Utsey v. Coos County

Argued 20, 2000; April and submitted November resubmitted en banc September 26, dismissed

Jordan UTSEY and Melanie Tang, Respondents, LEAGUE OF WOMEN VOTERS

OF COOS COUNTY, Petitioner, COUNTY, COOS Lillie, Albert Cindy Lillie, and of Land Department Conservation and Development,

Respondents. 2000-06; CA A11 1594

32 P3d 933 argued petitioner Douglas M. the cause for DuPriest County. League him the of Coos With of Women Voters Anderson, DuPriest, & Hutchinson, Cox, Coons briefs was reply was A. Blackwell. P.C. him on brief Michelle With respondents argued the cause for Albert Allen L. Johnson Cindy him on was Johnson & Lillie Lillie. With the brief and Sherton, P.C. Reynolds, Attorney

Hardy Myers, General, Michael D. Fjordbeck, General, G. Assistant Attor- Solicitor and Denise ney respondent Department filed the for General, brief Development. Land Conservation Utsey appearance respondents and Melanie Jordan No Tang. County. respondent appearance for Coos

No Judge, Edmonds, Landau, Deits, Chief Before Armstrong, Linder, Wollheim, Kistler, and Haselton, Judges. Brewer,

LANDAU,J. concurring. J.,

Edmonds, dissenting.

Deits, J.,C. dissenting.

Armstrong, J., dissenting.

Brewer, J.,

LANDAU, J. Coos of Women Voters of

Intervenes, the League review of a decision for County (League), petitions (LUBA) a decision upholding the Land Use Board of Appeals of an off- County (county) permit operation of Coos (OHV) trail and an OHV “motocross” system vehicle highway on a tract of land that is zoned racetrack as a “private park” (EFU). Cindy Albert and Respondents exclusive farm use move to dismiss the Lillie, peti- for applicants permit, We dismiss. nonjusticiable. agree tion as relevant facts are not in The Lillies dispute. The for a conditional-use for an county permit applied Park” on their 531-acre System “OHV Recreational Trail land, zoned, tract of which is other EFU. The among things, Lillies as a proposed park approved “private is a use in EFU zones conditionally which park,” permitted 215.283(2)(c). county under ORS The conducted an eviden- at which owners tiary hearing, neighboring property filed a application. League appeared opposition The letter did not what identify letter in as well. opposition is, nor did it of its inter- any explanation the League provide est in the Lillies’ The letter stated application. simply on the ground the League opposed application The county ultimately approved would be unlawful. approval with conditions. the application owners neighboring property appealed

Some a motion to intervene in the to LUBA. The filed League itself; motion made on behalf of the League was appeal. capacity did not to act in a purport representative the League members. The motion of its individual any with respect is, as what nor did League no explanation provided the nature of the League’s as to provide explanation the motion The stated grounds interest in the appeal. were, entirety, in their to intervene are right movant’s establishing facts

“[t]he below and filed a proceeding in the appeared movant objection proceeding.” letter ultimately and the motion to intervene LUBA allowed county’s part and reversed and decision affirmed part. remanded only League League seeks The —now —and arguing to an decision, that land devoted

review of LUBA’s system cannot be con- and a motocross racetrack OHV trail park.” “private Lillies contend that The sidered justiciable. According League’s petition Lillies, is League will sustain the record fails to establish representative” personal effects from indirect, “direct or League deny proceeding. does not this the outcome of 197.830(2) that, ORS and Instead, it contends under that. because it county proceedings, appeared it is author- in the county’s appeal ORS decision, and, under ized may judi- 197.850(1), any proceeding party seek to a LUBA reply although that, The Lillies cial review this court. meaning standing League stat- within the of those nonjusticiable petition because it has nevertheless is utes, its only the case. The interest in the outcome of an abstract League has satisfied the stat- contest that the Lillies do not utory standing requirements ORS ORS 197.830 and statutory standing They contend that nevertheless 197.850. constitutionally necessarily that a claim is establish does not League justiciable has no case, in this because the of the its claim is non- interest in the outcome concrete justiciable law. matter of constitutional as a question parties arguments thus raise the of the legislative sufficient to conferral whether establish the way, justiciability another claim; of a said imposes question limits on the whether the constitution authority to seek to confer a question requires a careful first To answer review. party’s requirement that a the nature examination of exploration “justiciable” then an claim must be nature of the legislature’s statutes that to enact given justiciability claim. affect the concern- candid: The cases outset, we must be At the requirements are ing the constitutional contradictory. they flatly murky are times, at best; posed Answering question case, therefore, to us in this

529 requires simply selecting prior more than decision of this Supreme frankly, any Oregon Court, because, court the or may support any of cases be cited to of dif number number consequence, simply ferent outcomes. In rather than select a another, one decision favorable to outcome or we endeavor to principles, Pearce, first 411, return to seePriest v. among 415-16, 65 so 840 P2d that we evaluate which prior represents interpretation Oregon the cases of the likely meaning Constitution that is consistent with the intended those who ratified it. companion “justiciable”- along The term its with — “standing,” “ripeness”

terms and “mootness,” not —does appear appears Oregon Indeed, in Constitution. none ofthe terms shortly in the case law until after turn of the last century. They developed are, brief, constructs, in first “judicial power” in reference to the conferred on federal courts III under Article ofthe United States Constitution and adopted by “judi- later in courts reference to the (Amended) power” cial conferred under Article VII of the state constitution. genealogy

The orthodox view is that the of modern doctrines of traces back to the era ofthe framers commonly of the federal constitution.1 Three sources are (Dall) Hayburn’s (1792); Case, cited: 2 L 408, US 1 Ed 436 (Cranch) Marbury (1803); Madison, v. 5 US 2 L 137, Ed 60 Jay Washington.2 and a letter from Chief Justice to President 1 judgment The rule courts will not render in the absence of an immediate injury actually older, plaintiff having Eng threatened is much roots in the Radcliffe, Case-or-Controversy lish law. James common E. The Provision (1978); Intuition, Schnurer, Note, Theory”: at 202 Eric B. “More than an Less than a (1986). 564,570 Standing, Toward a Coherent Doctrine Colum L Rev The 86 New of Appeals, example, only principle proper York Court has noted that “the parties one, long predating bewill allowed to maintain claims is an ancient Society Industry, County Federal Constitution.” The Suffolk, Inc. the Plastics v. (1991). 772, 77 NY2d 573 NE2d 1034 See also Doolittle v. Board of (1858) (“No Broome, Supervisors 512, 520 private person 16 Pr How or number of community, persons champions assume to can be the and in its behalf chal lenge public justice officers to meet them in the courts of to defend their official (1842) (“To Co., acts.”); preserve Bigelow Bridge Conn Hartford rights individuals, persons, and as the com enforce not members of suits, munity large, very object equity.”). of all both at law and in occasionally Also is a from Constitu cited reference Madison’s notes constructively jurisdiction tional Convention that the ofArticle III “was lim courts Judiciary ited of a to cases nature.” The Records of the Federal Convention of Case, Court, three of the act- Hayburn’s members in their as circuit issued ing capacities judges, separate opin- ions on the of a statute that constitutionality authorized of veterans, courts determine the sub- pension eligibility of War the review Each ject Secretary Congress. was concluded that statute unconstitu- opinions tional, ground legislative on the branch cannot “judicial” to the courts duties that are not assign nature. to each of the decisions that are According opinions, legislative review the executive or branches are subject final, of “judicial” and one of the characteristics defining decision is that it have Court ulti- finality.3 because, matter mean- mately declined rule on the time, statute, and the matter became Congress changed academic. Court every knows,

In as law student Marbury, that the issuance of a writ of mandamus to the was concerned Marbury’s commission Secretary might of State to deliver to “intermeddle with the preroga- perceived attempt (Cranch) dis- of 5 US at 170. The court tives the executive.” intention, explaining: claimed that 1911). (Max Jr., Pushaw, generally Justicia- at 430 Farrand ed See Robert J. 1787 bility Separation Approach, 393, A Neo-Federalist 81 Cornell L Rev and Powers: of (1996). 426 3 judges’ Attorney opinions, response to the circuit General Edmond ordering Randolph to a writ of the cir asked the Court issue mandamus client, filing Randolph under acted without cuit courts to act the statute. responded asking solely capacity. him whether in his official The Court motion he had right argued Randolph had ask for relief. that he the Court Attorney rejected merely request The Court relief because he was General. appeared Hayburn, argument by Randolph at 3-3 then as counsel for his vote. result, up petition. point take the mandamus As a the Court decided to which See, frequently progenitor of doctrine. has been cited as modern case 2733, 57 Bakke, 265, 410, University Regents 98 L e.g., v. 438 US S Ct California of (1978) (Stevens, J., part); dissenting in Anti-Fascist Committee Ed 2d (1951) (Frankfurter, J., McGrath, 624, con 71 Ct 95 L Ed 341 US S States, 9, 59 754, 83 125, 131 curring); Corp. 307 US n S Ct Tel. v. United Rochester (1939). jus scholarship examination of the More on an L Ed 1147 recent —based reading such suggests not have intended a broad that the Court tices’ notes— Teir, Hayburn’s Case: A generally and Robert See Maeva Marcus of decision. That, however, Precedent, has not Misinterpretation L Rev 527. Wise of authority proposition continuing case as for the stopped to cite the the Court from advisory opinions. to issue lack that federal courts e.g., constitutional Environment, 1003, 140 83, 101, 118SCt 523 US v. Citizens Better Steel Co. for (1998). 2d 210 L Ed scarcely necessary “It is all court disclaim pretentions jurisdiction. extravagance, to such An so excessive, absurd and have couldnot been entertained for a province solely, is, moment.The to decideon the court rights inquire individuals, executive, how perform they officers, executive duties which discretion.” added). (emphasis

Id. Finally, commonly in what is referred “the to as Cor- respondence responded Justices,” the Court to an inquiry by Secretary regarding of State Thomas Jefferson considering whether, laws, treaties and the President [the Supreme Court’s] could “be availed of advice these questions.” Henry Correspondence P. 3ed, Johnston (1891). Jay, Papers Public of John The Justices declined provide ground providing advice, on the extra- judicial advisory opinions implicated separation “the lines of departments drawn the Constitution between three government.” Id. 488.

