Weldon v. Board of Licensed Professional Counselors & Therapists
293 P.3d 1023
Or.2012Background
- Petitioner Weldon, a licensed professional counselor, was issued a final suspension of her license for two years by the Board on January 25, 2012, later amended March 28, 2012, with costs assessed at $24,301.91.
- Petitioner sought a stay of enforcement pending judicial review; the Board denied the stay after considering irreparable harm, colorable error, and potential substantial public harm.
- An Appellate Commissioner granted a temporary stay pending the Board’s response; the Board asserted ORS 676.210 precluded a stay by the Court of Appeals.
- The Court of Appeals denied the stay but petitioner sought peremptory writ of mandamus and emergency stay relief from this court.
- This court held ORS 676.210 does not preclude the Court of Appeals from granting a stay and remanded for further proceedings consistent with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 676.210 bars a stay by the Court of Appeals | Weldon: statute precludes court stays | Board: statute forecloses stays by courts | No; ORS 676.210 does not prohibit stays by the Court of Appeals |
| Whether APA stay authority can operate alongside ORS 676.210 | APA stays are allowed pending review | APA stays conflict with 676.210 | Yes; harmonize ORS 676.210 with APA stays |
| Whether the text/history of ORS 676.210 shows legislative intent to restrict courts’ stay power | Legislature intended to grant injunctive power, not remove stays | Legislature intended to limit judicial power | Legislative history supports preserving judicial stays alongside injunctive authority |
Key Cases Cited
- State v. Ausmus, 336 Or 493, 85 P.3d 864 (2003) (context for parsing subconstitutional matters before constitutional questions)
- Guzek, 322 Or 245, 906 P.2d 272 (1995) (statutory construction when multiple provisions interact)
- Buck v. Board of Medical Examiners, 192 Or 66, 232 P.2d 791 (1951) ( Buck I; injunctions and stays in medical practice)
- Buck v. Board of Medical Examiners, 200 Or 488, 258 P.2d 124 (1953) ( Buck II; continued practice during pendency of appeal; legislative response)