Johnson v. Department of Public Safety Standards & Training
Docket: 901306; A147361
Court: Court of Appeals of Oregon; November 6, 2012; Oregon; State Appellate Court
Petitioner seeks judicial review of a final order from the Department of Public Safety Standards and Training (DPSST) revoking his private investigator license. The revocation stemmed from allegations that the petitioner interviewed crime victims without fulfilling disclosure requirements mandated by Article I, section 42(l)(c) of the Oregon Constitution and ORS 135.970(2). The constitutional provision allows crime victims to refuse interviews by the defendant or their representatives, while the statute requires that victims be informed of the identity and role of the person contacting them, their right to decline to speak, and their option to have a district attorney present during interviews.
Petitioner argues that the constitutional provision does not impose obligations on him and that ORS 135.970(2) applies solely to defense attorneys, not their agents. The court agrees with this interpretation and also concurs that any violations of other rules did not justify the board's decision to impose what the petitioner claims was an excessively harsh sanction. Consequently, the court reverses and remands the agency's order for further proceedings.
Petitioner, licensed as a private investigator since October 2007, was working for defense attorneys representing indigent defendants when DPSST initiated revocation proceedings in August 2009 based on complaints regarding his contacts with victims in four criminal cases. A contested case hearing took place on May 3, 2010, where Detective Mott testified about the petitioner’s misrepresentation of himself as a police officer while contacting victims. Petitioner objected to hearsay evidence presented, but the administrative law judge (ALJ) allowed it, noting that hearsay is not categorically inadmissible in administrative settings. The ALJ concluded the hearing by allowing both parties to submit written closing arguments.
On June 15, 2010, the Department of Public Safety Standards and Training (DPSST) issued a “Second Amended Notice of Intent to Revoke License,” citing additional statute ORS 703.450(15) among the alleged violations by the petitioner. During a telephone status conference on July 20, 2010, both parties agreed to close the record, with the petitioner’s counsel indicating no further evidence would be presented. Three months later, the Administrative Law Judge (ALJ) issued a proposed order concluding that the petitioner had violated several laws and regulations, including ORS 135.970(2) and various provisions under OAR 259-061. The violations included failing to obey laws during investigations, misrepresenting his professional duties, and a lack of moral fitness. The ALJ recommended revoking the petitioner’s private investigator license and imposing civil penalties.
On September 27, 2010, the petitioner submitted a letter to the ALJ claiming to have new evidence that could exonerate him, including statements from victims and a witness discrediting a complaining victim. He filed a motion to reopen the case, but the ALJ informed him that he no longer had jurisdiction following the issuance of the proposed order. On December 16, 2010, DPSST denied the petitioner’s motion, affirming that the ALJ's findings were well-supported and that the petitioner failed to demonstrate good cause for not presenting the new evidence earlier. Consequently, DPSST adopted the ALJ’s proposed order, revoking the petitioner’s license.
On review, the petitioner raised four assignments of error: (1) he argues he did not violate the Oregon Constitution or ORS 135.970(2) as these do not impose obligations on private investigators; (2) he contends DPSST erred in denying his motion to reopen the record; (3) he claims the ALJ's findings were not substantiated by substantial evidence as they relied on hearsay; and (4) he asserts that revoking his license and imposing penalties was erroneous. The review begins with the first assignment, wherein the conclusion is reached that Article I, section 42(l)(c) does not impose legally enforceable obligations on the petitioner, though it may provide relevant context.
A crime victim has the right to refuse an interview request, but this right does not imply that the individual requesting the interview must inform the victim of this right. There is no general duty to inform unless established by statute. The Department of Public Safety Standards and Training (DPSST) argues that ORS 135.970(2) establishes such a duty, which mandates communication with crime victims as part of the "Crime Victims’ Bill of Rights" from Ballot Measure 10 (1986). This statute requires that if a victim is contacted by the defense, the victim must be clearly informed by the defendant’s attorney of the identity and capacity of the person contacting them, that they are not obligated to speak to the attorney or provide information unless they choose to, and that a district attorney may be present during any interview.
The petitioner asserts that these obligations apply only to the defendant’s attorney, not to private investigators working for the defense, as the statute explicitly states that the victim must be informed by the defendant's attorney. Conversely, DPSST contends that the requirements should extend to agents of the attorney if the attorney has not informed the victim of their rights, arguing that failing to do so would undermine the legislative intent and victim rights under the Oregon Constitution. However, the text of ORS 135.970(2) is clear in specifying that only the defendant's attorney has the duty to inform the victim, not "the defense" or "other agents of the defendant," indicating that different terms within the statute signify different meanings, as supported by precedents from the Oregon Supreme Court.