According to the orthodox those view, three sources early “judicial power” reflect an to concern that the be restricted deciding actual cases between individuals with a stake in legislative attempts the outcome and that executive or to con- judiciary authority go beyond implicate fer on the core principles separation powers. sure, To be some schol- questioned reading ars have sources, see, broad Justiciability Separation Pushaw, Robert J. Jr., Approach, Powers: A Neo-Federalist 81 Cornell L Rev 393 (1996); Berger, Standing Raoul to Sue in Public Actions: Is It (1969); Requirement?, a Constitutional 78 Yale LJ 816 Louis Litigant Jaffe, L. The Citizen as in Public Actions: Non- Ideological U Pa Plaintiff, 116 L Rev 1033 Hohfeldian (1968), although even those revisionists concedethat least Marbury plausibly supports See, the traditional view. interesting Pushaw, 81 Cornell L Rev It at 479.4 is an histo- riographical point, ultimately but an one. The academic 4 argument Marbury cannot be read to endorse more limited view of judicial power generally concluding involves that the case cannot be taken to says, given essentially gratuitous, it mean what it that Marshall to deliver used Redish, advisory opinion. e.g., Martin H. The Federal Courts in the Political (1991) Theory (“although Political at 91 Order: Judicial Jurisdiction American dispute import above-quoted passages, there can be little about the facial

532 ultimately accepted point important is that the courts view. broader early century,

Beginning the fed- in the twentieth began explicitly to define the limits of more eral courts “judicial power” early III. The cases

conferred under Article Declaratory Judgment Act. At least the federal arose under early States, 346, 219 31 v. United US 1911, as in Muskrat as (1911), Supreme Court held L Ed 246 250, S Ct 55 authorizing legislation although Congress have enacted declaratory judgment courts, from the seek a individuals to permits power judicial under the constitution conferred only parties in cases in which the such relief to render courts See also interests in the outcome. and adverse have concrete 678, L Comm’n, 419, US 58 S Ct v. 303 Valley Electric Bond Co. Authority, (1938); 288, US v. Ashwander Ed 936 (1936); Jersey Sargent, New v. 466, Ct 80 L Ed 688 324, 56 S (1926). 70 L Ed 289 328, 122, US 46 S Ct Declaratory Judgment Outside the context principle. In Massachusetts invoked the same Act, the Court (1923), the 67 L Ed 1078 Mellon, 597, 43 S Ct 262 US enjoin brought by taxpayer rejected federal a suit Court spending program. explained The Court able to [judicial] powermustbe invokes the party “[t]he who he has sus- invalid but that only that the statute is show not sustaining some immediately danger of in tained or is merely enforcement, and not its injury as a result of direct way peo- in common with indefinite that he suffers some generally.” ple Similarly, Levitt, US 58 S Ct Ex Parte 488.

Id. at rejected an individual’s the Court L Ed 493 1, 82 ineligible Hugo to serve on Black was to claim that explained: Citing Mellon, the Court Court. indi- private that to entitle principle “It is an established validity power to determine invoke the vidual to that he has he must show action legislative of executive or a direct sustaining immediately danger or is sustained value”); not be taken at face words should quite that Marshall’s is Pushaw, conceivable (reliance judi- Marbury authority for limited L 81 Cornell Rev at political actually gratuitous broad- issued a power Marshall “is ironic because cial President”). against the side

533 injury as the result of that action and is not sufficient merely general he has interest all common to members public.” Id. at 634. justified Court its reliance on the doctrine ofjus- reference to the intentions of the framers of the

ticiability by Perhaps constitution. most famous is Justice regard Miller, Frankfurter’s in Coleman v. 307 concurring opinion 433, 972, US 59 S Ct 83 L Ed (1939), 1385 in which he explic- itly invoked Hayburn’s Correspondence Case and the Justices support principle judicial power only be invoked one with a stake concrete in the out- (Frankfurter, come of a decision. Id. at 462-64 J., concurring). sure, To flirted, be the Court briefly, least with the notion Mellon and its were progeny Flast v. wrong. Cohen, 83, 392 US 88 L 1942, S Ct 20 Ed 2d 947 fact, expressly But questioned Mellon. more Flast recently, itself has been questioned, and the Court now con- sistently Mellon, relies Levitt, and the historical justifica- tion articulated by Justice Frankfurter in Coleman. United, v.

Valley Forge College 464, Americans 454 US 480- (1982) 81, 752, S Ct 70 L Ed 2d 700 on Mellon (relying and limiting Flast to a narrow “exception” the concrete injury requirement); v. Reservists to Schlesinger Stop War, (1974) 208, 418 US 220, 2925, 94 S Ct 41 L 2dEd Mellon). (recognizing “continued of Levitt and vitality” More recent cases have even recognized additional aspects justiciability that are not necessarily required result, federal constitution. As a under current federal law, justiciability First, involves two of limitations. layers there are the limitations, traditional constitutional which amount “the immutable of Article III.” requirements L 1154, Bennett 520 US S Ct 137 Ed Spear, (1997). 2d Those constitutional limitations include the now three distinct “standing” requirement, composed of parts:

“[T]he irreducible constitutional minimum of con- First, three plaintiff tains elements. must have suffered ‘injury legally in fact’—an protected invasion of a inter- (a) (b) est which is and particularized concrete and ‘actual ’ “conjectural” “hypothetical.” imminent, Second, not or injury a causal connectionbetween the there must be complained injury ‘fairly of—the the conduct challenged defendant, actionofthe traceable independent party result the actionofsomethird not to the before the of ‘likely,’ opposed Third, court. it must be merely injury ‘speculative,’that be ‘redressed a the will ” decision.’ favorable Lujan 555, 560-61, v. 504 US 112 S Ct Wildlife, Defenders of (1992) (citations omitted). L Ed 2d The “irre 2130, 119 351 just minimum” is that. It cannot be ducible constitutional abrogated by legislation. Bennett, US or modified 520 at 162. Congress may provision example, For enact “citizen suit” authorizing any person but, statute, to seek enforcement of a requirement “Article] clear, has Ill’s as the Court made allege palpable plaintiff distinct and remains: the injury still must Seldin, 501, v. Ct 490, to himself.” Worth 422 US 95 S (1975).5 2197, 45 L Ed 2d 343 traditional, Second, in addition to the constitutional “prudential” limitations, have created lim- the federal courts “self-imposed on the exercise of itations that amount to limits 468 US jurisdiction.” Wright, 751, v. 104 S federal Allen (1984). example, 2d 3315, 82 L Ed 556 For federal courts Ct “standing” although plaintiff in the often conclude jurisdiction they not exercise sense, constitutional will plaintiffs grievance zone does not fall within “the because statutory provision protected in invoked of interests” counterparts, Unlike their suit. Id. constitutional powers jus separation principles typically invokes of Court tify legislative on individuals the rule that the branch cannot confer personal public in the in court in the absence of a stake vindicate interest outcome: own, Congress, courts to act on their or at invitation

“Whether the were * * requirement *, they discarding injury ignoring concrete would in separate principle of the and distinct constitutional role fundamental * * * court,’ province Marshall said of the as Chief Justice Third Branch. ‘The Madison, solely rights Marbury individuals.’ Vindi- u. ‘is decide public cating public (including obser- interest Government interest laws) Congress and the Chief is the function vance Constitution Executive.” omitted); (emphasis Lujan, original; see also Allen US at 576 citations * ** (“the (1984) 737, 752, Wright, Ed law of US S Ct 82 L 2d 556 powers”). single separation idea—the idea is built on a basic limitations are subject modification; prudential legislative thus, to return to the could example, Congress determine of a zone satisfaction of interest is not and the courts would be to hear the case required, obligated if otherwise with constitutional limitations. complied Bennett, 520 US at 154.6 doctrine

