1. law, govt and politics

IN THE COURT OF APPEALS OF THE STATE OF OREGON
BRANDON HATCH, D.C.,
Petitioner,
v.
BOARD OF CHIROPRACTIC EXAMINERS,
Respondent.
Board of Chiropractic Examiners No. 20112005
Court of Appeals No. A 158594 (control)
LANCH HATCH, D.C.,
Petitioner,
v.
BOARD OF CHIROPRACTIC EXAMINERS,
Respondent.
Board of Chiropractic Examiners No. 20125005
Court of Appeals No. A 158595
ORDER CONSOLIDATING CASES; DENYING STAY OF BOARD ORDER AS TO
LANCE HATCH; GRANTING TEMPORARY STAY OF BOARD ORDER
AS TO BRANDON HATCH
Petitioners Lance Hatch and Brandon Hatch move to consolidate their respective
judicial reviews, Court of Appeals case numbers A 158594 and A 158595. The motions
are granted. The caption for the consolidated case will be as it appears in this order.
Petitioners also move to stay the Board of Chiropractic Examiners (the Board)
order revoking their respective licenses. The motion is denied as to petitioner Lance
Hatch and granted temporarily as to petitioner Brandon Hatch.
ORDER CONSOLIDATING CASES; DENYING STAY OF BOARD ORDER AS TO LANCE
HATCH; GRANTING TEMPORARY STAY OF BOARD ORDER AS TO BRANDON HATCH
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,
Supreme Court Building, 1163 State Street, Salem, OR 97301-2563
Page 1 of 5
Petitioners timely sought judicial review of the Board's orders revoking their
chiropractic licenses. After receipt of the final order Brandon Hatch continued to
practice because he believed that a timely petition for judicial review allowed him to do
so. On January 23, 2015, the Board discovered Brandon Hatch was still practicing and
ordered him to stop. Petitioner complied with that order. On February 25, 2015,
petitioners requested the Board to stay the effect of the agency orders. Petitioners
contend that on March 12, 2015, the Board voted to deny the stay, apparently
concluding that petitioners had failed to show irreparable harm or a colorable claim of
error. The Board has not yet issued a written order. Apparently the parties anticipate
that the Board will issue its order no later than March 26, 2015. 1
Subsection (3)(a) of DRS 183.482 requires the Board to stay enforcement of its
order if a petitioner shows (1) irreparable injury to the petitioner, and (2) a colorable
claim of error in the order.2 Subsection (3)(b) provides that, if the agency denies a
party's request for a stay, the denial must be in writing. Subsection (3)( d) allows a
petitioner to seek review by the Court of Appeals of an agency denial of a stay. This
court's review of the agency's denial of a stay is for errors of law. Bergerson v. Sa/emKeizer School District, 185 Or App 649, 658, 60 P3d 1126 (2003). Respecting any
factual issues not resolved by the agency order on the merits, petitioners have the
burden of proof by a preponderance of the evidence. Arlington School District No. 3 v.
Arlington Education Association, 184 Or App 97,55 P3d 546 (2002).
In Weldon v. Board of Licensed Professional Counselors & Therapists, 353 Or
85, 101, 293 P3d 1023 (2012), the court held, notwithstanding DRS 676.210, that DRS
183.482(3) permits any board authorized to license the practice of any healing or
corrective arts and an appellate court on judicial review to stay enforcement of a board
order. However, the orders revoking the chiropractic licenses of petitioners in this case
may not yet be subject to DRS 183.482(3) because, where the law establishes a
procedure for obtaining a stay, this court must observe that procedure. Helms Groover
& Dubber Co. v. Coperhaven, 93 Or 410, 416-17, 177 P 935 (1919) (where legislature
has prescribed standards or conditions under which stay may be granted, court must
comply with statute). That principle mayor may not be applicable here, because in
Helms Groover & Dubber Co., the court referred to procedure or standards for obtaining
a stay established by statute. DRS 183.482(3)(b) requires that, when an agency denies
1 The
Board has conferred authority on itself to take up to 30 days from the date a
petitioner requests a stay to issue a written order ruling on the request. OAR 137-0030700. Under that rule, the filing of a request for stay does not result in a stay of the
Board's order, nor did the Board grant a temporary stay pending disposition of the
request for stay by written order.
