# Llewellyn v. Board of Chiropractic Examiners

> Court of Appeals of Oregon · April 21, 1993 · 119 Or. App. 397

URL: https://www.frixlaw.com/law-library/cases/6940580

## Case

- **Full name:** J. Kent LLEWELLYN, D.C. v. BOARD OF CHIROPRACTIC EXAMINERS
- **Court:** Court of Appeals of Oregon
- **Decided:** April 21, 1993
- **Citations:** 119 Or. App. 397; 850 P.2d 411; 1993 Ore. App. LEXIS 582
- **Precedential status:** Published
- **Opinion:** Dissent by Rossman
- **Judges:** Lees, Muniz, Rossman
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6940580

## Opinion text

ROSSMAN, P. J.,
dissenting.
I write to express my disagreement with the majority’s conclusion that it is permissible, under ORS 183.450(8) or under standards of fairness and due process, for an assistant attorney general to both represent an agency in a contested case hearing before the agency’s adjudicative body and then to give legal advice to the agency regarding the outcome of the same adjudicative proceeding.
ORS 183.450 provides, in part:
1 ‘ (6) Agencies may, at their discretion, be represented at hearings by the Attorney General.
“(7) [A]n agency may be represented at contested case hearings by an officer or employee of the agency if:
“(a) The Attorney General has consented to the representation of the agency by an officer or employee in the particular hearing or in the class of hearings that includes the particular hearing; and
“(b) The agency, by rule, has authorized an officer or employee to appear on its behalf in the particular type of hearing being conducted.
“(8) The agency representative shall not present legal argument in contested case hearings or give legal advice to an agency.”
Contrary to the majority’s conclusion, the statute is unambiguous, and does not require that we resort to legislative history to discern its meaning. An agency may decide to be represented either by the Attorney General or by its own officer or employee. In either case, the chosen representative may not present legal argument in the hearing or give legal advice to the agency. The agency’s representative at the hearing, be it an assistant attorney general or officer or employee of the agency, may only present the evidence necessary for the agency to reach the correct result; it is for the agency to find the facts and apply the law. The clear import of *405 the statute is that the agency’s decision making process is to be insulated from the influence of its attorney acting as advocate. Accordingly, I believe very strongly that it was impermissible for the Attorney General to offer legal argument at the hearing or to give legal advice to the Board regarding the same contested case proceeding.
I also believe that permitting the same assistant attorney general who had represented SAIF in its civil contest against petitioner to represent the Board in its adjudicative function in this license revocation undermined the fairness and legitimacy of the proceeding. Although there is no presumption of impermissible bias when the same body performs the investigative, procedural and adjudicative phases of a contested case, Van Gordon v. Oregon State Bd of Dental Exam., 34 Or App 607, 613 , 579 P2d 306 (1978), I would conclude that circumstances have been shown here indicating that it was impossible for the agency to act impartially. See Palm Gardens, Inc. v. OLCC, 15 Or App 20, 34-35 , 514 P2d 888 (1973), rev den (1974). Accordingly, I would remand the case to the Board for a new hearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6940580. Public record. Not legal advice.