author: ARMSTRONG, P. J.

text:
    Rick MICHAELSON, Petitioner, v. CITY OF PORTLAND and Guardian Real Estate Services, LLC, Respondents.
    Northwest District Association, Petitioner, v. City of Portland and Guardian Real Estate Services, LLC, Respondents.
    A168278
    Court of Appeals of Oregon.
    Argued and submitted November 30, 2018. February 27, 2019
    Carrie A. Richter argued the cause for petitioners. Also on the brief was Bateman Seidel Miner Blomgren Chellis & Gram, P.C.
    Timothy V. Ramis, Lake Oswego, argued the cause for respondents. Also on the brief was Lauren A. King.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   ARMSTRONG, P. J.

In this land use case, petitioners seek review of a Land Use Board of Appeals (LUBA) order affirming the City of Portland's decision to grant design review approval and a master plan amendment for a seven-story, mixed-use building proposed by intervenor (we refer to the city and intervenor, collectively, as respondents). On review, petitioners raise three assignments of error, challenging the city's interpretation and application of "better meets" in Portland City Code (PCC) 33.825.040 and of a master plan design guideline to the proposed project. As explained below, because we conclude that LUBA's order was not "unlawful in substance," ORS 197.850(9)(a), we affirm.

We take the relevant facts from LUBA's order, which the parties do not dispute on review:

"The subject property is the western half of Block 290 (Block 290 West), within the Con-Way Master Plan (CMP) area of the city's Northwest Plan District. The site is zoned Central Employment (EX) with a Design Overlay zone. Development within the CMP is subject to the city's code-based design review standards and guidelines, but also standards and guidelines within the CMP. Under the applicable CMP design standards, building height on Block 290 West is limited to 77 feet, except the southwest corner of Block 290 West, which is limited to 47 feet.
"The CMP encompasses 17.49 acres and includes a number of 200 by 460 square foot blocks that are generally planned under the CMP and Northwest District Plan for redevelopment to mixed uses, including high-density residential uses. The CMP calls for approximately 25 percent of the CMP area to be set aside for public open space. Some of the required public open space is to be provided on Block 290 West, which under the CMP must include a 'publicly accessible, urban square,' which the CMP describes as a 'significant iconic urban place' that is fully accessible by the public and surrounded by active retail space. A significant portion of the remainder of required open space in the CMP area will be provided by a proposed neighborhood park on the eastern half of Block 290 (Block 290 East).
"Block 290 West is bordered on the south by NW Pettygrove Street, and on the west by NW 21st Ave. On the north, Block 290 is bordered by a privately-owned street, NW Quimby Street. Under the CMP, NW Quimby Street is to be improved for open space as a 'festival street,' serving primarily as a pedestrian and bicycle connection. The CMP requires that development on Block 290 West include a 'ground plane connection' between the public square on Block 290 West and the neighborhood park to be developed on Block 290 East.
"Intervenor applied to the city for design review approval and proposed amendments to the CMP, along with five 'modifications,' a type of variance to CMP design standards pursuant to PCC 33.825.040, in order to develop a multi-story residential building with ground floor retail and below grade parking. The approved seven-story building is U-shaped, with an opening facing south to NW Pettygrove Street, and a proposed 16,007-square-foot public square in the middle. The southern tip of the west wing is 'clipped,' shortening the footprint of the west wing by 31 feet and opening up the square to the corner of NW 21st Avenue and NW Pettygrove Street. As discussed below, this clipped corner creates a small area of public open space in the southwest corner of Block 290 West that requires a modification to a CMP standard that requires the public square to have at least 100-foot dimensions on each side. The small portion of the public square is termed 'the panhandle' in the decision and record. In earlier designs, the southern end of the west wing had featured a ground level private space available only to the building's residents. The design ultimately approved by the city moves this private amenity to a roof terrace on top of the west wing.
"The proposed east wing includes a breezeway at ground level to satisfy the requirement for a 'ground plane connection' with the neighborhood park planned for Block 290 East. Intervenor also proposed a CMP map amendment that would allow the building footprint to extend 15 feet into Block 290 East, the western 45 feet of which would be converted to a north-south, 45-foot wide pedestrian accessway connecting Block 290 to development to the north. For vehicular access to the underground parking garage, intervenor proposed access via the northwest corner of Block 290 West and the western portion of the privately owned 'festival street,' NW Quimby Street.
"As noted, the proposed building required five modifications or variances to applicable site-development standards, three of which are at issue in this appeal. The first modification is an increase in the maximum building height from 47 feet to 57 feet in the southwest corner of Block 290 West, to facilitate the private rooftop club house and terrace at the southern end of the west wing. The second modification is to approve the panhandle portion of the public square in the southwest corner of Block 290 West with dimensions less than 100 feet per side. The third modification is to reduce the height of the breezeway establishing the 'ground floor connection' between Block 290 West and Block 290 East, from 25 feet to a little over 14 feet.1
"1 The other two modifications not directly challenged in this appeal include (1) reducing the depth and amount of retail fronting portions of the public square, and (2) reducing the setback of the upper floors of the east wing.
"Prior to filing its application, intervenor participated in three design advice meetings held by the city's design commission, which involved advisory review of different design concepts for the proposed development. On January 16, 2016, intervenor filed its applications, which initially proposed four smaller buildings on Block 290 West. In March 2017, intervenor modified the design to propose the single U-shaped building with a clipped corner, described above, that was ultimately approved. After holding several public hearings, the design commission approved the proposal.
"Petitioner Northwest District Association (NWDA) appealed the design commission decision to the city council, which held a hearing on October 17, 2017. On November 8, 2017, the city council issued its decision denying the appeal and affirming the design commission decision, with adoption of additional findings."

(Citation omitted.)

The city issued a detailed 46-page decision that walked through each of the applicable community design guidelines and CMP Design Guidelines, both of which apply to the project, and made explanatory findings as to how the project design met each of those guidelines. The city also separately addressed each of the five modifications to the CMP Design Standards and made explanatory findings as to why each requested modification could be allowed under PCC 33.825.040.

Petitioners raised seven assignments of error on review to LUBA, and LUBA affirmed the city's decision. On review to us, petitioners raise three assignments of error to LUBA's order. We address each of those assignments in turn.

In their first assignment of error, petitioners focus, in the abstract, on the meaning of "better meets" in PCC 33.825.040, which allows modifications to design standards if, among other things, "[t]he resulting development will better meet the applicable design guidelines." Petitioners first argue that the city's implicit interpretation of the better-meets standard is insufficient for review and requires a remand to the city for additional explanation. Petitioners next argue that, even if the city's implicit interpretation is sufficient, that interpretation is implausible and not entitled to deference on review.

We first conclude that the city's decision included sufficient explanation to determine how the city was interpreting and applying the better-meets standard in PCC 33.825.040. In its decision, the city explained, with respect to each requested modification, how the overall design of the building with the modification better meets the applicable guidelines than if the design adhered to the particular design standard at issue. Although the city did not expressly set out an "interpretation" of the better-meets standard, the city's understanding of the meaning of that standard and how it is to be applied is readily discernible from the city's findings and explanation. The city was not required to do more than that. See, e.g. , Green v. Douglas County , 245 Or. App. 430, 438, 263 P.3d 355 (2011) ("[T]o be sufficient, an interpretation must suffice to identify and explain in writing the decisionmaker's understanding of the meaning of the local legislation." (Internal quotation marks omitted.)); see also Alliance for Responsible Land Use v. Deschutes County , 149 Or. App. 259, 266-67, 942 P.2d 836 (1997), rev. dismissed , 327 Or. 555, 971 P.2d 411 (1998) (holding that county's interpretation was reviewable where the county's findings made clear how the standard was being interpreted and applied).

We turn to petitioner's next argument that the city's interpretation is not plausible. We (and LUBA) must defer to the city's interpretation of its comprehensive plan and land use regulations, unless we determine that the city's interpretation is inconsistent with the express language, purpose, or underlying policy of the comprehensive plan or land use regulation. Siporen v. City of Medford , 349 Or. 247, 259, 243 P.3d 776 (2010). That standard of review is "highly deferential" to the city, and the "existence of a stronger or more logical interpretation does not render a weaker or less logical interpretation 'implausible.' " Mark Latham Excavation, Inc. v. Deschutes County , 250 Or. App. 543, 555, 281 P.3d 644 (2012). Our task then is to determine whether the city's interpretation of the better-meets standard in PCC 33.825.040 " 'plausibly accounts for the text and context' " of that provision.

Friends of the Hood River Waterfront v. City of Hood River , 263 Or. App. 80, 89, 326 P.3d 1229 (2014) (quoting Siporen , 349 Or. at 262, 243 P.3d 776 ). As relevant here, to approve the requested modifications to the CMP Design Standards, the city had to plausibly account for the text of PCC 33.835.040(A), which required that, to allow a modification to a design standard, the "resulting development will better meet the applicable design guidelines."

As explained above, the city examined each of the five modification requests and made specific findings as to whether the overall development with the requested modification better met the identified, applicable guidelines than a development that met the particular design standard being modified. See 296 Or. App. at 253 n. 2, 437 P.3d 1218-19 n. 2 (briefly summarizing those findings). The city also expressly interpreted the better-meets standard to not require it to consider the effects of the modifications cumulatively.