2 Under subsection (3)(a) of DRS 183.482, the Board is not required to grant a stay if
the Board determines that substantial public harm will result from the requested stay.
However, it does not appear that the Board denied petitioners' motions for stay based
on a determination that substantial public harm would result from a stay.
ORDER CONSOLIDATING CASES; DENYING STAY OF BOARD ORDER AS TO LANCE
HATCH; GRANTING TEMPORARY STAY OF BOARD ORDER AS TO BRANDON HATCH
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,
Supreme Court Building, 1163 State Street, Salem, OR 97301-2563
Page 2 of 5
a stay, "the denial shall be in writing * * *," and, as noted above, as yet, the Board in this
case, pursuant to its rule, has not issued a written denial of petitioners' motions for stay.3
Therefore, petitioners' request to review the Board's written order denying their
request for a stay is denied because, as of the date of this order, the court has not been
provided with a copy of any such order.4
That conclusion does not end the court's consideration of petitioners' request for
a stay. In Weldon, the court reiterated the longstanding principle that every court of law,
including an appellate court, has authority inherent to the grant of jurisdiction to decide a
matter to grant stays as necessary to preserve the subject matter of the court or to
prevent irreparable harm to a party. 353 Or at 94. That authority is applicable here
during the period of time that this court may not review the Board's ruling under ORS
183.482(3) because the Board has not yet rendered a written order. In addition to delay
arising from the Board rendering a written order, the parties will need some opportunity
to submit memoranda regarding whether the Board erred in its written order.
Petitioners do not contend that, absent a stay, the dispute between the parties
will become non-justiciable or that this court will lose jurisdiction. Therefore, if the court
has authority to grant a stay, it must be based on a showing that, until the court may
review the Board's order denying a stay under ORS 183.482(3), petitioners will suffer
irreparable harm. Further, in determining whether to grant a stay to prevent irreparable
harm, this court has considered the likelihood the petitioners will prevail on judicial
review. In this case, the court considers the latter factor first.
Likelihood that Petitioners Will Prevail on Judicial Review
Both petitioners have made a prima facie showing of at least colorable claim of
error. A colorable claim of error is a claim "that is substantial and nonfrivolous, or
seemingly valid, genuine, or plausible." Bergerson, 185 Or App at 660. Petitioners
argue that the Board incorrectly used a preponderance of the evidence standard of
proof instead of a clear and convincing evidence standard of proof as required in a case
3 Respecting the written order requirement, ORS 183.482(3)(b) is ambiguous whether
it applies to any denial of a stay or only a denial based on a finding of substantial public
harm that would result from a stay. Assuming it applies to any denial of a requested
stay, and respecting the delay in rendering a written order, petitioners do not contend
that the Board's rule giving the Board 30 days to render such an order is beyond the
Board's authority to adopt. Thus, presumptively, respecting granting a stay under ORS
183.482(3), the court must honor the delay in rendering a written Board order on the
matter of a stay.
4 Petitioners assert in their reply memorandum that the Board has issued a written
order; however, if the Board has issued such an order, petitioners have not provided the
court with a copy of it. Therefore, the court cannot, as yet, review the Board's written
decision.
ORDER CONSOLIDATING CASES; DENYING STAY OF BOARD ORDER AS TO LANCE
HATCH; GRANTING TEMPORARY STAY OF BOARD ORDER AS TO BRANDON HATCH
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,
Supreme Court Building, 1163 State Street, Salem, OR 97301-2563
Page 3 of 5
alleging fraud. This argument presents a colorable claim of error. The Board used a
preponderance of evidence standard for all of its findings including the finding of fraud.
License revocation proceedings that are based on allegations of fraud must at least
meet a clear and convincing evidence standard. Bernard v. Board of Dental Examiners,
2 Or App 22, 36, 465 P2d 917 (1970); but see Gallant v. Board of Medical Examiners,
159 Or App 175,185-86,974 P2d 814 (1999) (questioning but not deciding whether
Bernard was correctly decided).
