you raise the objection to the judge's charge on the issue of criminal activity on the ship before the jury instruction you know we did raise the issue i'm not clear about that it seems like your focus was that you know this was a civil proceeding but the charge specifically talked about criminal activity visually what the o j and i think you raised in the direction to that charge in that respect maybe i'm wrong i'm not sure would charge you are referring reacts the judge to that we got good news the issue before the court at trial was the secretary of state but but but when the judge gave the charge about the criminal aspects of this was raised this issue over and over again in fact we asked the court to reconsider it i just don't see that it seems to be that that might have been a waiver on the part of counsel but i just want you to clarify that for me well the point to where it is you said your honor this is not just criminal activity visas be the d o j this is criminal activity to any person and that's not a correct charge that you gave to the jury and i don't see that in the record well you even your honor blower hotline with the secretary of state which people can call we have the bureau of labor and industries which is an agency that is set up to deal with let me interrupt i don't still say when i started this job twenty three years ago i don't mean to interrupt you it's not just limited to deal j he had it's not a correct charge and here's what i request you should charge the jury i don't think that happened here i just want to get clarification about that it did occur  of by your honour's well if the preservation issue is going to be an issue in the court's inclined to say that these issues will not preserved i will want to point out at the outset that i do believe that there is significant public policy impact in this case because if this holding is to stand what it essentially says is that even though there is a hotline set up with the secretary of state that people can call and report cases of fraud waste abuse blow the whistle on their employer they're not going to be protected under the law under this statute but we're not the organ legislature and we've got this statute that we've got to deal with brought a civil proceeding or testified at a civil proceeding grand that's what the statute says that's correct and there and there are other statutes not issue in this case the organ actually has i think a series of sort of overlapping whistleblower statutes but we're proceeding under this one so why does your client client qualify why did her report qualify under this statute and th to separate claims one was a complaint that was made to the organ seat board nursing which they called up the board of nursing basically said what do i do in a case where were i wonder from a parent that the medication  order is old and they said well that would be negligent she put that in the record it was necessarily a complaint there was a second issue where she contacted the department of health and human services and reported a hip a violation i would argue that that case is different in this case because this case actually report deals with reports directly to the secretary of state and directly to the bureau of labor and industries which are two agencies that are set up to deal with these type of issues o which ministry of matters not criminal or civil action and that seems to me to be the crux of it or if you're saying that's the nature of the agency what is your response or my response is that i don't think the court  i cannot answer that i don't know when that was an event human did not deal with that at all but we have to deal with it here i guess right we do and i would say and i think walker agreed that that statement is probably dicta not not by name but i also will say that they who report said that it is a civil action is opposed to a sill proceeding and civil action is not even a term that is used in the statute of six fifty nine eight point two three is is charged with enforcing employment laws in the state of oregon for adults and children employees they are charged with with handling those complaints with enforcing those laws and also with with clarifying the laws with which with respect to employment and in that regard they fulfilled their duties by next in this rule which defines what criminal proceeding is in this case but it's not it's not a question of whether the agency fulfilled its duty the question is it's got a it's got a rate that is spot on for your team right it's very very helpful for your team but what you are asking is why is that is that regulation entitle to deference it's not a chevron standard which is what we do in our sleep you know we do that all the time but organ has a very specific and quite a different standard why should we give deference to that well be and tell the panel raised the star in their in their opposition brief as well time is what they argue in other words you've got to look at the legislative history and i think if you look at the legislative history of this it makes little sense to it makes little sense to have this statute that protects employees for whistleblower actions said when i asked which is basically you said you've got to look to the legislative history is that right we look to the legislative history to decide who falls in one of those three categories well i think you look at the word civil proceeding it's not you know the administrative proceeding then it doesn't apply because the administrative because there is reported to administrative agencies with which are not civil actions and civil action what i'm arguing is that a civil action is not a civil proceeding as that term is used in defined by the statute so that's why i'm arguing that huber is potentially incorrect what would be a civil proceeding then a civil proceeding would be how it's defined by the oregon administration which is either wrong in terms of what is wrong in that respect crap and i don't think it's it's binding i think it's dicta if we disagree with you regarding whether he is wrong and if if huber conflicts with the regulation which has priority i believe the regulation why why would a regulation