In rejecting petitioners' challenge below, LUBA concluded:

"[P]etitioners have not established that the city council erred in evaluating all design changes related to a proposed modification, in determining whether the resulting development better meets applicable guidelines. To the extent the city council's comparative approach is based on an interpretation of the relevant PCC and CMP language, the city council's interpretations are entitled to deferential review under ORS 197.829(1), and petitioners make no attempt to establish that the city council's apparent understanding of the relevant language is reversible under that deferential standard of review. Even in the absence of an interpretation, we see no error in applying PCC 33.825.040(A) in a manner that evaluates the proposed modification in context with associated design changes. The nature of design review often involves tradeoffs and balancing between design features to achieve a more optimal overall design under the applicable guidelines."

(Citations omitted.)

Petitioners now argue that the city's interpretation is not plausible because it compared the overall project with the modification request to a prior proposed design that also did not meet design standards, instead of comparing it to a hypothetical design that met all guidelines and standards.

We first reject certain of petitioners' characterizations of the city's interpretation. Throughout the city's discussion of the five requested modifications, the city consistently compared the overall project design with modifications (that is, the "resulting development") to a building design that instead met the particular design standard at issue, to determine if the modification better met the identified, applicable guidelines implicated by the modification. In doing so, the city used as a comparison either the standard-meeting design that was part of the proposal before the modification request-see, e.g. , the modification to the building height at the southwest corner-or a hypothetical standard-meeting design-see, e.g. , the modification to retail frontage-depending on what was appropriate under the circumstances for the particular modification request at issue. However, contrary to some of petitioners' assertions, the city did not in any instance compare the resulting development to a design that also did not meet the design standard at issue.

Second, we conclude that the city's interpretation is plausible and entitled to deference. Again, the better-meets standard is that "[t]he resulting development will better meet the applicable design guidelines." The city's interpretation plausibly accounts for all of the text of that provision because it requires looking at the "resulting development" (that is, the overall project design with modifications) and determining whether that design will "better meet" the guidelines "applicable" to the modification at issue than a design would without the requested modification at issue (that is, compared to a design that meets the design standard at issue). Contrary to petitioners' argument, the city did not merely consider whether the applicable guidelines were "met," the city expressly considered whether the applicable guidelines were "better" met by the resulting development by explaining what was "better" about the resulting design with the modification at issue. See Webster's Third New Int'l Dictionary 209 (unabridged ed. 2002) (defining "better" when used as an adverb as "1 a : in a superior or more excellent manner *** b : more desirably : PREFERABLY *** 2 a : to a higher or greater degree *** b : more").

However, petitioners assert that the city's interpretation is implausible because it allows the city to use a comparator that does not simultaneously meet all guidelines and standards without any modifications. We understand petitioner to be asserting that the city's interpretation is implausible because it allows the city to look at each design-standard modification in isolation. Although petitioners' reading of the better-meets standard may be a plausible one, it does not render the city's interpretation implausible. The city's interpretation is plausible because it accounts for all of the text of the standard and gives the city a functional way in which to apply that standard to the proposed project, without having to also create a fully-realized, different, and hypothetical project that is not being proposed. Nothing in the text of PCC 33.825.040 requires such a comparison.

Finally, we reject petitioners' assertion that the better-meets standard requires that, "if the modification is to a public amenity, then the mitigation necessary to 'better meet' a guideline must compensate for this shortfall by providing a public benefit that is of a similar quality or character that exceeds the 'applicable guidelines' in some respect." There is nothing in the text or context of PCC 33.825.040 that suggests, let alone requires, that the better-meets analysis must be applied in a manner that is different or more rigorous when a public amenity design standard is at issue than when applied to any other design standard. Accordingly, we reject petitioners challenge to the city's interpretation of the better-meets standard and defer to that interpretation on review.

Within their first assignment of error, petitioners also make several arguments that challenge the city's specific better-meets determination on certain modifications as applying an implausible interpretation. We briefly address those specific challenges.

Petitioners challenge on three bases the city's allowance of the modification to the height of the building at the southwest corner of the project. First, petitioners assert that the city erred by comparing the taller building with a "clipped" corner to a design with a shorter building that extended all the way to the corner because, without the "clipped" corner, the public square did not meet the minimum square footage requirement. We reject petitioners' argument because, as explained above, the city's interpretation, which permits the city to address each design-standard modification in isolation, is a plausible interpretation of the better-meets standard. The size of the public square was not at issue in the building height modification request because the "resulting development" met that standard. Rather, the issue was whether a taller building, which then allowed for the clipped corner, better met the guidelines than a shorter building without the clipped corner.

Second, petitioners argue that the building height has nothing to do with clipping the corner of the building and should not have been considered by the city. Again, we reject petitioners' argument as contrary to the city's plausible interpretation of the better-meets standard. The city could consider the whole "resulting development," including the clipped corner, to determine if that resulting development better met the guidelines than without the requested modification.

Third, petitioners argue that the taller building did not better meet CMP Design Guideline 7.B.3-optimize solar exposure to the public square-because the clipped corner was necessary to just "meet" the guideline; it does not "better meet" it. Although the city did not expressly name that guideline, contrary to petitioners' assertion, the city did expressly determine that the "solar access is improved over minimum requirements by eliminating the south portion of the west wing and by the transparent design of the rooftop amenity space." (Emphasis added.) Petitioners do not claim that that finding lacked substantial evidence to support it.

Petitioners also assert that the city erred in allowing the panhandle modification-that is, allowing a dimension of the public square to be less than 100 feet. Petitioners argue that the city impermissibly focused on the effect that the panhandle had on connecting the square to the transit corner and did not consider the size of the square. Again, petitioners' arguments are based in an interpretation of the better-meets standard that the city did not adopt. The city was permitted to consider the effect of the overall "resulting development"-including that it connected the square to the transit stop. Moreover, the city did consider the size of the square, explaining, among other things, that "[i]t also interprets [the public square minimum square footage] standard to require a minimum 10,000 square foot space for the square, with an additional area adding up to 16,000 [square feet], as further described below, and concludes the guidelines are better met by this design than a compliant design that extends the west wing further south to NW Pettygrove St." The city was not required to focus on only the size of the square, or to require some sort of public amenity "mitigation" before allowing the modification.

Accordingly, we reject petitioners' first assignment of error.

In their second assignment of error, which also relates to the better-meets standard, petitioners argue that the city's decision lacks substantial reason because the city "failed to adequately explain how it determined which of the guidelines were 'applicable' in order to conclude that they were better met as a result of the modified proposal." "Substantial reason" is a component of the substantial evidence standard of review and requires "an explanation connecting the facts of the case and the result reached." See, e.g. , Rogue Advocates v. Jackson County , 282 Or. App. 381, 389, 385 P.3d 1262 (2016). In the land use context, our role on review of a substantial evidence challenge is "to ensure that LUBA has followed the proper 'substantial evidence' standard in reviewing the city's decision." Gunderson, LLC v. City of Portland , 243 Or. App. 612, 636, 259 P.3d 1007 (2011), aff'd , 352 Or. 648, 290 P.3d 803 (2012) (internal quotation marks omitted). Under that standard of review, "we will affirm unless there is no evidence to support the city's finding or the evidence in the case is so at odds with LUBA's evaluation that a reviewing court could infer that LUBA had misunderstood or misapplied its scope of review." Id. (internal quotation marks omitted).

Before LUBA, petitioners argued that the city failed to address all of the guidelines in determining if the modifications satisfied the better-meets standard, failed to explain "how the City balanced the 'applicable design guidelines' to determine that they were better met," and failed to address CMP Design Guideline 4 (appropriately scaled buildings) with respect to the building height modification, and CMP Design Guideline 7.B (square to be a "significant, iconic, urban place") with respect to the panhandle modification. However, petitioners did not raise the "substantial reason" argument that they now assert on review before us.

Because petitioners failed to raise a "substantial reason" argument below, LUBA was not on notice that it needed to address such an argument. Instead, LUBA addressed the arguments that petitioners did present. Thus, LUBA determined that (1) the city was only required to address guidelines that were "applicable" to the modification; that is, the city did not have to address all the guidelines or balance the guidelines; (2) CMP Design Guideline 4 was applicable to the building height modification, but the city's discussion of that guideline in a different section of its decision demonstrated that that guideline was "better met" by the modification, and (3) the city's discussion of CMP Design Guideline 7 in different sections of its decision sufficiently explained how the "panhandle" positively contributed to the public square's overall design.

As noted above, petitioners frame their assignment of error on review to us as a challenge to the city's lack of substantial reason in explaining what guidelines were applicable. That assignment, as framed, is unpreserved and, thus, we do not address it. See Willamette Oaks, LLC v. City of Eugene , 248 Or. App. 212, 225, 273 P.3d 219 (2012) (preservation requirement applies to review of LUBA orders).

However, much of the substance of petitioners' argument is that LUBA erred in evaluating the city's failure to explicitly address CMP Design Guidelines 4 and 7.B in its better-meets analysis because LUBA relied on findings in the city's decision not located in the better-meets analysis section of its decision. We briefly address that specific argument because it was preserved for our review.

