Oregon Peaceworks Green, PAC v. Secretary of State

ROSSMAN, P. J.,

dissenting.

I dissent. It is an oxymoron to conclude, as does the majority, that a PAC appears pro se “through an individual who is authorized to speak for it.”1 All that that says is that the individual represents the PAC. Representation by other than one qualified to practice law is prohibited by ORS 9.160 and ORS 9.320.2 Daley is not qualified to practice law.

*327 The majority further errs in concluding that, because Daley may appear on behalf of the PAC in a contested case hearing, it follows that she can represent the PAC on an appeal to this court. Clearly, there is nothing in the law suggesting that Daley’s authority to appear at a contested hearing somehow extends to judicial review.3

In a contested case hearing, ORS 183.455 provides that a “person” may appear by an “authorized representative.”4 An authorized representative includes an “authorized officer * * * of [an] organized group.” ORS 183.455(1)(b). The underlying purpose for allowing the appearance by an authorized representative at the hearing is to permit the development of a complete record. However, the authorized representative is strictly prohibited from making legal arguments. ORS 183.455(2)(c). Given that statutory constraint, there is no logic in restricting a PAC officer from making legal arguments at the hearing but allowing her to do so on review.

Because there is no statutory authority for Daley to represent the PAC and because there is an explicit prohibition of her doing so, I would hold that Daley cannot prosecute this judicial review.

The majority relies on ORS 260.005(10) for its determination that a PAC is a “person.” However, that statute recognizes the collective nature of a PAC:

“ ‘Person’ means an individual or a corporation, association, firm, partnership, joint stock company, club, organization or other combination of individuals having collective capacity.” (Emphasis supplied.)

ORS 9.160 provides:

“Except for the right reserved to litigants by ORS 9.320 to prosecute or defend a cause in person, no person shall practice law or represent that person as qualified to practice law unless that person is an active member of the Oregon State Bar.”

ORS 9.320 provides:

“Any action, suit, or proceeding may be prosecuted or defended by a party in person, or by attorney, except that the state or a corporation appears by attorney in all cases, unless otherwise specifically provided by law. Where a party appears by attorney, the written proceedings must be in the name of the attorney, who is the sole representative of the client of the attorney as between the client and the adverse party, except as provided in ORS 9.130.”

A hearing under ORS 260.232 is conducted under the provisions of the Administrative Procedures Act. ORS 260.232(4).

Daley’s role at the hearing is not entirely clear. ORS 260.232(3)(a) provides that a hearing may be held on request of the “person against whom the penalty may be assessed * * Daley requested the hearing, but she was not the treasurer when the reports were filed, and the orders do not hold her personally liable. She could have appeared as the “authorized representative” for the PAC, if the requirements of ORS 183.455(2) were met. It is not clear that they were.