trump a court ruling because the regulation is right on point for the definitions for proceeding and i think humor doesn't deference to the state court decisions so i have some difficulty same that an administrative rule overrides our obligation to give deference to the state court decisions what's your response to that i think it's an imperative i think that the public policy dictates that that is what happens it would be the statute be useless if there is not that we have toward predicting how the state court how the state supreme court will address this issue and that coupled with our obligation to it here to state court decision i find it difficult to x x argument well let me let me mention two other cases that was cited also by the appellant in their brief and addressed in my reply brief is well these are two cases bay versus wild oats markets and roberts b organ mutual what i do want to mention with respect to those two cases is that the court said i agree with the appellant on this the court said that they need  to their reports need to be part of result of the criminal investigation or process but the court also said in those cases that the complainant needed to reasonably believe they were reporting criminal conduct and i think those are important cases because the record is replete with the evidence the victoria model leave the issue of reporting criminal conduct she testified that that's why she contacted the secretary of state she included all that information reporting that conduct to the bureau of labor and industries and also to lead i think you're right i mean the criminal conduct is reported to everybody except the president the united states i get it under sympathetic to that but when mixing we're talking about a jury charge it seems to me in respect to whether or not criminal conduct was a properly judge the jury will talk and separate the issue of civil proceeding with the image huber whether you know would preclude if you consider the administrative ruling i'm still not clear which came smith and i here on behalf of the oregon health authority before we get into the questions i just wanted to make a quick correction to a citation in my answering brief  on page thirty five i state that the judge is the colloquy and ruling on the expert witness was on e r forty six fifty it's actually e r fifty eight sixty two i accident cited the transcript pages instead of the article so basically what's happening here is that the plaintiff is asking this court to disregard settled oregon law regarding the interpretation of oregon are so i see a couple of separate issues here so when main focus when i question your adversary was first on the report of criminal activity and it seems that you agree that perhaps the judge did not properly charge the jury by just lived through the reports of the deal j because the statute talks about reporting of criminal activity it doesn't say just the d o j and she reported criminal activity to all sorts of people here that was done in good are my first argument was preservation i argued preservation on all of them but on the merits of that i don't agree that the instruction was incorrect on the merits there is settled oregon case law specifically interpretating that statute six five nine eight point two three zero to say that in order to get under the protection for reporting criminal activity the reports must be made to an of those agencies had the power or authority to prosecute anyone for that criminal act should she have reported it to the president understates no because the president the united states also doesn't have the was the department that had the authority to prosecute it or to follow through on that and under roberts and debate that's what she was required to do agency that has the power to pursue a criminal complaint it is the only ate well she could have gone to the district attorney she could have gone to the u s attorney secretary of state doesn't qualify state does not have the ability to prosecute a criminal complaint at best they can refer it to an agency that can be referred right isn't it sufficient not if she did not request the s o s to refer it to the department of justice and there's no rally was that she have to court said in roberts and debate is that the only way construing that particular statute that the only way that a plaintiff can fall under the protection is to report to an agency that can prosecute it so what you can infer from that is if she has made a report to another agency that cannot prosecute it and has not as part of that report requested that agency refer it to a prosecuting agency then she doesn't fall under the protections that may be a strict interpretation of the law but that is how the oregon courts have interpreted it and plaintiff has not offered a convincing argument for why this court should disregard that interpretation so that's branch one of what puzzles me about this case but the second part deals with the civil proceeding and why this is not a civil proceeding when she initiated  before the below a libel seems to be the perfect agency to complain to it is an agency to complain to about the retaliation and you know it's not the agency to complain to about what she considered you know the mess enough eason's going on at her agency so we have you know agency determinations all the time we have social security agency the ministr agency this is an agency they can initiate proceedings they can make a determination based upon their complaint it can be appealed you can take a proceeding to a district court or the circuit court of appeals  is that sufficient to come under the umbrella of the phrase nomenclature civil proceeding perceiving not a civil proceeding what we can gather from huber and from the text of the statute is that the legislature had in mind the type of civil proceeding that that you were just talking about maybe a contested case proceeding district court proceeding something that involves litigation  or maybe before huber the ruling that we're talking about here by the administrative agency that takes us into the issue of deference right so the agency says no of course this is a civil proceeding this would be the