Again, as set out above, in a challenge to the findings of the city based on substantial evidence and substantial reason, our role is to determine if LUBA applied the correct scope of its review in reviewing the city's decision. Part of that scope of LUBA's review in such a challenge is that LUBA is to look at the whole record. ORS 197.835(9)(a)(C) ("[T]he board shall reverse or remand the land use decision under review if the board finds *** [t]he local government *** [m]ade a decision not supported by substantial evidence in the whole record[.]"); Younger v. City of Portland , 305 Or. 346, 356, 752 P.2d 262 (1988) (reference to the "whole record" is a direction "to evaluate the substantiality of supporting evidence by considering all the evidence in the record). Reviewing for a sufficient explanation-that is, for substantial reason-which is a component of substantial evidence, thus requires that LUBA consider the entirety of the city's findings and explanation in its decision.

With that understanding of LUBA's scope of review, we conclude that LUBA properly understood and applied its scope of review when it considered the city's findings and explanation in its entirety-including sections more generally discussing the CMP Design Guidelines and discussing the "purpose" requirement for allowing a modification-to determine if the city made sufficient findings and provided sufficient explanation to support its better-meets determinations for the requested modifications. Moreover, the city's discussion in its entirety did include consideration of neighborhood building scale with respect to the building height modification and overall public square design with respect to the panhandle modification. Accordingly, we reject petitioners' second assignment of error.

In their third and final assignment of error, petitioners argue that the city improperly interpreted and applied CMP Design Guideline 7.C, NW Quimby Parcel (Guideline 7.C). That guideline sets out that the parcel is to

"[p]rovide a multi-use street and open space that links the neighborhood park and square to the south and development to the north, and serves primarily as a pedestrian and bicycle connection."

Guideline 7.C also contains a "background" section and eight subparts that provide more specific guidance, as follows:

"A parcel that would extend NW Quimby Street between NW 20th and 21st Avenues is currently private property and owned by Con-way. The parcel is designated as a local street in the Transportation Element of the City of Portland Comprehensive Plan.
"There will be a comprehensive Master Planning process to design the neighborhood park and develop design ideas for the Quimby parcel. The design of this parcel will be important in that it is envisioned to have special qualities that allow it to successfully link the neighborhood park and square to the south with private development to the north. Design improvements proposed for the Quimby parcel are subject to BDS Design Review and approval by the Portland Bureau of Transportation.
"Based on the traffic analysis conducted for the Master Plan and on the desire to carefully integrate the Quimby parcel with design of a neighborhood park and adjacent development, through pedestrian and bicycle access is the priority transportation function for the parcel. The following design guidelines will be used during the design process, to guide specific design proposals for the Quimby parcel:
"7.C.1 Provide through pedestrian and bicycle connections between NW 21st and 20th.
"7.C.2 Provide emergency and service access as needed to adjacent developments.
"7.C.3 As needed, provide access to building entrances and pedestrian accessways to the north of the parcel.
"7.C.4 Provide transitions to hard and landscape elements included in the neighborhood park to the south of the parcel.
"7.C.5 Provide public access easements.
"7.C.6 Accommodate underground public utilities as needed.
"7.C.7 Provide a location for a flexible festival street to host a farmers market, art walk or other programmed neighborhood events.
"7.C.8 Design the festival street to reflect the character of the potential square on the west end as well as the neighborhood park on the east end."

In applying Guideline 7.C, the city found, in relevant part:

"[T]he vacated NW Quimby Festival Street will be redeveloped as a 60-foot wide private Festival Street that connects the future neighborhood park with the transit on NW 21st Ave, with direct access to the north-south accessway, the breezeway leading to the square, and then further south to NW Pettygrove St. The parcel will provide direct pedestrian and bicycle connections between the public park and other points to the east and the NW 21st transit stop. This link to transit ensures the parcel will primarily serve pedestrians and bicyclists."

On review to LUBA, petitioners argued that the city's application of Guideline 7.C ignored the text that required a direct link between NW Quimby and the public square to the south and the development to the north. LUBA disagreed, concluding:

"We agree with respondents that Guideline 7C requires that NW Quimby Street itself functions as the required link between development to the north and south of it, and does not require that development to the south on Block 290 West or elsewhere be designed in any particular way. Specifically, Guideline 7C does not require that development on the northern boundary of Block 290 West be designed to include a breezeway or pedestrian connection to allow direct access between the western half of NW Quimby Street and the public square. As designed, the NW Quimby 'festival street' will run east-west across the northern boundaries of Block 290 West and a portion of Block 290 East, and provide links or connections via the pedestrian accessway between development to the north and the neighborhood park and public square (via the breezeway in the east wing) to the south. Petitioners have not established that CMP Design Guideline 7C requires more."

(Emphasis in original.)

As with petitioners' first assignment of error, we review the city's interpretation of Guideline 7.C to determine if it is plausible. See, e.g. , Green , 245 Or. App. at 437, 263 P.3d 355.

Petitioners argue that the city's interpretation is not plausible because it is inconsistent with the plain text of Guideline 7.C, which, petitioners assert, requires a direct connection between NW Quimby Street and the public square. Petitioners assert that the only way NW Quimby-an east-west running street-can link to both the square and the park is if there is a direct "open space" link via a path or breezeway from NW Quimby to the square. Petitioners further argue that the use of the term "open space" in the guideline signals that open space, in addition to the multi-use street itself, is to be used to create that direct link. Petitioners argue that their interpretation is supported by the context of how NW Quimby is described in other guidelines as supporting or extending park and square activities, and in maps of the lot north of NW Quimby that reference requirements for buildings that front a public square.

Respondents respond that the city's interpretation that NW Quimby, itself, provides the link between the park and square and development to the north is plausible. As respondents point out, "Quimby Street functions as a link between all of the uses described in this guideline. It connects to a pedestrian north-south accessway which provides direct access to the park, square and development south of Quimby Street. Quimby Street also connects to development to the north." Respondents argue that Guideline 7.C does not require any particular type of design for a link between the uses, and nothing in the text of that guideline precludes the design link proposed here. Furthermore, respondents point out that the city knew how to require a direct connection as advanced by petitioners by requiring a "ground plane connection" between the park and the square in CMP Design Guideline 10.C. If the city had intended to require the same connection to NW Quimby, respondents assert that the city would have said that in Guideline 7.C.

We agree with respondents and LUBA that the city plausibly interpreted Guideline 7.C. Nothing in that guideline requires a direct pathway connection between NW Quimby and the public square through the proposed building. As provided in the "background" section for Guideline 7.C. that is not the "link" envisioned by that guideline. Rather, it provides that "[t]he design of this parcel will be important in that it is envisioned to have special qualities that allow it to successfully link the neighborhood park and square to the south with private development to the north." (Emphasis added.) The eight subparts of Guideline 7.C emphasize that it is through design elements to NW Quimby itself that the link will be created by providing through pedestrian and bicycle access on the street and by designing the street "to reflect the character of the potential square on the west end as well as the neighborhood park on the east end." The city accounted for the text of the entire Guideline 7.C by explaining that NW Quimby Street, itself, would function as the required link between the park and square and development to the north by providing direct access to the park, and to the north-south accessway and breezeway leading to the square.

Accordingly, we reject petitioners' third assignment of error.

Affirmed.

      PCC 33.825.040 provides, in part:
      "The review body may consider modification of site-related development standards, including the sign standards of Chapters 32.32 and 32.34 of the Sign Code, as part of the design review process. *** The review body will approve requested modifications if it finds that the applicant has shown that the following approval criteria are met:
      "A. Better meets design guidelines. The resulting development will better meet the applicable design guidelines; and
      "B. Purpose of the standard. On balance, the proposal will be consistent with the purpose of the standard for which a modification is requested."

      The city demonstrated its interpretation through its explanation of the comparisons it was making to determine if a modification better met an identified guideline. For example, with respect to each modification, the city made the following explanations, among others: (1) increasing the height of the southwest corner of the building better met identified guidelines because it allowed for a private amenity space to be moved to the roof (the only purpose of the increased height) and out of an area next to the square (a design that met the height standard); (2) reducing the depth of retail space fronting the square and reducing the amount of retail on one side of the square better met identified guidelines than a design that met the standard but would have less overall retail frontage or reduced public space; (3) reducing the setback of the upper floor of the east wing better met identified guidelines than a façade that met standard because stepping back the top floor would disrupt the coherent design; (4) reducing the dimensions of the square at the southwest corner for the "panhandle" and reducing the height of the breezeway to the park better met the identified guidelines than a design that had an enclosed square without the "panhandle" and a design with a full height breezeway; (5) reducing the width of bicycle long-term parking spaces better met identified guidelines because it allowed bicycle storage to be moved to the parking garage, freeing up space for the public bicycle station.

      We likewise reject petitioners' assertions that the "resulting development" did not meet the design guidelines, as support for their argument that the city's interpretation is implausible. For example, petitioners assert that "at no point did any proposal actually meet the design guidelines and therefore, by definition, it did not 'better meet' the same." Those assertions are contrary to the record. The city specifically found that the resulting development did meet all design guidelines, and, except with respect to CMP Design Guideline 7.C, discussed below, 296 Or. App. at 263-65, 437 P.3d 1215, petitioners have not challenged those findings on review.

