Nesbit v. Bd. of Lic. Pro. Counselors and Therapists

In deciding whether a subject is proper for summary determination, “a discretionary sanction is not a proper subject for summary determination, because whether an agency should impose a particular sanction is not a question of law.” King v. Dept. of Public Safety Standards, 289 Or App 314, 412 P3d 1183 (2017).

Plaintiff appealed from the trial court’s determination that Defendant was entitled to summary determination based on three of Plaintiff’s violations. Plaintiff assigned error on Defendant’s decision to revoke her counseling license based on summary determination. On appeal, Plaintiff did not argue that her conduct violated provisions of law, but Plaintiff challenges the “substantive and procedural validity of the sanction that the board imposed as a result of those violations.” Additionally, Plaintiff argued she is entitled to a contested hearing where Defendant can decide the appropriate sanction for her violations. In response, Defendant argued their sanctions were permissible because they relied on summary determination, since there was no dispute related to Plaintiff’s violations, and in determining what is the appropriate sanction, that is left to Defendant’s discretion. In deciding whether a subject is proper for summary determination, “a discretionary sanction is not a proper subject for summary determination, because whether an agency should impose a particular sanction is not a question of law.” King v. Dept. of Public Safety Standards, 289 Or App 314, 412 P3d 1183 (2017). The Oregon Court of Appeals held that although Defendant had discretion to revoke Plaintiff’s license, Defendant’s revocation does not follow as matter of law to grant summary determination. 

Reversed and remanded.