Oregon justiciability followed a similar path As noted, we have Constitution development. does not mention expressly justiciability, much less standing. does, however, It confer on the courts the “judicial power.” is what question the framers intended that likely Priest, mean. 314 Or at 415-16. of the case law that light existed to the Article VII in 1857— up adoption original and even the amended version in 1910—it is likely framers would have understood the judicial power to conform limited, private model of rights adjudication that (“The reflected in early federal cases such as Marbury prov- ince is, of the court solely, to decide on the rights of individ- uals, not to how the inquire executive, officers, or executive duties in which perform they have a discretion.”), 5 US Supreme standing The more recent of generated quite Court’s cases have controversy Lujan, expressly a bit of that tutional cism. in academic circles. in which the Court held Congress standing satisfy cannot confer on individuals who cannot the consti injury requirement, singled especially searching has been out for criti Nearly Lujan’s critics, however, premise all of attack the Court’s that there is injury requirement place, that, an in the first not the Court’s conclusion if such a law, Congress abrogate exists as a matter of constitutional cannot it. See, Sunstein, Suits, e.g., Standing Lujan? “Inju Cass R. What’s Citizen After Of (1992). ries,” III, injury require and Article 91 Mich L Rev 163 Some critics of the supported by ment of federal record, doctrine contend that it is not the historical see, Berger, 839, e.g., although scholarly 78 Yale LJ at there is no consensus see, point, e.g., Bradley Clanton, Standing English Prerogative on the Writs: The acknowledge, S. and the Original (1997), Understanding, 63 Brook L Rev 1001 which even critics see, e.g., Nichol, Impossibility Lujan’s Project, Gene R. The (2001). Pol’yF193,199 suggest regardless Duke Envtl L & Others ofwhat the intended, justiciability simply framers reflects inevitable a social construction that policy choices, adopt and so courts should feel free more “public rights” during adjudication developed oriented model of in academic literature See, Hershkoff, e.g., the 1970s. Helen State Courts and the “Passive Vir (2001). Function, Rethinking 1833,1841-42 tues”: the Judicial 114 Harv L Rev response however, standing jurisprudence, academic to the Court’s decisions, suggest been far from unanimous. Others that the Court’srecent includ Lujan, by ing supported history, logic, theory. are and democratic John G. Roberts, Jr., Statutory (1993); Standing, Article III Limits on 42 Duke LJ 1219 Shenkman, Sunstein, Harold J. Krent and Ethan G. Citizen Suits and Citizen Of (1993). LMich Rev 1793 (“No (Cranch) as Doolittle at and state decisions such person persons, private assume to number of can be the community, challenge champions and in its behalf justice public to defend to meet them in the courts of officers (“To acts.”), Bigelow pre- 16 How Pr at their official rights persons, individuals, enforce the serve and community very object large, is the members of the not as equity.”), 14 Conn at 578. suits, both at law and in of all reading Early of the state consti- cases reflect by simply adopting Oregon began Indeed, the courts tution. existing decisions, federal law. As in the case of the federal Oregon the issue of courts first addressed leading Oregon declaratory judgment context. The case is Cry. Mfgs. White, 99, 78 P2d 572 Ass’n v. dairy plaintiffs, processors and distributors chal-

which the constitutionality Agricultural Oregon lenged keting Mar- yet applied to them. The court Act, which had not been justiciable. Notwithstanding that the matter was not held plaintiffs brought suit under the declara- had their judicial power tory judgment statute, held, the court con- grant Oregon permits courts to ferred Constitution justiciable only party seeking presents when the relief argued controversy. plaintiffs their difference of Department Agriculture opinion as to the consti- with disagreed: tutionality The court the statute sufficed. * * * controversy upon a mere insist opinion an actual “Courts difference of —not concerning validity a statute— jurisdiction at 111. The court will be assumed.” Id. before quoted Electric federal decisions as from and relied on such Jersey Sargent like those federal and, u. Bond Co. and New footing. explicitly on constitutional decisions, set its decision According Cry. Mfgs. Oregon Ass’n, at 109. “judicial power” Constitu- conferred court, advisory opinion rendering simply include does not tion invoking party the on the have no effect that will jurisdiction. Id. court’s

Similarly, Holmes, 121, 215 Or 333 et ux v. in Eacret (1958), parents plaintiffs, victim, of a murder the P2d 741 authority sought lacked that the Governor a declaration upheld The court sentence. the murderer’s death commute controversy: justiciable of a of the suit for want the dismissal “It at once apparent plaintiffs must be have no they to maintain this suit. The which wrong of complain wrong public there be a in character. The —if —is injury no complaint special plaintiffs discloses affecting other differently from citizens.

“* * * right, status, legal plaintiffs No relation involved, legal and no be by interest theirs will affected the action of the Governor. is no declaratory There case for ‘plaintiff merely relief where the seeks to vindicate a public right to the laws of state properly have enforced and plaintiffs opinion administered.’ a difference of Governor, with the but justi- that does not of itself make a controversy.” ciable (citation omitted).

Id. 124-25 Much like their federal court counterparts, Oregon on the opinions issue became justiciability rather muddled in the 1960s. In one beginning example, Court Oregon contrary held prior case that — justiciability is not a jurisdictional matter and law — C, freely waived Dickman v. by parties. School Dist. 62 (1962). 238, 245, 232 Or 366 P2d years But a in later, few 9, v. Constr. Dist. No. Cummings School 408 P2d (1965), the court reverted to prior case expressly law — federal case held invoking law —and required as a predicate the constitutional exercise of judi- Seaton, cial power.7 See also Gortmaker Or 442- (1969) (constitutional 43, 450 P2d 547 exercise of judicial 7The court held: jurisdiction declaratory judgment

“[CJourts do not have entertain a action * * * ‘justiciable controversy’ parties. is a unless there between the Neither can jurisdiction parties upon stipulation confer the courts in the absence of justiciable controversy.” omitted). (citation at 109-10 Id. Interestingly, notwithstanding Cummings jus the declaration Constr. that ticiability Lipscomb stipulation, Higher cannot be conferred v. State Bd. of

Ed., 472, 753 permitted parties just P2d 939 court to do that. plaintiffs They alleged challenged the line-item veto ofthe Governor. already unlawfully their as interest in the outcome the fact that the Governor had provisions taxpayers $85,000. vetoed in bills cost over The court noted complaint “[ajlthough allege impact plaintiffs, did the tax these they rely ‘taxpayers are not entitled to on the cumulative cost to all of the State of ” Oregon,’ necessary question justiciability, it was not to address because the accepted adequate.” allegation “defendants have Id. at 476. Even more inter esting, year, 380, 385, 760 Oregon, later that same P2d Eckles v. State 538 justiciable controversy).

power requires case, In another the again, contrary prior Supreme to later both case Court— attempted justiciability requirements the set law— declaratory judgment purely statutory grounds. on actions Oregon, 383-84, Or P2d 380, Eckles v. State 306 760 846 of (1988). Indeed, in the same the court relied on decisions justiciability requirements holding the as a exist matter of constitutional law. Id. during complicating matters,

Further decisions this period, attempting place standing on the hand while one statutory grounds, purely open the left on other hand still places possibility leg the that the constitution limits on the standing. grant v. islature’s In Marbet Portland (1977), Elect., 4, n 154 447, 457 561 P2d for Gen. example, question peti the court confronted whether standing requirements satisfied of Administra tioner (APA), commenting 183.480, Act ORS in a tive Procedures “[i]t contended here that footnote not judicial power ORS exceeds conferred 183.480 ‘the ” state.’ appears problem Part of the to have been one of “standing.”8 vocabulary, particular, of As the use the term “[o]ur Supreme cases, Court itself observed of own own its ambiguity.” principle treatment of without 1101, P2d Rawls, 1105-06, v. 276 Or federal 557 664 Medical Assn. (1977). Borrowing sometimes the court cases, from justiciability “standing” aspect of the term to refer used plaintiff appellant requires an to have a concrete e.g., proceeding. See, Gortmaker, in the outcome of a stake 252 Or at Newspaper Peterson, 244 Or 443; Ore. Pub. v. (1966). cases, P2d 21 But other court 120-21, 415 narrowly attempted term to refer to circumscribe the more holding Lipscomb of as establish- Court characterized 846 “present sufficiency plaintiffs ing allegation of an of a or foreseeable financial interest,” Lipscomb nothing of the sort. when said 8 actually fairly aspect is a “standing” of of the term as an The use development. Originally, the extent which the term was used to refer to modern Thus, example, would the courts determine party had a claim on merits. City Georgetown equity.” plaintiff in a court could “maintain a stand whether (12 Pet) (1838). generally Company, See Canal 37 US v. Alexandria The Winter, Standing Self-Governance, Metaphor the Problem L. Steven term). (1988) 1371,1418-52 (describing history of the use L 40 Stan Rev solely legislative who determination of seek specific governmental e.g., Strawberry See, actions. review Comm., v. Hill Benton Co. Bd. 287 Or 591, Wheelers (1979). 8, n 601 P2d 769 problem Oregon appellate haunts court deci- day. employ to this More recent decisions sions sometimes generally use broader, more traditional of the term as referring adjudication.” to “the obtain County, Clatsop Eckles, 383; Poddar App 2 162, 168, 929, 556, P3d recons 168 Or 7 P3d 677, rev (2000). employ den 331 Or 193 Others the term the nar- legislatively imposed rower sense of the limitations on access judicial remedy. Dept. No. 290 Local v. Environ. of Quality, (1996); 559, 564, 323 Or 919 P2d 1168 Associated App Tri-Met, Builders and 271, Contractors v. 170 Or 275-76, (2000). P3d 12 62 By beginning decade, however, of the last analysis justiciability settled on courts that— regardless terminology of inconsistencies in substance —in applied consistently People has been ever since. In Ethical Care, Treatment v. Inst. Animal 817 95,Or P2d 1299 (1991), the court determined an association lacked standing challenge University Oregon approving of order auditory system research on the of barn owls. The court began by noting pre- “aside certain constitutional considerationsnot from reviewing inquiry case,

