Wampler v. Department of State Police

O’CONNELL, J.,

dissenting.

I dissent. The Oregon administrative procedure act, ORS chapter 183, is applicable to all administrative ’ agencies in Oregon except those expressly excepted in ORS 183.310 (1).① The latter section does not except the Department of State Police from the act and, therefore, it is subject to the act.

ORS 183.480 provides, in part, that “Judicial review of decisions in contested cases by parties shall be solely as provided by ORS 183.310 to 183.510,” the latter sections embracing all of the administrative procedure act as it was presented to the legislature in 1957. The first sentence of ORS 183.480 provides that a party aggrieved by the action of an administrative agency is entitled to judicial review under -the administrative procedure act “except as otherwise specifically provided by statute * * The majority opinion interprets this clause as applicable in the case at bar because ORS 181.350 provides that the decisions of the trial board of the Department- of *445State Police shall be subject to review. That section reads as follows:

“181.350 Procedure for review of decision of trial board. The decisions of the trial board shall be subject to review by the circuit court of the county in which the hearing was held. The procedure for review shall be as provided in GPS 34.010 to 34.100.”

The majority opinion treats OPS 181.350 as a specific provision for review and that, therefore, it falls within the exception stated in OPS 183.480. If this interpretation is accepted, the purpose of the administrative procedure act which was intended to provide a uniform procedure for the various state agencies will, in large measure, be defeated. At the time of the enactment of the administrative procedure act there were numerous and differing statutes relating to specific agencies which provided for administrative procedure, including procedure for judicial review. The 1957 Oregon administrative procedure act did not contain a specific repealer for each of the superseded statutes, but instead simply provided for the repeal of all acts inconsistent with the 1957 act.② Many of these superseded sections are still compiled in ORS.

The effect of OPS 183.510 was to repeal all of the existing statutes providing for judicial review of decisions of those state agencies covered by the act. The clause “except as otherwise provided by statute” was intended to permit an exception only where the statute providing for review expressly excluded the *446operative effect of the review procedure of the administrative procedure act. This interpretation comports with the provision in ORS 183.510 which states that “No later Act shall be deemed to supersede [the administrative procedure act], whether by implication or otherwise, unless such Act specifically provides that its provisions shall supersede.”

It will be noted that ORS 181.350 does not purport to deal specifically with the details of the procedure for judicial review. Except for the provision that review shall be by the circuit court of the county in which the administrative hearing was held, the review procedure is stated to be that which is found in the sections providing for appeal by writ of review. ORS 34.010 to 34.100. Since appeal by writ of review set out in ORS 34.010 et seq. is substantially the common law writ of certiorari applicable to a great variety of proceedings, it cannot be said that the procedure for review provided for in ORS 181.350 was designed to fit review requirements peculiar to the Department of State Police. This general provision for review should be regarded as superseded by the specific review provisions found in chapter 183.

ORS 181.350 should, therefore, be regarded as repealed as a result of the general repealer section, ORS 183.510.

The judgment should be reversed.

(1) “Agency" means any state board, commission, department, or division thereof, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative and judicial branches, and except the State Board of Parole and Probation,' the Public Utility Commissioner, and the State Tax Commission, the Civil Service Commission, Department of Finance and Administration, Department of Motor Vehicles, and the State Industrial Accident Commission.

The general repealer section of the act, (ORS 183.510) reads as follows:

“183.510 ORS 183.310 to 183.510 to supersede conflicting Acts. All Acts or parts of Acts which are inconsistent with the provisions of ORS 183.310 to 183.510 are hereby repealed, but such repeal shall not affect pending proceedings. No later Act shall be deemed to supersede ORS 183.310 to 183.510, whether by implication or otherwise, unless such Act specifically provides that its provisions shall supersede.”