      Petitioners also make a final argument that that the city's findings lack substantial reason because they "provide no explanation of how the various design components were measured against the design guidelines." It is unclear to us how this argument relates to whether the city's interpretation of the better-meets standard is plausible. However, we reject that argument because petitioners fail to explain how LUBA misunderstood or misapplied its standard of review in determining whether the city's decision lacked substantial evidence or reason. See 296 Or. App. at 260-61, 437 P.3d 1215 (explaining our standard of review of a challenge to the city's decision on substantial reason grounds).

      We do not address petitioners' arguments relating to CMP Design Guidelines 7.A, 7.B.8, and 7.C because petitioners did not preserve those arguments for our review.


source: Caselaw Access Project

author: LAGESEN, P. J.

license: Public Domain

text:
    STATE of Oregon, Plaintiff-Respondent, v. Jason Joseph KELEMEN, Defendant-Appellant.
    A165447
    Court of Appeals of Oregon.
    Argued and submitted January 7, 2019. February 21, 2019
    Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Chris Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

Defendant appeals a judgment revoking his probation. The trial court revoked defendant's probation after finding that, by failing to comply with his probation officer's repeated directives to complete work crew, defendant violated the statutorily required general condition of his probation requiring him to "[r]eport as required and abide by the direction of the supervising officer." ORS 137.540(1)(m). In view of our recent opinion in State v. Hardges , 294 Or. App. 445, 432 P.3d 268 (2018), we conclude that the court's revocation decision was based on a mistaken understanding of ORS 137.540(1)(m). See State v. Jury , 185 Or. App. 132, 136, 57 P.3d 970 (2002), rev. den. , 335 Or. 504, 72 P.3d 636 (2003) (explaining that error is determined based on the law that exists at the time of appeal rather than the time of the trial court's ruling). The state-correctly-concedes the point under Hardges .

The question is whether we may affirm nonetheless. The trial court also stated that it found that defendant was not amenable to supervision and that the purposes of probation were not being met. The state contends that, based on those statements, we may affirm on the ground that the court's revocation determination is supported by an independent and adequate basis. Defendant contends that we may not do so for several reasons. Based on our review of the record and applicable law, we agree with defendant. We therefore reverse and remand.

OAR 213-010-0001 makes the decision to revoke probation in a felony case a discretionary matter for the trial court. It states that "[t]he decision to revoke probation is discretionary and may be exercised upon a finding that the offender has violated one or more of the conditions of probation, or that the offender has participated in new criminal activity." OAR 213-010-0001. Even so, statutes and administrative rules set boundaries on a trial court's discretionary revocation authority. Thus, to the extent that a court's discretionary decision to revoke probation turns on the interpretation or application of a statute or administrative rule, we review the court's revocation decision for legal error. Hardges , 294 Or. App. at 448, 432 P.3d 268.

The pertinent facts are largely procedural and not disputed. Defendant pleaded no contest to charges of aggravated harassment, ORS 166.070, and interfering with a firefighter or EMT, ORS 162.257. The trial court sentenced him to probation on the harassment charge, and 30 days of jail on the other charge. The court imposed the general conditions of probation identified in ORS 137.540, including the general condition that defendant "[n]ot use or possess controlled substances except pursuant to a medical prescription," ORS 137.540(1)(b), and the general condition that defendant "[r]eport as required and abide by the direction of the supervising officer," ORS 137.540(1)(m). The court also imposed a number of special conditions of probation, including the condition that defendant "[r]efrain from knowingly associating with persons who use or possess controlled substances illegally."

Three months or so after defendant was sentenced, his probation officer directed him to take a drug test; the test was positive for opiates and THC. Defendant's probation officer sanctioned him with four days of work crew. Defendant failed to complete the sanction. His probation officer gave him a second chance to do so. Defendant did not avail himself of the opportunity. Around the same time, defendant's probation officer received word from a police officer that defendant had been allowing a person on supervision for controlled substance offenses, Easom, to stay with him.

Defendant's probation officer then recommended revoking defendant's probation, and the state initiated this probation revocation proceeding. The probation violation report alleged that defendant had violated the conditions of his probation in two respects:

"1. VIOLATION OF GENERAL CONDITION 13: [defendant] failed to abide by Probation Officer directive by not completing his work crew sanction successfully.
"2. VIOLATION OF SPECIAL CONDITION: [defendant] violated his special condition of refraining from knowingly associating with persons who use or possess controlled substances illegally by allowing *** Easom a known drug user, to stay at his residence."

(Boldface and uppercase in original.)

At the hearing, the state made little effort to prove the second alleged violation and focused, instead, on the first. The state argued that it had proved that defendant's probation officer had directed him to complete work crew and defendant had not done so, thereby violating the general condition of probation under ORS 137.540(1)(m) requiring him to abide by the directives of his probation officer. Defendant responded that the trial court could not revoke probation based on his failure to comply with the probation officer's directive to complete work crew because, under our opinions in State v. Rivera-Waddle , 279 Or. App. 274, 379 P.3d 820 (2016), and State v. Maag , 41 Or. App. 133, 597 P.2d 838 (1979), it is not permissible to revoke probation for violation of a condition imposed by a probation officer, rather than the sentencing court, notwithstanding a condition of probation requiring the defendant to abide by the directives of the probation officer. The court recessed to consider the case law cited by defendant. When the hearing resumed the next day, the prosecutor proposed that the court might have the authority to revoke defendant's probation on an alternative basis. Recognizing that the case law cited by defendant might preclude a finding that defendant's conduct violated the conditions of his probation, the prosecutor explained that, under "older cases," the court could revoke probation for three reasons: "upon a new crime, upon violating a condition of probation, or if the Court finds that the purposes of probation are not being met." The prosecutor acknowledged there was a question whether the older cases remained valid in light of the rules of the Criminal Justice Commission governing revocation of probation: "When I checked the OAR though, that was not, that portion that the conditions of, or the purposes of probation aren't being met was not found there." She nonetheless urged the court to conclude that, in view of defendant's conduct as a whole, probation should be revoked on the ground that "the purposes of probation are not being met," even if the court could not find that defendant violated a condition of probation.

The trial court found that defendant was "in violation of probation and *** even if he isn't in violation of probation, he's unwilling to be supervised." Based on those findings, the court revoked probation. The court characterized defendant's conduct of failing to complete work crew as a violation of the terms of his probation, and also emphasized that, in its view, defendant had had multiple chances to conform his conduct to the expectations of probation. The court then sentenced defendant to 31 months' incarceration. Defendant appealed, assigning error to the trial court's revocation of his probation.

In the interim, we decided Hardges . There, we expanded upon and clarified our holding in Rivera-Waddle . Construing ORS 137.540(1)(m) (setting forth condition of probation to "[r]eport as required and abide by the direction of the supervising officer"), we explained that the provision "must be read as a whole: A probationer fails to 'abide by the direction of the supervising officer' within the meaning of that provision only when the officer's direction relates to the requirement that the probationer '[r]eport as directed.' " Hardges , 294 Or. App. at 452, 432 P.3d 268. Consequently, when a probation officer's directive is unrelated to the defendant's reporting obligations, the defendant's failure to abide by the directive, as a matter of law, is not a violation of the general condition of probation established by ORS 137.540(1)(m).

In view of Hardges , the parties agree-and so do we-that the trial court's determination that defendant violated the general condition of probation requiring him to abide by the directives of a probation officer by not completing work crew is incorrect. The probation officer's work crew directive did not pertain to defendant's reporting obligation and, thus, is not the type of directive on which a violation of ORS 137.540(1)(m) can be founded. As the state ultimately did not attempt to establish that defendant's conduct violated the conditions of his probation in any other way, this record supplies no basis to conclude that defendant violated a condition of his probation.

Notwithstanding that error, the state argues that we should affirm. Noting the trial court's additional finding that defendant was "unwilling to be supervised" and its determination that the purposes of probation were not being met, the state contends that the court's revocation decision can be sustained based on that finding and conclusion.

We disagree for two reasons. First, although the state is correct that the trial court found that, even in the absence of a violation, defendant was unwilling to be supervised, the court explained its decision to revoke by referring multiple times to the fact that defendant was in violation of the terms of his probation. Thus, as defendant puts it in his brief, "the trial court's conclusion that 'the terms of probation are not serving any useful purpose' was inextricable from its legally erroneous conclusion that defendant violated a 'specific term of probation.' " In other words, the court's mistaken belief that defendant's conduct violated the terms of his probation appears to have played a role in its decision to revoke, even to the extent that that decision was predicated on the court's view that defendant was not willing to be supervised and that the purposes of probation were not being served.

Second, as the prosecutor recognized below, authority to revoke probation in the absence of a violation or a new crime -a power recognized by judicial decisions predating the rules of the Oregon Criminal Justice Commission-did not make its way into the commission's rules.

By legislative directive, those rules define the scope of a trial court's probation revocation authority in felony cases: "For defendants sentenced for felonies committed on or after November 1, 1989, the court that imposed the probationary sentence may revoke probation supervision and impose a sanction as provided by rules of the Oregon Criminal Justice Commission." ORS 137.545(5)(b) ; see also ORS 137.545(1) (providing that probation for felonies committed on or after November 1, 1989, is "[s]ubject to the limitations in ORS 137.010 and to rules of the Oregon Criminal Justice Commission"); State v. Martin , 221 Or. App. 78, 84-89, 188 P.3d 432 (2008) (Sercombe, J., concurring) (explaining that rules of the Criminal Justice Commission "regulate judicial discretion in the making of probation revocation decisions").