sented this court’s into the standing entity seekingjudicial of an reviewis confinedto interpretation legislative of intent.” added). (emphasis Id. at 99 The court then held that the asso- satisfy statutory requirements ciation failed to the APA, 183.480, ORS it could because not demonstrate “a personal stake in the Id. outcome.” at 100-03. Because the satisfy court concluded that the had association failed statutory standing requirements APA, it did not need to address “constitutional considerations.” The decision signaled practical return thus to the court’s earlier effects jurisprudence. every subsequent Indeed, the court explicitly justiciability require- has held includes the in the ment “the court’s decision matter will have some rights parties.” practical Brumnett v. effect on the (1993); PSRB, 402, 848 P2d 1194 see also Hamel v. 315 Or Johnson, 184, 661, 998 P2d on remand 169 Or 180, 330 Or (2000), App App 448, on recons 173 Or 25 P3d 216, 9 P3d (2001) (“A must some court’s decision on a matter 314 practical rights parties to the contro-

effect on the versy.”); Forbes, 433, 909 P2d 846 426, Mclntire v. 322 Or (a (1996) justiciable controversy deci- exists when court’s practical effects on the the matter will have some sion in controversy); Kubiaczyk, rights parties Barcik v. (1995) (same); 174, 182, 895 P2d 765 Joint Council 321 Or App BOLI, 398, 407, 11 247, v. 168 Or P3d rev Teamsters #37 (2000) (justiciability two-part involves 331 Or 429 den inquiry: parties are adverse and “whether the whether rights on the ofthe will have a effect court’s decision parties”); Baty App Slater, 653, 656, 984 P2d 342 App 779, 984 P2d rev den 331 on recons 164 Or (2000) (a controversy justiciable exists when “the Or 191 court’s decision practical effect

in the matter will have some Thompson, rights parties”); Barnes v. on the (1999) (same); App den 329 Or 447 383, 386, 977 P2d rev (1999) Lavitsky, P2d 82 660, 663, State v. (same). aspect

The courts have held that this throughout important that it must remain satisfied is so jus- filing. just litigation, claim is Thus, the time of if a not at filing, transpire later at the time of but events ticiable practical deprive effect on a court decision of would longer jus- petitioner, plaintiff the claim is no considered or explained in “moot.” As the Court ticiable. It is Brumnett: ques- “Determining part is one ofthe broader mootness controversy Ajusticia- justiciable exists. whether a tion of may controversy appellate courts exist, must

ble contingentquestions.’ hypothetical abstract, or ‘decide justiciable question preliminary related to whether “A parties controversy the interests ofthe existsis whether * * * the actionare adverse. controversy justiciable requirement is for a “A second * * * practical effect some decision willhave that the court’s controversy. rights parties ofthe onthe

541 justiciable, “Cases that are but in which a otherwise longer practical will be dismissed as court’s concerning no effecton decision will have or rights parties, of the moot.” (citations omitted). say

Brumnett, 315 Or 405-06 To that a simply say other “moot,” words, case is is a case justiciable conversely, longer; say once no have been is say simply that a case moot is not that the court’s deci- rights parties. By practical sion will have a effect ofthe princi- definition, the mootness basic doctrine reaffirms the ple times, that, at all decision court’s must practical rights parties. have a effect on the of the See also (“Even justiciable, Hamel, 330 Or at if a case otherwise longer practical if court’s decision ‘no will have a effect on rights concerning parties,’ of the then the matter will moot.”) (citation omitted); Barcik, be dismissed as 321 Or at (“ justiciable, 182 ‘Cases that are otherwise but which a longer practical court’s decision no concerning omitted); will have effect on or (citation moot.”) rights parties,’ of the are Macy, v. State 886 P2d 1010 (1994) (same); Lavitsky, (same); App 158 Or at 663 Jones Thompson, App 226, 236, 968 P2d rev den (2000) (same); Responsible Contracting 330 Or 363 Public (1998) Council, (same).9 DAS, 96, 100, Inc. v. 956 P2d subsidiary questions emerge Two the courts’ from (1) justiciability requires: precisely articulation of what What say practical does mean to effect”on the that a must “a decision (2) rights parties? And to whom does the practical apply? effects begin scope with We effects requirement. prior No defines its decision outer boundaries. offering Instead, the courts have contented with themselves examples Eckles, of what suffices. 306 Or at 385 (noting prior justiciable cases, the court had held that Henry it, Monaghan put As Professor P. mootness is “the doctrine requisite personal in a set time frame: The interest exist at the com must litigation (standing) throughout mencement of the must continue its existence (mootness).” Henry Monaghan, Adjudication: P. The Who and Constitutional (1973). When, 1363, 1384 82 Yale LJ

542 present impact, a interests included or foreseeable financial rights the of voters, an interference with an adverse road). impact the More the often, on users of courts have rights parties” by “practical effect the defined a on the of Hospital sufficient. Gruber v. Lincoln what is not (1979) (a taxpayer District, 8, Or 588 1281 who 3, 285 P2d alleged only proper expenditure public an interest the challenge funds did not have the lawfulness of expenditure). Perhaps category that courts the one of cases consistently present justiciable not have most held does controversy simple that assertion another individual government agency has the Without some dem- violated law. challenged prac- agency that action will have a

onstration person challenging impact it, a case tical such request to no more than for an unconstitutional amounts advisory opinion. principle Oregon least dates back at Cry. Mfgs. Ass’n, that “a in which the Court held validity concerning opinion of a stat- mere difference of a constitutional invocation ute” insufficient warrant Similarly, judicial power. Eacret, Or at 99. declaratory “[t]here is no for relief where court held case merely ‘plaintiff public to have seeks vindicate a ” properly of the state enforced and administered.’ laws (citation omitted); Amer. F. L. 215 Or at 125 see also (1940) (“Mere Bain, difference P2d constitutionality opinion act does not afford as to the an of ground having invoking judicial the effect declaration adjudication.”). vintage Poddar, in more recent is our decision Of County alleged plaintiff Commis- that the Board of which the County Clatsop law violated the when sioners for appointed service districts. individuals to various boards and plaintiffs App claims were 162. held that We only “[h]e justiciable, an abstract because has demonstrated county’s policies application interest in the correct public. every at 170. Id. he shares with other member” Similarly, 99, 941 Bar, 149 Or in Erwin v. State challenge lawyer sought lawfulness P2d 1094 upheld practices. the dis- We state bar rules and of various ground he failed had of his claims on the missal of most applied challenged practices rules or to demonstrate plaintiff allege to him: “In each failed to more than an validity challenged of abstract interest in the the Id. at laws.” Oregon, App v. 107. See also deParrie State 133 Or 613, of (1995) (the justi- plaintiffs 617, 893 P2d 541 claim held not [did] ‘injury ciable because “he not demonstrate or other impact legally recognized beyond on a interest an abstract ” application validity interest in the correct a or the law’ (quoting Budget Co., Rent-A-Car v. 93, Multnomah (1979)). 95, 597 P2d question practical

That leaves the of to whom the requirement applies. question, effects On the courts categorical: standing, person have been more To have the jurisdiction invoking the the courts must that a establish practical decision a would have effect on him or her. As the Supreme Court declared in “In Gortmaker: order to have standing allege declaratory proceedings, to maintain one must controversy.”

a substantial interest in the in matter person Gortmaker, 252 Or 443. It is not sufficient that the against proceeding might whom a is initiated be affected a judicial example, Thus, Eacret, decision. in in which the parents challenged authority aof murder victim the judicial a sentence, Governor commute murderer’s a deci clearly authority sion would have the affected Gover the par nor. case nevertheless was dismissed because the satisfy practical ents could not the constitutional effects requirement. Similarly, Eacret, Poddar, 215 Or at 125. in county decision the on merits as to the of challenged appointments certainly make the would have had county. effect We nevertheless dismissed plaintiff the case, because the such a decision would could not demonstrate that

practically any way. affect him in App Poddar, Erwin, Or Likewise, at 170. a decision on concerning validity the merits various rules clearly Oregon yet State Bar have the Bar, would affected we plaintiff’s dismissed claims because he could not estab Erwin, lish that such decision would affect him.

at 107. origins far, have

Thus we described the and nature judi- for an individual to invoke the power justi- cial VII, conferred under there must Article controversy. question ciable There remains whether legislature abrogate modify can what constitution regard,

requires. Oregon In that we note that courts apparently have chosen to follow federal courts cre- approach justiciability, ating i.e., first, a two-tiered con- judicially second, threshold and a series of stitutional created legislature may prudential freely considerations that modify. Oregon justiciabil- Instead, the have courts described solely ity in constitutional terms. First Commerceof Assoc., 206, Center 199, America Nimbus P2d (“under (1999) III, Article section and Article 556 (Amended), VII Constitution, section ofthe [is] power of the state vested limited to actual courts con 188-89). parties”) (citing Barcik, between 321 Or at troversies That bility justicia significant implications, for, if indeed imposed that the are constitu conditions courts tionally required judicial power, for the it nec exercise essarily cannot detract from those follows requirements. “practical In words, other if the minimum requirement truly prerequisite is to the constitu effects” judicial legislature power, exercise the the cannot tional of by statutory abrogate fiat. reasoning certainly comports

