Merrick v. Board of Higher Education

EDMONDS, J.,

concurring in part; dissenting in part.

Under ORS 183.400, petitioner asks us to declare OAR 580-22-050, OAR 580-15-010 and OAR 580-15-065 constitutional and Ballot Measure 8 unconstitutional. Respondents take no position other than to argue that no justiciable controversy is presented.

The majority holds that the petition presents a justi-ciable controversy because Measure 8 on its face conflicts with the rules.1 The majority states:

“Respondents cannot avoid justiciability by their response that they take no position with respect to the facial conflict * * *. By declining to take a position in respect to the effect of Measure 8, respondents must be said to accept its presumed constitutionality and validity and to have concluded that there is no conflict between the rules and the measure. Respondents therefore have placed themselves in a position inconsistent with and adverse to petitioner’s position that there is a conflict between the rules and the measure and that the rules are valid and the measure is not. The requirement of a justiciable controversy is met.” 103 Or App at 333.

Respondents’ failure to take a position adverse to petitioner raises the question of whether the petition properly invokes our jurisdiction under Article VII, section 1 (amended), of the Oregon Constitution. I would hold that ORS 183.400 contemplates that a justiciable controversy is a prerequisite to jurisdiction and that we have no jurisdiction under the circumstances of this petition because of the lack of a justiciable controversy.

Ordinarily, in order for a justiciable controversy to exist, there must be a claim of right asserted against one who has an interest in contesting it, the controversy must be *336between persons whose interests are adverse, the party seeking relief must have a legal interest in the controversy and the issue involved in the controversy must be ripe for judicial determination. Oregon Cry. Mfgs. Ass’n v. White, 150 Or 99, 107-108, 78 P2d 572 (1938). Because petitioner is proceeding under ORS 183.400, the threshold issue is whether it requires a justiciable controversy.

On at least one occasion, the legislature has circumscribed what will constitute a justiciable controversy within a statutory scheme. In Hart v. Paulus, 296 Or 352, 676 P2d 1384 (1984), the petitioners challenged the validity of the process by which certain constitutional amendments were referred to the people through a statutory proceeding specially prescribed by the legislature. The court noted:

“In other cases we have held that the legislature cannot expand the ‘judicial power’ under Article VII, section 1, to engage the courts in a ‘judicial examination’ of the validity of laws in a vacuum. See Oregon Medical Association v. Rawls, 281 Or 293, 574 P2d 1103 (1978); Oregon Medical Association v. Rawls, 276 Or 1101, 557 P2d 664 (1976). In this state the legislature cannot direct the courts to render a purely advisory opinion. It can provide for a declaratory judgment unaccompanied by any other relief.” 296 Or at 357.

The court held that, because the legislature specifically provided that any person could commence proceedings as to the constitutionality of the special legislation, the issue raised by the petitioners presented a justiciable issue and they were not just asking for an advisory opinion. In arriving at that conclusion, the court said:

“The parties’ opposing positions on the constitutionality of Paragraph 3 of SJR 30 (first special session) have been briefed and vigorously argued. This is very different from the two proceedings between the Oregon Medical Association and Rawls, cited above, in which the medical association wanted a declaration that a statute was constitutional against any hypothetical attack and respondent, the state insurance commissioner, agreed with that view.” 296 Or at 357.

There is a colorable conflict between the administrative rules and Ballot Measure 8. However, that is not enough in itself to constitute a justiciable controversy, if one is *337required, because a justiciable controversy also requires parties who have adverse interests. It is that element that distinguished Hart v. Paulus, supra, from Oregon Medical Association v. Rawls, supra. The majority creates that element in this case by a legal fiction. It imputes to respondents a posture that is implied from their taking no position on the issue when it holds that respondents’ neutrality constitutes an acceptance that Measure 8 is constitutional and its acceptance means that respondents’ interest is adverse to petitioner’s. Put another way, the majority posits that respondents’ lack of a position creates an adversity of interest regarding the purported conflict between the rules and Measure 8.

