holding that the board was required to engage in rulemaking defin- ing the statutory standard of “unprofessional conduct” before revoking a dentist’s license for engaging in such conduct
How later courts described this case
- holding that the board was required to engage in rulemaking defin- ing the statutory standard of “unprofessional conduct” before revoking a dentist’s license for engaging in such conduct
- explaining that, under the APA, “[i]f error is found, the statute provides for reversal, modification, or remand as appropriate to the character of the error and the agency’s further role in the matter”
- holding that “vagueness” challenges to a statute do not have constitutional status of their own and must be grounded in a constitutional provision
- emphasizing that Article I, section 21, applies to criminal laws; rejecting vagueness challenge to professional licensing statute under Article I, section 21
Written by the judges who cited it.
The opinion
DENECKE, C. J.,
specially concurring.
The majority opinion holds that ORS 679.140 requires the Oregon State Board of Dental Examiners to promulgate rules defining "unprofessional conduct” and, in the absence of such rules, the Board cannot revoke petitioner’s license for "unprofessional misconduct.”
I agree that the State Board is required to promulgate rules; however, I am of the opinion that it is a fiction to hold that the statutory scheme and legislative history lead to the conclusion that the legislative intent was to require the Board to make such standards. I am of the further opinion that it is more realistic to hold that the court, pursuant to its power to review the decisions of the Board, is empowered to require the promulgation of such standards.
There is an involved legislative history of ORS 679.140. The following is a summary: The State Board of Medical Examiners disciplined a Dr. Mintz for "unprofessional conduct.” The circuit court held the Board could not do so without first promulgating rules defining such conduct. We decided to the contrary. Board of Medical Examiners v. Mintz, 233 Or 441 , 378 P2d 945 (1963). During the time of the Mintz litigation, the *322 State Board of Dental Examiners had legislation introduced, which was passed some time after our Mintz decision which expanded the meaning of "unprofessional conduct” for dentists. Or Laws 1963, ch 284, § 8. The bill contained no requirement that the Board promulgate rules defining "unprofessional conduct.” At the same time the Dental Board also had legislation introduced, which also was passed, concerning dental hygienists. Dental hygienists are also regulated by the Dental Board. This legislation was considered by the same committees at the same time as the legislation relating to dentists. The dental hygienist legislation expressly required the Dental Board to adopt rules defining "unprofessional conduct.” Or Laws 1963, ch 266. With this history, I am of the opinion that it is more reasonable to conclude that the legislature did not address the issue of whether the Dental Board must promulgate rules defining "unprofessional conduct.”
If the legislature did not intend that the Board of Dental Examiners be required to promulgate rules defining "unprofessional conduct” what is the basis for a court making such a requirement? There is a growing body of authority that courts do have this power. Davis states the basis as follows:
"* * * A fourth method could be the best and most important — the simple creation of common law by a reviewing court. Federal law requiring findings and reasons was mostly common law before it was codified by the Administrative Procedure Act; courts should require not only findings and reasons but also standards or rules to guide the exercise of administrative discretion.” Davis, Administrative Law of the Seventies, § 6.13, p 225 (1976).
The Oregon Court of Appeals apparently followed this principle in Sun Ray Dairy v. OLCC, 16 Or App 63 , 517 P2d 289 (1973). In that case the agency denied the petitioner a liquor license. The statute provided that the agency may refuse to grant a license if it has reasonable grounds to believe there are "sufficient *323 licensed premises in the locality” and the granting of a license is "not demanded by public interest or convenience.” ORS 471.295(1). The court vacated the order of denial and directed the agency not to act on the application until it had adopted rules governing the issuance of licenses.
I would adopt this common-law principle in deciding this case. Attempting to reach the same result by interpreting the statute in my opinion can result, as I think it has in this case, in a very strained interpretation of a statute.
It is not always necessary for an administrative agency to fill in the gaps of its authority by rule making. The gaps can be filled in by deciding individual contested cases; that is, by the adjudicative process. This kind of rule making was expressly approved in Securities and Exchange Com. v. Chenery Corp., 332 US 194 , 67 S Ct 1575 , 91 L Ed 1995, 2001-003 (1946). Schwartz summarized the Chenery opinion:
"* * * An agency is not barred from applying a new principle in an adjudicatory proceeding simply because it had the power to announce that principle in advance by using its power of rule-making. In Chenery the Court upheld the refusal of the Securities and Exchange Commission to approve a corporation’s reorganization on terms which would allow a profit to its directors and officers who had bought its stock with inside knowledge. The SEC had power to approve schemes which were 'fair and equitable,’ and previously it had made no objection to 'inside’ dealings in such circumstances. Though pressed with the argument that the SEC should not be allowed to 'legislate retrospectively’ in this way, the majority held that to tie the commission’s hands would 'stultify the administrative process. * * *.’ ” Schwartz, Administrative Law, 186 (1976).
In my opinion, for three reasons this is not a proper case for making a rule in the process of deciding a contested case. First, the potential sanction for a violation of the rule is severe, — a loss of license to practice a *324 profession. Second, the legislative standard, "unprofessional conduct,” is particularly vague. Third, while the conduct on which the charge is based could, as the majority holds, properly be classified as "unprofessional conduct,” it does not necessarily fall within a well understood meaning of "unprofessional conduct.”
Tongue and Peterson, JJ., join in this specially concurring opinion.