Apart from that issue, petitioners have not made a strong showing that they are
likely to prevail on judicial review. 5
Irreparable Injury
Further, a petitioner must demonstrate that the existence of the claimed injury
that will result from the denial of a stay is at least "probable" - that is, more likely than
not. Arlington Sch Dist No.3 v. Arlington Ed Assoc, 184 Or App 97, 102,55 P3d 546
(2002). Further, "irreparable" injury means injury for which the moving party lacks any
remedy at law to address. Id. at 101-03.
Petitioners argue that revocation of a license to practice a profession "establishes
irreparable injury as a matter of law." In Bernard, the court held that "a professional
who has been granted a license to practice acquires a right to practice that profession
and risks disgrace and loss of livelihood if the license is revoked." Sobel v. Board of
Pharmacy, 130 Or App 374, 380, 882 P2d 606 (1994) (stating the court's holding in
Bernard). Petitioners are correct that their licenses grant them the right to practice as
ch iropractors.
However, petitioners overstate the holding of Bernard. In Bernard, the court did
not suggest that license revocation is per se irreparable injury. Petitioners do not cite,
and the court cannot find, any case that treats license revocation as per se irreparable
injury. Accordingly petitioners must show some other irreparable injury that, more likely
than not, will occur, beyond the mere fact that the Board revoked their respective
licenses.
Petitioners' memorandum in support of their motion presents no argument that,
absent a temporary stay of enforcement of the Board's order revoking his license to
practice chiropractic medicine, Lance Hatch will be injured. Lance Hatch is not currently
employed as a chiropractor. In a declaration, counsel for petitioners states that Lance
Hatch will be unable to obtain employment as a chiropractor unless a stay is granted.
Unlike ORS 183.482(3), which, absent an agency finding of substantial public harm,
requires a stay upon a showing of colorable claim of error and irreparable harm, when
the court exercises its inherent authority to grant a stay, it weighs the likelihood of the
petitioner prevailing on judicial review (however strong or weak that showing might be)
and the nature of the irreparable harm in the course of deciding whether to grant relief.
5
ORDER CONSOLIDATING CASES; DENYING STAY OF BOARD ORDER AS TO LANCE
HATCH; GRANTING TEMPORARY STAY OF BOARD ORDER AS TO BRANDON HATCH
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,
Supreme Court Building, 1163 State Street, Salem, OR 97301-2563
Page 4 of 5
However, to show irreparable injury, Lance Hatch must show that, more likely than not,
if his license was not revoked, he would be able to obtain employment. At best, Lance
Hatch's inability to find employment as a chiropractor due to license revocation is
speculative. Therefore, Lance Hatch has not made a showing of injury and, for that
reason, the court declines to grant a temporary stay as to Lance Hatch.
Brandon Hatch owns a chiropractic practice and, due to the Board's order, he is
unable to practice there. He has patients who he could see and treat, and that would
generate income. Even if Brandon Hatch prevails on judicial review, he will not be able
to recover lost income. The court is not aware of any other remedy at law by which
Brandon Hatch might recover the income he will lose during the pendency of this judicial
review even if he prevails on judicial review. Brandon Hatch has made a prima facie
showing that he will be irreparably injured if the Board order is not stayed.
Petitioner Brandon Hatch has made a prima facie showing of some likelihood
that he will prevail on judicial review and that he will be irreparably injured if the court
does not stay the Board order even if he ultimately prevails on judicial review.
Therefore, the Board's order revoking Brandon Hatch's license is temporarily stayed
pending the Board's issuance of a written agency order ruling on his request for a stay,
the parties' submission of any additional memoranda addressing whether a stay should
be granted under DRS 183.482(3), and the court's decision on that matter.
Original signatures are on file in OBCE office.3/25/2015
2:03:53 PM
c: Mona Geidl
Denise G Fjordbeck
Conrad E Yunker
ej
ORDER CONSOLIDATING CASES; DENYING STAY OF BOARD ORDER AS TO LANCE
HATCH; GRANTING TEMPORARY STAY OF BOARD ORDER AS TO BRANDON HATCH
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,
Supreme Court Building, 1163 State Street, Salem, OR 97301-2563
Page 5 of 5
Original signatures are on file in OBCE office
Original signatures are on file in OBCE office