adversary hearing in Oregon

1975To the extent that it is based on federal constitutional due-process standards, it might no longer be viable in light of the subsequent decision in Withrow v. Larkin, 421 US 35 , 95 S Ct 1456 , 43 L Ed 2d 712 (1975), in which the court held that ex parte contacts are not per se due-process violations: “* * * The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the board members at a later adversary hearing.

1975To the extent that it is based on federal constitutional due-process standards, it might no longer be viable in light of the subsequent decision in Withrow v. Larkin, 421 US 35 , 95 S Ct 1456 , 43 L Ed 2d 712 (1975), in which the court held that ex parte contacts are not per se due-process violations: “* * * The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the board members at a later adversary hearing.

2016An ex parte hearing exists when only one party is present at the hearing.” (Emphasis in original.) In Miller and Miller, 128 Or App 433, 434 , 875 P2d 1195 (1994), we relied on that definition to conclude that “[t]he word ‘hearing’ has a common meaning: It is a proceeding similar to a trial in which parties have a right to be heard and issues of fact or law are to be determined.” Accordingly, the central tenet of a “hearing” in this context is a proceeding at which the parties involved have an opportunity to be heard on the issues of law or fact that are before the court.

2016An ex parte hearing exists when only one party is present at the hearing.” (Emphasis in original.) In Miller and Miller, 128 Or App 433, 434 , 875 P2d 1195 (1994), we relied on that definition to conclude that “[t]he word ‘hearing’ has a common meaning: It is a proceeding similar to a trial in which parties have a right to be heard and issues of fact or law are to be determined.” Accordingly, the central tenet of a “hearing” in this context is a proceeding at which the parties involved have an opportunity to be heard on the issues of law or fact that are before the court.

2008The Court in Wilkinson indicated that notice of the factual basis for the placement and a fair opportunity for rebuttal were “among the most important procedural mechanisms” to avoid erroneous decisions, id. at 226 , but it declined to require Ohio to allow an inmate to call witnesses or to provide “other attributes of an adversary hearing.” Id. at 228 .

2008The Court in Wilkinson indicated that notice of the factual basis for the placement and a fair opportunity for rebuttal were “among the most important procedural mechanisms” to avoid erroneous decisions, id. at 226 , but it declined to require Ohio to allow an inmate to call witnesses or to provide “other attributes of an adversary hearing.” Id. at 228 .

1979Accordingly, it did "not terminate the proceeding as to any of the causes of suit or action or parties,” and was not then appealable. 6 Although some jurisdictions appear to hold that the granting of a preliminary injunction is conclusive evidence of the existence of probable cause, see Short & Co. v. Spragins, Buck & Co., 104 Ga 628, 30 SE 810 (1898); Rieger & Co. v. Knight, 128 Md 189, 97 A 358, LRA 1916E 1277 (1916) (if issued after a full adversary hearing), the majority view appears to be that it is only prima facie evidence which may be rebutted.

1979Cobbey v. State Journal Co., 77 Neb 626, 113 NW 224 (1907); Bokum v. Elkins, 67 NM 324 , 355 P2d 137 (1960); Burt v. Smith, 181 NY 1 , 73 NE 495 , error dismissed, 203 US 129 , 27 S Ct 37 , 51 L Ed 121 (1906); Donnally v. Brewing Co., 87 W Va 494, 105 SE 778 (1921); Annot, 70 ALR3d 536, § 10 (1976). 7 See ORS 18.105.

1979Cobbey v. State Journal Co., 77 Neb 626, 113 NW 224 (1907); Bokum v. Elkins, 67 NM 324 , 355 P2d 137 (1960); Burt v. Smith, 181 NY 1 , 73 NE 495 , error dismissed, 203 US 129 , 27 S Ct 37 , 51 L Ed 121 (1906); Donnally v. Brewing Co., 87 W Va 494, 105 SE 778 (1921); Annot, 70 ALR3d 536, § 10 (1976). 7 See ORS 18.105.

1979Cobbey v. State Journal Co., 77 Neb 626, 113 NW 224 (1907); Bokum v. Elkins, 67 NM 324 , 355 P2d 137 (1960); Burt v. Smith, 181 NY 1 , 73 NE 495 , error dismissed, 203 US 129 , 27 S Ct 37 , 51 L Ed 121 (1906); Donnally v. Brewing Co., 87 W Va 494, 105 SE 778 (1921); Annot, 70 ALR3d 536, § 10 (1976). 7 See ORS 18.105.

