QUESTION NO. 6
FEBRUARY 2010
OREGON BAR EXAM
The Oregon State Funeral Board (the Board) is a state agency created by statute to regulate the
licensing and practice of funeral services. The Board prepared the following notice:
The Board proposes to adopt the following rule, which will become effective in 21
days: “If a licensed funeral establishment fails to place every casket in a vault for
underground burial, the funeral director is subject to disciplinary action by the Board,
up to and including license revocation.”
The Board published notice of the proposed rule in a newspaper of general circulation. Over the next
two months, the Board received 11 comments requesting a hearing on the rule. After considering the
comments, the Board filed the proposed rule with the Secretary of State without holding a public
hearing.
(40%)
1. Applying the Oregon Administrative Procedures Act (APA), discuss whether
the proposed rule was properly adopted.
Assume the proposed rule was properly adopted. Nate is the funeral director and the owner of
Fisher & Sons Funeral Home, a licensed funeral establishment. Fisher & Sons’s chief competitor is
Cremation Services, owned by Claire.
Claire complained to the Board that Fisher & Sons failed to use vaults for underground burials.
After receiving the complaint, the Board sent Nate a certified letter stating, “A complaint has been
made against you. Your license has been suspended on an emergency basis and is subject to
permanent revocation at a future hearing.” Nate has several funerals planned and wants to seek
immediate relief from the order of suspension.
(30%)
2. Applying the Oregon APA and federal constitutional principles, discuss (a) how
Nate can seek immediate relief from the order and (b) what arguments he should
make.
Assume that Nate successfully challenged the order of suspension. After proper notice, the Board
held a hearing on whether to revoke Nate’s license. Claire testified that her employee, Frederico,
told her that Fisher & Sons never used underground vaults. Nate testified that he always placed
caskets in vaults and that Frederico had been fired from Fisher & Sons for tardiness. No other
evidence was presented. The next day, the Board issued a written order stating, “After considering
testimony and other evidence, the Board finds that Fisher & Sons Funeral Home failed to comply
with the underground vault rule. Nate Fisher’s license is revoked.” Nate filed a timely petition for
judicial review in the Oregon Court of Appeals.
(30%)
3. What arguments should Nate make under the Oregon APA and federal
constitutional principles?
© 2010
Oregon State Board
of Bar Examiners
QUESTION NO. 6
FEBRUARY 2010
OREGON BAR EXAM
ISSUE OUTLINE – ADMINISTRATIVE LAW
1. Applying the Oregon APA, discuss whether the proposed rule was properly
adopted.
A. Agency failed to provide adequate notice of the proposed rule or an adequate
comment period.
a.
The agency must provide notice of a proposed rule by: (a) publishing
it in the Secretary of State's Bulletin at least 21 days before the
effective date; (b) providing at least 28 days' notice to persons who
have requested notice in writing; and (c) providing at least 49 days'
notice to certain legislators.
i. Publication in a newspaper is not adequate
ii. 21 days is insufficient comment period
b. Notice must contain: (a) the subject matter and purpose of the
intended action in sufficient detail to inform a person that the person's
interests may be effected; (b) the time, place and manner in which
interested persons can comment; (c) the statutory authority for the rule;
(d) a statement of need for the rule and how the rule meets the need;
(e) a list of documents relied upon by the agency in preparing the rule;
(f) a fiscal impact statement identifying who may be economically
effected by the rule; (g) a request for public comment on other options
for achieving the rule's substantive goals; and (h) if an advisory
committee was not appointed, an explanation as to why the agency did
not use an advisory committee when drafting the rule.
i. Notice lacks the required content.
B. Agency failed to hold a hearing.
a. Although not always required, agency must hold a hearing if
requested to do so by 10 or more persons.
b. 11 requested a hearing but the agency failed to hold one.
C. Agency failed to properly adopt the rule.
2. Applying Oregon and federal law, discuss (a) how Nate can seek immediate
relief from the order and (b) what arguments he should he raise.
A. Nate can seek interim relief in the form of a stay from the agency or from the
Court of Appeals if the agency denies the stay. ORS 183.482.
B. The agency or Court should grant the stay if there is a possibility of
irreparable harm and colorable claim of error in the order unless substantial
public harm will result. ORS 183.482.
a. Professional licenses are property protected by the due process clause.
b. Due process requires notice and a hearing before the government can
suspend a license, and the order must include findings of specific
grounds for the suspension.
c. The state can only suspend a license on an emergency basis if there is
a serious danger to public health; there is no evidence to support a
finding of a public health danger
d. Matthews v. Eldridge balancing test: In determining the amount of
process due in a deprivation of a protected interest, the court must
weigh (a) the importance of the individual interest involved; (b) the
value of specific procedural safeguards to that interest; and (c) the
governmental interest in fiscal and administrative efficiency
3. What arguments should Nate raise under Oregon and federal law?
A. Order was procedurally defective
a. Final orders must be in writing and must include findings of facts and
conclusions of law
b. No reasons given, no statutory authority cited, etc.
c. Findings must be based on evidence in the record; the order says
Board considered “other evidence”
B. Order lacks substantial evidence
a. Court of Appeals will review record to see if there is substantial
evidence to support the board’s findings
b. Only evidence taken was hearsay (i.e., Frederico’s out of court
statement)
c. Hearsay is admissible in administrative proceedings, but due process
clause limits reliance on hearsay evidence
d. Whether hearsay is substantial evidence depends on:
i. the alternative to relying on the hearsay evidence
ii. the importance of the facts sought to be proved by the
hearsay
iii. the state of the supporting or opposing evidence, if any,
and
iv. the degree of lack of efficacy of cross-examination.
e.
© 2010
Oregon State Board
of Bar Examiners
The hearsay testimony probably violated Nate’s due process rights:
i. the fact was critical
ii. the fact could be proven by means other than the hearsay
testimony
iii. hearsay testimony was the only evidence
iv. there was no opportunity to cross-examine Frederico,
cross-examination might have revealed a motive to lie