procedures. PCC fled a motion to determine jurisdiction, asserting that the case should be dismissed for lack of jurisdiction because PCC is not an agency whose rules are subject to ORS 183.400. The Appellate Commissioner issued an order deferring the issue of reviewability to a merits department. PCC sought reconsideration of that order, asserting that the jurisdictional issue should be considered prior to briefing on the merits. Held: PCC is not an "agency" within the meaning of ORS 183.310(1). Thus, the policy is not a "rule" within the meaning of ORS 183.310(9) and is not subject to judicial review under ORS 183.400.

         [299 Or.App. 306] DeVORE, P. J.

         In this rule challenge under ORS 183.400(1), petitioners seek judicial review of a policy (the academic policy) adopted by Portland Community College (PCC). They assert that the academic policy is a "rule" within the meaning of ORS 183.310(9), and, therefore, invalid because it was not adopted through formal rulemaking procedures. See ORS 183.400(4Xc) (court shall declare administrative rule invalid if it was "adopted without compliance with applicable rulemaking procedures"). Shortly after the petition for judicial review was filed, PCC filed a motion to determine jurisdiction, asserting that the case should be dismissed for lack of jurisdiction because PCC "is not an 'agency' whose rules are subject to ORS 183.400." The Appellate Commissioner agreed and, in October 2018, entered an order dismissing the judicial review, reasoning that PCC is not an "agency" within the meaning of ORS 183.310(1) and, therefore, the academic policy at issue, whether or not it would otherwise meet the definition of a rule, is not subject to judicial review pursuant to ORS 183.400.

         On petitioners' petition for reconsideration, the Appellate Commissioner vacated the dismissal order on February 26, 2019, concluding that the jurisdictional issue should be considered by the department that would consider the case on the merits. PCC sought reconsideration of that order, asserting that the jurisdictional issue should be considered before full briefing on the merits was completed; petitioners agreed. We agree with the parties, allow reconsideration, vacate the commissioner's February 26, 2019, order, and dismiss this judicial review.

         The question at issue is whether PCC is an agency, as that term is defined in ORS 183.310(1). See State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009) (in interpreting a statute, the court looks first to the statute's text, in context; there is no more persuasive evidence of legislative intent than the words used by the legislature). As explained below, we conclude that PCC is not an agency and, accordingly, dismiss the petition for judicial review.

         [299 Or.App. 307] We begin with the text of the statutes at issue. Pursuant to ORS 183.400(1),

"[t]he validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases. The court shall have jurisdiction to review the validity of the rule whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, but not when a petitioner is a party to an order or a contested case in which the validity of the rule may be determined by a court."

         Thus, by its terms, the statute provides for judicial review to determine the validity of "any rule." A "rule," in turn, is defined as "any agency directive, standard, regulation or statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency." ORS 183.310(9). In other words, the academic policy is subject to judicial review under ORS 183.400(1) only if it is the policy of an "agency." That term is defined in ORS 183.310(1): "'Agency' means any state board, commission, department, or division thereof, or officer authorized by law to make rules or to issue orders, except those in the legislative and judicial branches."

         Petitioners contend that PCC falls within that statutory definition of "agency." It is undisputed that PCC is a community college organized under ORS chapter 341 and, accordingly, is a public corporation governed by a board elected directly by the voters from a defined local boundary. See ORS 341.025; ORS 341.275 - 341.290. Furthermore, under ORS 341.290, the "board of education of a community college district" is authorized to "[e]nact rules for the government of the community college, including professional personnel and other employees and students of the community college" and to "[p]rescribe rules for the use and access to public records of the district that ...


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