ORS 135.970(2) distinguishes between three terms regarding individuals associated with a criminal defendant: "the defense," "the defendant’s attorney," and "other agents of the defendant." This distinction indicates that voters intended for these terms to have separate meanings. The enactment history of ORS 135.970 is inconsistent, as the ballot title for Measure 10 emphasizes protecting victims from criminal defendants, while a subsequent explanatory statement suggests that representatives of the defendant must identify themselves to the victim. These conflicting interpretations do not align with the terminologies used in the statute itself. Given this inconsistency and the principle that the statutory text is the best indicator of voter intent, it is concluded that only "the defendant’s attorney" is obligated under ORS 135.970(2) to inform the victim of their identity and rights. Consequently, a private investigator working for a defendant’s attorney cannot be held liable for failing to inform the victim under this statute. The investigator argues that without a violation of ORS 135.970(2), he did not breach DPSST’s rules or ORS 703.450(15). However, DPSST asserts that these violations should still be upheld. Review of the ALJ’s proposed order, which was adopted by DPSST, shows it incorrectly relied on the alleged violation of ORS 135.970(2) to support findings of other rule violations.
DPSST is seeking to revoke the petitioner's license based on claims of lack of good moral fitness and violations of its rules, which include a violation of ORS 135.970. The court is unable to ascertain if the revocation and associated penalties (a $1,000 civil penalty and $12,438 in costs) would have been imposed without referencing ORS 135.970(2) and Article I, section 42(l)(c). As a result, the court reverses the decision and remands for reconsideration of the petitioner's alleged rule violations under DPSST rules and ORS 703.450(15).
Additionally, the court addresses the petitioner's argument concerning the denial of a motion to reopen the record, determining that such motions fall within the agency's discretion. Although there are no established standards for review, the court reviews for abuse of discretion. The petitioner claims the new evidence he sought to present was significant and that he was unable to do so earlier due to lack of knowledge about the identities of the victims and instructions from DPSST not to contact them. The court finds that ORS 183.417(8) does not apply because the motion to reopen was filed after the ALJ had relinquished jurisdiction over the case. Consequently, the ALJ was not in a position to grant the motion when it was submitted.
Petitioner’s claims regarding the inability to present new evidence before the record closed were found unpersuasive. He argued unawareness of DPSST's reliance on hearsay evidence from juvenile victims in the Benkle case. However, ORS 183.450(1) permits hearsay in administrative proceedings, and the record indicates that petitioner had prior notice of DPSST’s intentions, as the notices included details about his alleged contacts with the victims, identified by initials. Petitioner had also responded to a request for admissions that included the victims' full names. Therefore, he was aware or should have been aware of the hearsay witnesses before the hearing. Additionally, he failed to explain why a witness statement discrediting a victim in the Young case could not have been submitted earlier. At the hearing, he did not deny meeting the victims, leading to the conclusion that DPSST acted within its discretion in denying the motion to reopen the record. Despite this, DPSST's interpretation of ORS 135.970(2) and Article I, section 42(l)(c) was erroneous, resulting in the reversal of its final order revoking petitioner’s license, with a remand for reconsideration of the alleged violations under specific administrative rules.
The court reversed and remanded the case for reconsideration of the revocation of the petitioner’s license by the Department of Public Safety Standards and Training (DPSST). The initial notice of intent to revoke included details from three criminal investigations, with a fourth case added later. Under ORS 703.450(15), licensed investigators cannot create the impression of being affiliated with law enforcement unless working for a governmental agency. The court noted that the right against self-incrimination under Article I, section 12, of the Oregon Constitution imposes a duty to inform, but found no similar obligation under Article I, section 42, nor did it conclude that requiring attorneys to inform victims would unduly burden them. It mentioned that attorneys might be accountable for the actions of nonlawyer assistants in communications that violate professional conduct rules. The petitioner assumed the court would review the case as per ORS 183.482(5), which allows additional evidence before a hearing. However, the court clarified that this statute was not applicable as the request to reopen the record occurred at the agency level, not during judicial review. The court rejected the petitioner’s claim that the Administrative Law Judge’s findings lacked substantial evidence and determined that the issue of sanctions need not be addressed due to the reversal.
