# Oregon Environmental Council v. Oregon State Board of Education

> Oregon Supreme Court · September 30, 1988 · 307 Or. 30

URL: https://www.frixlaw.com/law-library/cases/9603425

## Case

- **Full name:** OREGON ENVIRONMENTAL COUNCIL Et Al, Petitioners on Review, v. OREGON STATE BOARD OF EDUCATION Et Al, Respondents on Review
- **Court:** Oregon Supreme Court
- **Decided:** September 30, 1988
- **Citations:** 307 Or. 30; 761 P.2d 1322
- **Precedential status:** Published
- **Opinion:** Dissent by Lent
- **Judges:** Lent, Gillette, Linde, Campbell
- **Cited by:** 17 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/9603425

## How later opinions describe it (automated extraction)

- explaining that although a decision to not approve a textbook was generally applicable to all elementary public schools, “it concerns but one book” and is directed at the named book and, effectively, the book’s publisher
- holding that a person or entity is entitled to a hearing when that right is provided by a statute or a constitution

## Opinion text

LENT, J.,
dissenting.
I agree with the majority that the Board’s action is an order, not a rule. I disagree, however, on the characterization of that order.
There is no real dispute that the approval or disapproval of a textbook falls within the literal definition of a contested case in ORS 183.310(2)(a)(A) and (C), and that it would have to be conducted as a contested case if the agency proposed to deny approval and the publisher requested such a proceeding. The majority states, however, that a case need not be so conducted unless a person whose rights, duties, privileges, or license bringing the case under those subsections demands a contested case proceeding. Until this happens, the case may be described as a latent or embryonic contested case.
Whether petitioners, who could not themselves initiate a contested case, can inject themselves into a latent or embryonic contested case and trigger contested case proceedings depends on whether petitioners are “parties” as that term is defined in the Administrative Procedures Act. ORS 183.310(6) provides:
“ ‘Party’ means:
“(a) Each person or agency entitled as of right to a hearing before the agency;
“(b) Each person or agency named by the agency to be a party; or
“(c) Any person requesting to participate before the agency as a party or in a limited party status which the agency determines either has an interest in the outcome of the agency’s proceeding or represents a public interest in such result. * *
The Board has not “named” any person or agency a *45 party. Nor has any person requested party status. See Marbet v. Portland Gen. Elect., 277 Or 447 , 561 P2d 154 (1977); Jefferson Landfill Comm. v. Marion Co., 297 Or 280 , 686 P2d 310 (1984). Nonetheless, the Board has provided by rule that “any person” who wishes to challenge adoption of a textbook is entitled to an opportunity to be heard. OAR 581-11-070. The rule does not invite mere expressions of personal opinions, as a “town meeting” type of hearing might allow. The rule requires a written “statement of the basis of the challenge,” that is to say, a statement that tests the book against the preexisting criteria for textbooks. I believe this invitation makes petitioners parties as persons “entitled as of right to a hearing before the agency.” ORS 183.310(6)(a).
The Board invited petitioners into what could be a contested case, should the publisher choose to contest it. Indeed, the fact that opponents appear and speak against textbook approval may provoke a “contest” by the publisher. The publisher would be entitled to an on-the-record decision based on evidence the publisher can offer and rebut. As I read subsection (a), persons “entitled as of right” to a hearing include not only those contemplated in the APA’s definition of contested cases, that is, those individuals with legal rights at stake in the agency’s decision, persons facing suspension or revocation of rights or privileges, applicants for or holders of licenses, or those to whom the agency has provided essentially a contested case hearing. It also includes persons to whom the agency, by rule, extends the right to a hearing.
I do not suggest that in the absence of its rule the Board would be obliged to hear these petitioners’ comments in a contested case format. It would not. But here the Board offered people who will use the book, or who otherwise have a stake in what it teaches, an opportunity to match the book against the Board’s criteria for textbooks. Having invited challengers into what could be a contested case, the Board can offer them no less. I believe that petitioners, as parties in this latent contested case, are entitled to contested case proceedings themselves.
The majority calls the Board’s action an order in “other than [a] contested [case],” a term not defined in the APA and used only in the section describing circuit court jurisdiction of agency decisions. That sends this case to the *46 circuit court, where a judge must now determine, among other things, whether “the agency has erroneously interpreted a provision of law,” and whether the order is “supported by substantial evidence in the record.” ORS 183.484(4). The judge must do so without a record and without any explanation by the agency of its decision. The APA tells us only that “[t]he review shall proceed and be conducted by the court without a jury.” ORS 183.484(3). This means, I suppose, that the circuit court must now conduct a trial and make its own determination whether the book meets the criteria. It is hard to see how this gains anything either for the Board, which is the responsible agency to consider any evidence of the shortcomings of a proposed textbook under its criteria, or for the courts, which are not ordinarily in the business of approving or disapproving textbooks.
Orders in “other than contested cases” should be avoided if possible, if their validity depends on facts and an agency is capable of making its own record. As footnote 8 of the majority opinion notes, the legislature has the opportunity to provide a solution.
Linde and Campbell, JJ., join in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9603425. Public record. Not legal advice.