That with the histori- early pronouncements in concerns reflected such cal legisla- Hayburn’s justices Case, the in which the held that authority simply to branch without constitutional tive judicial require scope of the branch act outside the author- grant “judicial power” ity the the of in constitu- conferred position the that the federal courts have tion. That also is jus- components holding of in that the constitutional taken, ticiability to an and “irreducible mini- amount “immutable” E.g., Lujan, 504 US at mum.” 560-61. Oregon

Likewise, it is course followed regard opinion Title, in is In re Ballot The lead courts. (1967). legislature case, 488, 431 P2d 1 In Supreme required to review a statute that Court enacted by Attorney prepared General, even those titles all ballot any unchallenged by court held that statute voter. The attempt confer on the unconstitutional amounted “judicial power.” Invoking authority that exceeded courts the federal constitution —in intentions of the framers of the particular, Hayburn’s explained and the Cor- in Case those explained: respondence court of the Justices —the “The first doctrine to evolve in this nation’s constitu- jurisprudence tional was that courts are limited judicial and exercise function should not cannot advisory opinions. required by render When first Congress nonjudicial capacity, Jay to act in a John Chief Justice responded:

“ * * Constitution, [U]nder Government was independent branches, divided into three “distinct duty and that it is the each to abstain from and either, oppose encroachment on that neither the Legis- constitutionally lative nor the Executive branch can assign any to the Judicial duties such prop- but as are erly judicial, ** judicial manner”; performed and to Warren,

*.’ 1 Supreme Court in United States Case, History, referring Hayburn’s p part to 2 US (1792). request by “A like Washington President received same Haines, answer. The Role of the Court Ameri- Politics, can 1789-1835,1944, Government and pp 143-148. equally The doctrine became well-imbedded in the [sic] jurisprudence the state courts.” Title,

In re Ballot 247 Or at 492. The court noted giving advisory opinions because the is not a func- legislatively attempt empower tion, do courts to so principles separation powers. violates constitutional Id. at 494-95. Rawls, Medical Association (1978), similarly legislature

574 P2d 1103 holds that the requirements justiciability. without to alter the providing enacted a statute plan participating physicians under which could secure against personal liability professional negli- themselves for gence. pro- legislature Laws ch 269. further “judicial judgment” vided for examination and of the consti- tutionality legislature § enactment. Id. 11. The Oregon Commissioner, declared that the state Insurance the person Association, Medical petition could other interested Supreme the of con- Court for immediate review the stitutionality law, of the statute. the Id. Pursuant Insurance the Commissioner and Medical Associa- petitioned Supreme statute, tion the for the Court review of asserting entirely them that the statute was consti- both of Supreme On the motion, tutional. its own Court dismissed present ajusticia- petition ground it failed to the on the controversy. According court, not to the matter be ble “ ‘justiciable controversy judicial power ‘deemed’ within the ([A]mended).” by [A]rticle Rawls, VII Or at vested 300. Specifically, the first of the noted, the court two essential justiciability adversity—was present, requirements of not — by legisla- requirement simply could be and the waived tive fiat. Id. at 297-300. precise holding

To the of the case was sure, adversity, legislature cannot waive By parity components justiciability. first of the two reasoning, apply require- however, the same rule must components, practical effects, the of the two ment of second as well. constitutionally

That confer cannot opinions in on the courts to render the absence declaratory judgment practical effect is borne out In each that we have described above. courts cases component must be sat held that the effects regardless of the of the statute under which a isfied terms example, Cummings plaintiff brings Thus, a claim. declaratory judg Supreme Constr., Court noted remedy by which individuals statute created broad ment may validity pronouncement con or obtain a It held: of an enactment. then struction jurisdiction “Despite statute, not have this courts do declaratory judgment requesting action entertain a rights interpretation a statute a declaration of one’s controversy’ ‘justiciable there thereunder unless is a parties.” between added) (quoting (emphasis

Cummings Constr., 242 Or at 109 111). Cry. Oregon Mfgs. Ass’n, 159 Or at judgment declaratory emphasis It bears justiciability requirement mat as a exists hold that the cases independent principle ofwhat conditions ter constitutional judgment impose. declaratory As does not act does or applied “This court has noted Barcik: Court

547 justiciability requirement declaratory judgment actions fifty years origins for over and has noted the constitutional requirement.” (citing Cry. Mfgs. Oregon Or 321 at 188 109); Ass’n, Bar, 159 Or at also Brown v. see State (1982) (“The 446, 449, Or 648 P2d 1289 court cannot exercise jurisdiction nonjusticiable controversy over because in the authority, absence of constitutional court the cannot render advisory opinions.”).Thus, the fact the cases arose under declaratory judgment the guishing statute affords no for distin- basis expressly the Indeed,

them. court has held the vary merely rules under tbe do because case arises

declaratory judgment Barcik, statute. Or at 188. independent

The constitutional basis theof Supreme effects is further confirmed the legislature Court’s decision Mclntire. In that enacted statute a among things, partially other funded light-rail project, expanded availability of card-lock regulated pre- feeding, stations, service empted confined animal pesticide regulation, adopted local new timber harvesting pro- rules. the same statute, person” may petition vided that “interested constitutionality Court for a determination of the such wide-ranging (Spec § enactment. Or Laws ch Sess). petitioners, taxpayers, sought just two such naming respondent determination, Department Transportation. as the the Director of the Tri-County Metropolitan Transportation entity responsible Oregon (Tri-Met), regional District of light-rail project,

for the intervened and challenged petition grounds statutory and constitu- standing. responded challenge by tional The court ana- lyzing separately. each issue began question peti-

The court with the whether statutory requirement petitioners tioners satisfied the be “interested persons.” petitioners The court held that the meaning were “interested” the statute, within because upholding petitioners the statute would mean that the would pay property general obligation have to taxes to retire the light- pay bonds that Tri-Met would have issue project rail and because state funds would have be diverted project, gone help pay for the funds that would have to cit- petitioners Mclntire,

ies and counties in which resided. at 433-34. separately, Next, court addressed though they standing require- whether —even satisfied petitioners justi- also ments of ciability requirements statute —the satisfied Citing Brumnett, the constitution. of by justi- began noting two-part familiar the test the ciability: of court parties that the be adverse and that a decision practical Mclntire, a 322 Or at would have effect. 433-34. parties quickly the the obvi- court ously observed that interests of practical As a adverse. for a effect of decision on were held that the facts that established that merits, the the the court parties meaning the were “interested” within of the stat- satisfy practical to the a sufficient effect ute also established constitutional petitioners’ statutory standing. say the standard. Id. court did not that merely justiciable they because had claims were contrary its To the with —consistent declaratory judgment past six decades— decisions over independently that established examined facts court statutory standing also to determine whether those facts necessary practical to effects sufficient establish the would be satisfy Id. the constitution. regardless legislature provides of what the short, judicial litigants regarding relief, of to obtain always determine that the constitutional the courts must Any legislation requirements are satisfied. of opinion conferring an in the absence to render seeking party relief, definition, a on the effect advisory authority an to a conferral of render amounts consistently opinion. line of And, manifested in a decisions tracing a conferral violates centuries, two such back over powers. principles separation basic constitutional ques principles mind, we turn With those controversy League justiciable presents a tion whether the opinion, this As noted at the outset of this case. we county opposition League to the the submitted letter identify application. The letter did what Lillies’ League’s provide explanation League the is, nor did it League simply application. It stated in the interest opposed application ground approval on the would appealed League LUBA, unlawful. When the Lillies again, League explain Once moved intervene. did not application what it is or the nature of its in the or interest way how it would be affected decision on one or merely League’s other. The motion appearance stated the fact of the county. appeal, League pro- before the On concerning composition, vides no additional information its application, any practical its interest in effect that rights. simply on decision would have its It cites ORS 197.850(1) 197.830(2) (7) and ORS and contends that legislature’s statutory standing any person conferral regard any practical without fices to create interest in the outcome suf- justiciable controversy. 197.850(1) provides “[a]ny party pro- ORS to a * * * ceeding Appeals may before the Land Use Board of seek proceedings.” review a final order issued in those 197.830(2) provides any person “[a]ppeared ORS who * * * government orally writing” before the local inor petition LUBA for review a land use decision. ORS 197.830(7) provides any person who has made such appearance may proceeding. intervene in such review League suggests, right Thus, as the the statutes confer a judicial having seek a review of land use decision without to long any particular establish interest in the decision itself. As person appeared government, as a has before the local person right proceed- has the to intervene in a LUBA review ing right and the further seek review in court LUBA’s question League case, In decision. this there is no appeared government. question the before local The sole having statutory requirement whether satisfied that makes justiciable. this case light principles justiciability

In ofthe that we have described, cannot we but conclude that the satisfaction of the statutory requirement alone is insufficient to establish the League’s petition. the begin with,

