Miller v. Board of Psychologist Examiners

There are five requirements that must be met to apply issue preclusion: “(1) The issue in the two proceedings is identical. (2) The issue was actually litigated and was essential to a final decision and the merits in the prior proceeding. (3) The party sought to be precluded has had a full and fair opportunity to be heard on that issue. (4) The party sought to be precluded was a party or was in privity with a party to the prior proceeding. (5) The prior proceeding was the type of proceeding to which this court will give preclusive effect.” Nelson v. Emerald People’s Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993).

Petitioner appealed two final orders suspending and permanently revoking her license to practice psychology. Petitioner assigned error to the Oregon Board of Psychologist Examiners determination to suspend her licenses because it did so without substantial evidence and assigned error to the board’s decision for permanent revocation and $5,000 on the basis that issue preclusion barred any relitigation of factual matters in the suspension hearing. On appeal, Petitioner argued that the first, third, and fifth requirements for issue preclusion were not met. There are five requirements that must be met to apply issue preclusion: “(1) The issue in the two proceedings is identical. (2) The issue was actually litigated and was essential to a final decision and the merits in the prior proceeding. (3) The party sought to be precluded has had a full and fair opportunity to be heard on that issue. (4) The party sought to be precluded was a party or was in privity with a party to the prior proceeding. (5) The prior proceeding was the type of proceeding to which this court will give preclusive effect.” Nelson v. Emerald People’s Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993). The Court of Appeals determined that the petitioner did not receive a “full and fair opportunity” for factual issues to be litigated because the suspension and revocation sanctions are greater in difference and petitioner believed she’d be able to present different evidence at different proceedings. Order revoking petitioner’s license to practice psychology and imposing a $5,000 fine reversed and remanded; order temporarily suspending petitioner’s license to practice psychology affirmed.