Angle v Board of Dentistry, No. A162472, decided by the Oregon Court of Appeals on October 17, 2018, is a statutory interpretation case about nonresponsive responses.

ORS 679.170(6) provides that no person shall “fail to respond” to a written request from the Board of Dentistry for information.  Does a “nonresponsive” reply count as a failure to respond?  In this case, the Oregon Court of Appeals decides that just saying something is not sufficient to comply with ORS 679.170(6).  Instead, responses must be responsive.  According to the court, telling the board to go fly a kite or writing a letter about the history of Rome will not pass muster.  However, a “curt and not overly helpful” response may work.

In Angle, the Board of Dentistry wrote to an orthodontist on July 22, 2015 to request certain information.  What happened next was disputed.  The orthodontist contends that he mailed the requested response on July 27, in the same envelope as a check that the Board received and cashed.  For its part, the Board asserts that the check was not accompanied by anything else.

In any event, on September 21, 2015, the Board again requested a response to its July 22 demand. The orthodontist tersely wrote back that he had mailed the requested response on July 27, in the same envelope as the check.  He enclosed a copy of the canceled check as evidence that the Board had received that mailing.  But he did not submit a copy of the alleged July 27 response.  He closed his letter by suggesting, “[h]ow about we stop playing games and treat each other with respect.”

In administrative proceedings, the Board of Dentistry ruled, among other things, that the orthodontist had failed to respond to the September 21 request, in violation of ORS 679.170(6). On appeal, the Oregon Court of Appeals considered whether the orthodontist’s “curt and not overly helpful” September 27 letter constituted a failure to respond within the meaning of the statute.  If any reply to the September 21 request constitutes a response for purposes of ORS 679.170(6), then regardless of its content, the orthodontist’s September 27 letter would not have violated the statute.

However, looking to the Webster’s definition of the word “respond”—“to say something in return: make an answer”—the court held that the ordinary meaning of the term suggests a responsive response, not a nonsensical or off-topic one.  Consistent with that interpretation, in a previous case, the Court of Appeals had held that a dentist “failed to respond” when he reacted to a request for information by suing the Board.  The Angle court reasoned that if any communication triggered by a request were deemed a “response,” then in the previous case, serving the summons would have been sufficient to comply with ORS 679.170(6).

Turning to the context of the statute, the court then cited RPC 8.1(a)(2), which provides that a lawyer shall not knowingly fail to respond to an information request from a disciplinary authority. The Angle court admitted that “[w]e cannot say that RPC 8.1(a)(2) provides ‘context’” because it was not adopted until decades after ORS 679.170(6) and by a different body to boot.  Nevertheless, the Court of Appeals held that a 2009 case interpreting the rule “is relevant” to interpreting ORS 679.170(6) because it too relied on an understanding that a nonresponsive reply is a failure to respond.

Finally, the court examined the legislative history of ORS 679.170(6), which revealed that the Board had wanted the “clout” to be able to sanction dentists who were not responding to its inquiries. The court cited two canons of statutory construction: (1) that the court should construe statutory language in a manner consistent with its purposes; and (2) that the court should “use ‘the broader purposes of the statute’ as a guide” and “‘attempt to discern what the legislature would have intended had it considered’” the issue at hand.  Applying those canons here, the court reasoned that ORS 679.170(6) would not serve its intended purpose if “respond” were interpreted to mean any response whatsoever.

Thus, the court arrived at its final conclusion: silence or a nonresponsive response constitutes a failure to respond for purposes of ORS 679.170(6). In short, telling the Board to go fly a kite is a failure to respond.

Here, however, the orthodontist did not tell the Board on September 27 to go fly a kite. His letter was “curt and not overly helpful,” but it “did notify the board that petitioner had already responded, provided the date of mailing, and provided evidence of the board’s receipt.”  Thus, the court concluded that his September letter was not nonresponsive, assuming that he actually had already responded in July as he claimed.  The Court of Appeals remanded for the Board to resolve the factual dispute about what, if anything, the orthodontist sent to the Board in July.

The statements and views expressed in this posting are my own and do not reflect those of my law firm, are intended for general informational purposes only, and do not constitute legal advice or legal opinion.