To the observed, we have because League party jurisdiction is the sole has the invoked League’s obligation justi- court, this it is the the establish ciability Gortmaker, Moreover, of its claim. 252 Or at 443. justiciability, League the

establish such must demonstrate practical a in this case will a on decision have effect its rights. Barcik, Brumnett, 182; at at Or 405-06. League regardless pro- must do The so of what the statutes by way vide ing of conditions—or lack of conditions—on obtain- judicial concerning “practical case law review. The the clearly effects” states that abstract interest proper application Eacret, is not law sufficient. Cry. Oregon Mfgs. Ass’n, 109; at 125; Or at Pod- League’s only dar, case, In this con- 170. disagreement concerning tention is that its with LUBA approval application is suffi- lawfulness of Lillies’ principles justiciability. at odds settled cient. That is with conferring right League insists on it judicial legislature, decision, review of LUBA’s to seek statutory right effect, has on it a to vindicate the conferred proper application of the state’s land use laws. In other argues, League this words, the a decision in case will legislature rights its has con- effect on because the right request ferred it the such decision. entirely argument legislature circular. The

surely authority rights. confer But it does not fol statutory necessarily rights creates a low that the conferral of controversy. justiciable As the Ballot Title and Rawls deci constitu clear, does not have the sions make right authority to confer the to seek from courts tional decision in a Conferring right nonjusticiable case. such “judicial grant the courts not included in would (Amended) power” and thus run conferred under Article VII powers principles. separation of afoul only right ORS 197.830 this conferred right review of local is the to seek and ORS 197.850 having government to establish decision without seeking person That is review. decision will affect the nothing to obtain an than the conferral of more legis- beyond advisory opinion, which is by right grant. statutes Thus, the those to conferred lature constitutionally suffice establish cannot League petition. League’s relies no other on justiciable. petition We its that ground its contention nonjusticiable. petition is conclude therefore must dissenting opinions. then, to the several turn, We simply Judge does the constitution Deits contends Chief Judge Armstrong requirement. impose practical effects requirement practical similarly effects contends only mootness, not to a law refers in the case mentioned standing requirement, and that no constitu- constitutional conferring legislature on limitation constrains tional government litigants review to seek attempts Finally, Judge out a middle to stake Brewer action. position, imposes although namely the constitution that, requirement, is satisfied effects members of the confers when agency challenge Each dis- public actions. administrative approach slightly and different warrants sent takes perhaps doing separately. addressing it is But before strategy a common there is (cid:127)instructive to observe validity begin by assuming by employed all ofthem. All during in which the the 1970s and 1980s—cases the case law distinctly approach attempted different to articulate a courts approach, justiciability, to make as we have endeavored an earlier or subse- with either that cannot be reconciled clear, They there, quent from then work backwards decisions. contrary by attempting distinguish their cases on either subsequent contrary by declaring earlier facts or attempts simply to examine incorrect. None cases case law assumptions, priori in histor- whole, as a without required perspective, as under Priest. ical Judge begin Judge Deits’s dissent. with Chief We [] apparently begins by complaining that we “believe Deits that case law.” 176 Or Oregon, [our] federal, as well as conclusion is driven wrong. simply at 563. That way It is driven federal law. this case is in no result in juris- body by well-developed of state constitutional driven body cribing development prudence. of state In des attempted that it has some to show however, we have law, vocabulary history federal in terms of roots—both —in simply doing, followed law. In so we case Supreme frequently practice, resorts to which Court analysis the context within which case law as of federal See,

Oregon constitutional taken interpretation place. (2001) State v. e.g., Fugate, 210-15, 26 P3d 802 federal ex (describing case law post as historical context facto clause). for proper ex understanding In post facto fact, that is the the precisely approach Supreme Court pre- viously has taken in the articulating justiciability require- (Amended) ments of Article VII of the Oregon Constitution. Title, Ballot re 247 Or at 492 devel- (describing opment justiciability of federal doctrine as context for Oregon justiciability analysis). Deits thesis, then moves to the

Judge heart her is, that that the constitution simply does not that the require judicial invoke the party seeking must establish power that a decision will have a effect practical on his or her rights. According Judge Deits, the imposition of effects a matter of requirement purely statute. In support thesis, that Deits Judge reliance on places primary Eckles. acknowledges She that there is the in case language law the contrary, particular, Ethical People Treatment n and Marbet. 176 Or at 2. She App concludes that simply Instead, such she we language wrong. suggests, should any understand prior decisions concerning practical effects solely at requirement pertaining mootness. 176 Or App 564.10 10Judge particularly distinguishing Deits has a difficult time Mclntire. She admittedly suggests confusing.” “is that the decision somewhat 569. at however, insists, practical really She about mootness and that the court’s discussion effects “is only with, begin explained, about mootness.” Id. To as we have way demonstrating

there is no to demonstrate that a case is not moot without practical party invoking authority decision will a court. effect on of the Thus, say simply disagree that Mclntire “is about mootness” is about labels. But, assuming apparently understanding even narrower of mootness that Judge employs, reading scrutiny. Deits her of Mclntire does not withstand brought challenge government plaintiffs in had Mclntire their the federal before operation challenged had committed funds which the contingent. statute made was certainly potential ripeness problem, sepa- There was a and the court rately surprisingly suggested as such. addressed it But—not one that there —no Indeed, problem. was a mootness a review of the that case briefs in makes clear parties practical addressed had effects issue in context of a conten- plaintiffs standing, tion that the lacked constitutional and the court addressed Mclntire, words, exactly arguments exactly those those terms. in other means says. what misap- respect, Judge reflects a Deits’s dissent

With justiciability relationship prehension between repeatedly Court noted, As we have mootness. party justiciability requires invok- that a has instructed ing judicial power able to establish that a deci- must be rights. her Mootness effect on his or sion will have merely temporal aspect require- of that essential refers to requirement justiciability. It refers to ment of authority invoking person practical be able to establish that the courts’ during litigation. the course ofthe effect at all times time the party invoking the of the courts If showing, Thus, case has become moot. make that cannot requirement reaffirms the basic definition, the mootness party invoking requisite prac- able to establish the must be courts’ impossible to establish that a case is Indeed, it is tical effect. practical showing it will have a effect without that not moot on the parties. rights Brumnett, 315 Or at 405-06. of Judge that in none of the deci- Deits further asserts has this court or the sions that we have canvassed satisfy of a failure to dismissed the case because Court requirement. App practical That, too, is effects 568. Erwin, Eacret, Bain, Poddar, noted, incorrect. As we have contrary. among squarely others —are and deParrie — ripe- ofmootness or the courts dismissed not because each, adversity plaintiffs’ problems, but because the ness or challenged disagreement decision was held with a abstract satisfy practical effects the constitutional insufficient requirement. suggests parties’

Judge abstract disa- Deits legisla- greement in those cases because the was insufficient statutorily to seek the relief conferred ture had not again, they requested. is incorrect. In each of Once by plaintiffs sought judicial relief conferred cases, those Notwithstanding Declaratory Judgment confer- Act. statutory right relief, the courts to seek ral of that requires repeatedly satisfac- confirmed that the constitution requirement. Barcik, practical effects tion of a origins practical (noting effects of the constitutional Or at 188 cases); declaratory judgment Cummings Constr., 242 test in (requiring justiciability require- atOr satisfaction of statute”). declaratory judgment “despite ments in cases this Finally, Judge complains in a footnote, Deits opinion “may implicate separation powers our also of consid- App According Judge erations.” 176 Or at rights n 565 1. Deits, power parties may protect to define the seek to through judicial process properly part legislative ofthe power. misunderstanding. opinion Let there be no Our does merely implicate separation powers considerations. It directly by separation powers driven concerns. As we pains separation powers have been at demonstrate, it is provided principal underpin- considerations that have ning generally for the creation of doctrine requirement particularly. Although the certainly effects legislature’s prerogative

is the constitutional to cre- rights, rights upon ate the creation of those cannot call judiciary power to exercise that has not been conferred (Amended) precisely Article VII of the constitution. That is happen Judge conception what would under Deits’s justiciability.

