McCleery v. State
Docket: CA A84057
Court: Court of Appeals of Oregon; December 20, 1994; Oregon; State Appellate Court
Petitioners requested a determination that a "policy statement" issued by the Oregon Board of Chiropractic Examiners (OBCE) constitutes an administrative rule that was not adopted in compliance with statutory rulemaking procedures. The court concluded that the policy statement is indeed an invalid rule. The OBCE's statement, issued in January 1991, referenced a permanent nationwide injunction from January 1982, prohibiting the use of the Toftness Radiation Detector and similar devices, instructing Oregon licensees to cease and desist from their use. A critical issue was whether this policy statement qualified as a rule under ORS 183.310(8), which defines a rule as any agency directive or standard of general applicability that implements or interprets law or policy. The state argued that the policy statement was merely a recommendation and could not serve as a basis for disciplinary action. However, the court disagreed, determining that the policy statement applied broadly to all chiropractors, thereby constituting a quasi-legislative act of general applicability. The statement interpreted and prescribed law by applying a federal injunction to the conduct of Oregon chiropractors. Since OBCE failed to follow the required Administrative Procedures Act (APA) procedures for rulemaking, the court declared the policy statement invalid under ORS 183.400(4). The court did not address additional arguments presented. The record did not contain a definition of a Toftness Radiation Detector.