same thing that interprets the proceeding was not in time with deference is the type of concept because it's not a delicate have term why not because it is capable of construction without mistreated proceeding it could be going to court so it has multiple possibilities in terms of what needs correct but those are all possibilities that can be determined be determined by construing the statute itself without having to delicate that i would think that they ring the bell on them for acting too though they have a few others here it is susceptible to multiple interpretations and that's statutorily defined i don't see where this is statutor indicated well this is the agency that b o i the charge of doing exactly that it seems to me and for the stack to contain the term suggests that the legislature intended it to be delicate i have  we go over that it just seems to me that there is a view of this case where we can possibly say that yes it does rain the bell on the second third and fourth factors all be not on the first factor and we should come to a determination but when when the in other cases and i'm sorry i could have fully briefed this i suppose and brought in many many other cases regarding the differences between the terms but the case law regarding what's delicate to have are really talking about terms that you almost have to have a gut feeling when you are deciding whether you know is it fair is it reasonable something like that where it's not just a matter of looking at words looking at dictionaries and looking at other relevant statutes to see how the legislature intended the word to be defined which is what you do in general statutory construction in oregon and what you do for in exact terms so so that would be my response on that one as to whether it required the agency to make a policy decision  the argument there is that the legislature made the policy decision the policy decision was that we are going to restrict this to civil proceedings and that had to be construed but it didn't have to be construed by the agency in order are actually completely well there's a couple of responses to that is it i would agree that it is kind of fuzzy but we do have oregon case law specifically addressing that and this court is not bound by the court of appeals i agree but it is should defer to the court of appeals in lest the plaintiff has presented a convincing argument as to why the oregon supreme court would rule differently and the plaintiff has not on that i do want to point out one thing judge block and i'm sorry i want to tell you this earlier the rule was in effect at the time or had been promulgated at the time hubert was decided i checked the briefs it wasn't briefed that wasn't addressed at all but that doesn't really matter because under the oregon approach to these rules if the rule is you think we should let the supreme court or wrestle with this issue i mean we have to decide what we want to impose upon them i guess i really i actually do not think that this needs to be referred certified to the oregon supreme court  this issue doesn't appear to arise frequently huber really is the only case out there in which it's a risen it has hasn't been addressed since by the court of appeals so it does not appear to be something that arises so interesting case to my question i think we are still talking about where i draw the line difference between what you think is operative what makes this an inexact term rather than a delicate and rather than the delegate got to the point you've got as far as saying that the there was a policy decision in the policy decisions made by the legislature what the legislature said is civil proceeding right not criminal i get that proceeding i think as an a connotation of a more formal something happening you know an actual proceeding i don't say that other than to summarize this particular given that there's ten seconds left but why why why did the where did the legislature say we mean not just an administrative can be dissed can be construed simply by looking at the text of the statute in context which is the first step under the oregon were also statutory construction which is what the oregon courts would be doing with this statute and it precisely a policy that's what i'm trying to get you to grapple with that the legislature decided not to include reports to administrative agencies it's a policy decision that was made by the read excuse me it was a policy decision that was made by the legislature when it first enacted the statute but to define it the agency doesn't need to make any additional policy decisions or the court construing the statute doesn't need to make any additional policy decisions that's what removes it from the realm of being a delicate statute under oregon law my time is more than op i'm happy to ask anymore answer your questions but otherwise i will rest on the brief that you get your fair share of you just a couple things look in my reply brief and i did want to address preservation issues that you are honored to ask me about earlier on page five of the reply brief i cite a statement from the record page thirty one which i was argued we're talking about the jury at trial said i believe that the investigation by the secretary of state's office was a civil civil proceeding where someone may have to testify to congress or to the secretary of state's office in order for them to get activity i think they set the burden extremely high almost too high for anybody to make a report when they don't know what the head grab a reason to believe that they were doing the right way even if they were wrong is what your position is i guess right that's correct i'll give you an example at trial the attorney for the d o j that was there said that they did know there's a particular unit within the d o j that handle types certain types of cases so if the only employees of the on the d o j don't even know what's there how can the general public know what the d o j is charge with prosecuting or the secretary of state or the bureau of labor and industries for that matter i think the burden is extremely high for that and it doesn't make a whole lot of sense to me  recess until nine am tomorrow morning