Free Oregon, Inc. v. Oregon Health Authority

“[I]n reviewing a rule challenge under [ORS 183.400], we may declare the rule invalid only if we conclude that it violates constitutional provisions, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures.” BP West Coast Products, LLP v. Dept. of Justice, 284 Or App 723 (2017).

Petitioners sought judicial review of rules adopted, but now repealed, by the Oregon Health Authority (OHA) mandating schools and healthcare facilities requiring employees to be “fully vaccinated against COVID-19 or have an approved or accepted medical or religious exemption." Petitioners argued, inter alia, that there was no statutory authority for OHA to adopt the rules; that the rules impermissibly impaired employment contracts in violation of Article I, section 21, of the Oregon Constitution; and that the rules violated separation of powers principles and the Due Process clause of the Fourteenth Amendment. OHA argued that the challenge was moot because the rules had been repealed. “[I]n reviewing a rule challenge under [ORS 183.400], we may declare the rule invalid only if we conclude that it violates constitutional provisions, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures.” BP West Coast Products, LLP v. Dept. of Justice, 284 Or App 723 (2017). The Court held that because the petitioner Cox had ongoing separate litigation that would be affected by a determination of the validity of the challenged rules, this proceeding was not moot due to repeal of the rules as would normally be the case. However, the Court also rejected all of Petitioner’s arguments. The Court reasoned that ORS 413.042 (stating OHA may adopt rules to administer the laws delegated to its authority) and ORS 413.110 (stating OHA has “full power in the control of all communicable diseases”) provided OHA with the requisite statutory authority. The Court further reasoned that Petitioner failed to cite any authority addressing its separation of powers argument, and was therefore insufficiently developed to decide. As for Petitioners constitutional arguments, the Court reasoned that the rules on their face did not affect any of Petitioner’s contract or property rights, and that any factual determinations beyond that were not within the scope of judicial review under ORS 183.140. Motion to dismiss as moot denied; former OAR 333-019-1010 (Jan 31, 2022) and former OAR 333-019-1030 (Jan 28, 2022) held valid.