Judge Armstrong strikes a similar note in contend- ing although may impose justi- the constitution certain ciability requirements, “suggested in no case has court that there are constitutional limits on the choices to be made concerning and the courts the content requirements.” (emphasis origi- those at 576 nal). Invoking separation powers concerns, he contends that: “Nothing judicial powersuggests aboutthe nature ofthe to Oregon prevents

me that the Constitution the courts or the * * * legislature giving people implicitly recognizing from interests challenge governmental to broad long doing substantially impair actions, so so does not ability adjudicate ofcourtsto cases.” footnote, at 578. In a he elaborates: qualifyinglanguage recognizes

“The in that statement separation-of-powersprinciple that the embodiedin the Oregon prevents government Constitution one branch of taking substantially ability impair from actionsthat perform another branch functionsthat the constitu- assigned Nothing suggests grant to it. tion has conceivablyimpair at issue in this case could ability perform adjudicatory ofcourtsto their role.” (citation omitted). AppOr at 578 n 8 analysis Judge Armstrong’s predicated on a mis- apprehension Oregon separation powers analysis. Arti- Oregon certainly III, 1, cle prohibit section Constitution, does legislature enacting legislation from that would judiciary impairing carrying have the effect of from out prohib- its constitutional functions. But that is not all its. It also ing prohibits government one branch of from exercis- generally the functions committed to another branch. See Roy Separation Pulvers, Powers Under the Consti- (1996). Guide, tution: A User’s L 75 Or Rev More to point: prohibits legislature conferring It from on the judiciary power perform nonjudicial function. See In (declaring Title, re Ballot 247 Or at 491-92, 495 statute perform unconstitutional because it “seeks to have the court nonjudicial contrary prohibition a § function, III, of Art (Elections 1”); Rooney 13), Kulongoski see also # Division (1995) (Article 15, 25-26, III, P2d 1143 section prohibits legislature assigning judiciary nonjudicial from functions). infirmity That is the constitutional of a statute purports grant power to the courts the to entertain a petition judicial by petitioner review who would unaf- by judicial advisory opin- is, effect, fected decision. It ion, trary III, Thus, unconstitutional under Article section 1. con- Judge Armstrong’s suggestion, there are indeed way limits constitutional of to what the can do in the authorizing petitioner judicial power. to invoke the rejoins

Judge Armstrong permitting fact, any litigant government to seek review of action require advisory opinions. would not the courts to issue He by simply redefining arrives at that conclusion what advisory opinion. According Judge to an amounts Armstrong, requires only the constitution that there be a dis- pute grant between contestants and that the court can regarding dispute. By Judge Armstrong “relief,” “relief’ apparently ability refers to the of the court to answer the

legal question posed by parties. suggests nothing He that preclude legislature in the constitution would or the permitting person challenging any gov- courts from from regardless person action, ernment of whether that would be by affected it.11

Judge Armstrong presumes simply thus that there practical requirement place. is no effects in the first That easy unobjectionable assumed, much legislation he finds it to declare anyone virtually any that confers on regard practical problem case without effects. The is that premise practi- his is without foundation. There is, indeed, requirement, attempted cal effects we have to demon- strate some detail. Because there is such a constitutional necessarily requirement, legislature it that the follows can- constitutionally eliminate it. Judge Armstrong appears in fact to concede that asserting legislature much. While on the one hand may “adjust justiciability, the content” of the elements of acknowledges hand, he other there are limits: imply adjust

“I not mean do the freedomto truly content ofthose elements is limitless. An adjustment to an element that has the it eliminating is not effect of permitted.” added). (emphasis precisely at 576 n 3 That is League problem in this case. The statute on which the relies any requirement party seeking eliminates that a completely prac- relief must establish that such relief will have a rights. tical effect on his or her Judge Judges dissent.

We turn to Brewer’s Unlike Judge agrees Armstrong, that, to invoke Deits and Brewer judicial power, litigants must that a decision establish practical rights. effect on their He nevertheless will have a League insists in this demonstrated required practical He effect. reaches conclusion that, making point, Judge Armstrong perhaps pointing It is worth out commentary public examples that reflect the and references to academic resorts Armstrong adjudication proposed Judge rights that was first in the 1970s. model of understand, explain, the framers of the and we do not how is does not adopt theory that had not been intended Constitution century than a after ratification. articulated until more declaring involving challenges that cases to the lawfulness of agency According administrative actions are different. Judge Brewer, where the has conferred on a mem- public challenge agency ber of the administrative action, the effects has been satisfied legislative making argument, act. In he cautions that “[i]t private is essential to remember that this case is not a dispute private parties.” App between at 586. To Judge challenge Brewer, the fact that this case involves a agency key an action of an disposition proper administrative is the to the question justiciability of the of this case. Why legislature may simply justi- declare that a ciability requirement has been satisfied in cases, some but Judge explains. empha- others, Brewer never He does legislative standing size that the conferral of in this case is part comprehensive statutory program of a of land use explain enforcement. But leg- that does not the source of the justiciabil- islature’s ity to eliminate a required. that he any- concedes otherwise is Indeed, if thing, in upon cases in which the courts are called agency invalidate an action separa- of an of another branch, powers heightened tion of concerns would counsel a sensitiv- ity requirements justiciability, not a relaxation of requirements. Supreme those As the Court cautioned in describing importance Oregon Cry. Mfgs. Ass’n after issuing opinions courts not in the absence of a concrete con- “ troversy, [particularly should this be so when a court is government asked to declare that a co-ordinate branch ofthe power.” has exceeded its Oregon Creamery, 159 Or at 109. Judge emphasizes importance Brewer also of actions of permitting agency to ensure that significant “public “public subject interest” or concern” be judicial consistently review. The courts, however, justiciability vary have ruled that the rules of do not with the public importance of the issues involved. Barcik, (rejecting “public importance” exception Or at 188-89 (rule doctrine); against mootness 281 Or at 301 Rawls, issu- ing advisory opinions subject “great public impor- is not to a exception). tance”

Judge support for his Brewer claims distinction judicial agency private disputes and review of between According in the Court’s decision in Marbet. actions standing Judge Brewer, in that the court held that public representation “depended on the intervenor’s public concern, matter interest in a not on intervenor’s personal Judge at 587. stake the decision.” because that case involved Brewer reasons agency implic- the court must have at least action, review of itly held that the rules of are different such cases. problem reading with that ofthe decision that ignores standing the fact that the court did not address as issue. It addressed the extent which the constitutional standing requirements applied any

intervenors satisfied expressly Indeed, APA. the court disclaimed under the opinion question “the on the whether conferred ” judicial power ‘the of the state’ ORS 183.480 exceeds con- (Amended). Marbet, n If, Article VII 277 Or at 457 4. ferred legislative Judge suggests, Brewer conferral of stand- ing no issue for sufficient, there was constitutional was day, for no court to reserve another its disclaimer makes contrary, People as we noted our discussion of sense. To Treatment, has Ethical the court not determined that a for by standing, legislative In itself, conferral of suffices. agency administrative action case—the court case—an declared pre- not into the certain constitutional considerations “aside from reviewing inquiry this court’s sented entity seeking standing of an reviewis confinedto interpretation legislative intent.” Plainly, legislative standing at 99. conferral of 312 Or agency even in administrative action not, itself, sufficient, disputes. Judge surprisingly, claims that Brewer

Somewhat supports justiciabil- People view of Ethical Treatment his for petitioner ity. acknowledges court that the held He satisfy standing it failed to lacked because in that case standing requirements APA, not the constitution. He the court’s construction some insists that nevertheless significance, constitutional because if it did the court not, sponte standing have for lack should sua dismissed on con- grounds. App stitutional 176 Or at 592 n 6. respectfully disagree. addressing

We In the statu- tory question merely first, the court followed the familiar things methodology always requires “first first” consid- arguments eration of nonconstitutional before constitutional Moylett, State v. 540, 545, ones. 836 P2d 1329 (1992) (“Allissues should first be addressed on a subconsti- level.”). By resolving statutory tutional the case at the level, People appropriately the court in Ethical Treatment addressing avoided even the issue of whether the association requirements justi- could have satisfied the constitutional ciability. provides support suggestion The decision no for the that, while the constitutional effects applies involving cases, in all other it does cases agency administrative actions.

Going Judge the offensive, on Brewer contends that language there is no in either Article III or Article VII (Amended) imposes legislature’s authority a limit on the anyone pleases. to confer at 588.12 Strictly speaking, early that is correct. As we observed in this opinion, nothing there is in the Constitution that speaks directly subject justiciability, much less to ripeness, standing, adversity. mootness, Yet from the ref- authority erence in the constitution to the of the courts to only “judicial power,” exercise doctrines the courts created

concerning each. What is more, on the basis of that language principles and the reflects, that it the courts have articulated limits on the to enact power statutes that confer on the courts that is not contained “judicial power.” Thus, Title, in the in Rawls and Ballot 12 making point, Judge digression regarding Brewer offers an extended Lujan, Supreme citing professors the flaws the United States Court’s decision in noted, Lujan certainly nearly Davis and Pierce. As we have has its critics. But all— including underlying premise Davis and Pierce —assault of the decision that practical requirement place, there is a effects in the first not that the decision’s con necessarily premise. Judge that clusion does follow from Brewer —unlike Davis purports accept premise imposes practi and the constitution Pierce — requirement attempting cal effects while at the same time to endorse the conclu accept very premise. Logically, Judge sion of commentators who do not Brewer ways, cannot have it both as even the critics on whom he relies concede. legislature emphatically lacks held that Court to confer the to seek from the constitutional nonjusticiable in a case. a decision the courts Judge insists that those cases are distin- Brewer justi- they guishable, elements of involved different because ciability practical is at issue in effects element that than the practical effects n 1. But if the at 585 this case. requirement Judge is indeed a constitutional —as acknowledges perceive prin- expressly no Brewer —we differently. treating cipled Just as the that element basis ripe- simply legislature elements of declare that the cannot adversity satisfied, it neces- have been mootness, and ness, sarily simply likewise cannot follows that agency actions or other administrative declare—in case—that element has been satisfied. effects League reject of the the contentions We therefore League dissenting opinions and conclude petition. justiciability of its to demonstrate has failed Dismissed. concurring.