As mentioned earlier, OAR 213-010-0001 provides that "[t]he decision to revoke probation is discretionary and may be exercised upon a finding that the offender has violated one or more of the conditions of probation, or that the offender has participated in new criminal activity." As the concurring opinion in Martin recognized, the plain terms of that rule make a trial court's exercise of its revocation authority contingent on a finding of either a violation or a new crime. See Martin , 221 Or. App. at 88, 188 P.3d 432 (Sercombe, J., concurring).

Opposing that conclusion, the state contends that that rule can be read to allow for revocation in circumstances other than those identified in the rule, including circumstances in which the defendant has not violated the conditions of probation. According to the state, the rule's reference to the findings that can justify the exercise of a trial court's revocation authority are simply that-a statement that "the court may exercise its discretion on two different findings." That reading of the rule would render it largely superfluous; the Criminal Justice Commission's decision to identify the specific types of findings that trigger a court's revocation authority would serve no practical purpose if the rule is construed to permit a court to exercise revocation authority even absent such findings. That militates against the state's proposed reading of it.

Beyond that, the context of the rule lends further support to the conclusion that the Criminal Justice Commission did not intend to authorize revocation absent a violation of a condition of supervision or the commission of a new crime. On the contrary, the terms of the rules governing the imposition of probation revocation sanctions explicitly contemplate that a revocation decision necessarily will be triggered by the finding of a violation. Notably, OAR 213-012-0040(2) provides:

"When an offender is serving multiple terms of probationary supervision, the sentencing judge may impose revocation sanctions for supervision violations as provided by OAR 213-010-0002 for the violation of each separate term of probationary supervision.
"(a) If more than one term of probationary supervision is revoked for a single supervision violation, the sentencing judge shall impose the incarceration sanctions concurrently.
"(b) If more than one term of probationary supervision is revoked for separate supervision violations, the sentencing judge may impose the incarceration sanctions concurrently or consecutively."

The rule, by its plain terms, makes the structure of revocation sanctions for offenders serving more than one probationary term contingent entirely on the number of distinct violations of the terms of probation. Omitted from the rule are any specifications addressing the structure of revocation sanctions in the absence of a violation of the conditions of probation. That omission further signals that the Criminal Justice Commission did not intend to authorize the revocation of probation in the absence of a finding that an offender had violated the conditions of probation either by committing a new crime or in some other way. For that reason, we are unable to sustain the trial court's revocation decision on the alternative basis advocated by the state.

That leaves the question of disposition. As we have explained, under Hardges , defendant's failure to complete his work crew sanction does not constitute a violation of his conditions of probation. Additionally, as we have further explained, under OAR 213-010-0001, the trial court is not permitted to exercise its discretionary authority to revoke probation absent the finding of a new crime or other violation of the conditions of probation. And, as noted earlier, the state made little attempt to prove the second alleged violation in this case and did not adduce legally sufficient evidence to prove that violation. All of that means that this record supplies no basis on which the trial court permissibly could make the requisite findings to exercise its discretionary revocation authority. However, ORS 137.540 gives the trial court the discretionary authority to "at any time modify the conditions of probation," and ORS 137.545(1) gives the court discretionary authority to continue or extend probation, subject to certain statutory limitations and the rules of the Criminal Justice Commission. Thus, although the trial court may not revoke defendant's probation on this record, it does have the authority to alter the terms of defendant's probation. We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      The state elicited some testimony regarding defendant's association with Easom, but did not introduce evidence that would support a finding that defendant knew that Easom was a person who used or possessed controlled substances illegally. And the state ultimately did not argue to the trial court that it had proved the second alleged violation. Rather, it argued that it had "proved, at least, the first allegation that [defendant] did not abide by the directive of his *** PO."

      We note that ORS 137.540(1)(j) requires, as a general condition of probation, that the probationer "[o]bey all laws, municipal, county, state and federal." Thus, the commission of a new crime necessarily constitutes a violation of that general condition of probation. Under some circumstances, the legislature has made revocation of probation mandatory when an offender violates the conditions of probation by committing a new crime. See ORS 137.712(5) ("Notwithstanding ORS 137.545(5)(b), if a person sentenced to probation under this section violates a condition of probation by committing a new crime, the court shall revoke the probation and impose the presumptive sentence of imprisonment under the rules of the Oregon Criminal Justice Commission.").


text:
    David T. BICE, Ph.D., Petitioner, v. OREGON BOARD OF PSYCHOLOGY, Respondent.
    A165462
    Court of Appeals of Oregon.
    Argued and submitted January 18, 2019. February 21, 2019
    Steven J. Sherlag, Portland, argued the cause and filed the briefs for petitioner.
    Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.
   LAGESEN, P. J.

This judicial review proceeding under the Administrative Procedures Act is before us for the second time, following a remand to the Board of Psychologist Examiners. See Bice v. Board of Psychologist Examiners , 281 Or. App. 623, 383 P.3d 913 (2016). Petitioner contends, among other things, that the board on remand made new, additional factual findings, without identifying and explaining the reason for that modification as required by ORS 183.650(2). We agree and, for that reason, we again reverse and remand the order.

Petitioner is a licensed psychologist. The board sought to discipline petitioner for inappropriate conduct with two teenage female clients. Following a contested case hearing before an administrative law judge (ALJ) at the Office of Administrative Hearings, the ALJ, based on his factual findings, determined that petitioner had committed none of the alleged violations and that no sanctions were appropriate. The board reached a contrary conclusion, finding that petitioner violated three different ethical standards as well as ORS 675.070(2)(d). In so doing, the board modified the ALJ's factual findings and also made new factual findings. Bice , 281 Or. App. at 626-29, 383 P.3d 913.

In his first petition, petitioner challenged the board's modified findings. Consequently, we reviewed the modified findings de novo , supplanting those findings with our own findings, as ORS 183.650(4) required us to do. Bice , 281 Or. App. at 630-37, 383 P.3d 913. Among other things, we found that petitioner had kissed his 18-year-old patient, SM, on the cheek at the end of his last therapy session with her, rejecting the board's finding that petitioner had attempted to kiss SM on the lips. We explained that a finding that petitioner had kissed SM

on the cheek was supported by evidence of contemporaneous references to the cheek kiss in her diary and reports she made to her mother. Id. at 631-32, 383 P.3d 913. Although we found that the kiss on the cheek occurred, we made no findings about the effect that the kiss had on SM. At that time, neither the ALJ nor the board had made any findings about the effect that the kiss had on SM, having viewed the facts differently than we did.

In addition to making the specific de novo factual findings required under ORS 183.650(4), we also set aside several supplementary factual findings that the board had made, concluding that they were not supported by substantial evidence. Id. at 637-38, 383 P.3d 913. We then remanded the order to the board to reconsider its order in view of our new findings and rejection of certain of its new findings: "Having found that several historical facts are not as found by the board, we must remand for the board to reconsider, under a correct understanding of the facts, its conclusions" that petitioner violated the statutes and ethical standards on which the board's disciplinary decision was predicated. Id . at 638, 383 P.3d 913.

On remand, the board determined that petitioner violated one ethical standard-Ethical Standard 3.04 -and ORS 675.070(2)(d) (by violating that ethical standard and also by causing SM emotional distress). It did so based largely on our finding that petitioner had kissed SM on the cheek. The board explained:

"The Board bases its conclusions primarily on the historical facts determined by the Court of Appeals, which included SM's contemporaneous accounts to her mother and her diary entry, which reflected that SM had an adverse reaction to [petitioner's] conduct towards her and wrote in her diary shortly thereafter that she found [petitioner] 'was way too creepy for me.' (Exhibit A37). [Petitioner] could have prevented this adverse reaction by maintaining appropriate boundaries by refraining from kissing SM on the cheek in a private clinical setting. SM's statement to the Board's Investigator that she would never have a male counselor again (Exhibit A14 at 2) is another indicator that SM suffered harm from [petitioner's] goodbye kiss at the end of the last clinical session. The Board views such conduct in this case to be a violation of ES 3.04 (avoiding harm). It occurred in a one on one clinical setting between a psychologist and his female client, who had recently turned 18 years old, and who began treatment following her completion of cancer treatment and the sudden death of her father. In those circumstances, [petitioner] held a position of disparate power and authority relative to SM and initiated a kiss, a form of physical contact that was fraught with the potential for harm."

(Footnote omitted.) It further determined that petitioner's conduct still warranted a reprimand, although the board reduced the sanctions that it previously had imposed.

Before us, petitioner raises a number of challenges to the board's revised order on remand. We reject all but one of those challenges without further discussion. We agree that the board impermissibly made new findings on remand without identifying or explaining those findings, as required by ORS 183.650(2). See Robin v. Teacher Standards and Practices Comm. , 291 Or. App. 379, 396-98, 421 P.3d 385 (2018) ; Bice , 281 Or. App. at 637, 383 P.3d 913.