Therefore, if a justiciable controversy is required in a proceeding under ORS 183.400, the majority’s attempt to manufacture one is unsuccessful. However, Hart v. Paulus, supra, implies that no justiciable controversy is required if all that is sought is declaratory relief. The relief authorized by ORS 183.400 is solely declaratory. See Burke v. Children’s Services Division, 288 Or 533, 543, 607 P2d 141 (1980). It provides that the validity of any rule may be determined on a petition of any person. The relief available is defined by ORS 183.400(4):

“The court shall declare the rule invalid only if it finds that the rule:
“(a) Violates constitutional provisions;
“(b) Exceeds the statutory authority of the agency; or
“(c) Was adopted without compliance with applicable rulemaking procedures.”

Thus, by definition, ORS 183.400 contemplates that there will always be adversity of interests, because a petitioner should be seeking only a declaration that the rule is invalid and the agency who promulgates the rule will defend its validity. Whatever the rule of law may be in general regarding a justiciable controversy when only declaratory relief is sought, it is clear that, when it enacted ORS 183.400, the legislature contemplated that a justiciable controversy would exist.

. However, that requirement is frustrated by the relief that this petitioner requests. Her petition is that we declare the rule valid, and respondents understandably do not contest *338that declaration. The real fight is not over the validity of respondents’ rules, but over the constitutionality of Measure 8. Respondents say, “That is not our fight.” The majority holds that ORS 183.400 is a vehicle by which the determination of the constitutionality of Measure 8 can be litigated. By allowing petitioner to use ORS 183.400 in that manner, it runs headlong into the principle of the justiciable controversy jurisdictional requirement, because there is no party in this proceeding defending the constitutionality of Measure 8.

Measure 8 is the product of the legislative branch of government of our state. The initiative and referendum powers reserved to the people make them a co-ordinate legislative body with the legislature. Straw v. Harris, 54 Or 424, 430, 103 P 777 (1909). This court is asked to declare, without adversity of parties, that the legislative branch of government exceeded its power by passing a law in violation of the constitution. “No court should declare an act unconstitutional unless it is necessary to do so.” Oregon Cry. Mfgs. Ass’n v. White, supra, 159 Or at 109. Our first obligation is to determine whether the measure may be given a valid interpretation within constitutional bounds. Oregon Medical Association v. Rawls, supra, 281 Or at 298-300. By entertaining this challenge, the majority will require us to conduct our own inquiry without the benefit of advocacy for a position adverse to petitioner. That inquiry will necessitate a departure from settled law by requiring us to speculate about hypothetical interpretations of both the rules and the measure.2

No controversy exists between adverse parties. Petitioner does not contend that respondents are taking any action that violates her constitutional rights. Under similar circumstances, the Supreme Court said:

“The mere existence of a statute purporting to authorize the Director, under certain conditions, to promulgate and enforce rules and regulations establishing marketing standards as set forth in the act, does not of itself create a justiciable controversy. It will be time enough for plaintiffs to complain when the Director exercises any authority purported to be vested in him by the act. Neither does mere difference of opinion as to *339the constitutionality of the act afford adequate ground for invoking a judicial declaration having the effect of an adjudication: * * *. The claim of plaintiffs for relief - in its ultimate analysis - is that they fear the Director might promulgate and enforce some regulation or rule which might affect their business. It may be that this legislation tends towards uncertainty and confusion in the operation of the business in which plaintiffs are engaged, but that criticism might apply to various legislative enactments. Courts, however, insist upon an actual controversy - not a mere difference of opinion concerning the validity of a statute - before jurisdiction will be assumed under the declaratory judgment act.” Oregon Cry. Mfgs. Ass’n v. White, supra, 159 Or at 110. (Citation omitted.)

In summary, the majority would allow petitioner to proceed under ORS 183.400 to determine the validity of rules that no party contends are invalid, thereby subverting a statutory requirement for a justiciable controversy. Thereafter, we will decide that purported controversy in a vacuum, even though it is not ripe for decision.

Although I concur in the majority’s holding that strikes the affidavit, I dissent from the majority’s holding that denies respondent’s motion to dismiss.

The majority states that it assumes that there is a jurisdictional requirement of a justiciable controversy in a proceeding under ORS 183.400, but also suggests that a justiciable controversy may not be required. 103 Or App at 334, n 5.

See Tillamook Co. v. State Board of Forestry, 302 Or 404, 413, 730 P2d 1214 (1986); Hart v. Paulus, supra, 296 Or at 357; Oregon Medical Association v. Rawls, supra, 281 Or at 300; Oregon Medical Assn. v. Rawls, supra, at 1110.