1979Cobbey v. State Journal Co., 77 Neb 626, 113 NW 224 (1907); Bokum v. Elkins, 67 NM 324 , 355 P2d 137 (1960); Burt v. Smith, 181 NY 1 , 73 NE 495 , error dismissed, 203 US 129 , 27 S Ct 37 , 51 L Ed 121 (1906); Donnally v. Brewing Co., 87 W Va 494, 105 SE 778 (1921); Annot, 70 ALR3d 536, § 10 (1976). 7 See ORS 18.105.

1979Cobbey v. State Journal Co., 77 Neb 626, 113 NW 224 (1907); Bokum v. Elkins, 67 NM 324 , 355 P2d 137 (1960); Burt v. Smith, 181 NY 1 , 73 NE 495 , error dismissed, 203 US 129 , 27 S Ct 37 , 51 L Ed 121 (1906); Donnally v. Brewing Co., 87 W Va 494, 105 SE 778 (1921); Annot, 70 ALR3d 536, § 10 (1976). 7 See ORS 18.105.

1979Cobbey v. State Journal Co., 77 Neb 626, 113 NW 224 (1907); Bokum v. Elkins, 67 NM 324 , 355 P2d 137 (1960); Burt v. Smith, 181 NY 1 , 73 NE 495 , error dismissed, 203 US 129 , 27 S Ct 37 , 51 L Ed 121 (1906); Donnally v. Brewing Co., 87 W Va 494, 105 SE 778 (1921); Annot, 70 ALR3d 536, § 10 (1976). 7 See ORS 18.105.

1978We have noted before, see Tierney v. Duris, Pay Less Properties, 21 Or App 613, 628 , 536 P2d 435 (1975), what the United States Supreme Court has said: " '* * * The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the board members at a later adversary hearing.

1978We have noted before, see Tierney v. Duris, Pay Less Properties, 21 Or App 613, 628 , 536 P2d 435 (1975), what the United States Supreme Court has said: " '* * * The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the board members at a later adversary hearing.

1978Without a showing to the contrary, state administrators, "are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its *384 own circumstances.” ***.’[ Withrow v. Larkin, 421 US 35 , 95 S Ct 1456 , 43 L Ed 2d 712 (1975).]” See also Fritz v. OSP, 30 Or App 1117 , 569 P2d 654 (1977).

1978Without a showing to the contrary, state administrators, "are assumed to be men of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its *384 own circumstances.” ***.’[ Withrow v. Larkin, 421 US 35 , 95 S Ct 1456 , 43 L Ed 2d 712 (1975).]” See also Fritz v. OSP, 30 Or App 1117 , 569 P2d 654 (1977).

1969In A Quantity of Books v. Kansas, 378 US 205 , 84 S Ct 1723 , 12 L Ed2d 809 (1964) the court said that an adversary hearing was necessary prior to the seizure of certain books.

1969In A Quantity of Books v. Kansas, 378 US 205 , 84 S Ct 1723 , 12 L Ed2d 809 (1964) the court said that an adversary hearing was necessary prior to the seizure of certain books.

1969By contrast, if the State uses its penal system to punish expression outside permissible bounds, the State does not comprehensively review any form of expression; it merely considers after the event utterances it has reason to suppose may be prohibited.” Marcus v. Property Search Warrant, 367 US 717 , 81 S Ct 1708 , 6 L ed 2d 1127, 1139 (1961), quoted with approval by Brennan, J., in A Quantity of Books v. Kansas, supra n 1 , 12 L ed 2d at 813, in part as follows: “* * * An opportunity ... to circulate the [books] . . . and then raise the claim of nonobscenity by way of defense to a prosecutio

1969By contrast, if the State uses its penal system to punish expression outside permissible bounds, the State does not comprehensively review any form of expression; it merely considers after the event utterances it has reason to suppose may be prohibited.” Marcus v. Property Search Warrant, 367 US 717 , 81 S Ct 1708 , 6 L ed 2d 1127, 1139 (1961), quoted with approval by Brennan, J., in A Quantity of Books v. Kansas, supra n 1 , 12 L ed 2d at 813, in part as follows: “* * * An opportunity ... to circulate the [books] . . . and then raise the claim of nonobscenity by way of defense to a prosecutio

1963In spite of the reference to the right “to present evidence” and to the board’s “quasi-judicial” function and its duty to “give consideration to the entire record,” it seems *170 clear that the court did not treat the statute as requiring an adversary hearing at which testimony would be taken and recorded and from which formal findings of fact would be made. ③ The court held that there was no appeal from the decision of the board and that the remedy by way of writ of review, although appropriate to attack the board’s jurisdiction and the illegality of its procedure, would “not lie to correct m