Specifically, in determining that petitioner's conduct violated Ethical Standard 3.04 and ORS 675.070(2)(d), the board made new findings about the effect that petitioner's kiss had on SM, finding that she had an "adverse reaction" to it and that she "suffered harm" as a result. Those findings, both of which address how the kiss affected SM, were not contained in the ALJ's order, were not contained in the board order that we reviewed in the initial judicial proceeding, and were not among the findings that we made and directed the board to reconsider on remand. As such, they are new findings that the board was required to identify and explain. Bice , 281 Or. App. at 637, 383 P.3d 913 (explaining that, "when an agency makes findings that are in addition to those made by the ALJ, those additional findings are modifications of an ALJ's proposed order other than modifications of findings of historical fact," which the agency is required to identify and explain); see Robin , 291 Or. App. at 396-98, 421 P.3d 385 (same).

The board does not dispute that it did not identify or explain its new findings. Instead, the board argues that it did not make any new findings and, instead, drew only permissible inferences from previously found historical facts. We are not persuaded. How petitioner's kiss, in fact, affected SM-how she perceived it, how it made her feel, and how it affected her subsequent conduct-is a matter of historical fact. Although it may be an inferred fact, it is nonetheless a new finding of fact because, as we have explained, until the board made the challenged finding, there had been no findings about how the kiss affected SM.

The board's failure to comply with the requirements of ORS 183.650(2) requires a remand, at least where, as here, the new findings affect the basis of the board's determination that petitioner violated Ethical Standard 3.04 and ORS 675.070(2)(d). Robin , 291 Or. App. at 396-98, 421 P.3d 385 (explaining that remand is required when an agency makes unidentified and unexplained changes to an order, including making additional factual findings, if those new findings change the basis of the order).

We therefore remand the board's order to comply with its obligation under ORS 183.650(2) with respect to any findings pertaining to the effect the kiss had on SM.

Reversed and remanded.

      Under ORS 675.070(2)(d), the board is permitted to sanction a licensee who "[i]s guilty of immoral or unprofessional conduct or of gross negligence in the practice of psychology." Such conduct includes "[c]onduct or practice contrary to recognized standard of ethics of the psychological profession." ORS 675.070 (2)(d)(A). In other words, a violation of an applicable ethical standard also qualifies as a violation of ORS 675.070(2)(d). Other conduct constituting "immoral or unprofessional conduct" or "gross negligence" in the practice of psychology includes "conduct or practice that constitutes a danger to the health or safety of a patient." ORS 675.070(2)(d)(A).

      Ethical Standard 3.04 provides:
      "Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, research participants, organizational clients, and others with whom they work, and to minimize harm where it is foreseeable and unavoidable."

      On remand, the board initially determined that petitioner's act of kissing SM was a "per se " violation of Ethical Standard 3.04. After petitioner filed his initial opening brief on judicial review, the board withdrew the order and issued a revised order, as permitted under ORS 183.482(6).

      Petitioner does not suggest that the board acted outside the scope of our remand in making the new findings about the effect that the kiss had on SM; he contends only that the board failed to comply with its obligations under ORS 183.650(2), and that the new findings are not supported by substantial evidence. In response, the board does not dispute that it is required to comply with ORS 183.650(2) when it makes new factual findings following a remand from us in a matter in which we were called upon to find certain facts de novo under ORS 183.650(4). We therefore proceed on the assumption that the board's additional factfinding was permitted by the scope of our remand, and that ORS 183.650(2) applies when an agency adds to the previously found facts on remand.


text:
    In the MATTER OF A. R. L. U., a Child.
    Department of Human Services, Petitioner-Respondent, and A. R. L. U., Respondent, v. M. M. R., Appellant.
    A168081
    Court of Appeals of Oregon.
    February 6, 2019
    Sarah Peterson, Deputy Public Defender, argued the cause for appellant. Also on the brief were Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
    Inge D. Wells, Assistant Attorney General, argued the cause for respondent Department of Human Services. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Christa Obold Eshleman argued the cause for respondent child. Also on the brief was Youth, Rights & Justice.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   LAGESEN, P. J.

Mother appeals an order denying her motion under ORS 419B.923 to set aside a judgment terminating her parental rights to her daughter A. After the parties submitted their briefs in this matter, a petition for A's adoption was granted. The Department of Human Services (DHS) then moved to dismiss the appeal as moot, on the ground that ORS 419B.923(3) now precludes mother from obtaining any relief pursuant to ORS 419B.923, in view of the grant of the petition for A's adoption. ORS 419B.923(3) (providing, in relevant part, "no order or judgment pursuant to ORS 419B.527 may be set aside or modified during the pendency of a proceeding for the adoption of the ward, nor after a petition for adoption has been granted"); Dept. of Human Services v. B. A. S./J. S. , 232 Or. App. 245, 265, 221 P.3d 806 (2009), rev. den. , 348 Or. 280, 230 P.3d 933 (2010) (in view of ORS 419B.923(3), the grant of an adoption petition mooted appeal from denial of motion under ORS 419B.923 ). We agree that, in view of ORS 419B.923(3), the appeal is moot. Accordingly, we dismiss.

As the parties recognize, we addressed a similar issue in B. A. S./J. S . There, as here, the parents appealed orders denying their motions under ORS 419B.923(3) to set aside judgments terminating their parental rights to their children. B. A. S./J. S. , 232 Or. App. at 248. During the pendency of the appeal, the petitions for the adoptions of their children were granted. Id. We concluded that that fact rendered parents' appeal moot for three reasons. First, under ORS 419B.923(3), the grant of the petitions for the children's adoptions precluded the grant of the parents' motions, regardless of the merits of those motions. Id . at 253-56, 221 P.3d 806. Second, under the circumstances of that case, the granting of the motions also would not fall within the court's inherent authority, which is not displaced by ORS 419B.923. Id . at 254-59, 221 P.3d 806 ; see ORS 419B.923(8) (explaining that statutory procedures do not affect a juvenile court's inherent authority to modify or set aside a judgment for fraud). Third, we concluded that the limitations on post-judgment relief following the completion of an adoption did not violate the parents' rights to procedural due process. B. A. S./J. S. , 232 Or. App. at 259-65. We reasoned, among other things, that the parents had sufficient procedural avenues available to them to protect their rights during the litigation of an ORS 419B.923 motion that the legislative choice to protect the finality of adoption judgments did not violate procedural due process, especially in view of the importance of achieving permanency for affected children. Id . at 265, 221 P.3d 806.

Notwithstanding its similarities to this case, mother contends that B. A. S./J. S. does not compel dismissal of this appeal. She advances three primary arguments in support of that contention. We address each of them.

Mother first contends that, unlike in B. A. S./J. S. , the granting of her motion would be within the juvenile court's inherent authority and, thus, ORS 419B.923(3) does not operate to displace the court's authority to grant her motion. ORS 419B.923(8) ("This section does not limit the inherent power of a court to modify an order or judgment within a reasonable time or the power of a court to set aside an order or judgment for fraud upon the court."). In particular, mother points out that she alleged in her ORS 419B.923 motion that she was entitled to relief from the termination judgment for fraud. Thus, mother reasons, the court retained the inherent authority to grant her motion, notwithstanding other provisions of ORS 419B.923, including ORS 419B.923(3).

Longstanding Oregon law compels us to reject mother's argument. As we have explained, under that precedent, a court's inherent authority does not extend to setting aside a judgment for all types of fraud. Rather, a court has the inherent authority to set aside a judgment for extrinsic fraud only. Wimber v. Timpe , 109 Or. App. 139, 146, 818 P.2d 954 (1991) ; see Johnson v. Johnson , 302 Or. 382, 394, 730 P.2d 1221 (1986). "Extrinsic fraud consists of acts not involved in the fact finder's consideration of the merits of the case." Wimber , 109 Or. App. at 146, 818 P.2d 954. A court's inherent authority does not extend to setting aside a judgment for intrinsic fraud, that is, fraud that "consists of acts that pertain to the merits of the case, such as perjured testimony." Id. The reason for that is "because the litigant had an opportunity to refute the representations. When that opportunity is not used, the litigant is denied relief because of a policy that there must be finality in litigation." Id .

Here, mother's allegations of fraud (to the extent that they identify fraud at all in an understandable, non-conclusory way) are allegations of intrinsic fraud. As we read her motion, mother alleges that her DHS caseworker made false statements on the witness stand, and that the psychological evaluation of mother was founded, in part, on incorrect information provided to the psychologist by DHS. Because the termination trial afforded mother the opportunity to contest the DHS worker's statements and the foundation for the conclusions in the psychological evaluation, mother's allegations of fraud are of intrinsic fraud. The juvenile court, therefore, would not have the inherent authority to grant relief from judgment based on those allegations of fraud. Id. (reversing order setting aside adoption decree where court had acted outside its inherent authority by granting relief based on intrinsic fraud).

Mother next asserts that it would violate principles of procedural due process for us to conclude that the procedural bar in ORS 419B.923(3) renders this appeal moot. For reasons similar to those stated in B. A. S./J. S. , we reject that argument. In particular, as we recognized in B. A. S./J. S. , there are procedural mechanisms to maintain the status quo during the pendency of an appeal to protect the rights of the appellant. Mother could have, for example, requested the juvenile court to enjoin DHS from consenting to A's adoption under ORS 419B.527 during the pendency of the appeal. Mother has not demonstrated persuasively that such procedures are inadequate to comport with due process.

Finally, mother argues that this appeal is not moot because, in her view, a favorable resolution would mean that the adoption of A would have to be invalidated. But, as we have explained, the juvenile court has neither statutory nor inherent authority to set aside the termination judgment under the circumstances of this case. In the absence of such authority, resolution of the merits of this appeal cannot have the effect of invalidating the adoption.

For the above reasons, the grant of the petition for A's adoption renders this appeal moot.

Appeal dismissed.

      In Wimber , the court addressed both the scope of a court's authority to set aside a judgment for fraud under ORCP 71 B(1)(c), as well as the scope of a trial court's inherent authority to set aside a judgment for fraud. We concluded that, under both ORCP 71 B and the court's inherent authority, a court had the authority to set aside a judgment for extrinsic fraud only. Wimber , 109 Or. App. at 146, 818 P.2d 954. In 2012, ORCP 71 B was amended to specify that a judgment may be set aside under that provision on the basis of fraud "whether previously called intrinsic or extrinsic." ORCP 71 B(1)(c). The amendment to ORCP 71 B does not affect our holding in Wimber as to the scope of a court's inherent authority.


text:
    STATE v. STAVRUM, Kim
    A167440
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    DREYER et al. v. CITY OF EUGENE et al.
    Fairmount Neighborhood Association et al. v. Dreyer et al.
    A169649
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    GODDARD v. RIVERA-SALGADO
    A166906
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    LANE COUNTY v. EMPLOYMENT DEPARTMENT et al.
    A167929
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    In the MATTER OF J. B., a Child.
    Department of Human Services v. J. M. B., aka J. B.
    A168820
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    In the MATTER OF H. J. E., a Person Alleged to have Mental Illness.
    State v. H. J. E.
    A167422
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    STATE v. BERESTOFF, James Maxwell
    A165551
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    STATE v. HOLLINGSWORTH, Lawrence W.
    A167952
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    STATE v. RECKARD, Darren Lyn
    A165597
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the MARRIAGE OF GOCEL AND ERICKSON
    A168314
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    STATE v. VANDRASEK, John Raymond
    A165571
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    In the MATTER OF R. S., a Child.
    Department of Human Services v. K. S. C.
    A169060
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. COOPER, Serena Renee
    A165471
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    In the MATTER OF R. R., a Person Alleged to have Mental Illness.
    State v. R. R.
    A167064
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the MARRIAGE OF GIRT and Girt
    A167839
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    DIGESTI, Ricky Lee v. BROWN
    A164965
    Court of Appeals of Oregon.
    February 27, 2019
    Affirmed without opinion.


text:
    STATE v. GUARDADO, Juan Jose
    A165075
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. KOENIG, Michael Ray
    A165272 A165273
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. KOFORD, Richard Oscar
    A164698
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. ROBINSON, Nathan Matthew, aka Robinson, Nathan
    A164968
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. WILCOX, Britt Mitchell
    A165476
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    MACHAIN, Rebecca Ann v. PERSSON
    A164214
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. BROOKS, Nancy Colleen
    A165833
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. GRIFFIN, Rodger Elden, aka Griffin, Rodger E.
    A165854
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. CLAUSEN, Kasi Lynn
    A165533
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. EBY, Raymond Louis
    A165084
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. SCOTT, Kevin Levi
    A163658
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. PEREZ, Daniel Abram Herrera
    A166739
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. SAHM, Larry Lee, aka Larry, Sahm
    A162218
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. SHERRILL Melissa Nicole, aka Pacini, Melissa Nicole
    A165427
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. STARR, Adam Michael
    A165206
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    EDWARDS et ux. v. WAGNER et ux.
    A167309
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    HUBBLE v. DEPARTMENT OF HUMAN SERVICES
    A167571
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. CAGE, Matthew Antonio
    A164777
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. GUZMAN, Mayro Mike, aka Guzman, Mike
    A166181
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. TATE, Wendell Kenneth
    A165230
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. TORRES, Jesus Michael
    A164774 A164819 A164820
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    In the MATTER OF Y. P., a Person Alleged to have Mental Illness.
    State v. Y. P.
    A167214
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. BAUMANN, Jacob Z., aka Baumann, Jacob Zachary
    A165319
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. MOOS, Steven Gabriel
    A164929(A164930)
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    HURTADO-NAVARRETE, Delfino v. AMSBERRY
    A165196
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


author: PER CURIAM

text:
    STATE of Oregon, Plaintiff-Respondent, v. Jeffrey Arnold WARNER, Defendant-Appellant.
    A164532
    Court of Appeals of Oregon.
    March 27, 2019
    George W. Kelly, Eugene, argued the cause and filed the brief for appellant.
    Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Powers, Presiding Judge, and Egan, Chief Judge, and Landau, Senior Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   PER CURIAM

Defendant appeals a judgment of conviction for two counts of second-degree sexual abuse, ORS 163.425, and three counts of first-degree sexual abuse, ORS 163.427, raising two assignments of error. We reject his first assignment of error without discussion. In his second assignment of error, defendant contends that two guilty verdicts of the first-degree sexual abuse convictions should merge. We agree, and therefore reverse and remand for resentencing.

We review a trial court's denial of a request to merge under ORS 161.067 for errors of law. State v. Davis , 265 Or. App. 425, 438, 335 P.3d 322 (2014), rev. den. , 356 Or. 837, 346 P.3d 496 (2015). Defendant assaulted the victim twice. He first forcibly touched her breasts and vagina and then penetrated her without her consent. Defendant then fell asleep. The victim attempted to escape defendant's house, but was unable to leave. Defendant woke up and told the victim she could leave if she "cuddle[d] with him for another 15 minutes." Defendant then put his hands down the victim's pants and again penetrated her without her consent. Defendant was convicted of two counts of second-degree sexual abuse and three counts of first-degree sexual abuse.

On appeal, defendant argues that two of the convictions for first-degree sexual abuse should merge. ORS 161.067(3) provides that

"[w]hen the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent ."

(Emphasis added.)

Defendant argues that, during the first assault, defendant's actions of touching the victim's breasts and then vagina were not separated by a sufficient pause to be separately punishable and, thus, two of defendant's convictions for first-degree sexual abuse must merge. The state concedes that the trial court erred in that respect, and we accept the concession. State v. Dugan , 282 Or. App. 768, 772, 387 P.3d 439 (2016) (citing State v. Nelson , 282 Or. App. 427, 447, 386 P.3d 73 (2016) ) (Merger is proper for multiple acts of sexual contact with different body parts constituting sexual abuse when acts occurred in one location, without interruption by a significant event, and without a pause in defendant's aggression.). Consequently, we reverse and remand for merger of those guilty verdicts and for resentencing.

Convictions on Counts 5 and 6 reversed and remanded for entry of a judgment of conviction for one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.


text:
    STATE v. CATANZARO, Vincent Howard
    A166029
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. DREW, Molly Susan John
    A166152
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. ROBERTS, Catrina Alicea
    A165209
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    LEGG v. RENEE
    A166275
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    SCOTT, Dale R. v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A165980
    Court of Appeals of Oregon.
    March 6, 2019
    Affirmed without opinion.


text:
    STATE v. BADIKYAN
    20180883
    Supreme Court of Utah.
    February 13, 2019
    Petition for Writ of Certiorari Granted.


text:
    ROSS v. BARNETT
    20181031
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. HERNANDEZ
    20181030
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    ARRIAGA v. ARRIAGA
    20180870
    Supreme Court of Utah.
    January 21, 2019
    Petition for Writ of Certiorari Granted.


text:
    BRYNER v. UTAH ATTORNEY GENERAL
    20180874
    Supreme Court of Utah.
    January 21, 2019
    Petition for Writ of Certiorari Denied.


text:
    ROCKY MOUNTAIN v. MARRIOTT
    20181059
    Supreme Court of Utah.
    February 13, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. JOHNSON
    20180878
    Supreme Court of Utah.
    February 1, 2019
    Petition for Writ of Certiorari Denied.


text:
    BODELL CONSTRUCTION v. FIRST INTERSTATE FINANCIAL LLC
    20180938
    Supreme Court of Utah.
    January 25, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. ROHWEDDER
    20180831
    Supreme Court of Utah.
    January 21, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. GALLEGOS
    20180890
    Supreme Court of Utah.
    January 7, 2019
    Petition for Writ of Certiorari Granted.


text:
    STATE v. NEWTON
    20180915
    Supreme Court of Utah.
    February 13, 2019
    Petition for Writ of Certiorari Granted.


text:
    STATE v. KLENZ
    20180907
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. CORONA
    20180832
    Supreme Court of Utah.
    January 25, 2019
    Petition for Writ of Certiorari Denied.


text:
    ARMENDARIZ v. ARMENDARIZ
    20180900
    Supreme Court of Utah.
    January 21, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. RAMOS
    20180791
    Supreme Court of Utah.
    January 21, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. PEREZ
    20181056
    Supreme Court of Utah.
    February 13, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. SALAS
    20181045
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. RICKS
    20180963
    Supreme Court of Utah.
    January 25, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. ARGUETA
    20180814
    Supreme Court of Utah.
    January 25, 2019
    Petition for Writ of Certiorari Granted.


text:
    STATE v. CANTARERO
    20180928
    Supreme Court of Utah.
    January 21, 2019
    Petition for Writ of Certiorari Denied.


text:
    TAYLORSVILLE CITY v. MITCHELL
    20180930
    Supreme Court of Utah.
    February 13, 2019
    Petition for Writ of Certiorari Granted.


text:
    STATE v. CUTTLER
    20180903
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. CASPER
    20180873
    Supreme Court of Utah.
    January 25, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. WRIGHT
    20180977
    Supreme Court of Utah.
    January 21, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. GRUNDY
    20180978
    Supreme Court of Utah.
    January 21, 2019
    Petition for Writ of Certiorari Denied.


text:
    SALT LAKE CITY v. ZIVKOVIC
    20180995
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. GONZALES-BEJARANO
    20180999
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. PENCE
    20181019
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. HOLLAND
    20181044
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. ESQUER
    20190006
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. GUTIERREZ
    20190053
    Supreme Court of Utah.
    February 13, 2019
    Petition for Writ of Certiorari Denied.


text:
    STATE v. ORYALL
    20190019
    Supreme Court of Utah.
    February 9, 2019
    Petition for Writ of Certiorari Denied.


text:
    XU v. ZHAO
    20180951
    Supreme Court of Utah.
    February 1, 2019
    Petition for Writ of Certiorari Denied.


text:
    IN RE C.M.
    20180939
    Supreme Court of Utah.
    February 1, 2019
    Petition for Writ of Certiorari Denied.


text:
    STEWART v. DEPT OF CORRECTIONS
    20180797
    Supreme Court of Utah.
    January 25, 2019
    Petition for Writ of Certiorari Denied.


author: PER CURIAM:

text:
    Rodney BENSON, Petitioner, v. UTAH LABOR COMMISSION, Utah Division of Alcoholic Beverage Control, and WCF Mutual Insurance Company, Respondents.
    No. 20170872-CA
    Court of Appeals of Utah.
    Filed December 20, 2018
    Rodney Benson, Petitioner Pro Se
    Matthew J. Black, Salt Lake City, Attorney for Respondents Utah Division of Alcoholic Beverage Control and WCF Mutual Insurance Company
    Before Judges Gregory K. Orme, Michele M. Christiansen Forster, and Kate Appleby.

      Judge Kate A. Toomey has resumed the use of her birth name and is now known as Judge Kate Appleby.

   PER CURIAM:

¶1 Rodney Benson seeks judicial review of the Labor Commission's decision denying his claim for benefits under the Workers' Compensation Act. We decline to disturb the Commission's decision.

¶2 Benson initially argues that he was constitutionally entitled to a jury trial during the formal adjudicative proceeding before the Labor Commission. However, "[t]he right to jury trial under article I, section 10 [of the Utah Constitution] extends only to actions that were triable to juries when the Constitution was adopted." Jensen v. State Tax Comm'n , 835 P.2d 965, 969 (Utah 1992). The Labor Commission's procedures here are "solely creatures of statute and were not cognizable as civil actions at common law." Id. As a result, Benson was not entitled to a jury trial in the Labor Commission proceedings. See id. ; see also Curtis v. Loether , 415 U.S. 189, 194, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (noting that "the Seventh Amendment is generally inapplicable in administrative proceedings, where jury trials would be incompatible with the whole concept of administrative adjudications").

¶3 Benson next asserts that the Labor Commission violated various provisions of both the federal and state constitutions during the course of the proceedings. Benson fails to adequately brief the issue. A party must support his argument on judicial review "with citations to legal authority and the record" and with "reasoned analysis" explaining "why the party should prevail." Utah R. App. P. 24(a)(8). "A brief is inadequate when it merely contains bald citation[s] to authority [without] development of that authority and reasoned analysis based on that authority. As we have repeatedly noted, we are not a depository in which [a party] may dump the burden of argument and research." Smith v. Four Corners Mental Health Center, Inc. , 2003 UT 23, ¶ 46, 70 P.3d 904 (quotation simplified). "An inadequately briefed claim is by definition insufficient to discharge an appellant's burden to demonstrate trial court error." Simmons Media Group, LLC v. Waykar, LLC , 2014 UT App 145, ¶ 37, 335 P.3d 885. Here, Benson lists various constitutional provisions he claims that the Legislature violated in creating the Labor Commission, or that the Labor Commission violated during the adjudicative process. He also states that "each and every point made in this brief illustrates a violation" of his constitutional rights. However, Benson fails to develop any authority or reasoned analysis as to how each of these "points" is a violation of a constitutional provision. As a result, Benson has failed to carry his burden of demonstrating any error on the part of the Labor Commission.

¶4 Benson argues that the Legislature and the executive branch, including the Labor Commission and the Governor's Office, are biased against workers in general, and demonstrated bias against him in particular. In making this argument Benson sets forth numerous alleged theories of bias. Many of these theories concern Benson's belief that there are systemic issues concerning how the Labor Commission resolves complaints filed by injured workers. However, because such issues involve policy considerations, and Benson has failed to demonstrate any constitutional infirmities in the administrative process, they can be resolved only by the Legislature. See University of Utah v. Shurtleff , 2006 UT 51, ¶ 53, 144 P.3d 1109.

¶5 Benson also raises numerous points of contention that he believes demonstrate that the Labor Commission was biased against him individually. However, a closer examination of his arguments demonstrates that he is not arguing that the Administrative Law Judge (the ALJ) or the Appeals Board of the Labor Commission was actually biased against him. Rather, he is arguing that they did not treat him fairly. However, in so arguing, Benson fails to cite any applicable statute or administrative rule that was not followed during the proceedings in the Labor Commission. Further, as stated above, he fails to properly develop any argument that the alleged "biases" on the part of anyone at the Labor Commission violated either the state or federal constitutions. We must, therefore, due to the absence of any argument to the contrary, assume that the Labor Commission complied with the procedural requirements provided by the statute and administrative rules. Because we assume that the Labor Commission complied with all applicable statutes and rules, Benson cannot demonstrate that the Labor Commission treated him any differently than any other person seeking benefits. As such, Benson fails to demonstrate that the Labor Commission was biased against him.

¶6 The arguments raised by Benson could be construed as a claim that the Labor Commission erred in failing to award him benefits. The Labor Commission's decision to award benefits is a mixed question of fact and law. Danny's Drywall v. Labor Commission , 2014 UT App 277, ¶ 9, 339 P.3d 624. "The standard of review we apply when reviewing a mixed question can be either deferential or non-deferential" depending upon whether the question is more fact-like or law-like. Jex v. Labor Commission , 2013 UT 40, ¶ 15, 306 P.3d 799 (quotation simplified). "Due to the fact-intensive inquiry involved at the agency level" in determining whether it is appropriate to award benefits, including credibility determinations that an appellate court is "in an inferior position to review," cases like these not lend themselves "to consistent resolution by a uniform body of appellate precedent." Carbon County v. Workforce Appeals Board , 2013 UT 41, ¶ 7, 308 P.3d 477 (quotation simplified); see also Hutchings v. Labor Commission , 2016 UT App 160, ¶ 23, 378 P.3d 1273 (stating that "[m]edical causation is fundamentally a factual determination"). This decision is therefore more fact-like, and deference to the Labor Commission's decision is warranted.

¶7 Benson asserts that his need for a knee replacement surgery was the result of a work-related accident and was not related to a prior motorcycle accident. In so arguing, Benson points this court to various facts and evidence to support his argument. However, this court has previously concluded that a petitioner must do more than simply point to evidence that supports his argument, the petitioner must "demonstrate that the Commission's medical causation finding itself is not supported by substantial evidence." Hutchings , 2016 UT App 160, ¶ 31, 378 P.3d 1273. Here, there is substantial evidence in the record from which the Labor Commission could have reasonably found that Benson's ongoing knee issue was not caused by the industrial accident, but rather by a motorcycle accident that predated the industrial accident, coupled with degenerative changes resulting from age and weight.

¶8 A medical panel's report alone may provide substantial evidence to support the Labor Commission's determination of medical causation. See id. ¶ 32. Here, the medical panel reviewed Benson's relevant medical records, considered Benson's diagnostics, and performed its own examination of Benson. After reviewing the totality of the evidence, the medical panel determined that Benson's industrial injury was a temporary aggravation of his pre-existing condition and that aggravation was fully resolved within a year of the industrial accident. The panel added that because of the prior motorcycle accident and the natural progression of degeneration due to age and weight, Benson's current knee problems would likely have been the same even if the work accident had never occurred. The medical panel's report was comprehensive and supported by various medical records generated during the history of Benson's knee problems. Thus, the medical panel's report constituted substantial evidence in support of the Labor Commission's decision. Because substantial evidence supported the Labor Commission's decision, Benson has failed to demonstrate that the Labor Commission abused its discretion.

¶9 For the above reasons, we decline to disturb the Labor Commission's order.

      This court cannot find any specific claim in which Benson argues that the ALJ or the Appeals Board had a specific bias against Benson that would have required recusal.