EDMONDS, J., majority’s opinion I agree in this but with the I my understanding express separately of the ramifi- write analysis. majority’s of the cations analysis point beginning the lan- is with Oregon It guage provides: Constitution. 1, III, Article section three be divided into Government shall powers “The Executive, Legislative, departments, sepe'rate [sic] administrative, per- and no and the Judicial: including the depart- these under one of official duties charged with son another, except functions of any of the ments, exercise shall expressly provided.” this Constitution as in (Amended), Constitution, 1, of the section VII Article judicial power “[t]he part, provides, in relevant supreme and in such other court in one shall be vested state law.” to time be created from time as courts (3)(a) 197.850(1) ORS is whether At issue contemplated power” “judicial the con- encroach stitution. part, provide, provisions in relevant Those “[a]ny party proceeding a Use to before the Land Board of Appeals judicial under ORS 197.830 to 197.845 seek proceedings order [,]” review of final issued those “(j]urisidiction judicial proceedings of review under ORS upon Appeals.” 197.830 to 197.845 is the of conferred Court correctly majority pro- reasons, the III, 1, As Article section authority legislature conferring the hibits from to conduct judicial such review this court in a manner that would cause the court to function the exercise the of executive. liberty legislature constitution, Under the is at to make entity party individual or that it desires a to an executive including party represents only proceeding, public who personal Consequently, interest, than a rather interest. there nothing unconstitutional, III, 1, insofar Article section is provisions permit concerned, about of ORS 197.830 any person organization appeared or has who before local government, special party agency appear district state as a (LUBA). Appeals before the Land Use of Board Where legislature potentially afoul of III, runs Article section judicial is in the conferral review of LUBA’sdecisions on regard proceed- court, this without fact for the that executive ings may justiciable controversy. lack vice of the like the statute is in its breadth —it “aggrievement” requirement no mechanism, 183.480(1), by ORS which it judicial parties limits review those who have a personal proceeding. stake in outcome the League

In this of Women’s Voters seeks review of when, LUBA’s decision based on record before personal Any opinion us, it has no stake in the matter. as to it necessarily purely advisory. majority aptly will As the judicial points power power out, the does not include the advisory opinions. Consequently, agree issue I that ORS 197.850(1) (3)(a), together, III, taken violate Article sec- provisions require those tion insofar as this court to exer- department, i.e., cise function executive to review department’s justiciable decision there is no when controversy. join JJ., Linder,

Haselton and in this concurrence. dissenting. C. DEITS, J., agree majority

I with the Article that, under VII (Amended) are Constitution, there limits on regulate access to the However, for the reasons that I will I do discuss,

courts. majority legislature’s grant agree with of“stand- ing” to seek review land use decisions in ORS exceeds limits. 197.830 and ORS 197.850 constitutional my presents justiciable controversy view, case this because statutory standing requirements are satisfied as well as necessary justiciability. all of elements establish Therefore, the case should not be dismissed. justi- majority is correct that the existence of a controversy prerequisite is a a court’s

ciable consideration categories per- a are of issues that are of matter. There four assessing justiciable controversy a tinent in whether exists: standing, adversity, ripeness, and mootness. Each of those categories genuine controversy whether there is a concerns Standing party the whether the before court. involves question legally recognized ripeness case; in the has a interest stage possible at a where it for involves whether case is is meaningful adversity decision; to involves a court make actually taking parties positions are different so whether the dispute; there a real and mootness involves whether a is any practical effect would have real or on or concern- decision rights parties. satisfy ing If a one ofthe case fails of categories, nothing there is for a court to decide. those

My majority disagreement with the relates to what standing necessary purposes justiciabil- to establish for of is standing jus- ity. majority purposes for of The concludes ticiability question of involves more than whether seeking judicial legally recognized party inter- review major- by standing applicable statute. The est as defined component ity to stand- there is a constitutional holds that majority, according ing. the fact In this standing requirements petitioner for review a satisfies 197.830(2) (7) in ORS is not use decision set forth land standing purposes enough provide for of the majority’s meeting inquiry. in addition to It view is petitioner requirements show, also 197.830, must ORS standing, part that decision demonstration itsof major- rights. “practical its The effect”on would have court showing, part standing ity as a that that concludes inquiry, prerequisite of the the constitutional exercise

563 judicial power and that power by lacks abrogate grant attempting this in cir- showing which cumstances in cannot be made. I disa- gree. majority

The believes that its conclusion driven Oregon, federal, as well as case law. federal cases con- cerning controversy case or III clause Article of the United States Constitution issues address common to the Oregon “judicial scope courts’ consideration of the (Amended) power” Oregon under Article VII Constitu- surprisingly, tion. Not our courts have at times referred to language and relied on from federal cases. adopted approach. however,

courts, Our have never the federal against placing Court, fact, has cautioned emphasis relating standing. too much on federal law Strawberry Hill Wheelers Co. Bd. Comm., Benton 591, 8, 609 n P2d court noted: ‘standing,’ more,

“References to treating without risk this term as a generic concept whose contours indiscriminately drawn from interpreting decisions diverse III, statutes U S 2, Const art or from the academic lit § erature. But provide statutes require often differentiated ments ‘standing’ agency or to obtain before different See, e.g., remedies. Hosp. [,] Gruber v. Lincoln Dist. (1979) 588 P2d (declaratory judgment); (adminis (1977) PGE[,] Marbet v. 561 P2d 154 act).” trative procedure added.) (Emphasis Although majority is that there regarding standing is some “murkiness” in our case law as it justiciability, agree understanding relates to do I not with its namely, beyond any statutory of that law: that above and (Amended) requirements standing, imposes for Article VII a general requirement type magnitude certain of always standing interest must be demonstrated to establish purposes justiciability. for of majority beginning

The states ofthe last Oregon justiciability analysis decade, courts had settled on a consistently applied analysis that has been and that that has “practical rights included consideration of effect on of parties.” Contrary majority’s agree assertions, I do 564 parties per- practical rights on the of the is a effects determining in of a

tinent consideration practical However, the consideration effects has matter. satisfying specific always require- in the context of been statutory standing commonly requirement, of a ments declaratory judgment statutory requirements bringing a standing. related to We action, mootness, or it has been consistently practical aspect jus- equated the effects have ticiability example, our mootness. For decision

with Lavitsky, App 660, 663, P2d we v. 158 Or State stated:

“Determining part larger a case moot is whether is justiciable. is two-part inquiry into whether a case (1993). 402, 405, PSRB, 315 848 P2d 1194 Brumnett v. is case inquiry presents first of that whether a part The controversy Id. parties between with adverse interests. The have a element is whether court’s decision will second concerning rights parties. of the Id. practical effect on or 174, Kubiaczyk, 182, v. at 405-06. See also Barcik (1995)[.]" P2d added.) (Emphasis In Joint Council Teamsters #37 App 398, rev den 331 Or 429 BOLI, P3d (2000), we said: * * * prescribes inquiry into two-part

“Brumnett question is The first is whether a justiciable. a case whether controversy an actual and substantial presents case having legal adverse interests. Id. sec- parties between will have a the court’s decision question ond whether i.e., whether the rights parties, effect on the Id.” case moot. added.)

(Emphasis Contrary majority’s Oregon assertions, courts party standing consistently whether considered defining specific statute who seek terms of the particular have not matter. courts review a imposed generic is a held that there independent that exists considerations constitutional requires statutory standing requirement and that that a cer- magnitude interest be satisfied before the other tain

565 aspects justiciability adversity, ripeness of and lack of — mootness—are even considered.

In our recent decision in Poddar v. Clatsop County, App 169, 929, 167 Or 2 162, P3d Or recons 168 adhered on (2000), example, 7 677, P3d Or 556, 331 193 for rev den began by noting standing our we discussion of we should sight standing generic not lose of the fact that is not a con cept: standing depends specific what constitutes on stat utory particular quoted standard case. We from the Supreme Court’s decision in Eckles v. State Or 306 Oregon, of (1988), 380, 384, P2d 846 dismissed 490 US appeal (1989): S L 1928, 104 109 Ct Ed 2d 400 treating “One other source confusion the is habit of standing genericconcept spe- as if it were a unrelated to the by legal requested party. cific relief court This has noted person onmorethan oneoccasion that whether is entitled judicial dependsupon type sought to seek relief ofrelief commonly governedby specificstatutory and is standard. person standing type

A with to seek one of relief will not necessarily any standing type to seek other of relief. plaintiff Because sought declaratory injunctive relief, we must decide the issue his standing by looking specificstatutes and governing cases his seek these types of relief.” omitted.)

(Emphasis added; citations and footnotes We went statutory light that, on Poddar to conclude stand- ing requirements applicable plaintiffs to claims for declaratory injunctive plaintiff relief, did not ade- quately demonstrate a sufficient interest to establish stand- ing. App 170. Supreme suggested Court has never that there any infirmity legislatively

is constitutional with created standing legislatively rights necessarily or the created provide contrary, the foundation it.1 To the the court has majority’s standing may implicate separation powers discussion of also power “rights” parties may protect considerations. The to define seek —which through part process properly “legislative power;” which —is Assembly. Const, IV, 1(1); Legislative vested in the Art Or see § Smothers (2001) Inc., Transfer, 83, 112, (suggesting apart Gresham Or 23 P3d 333 “ rights,” legally protectable rights from ‘absolute’ common-law definition legislature); province Keisling, App 119, Swett v. 15 P3d 50 (2001) (legislature plenary power legislate rev allowed 332 constitution). matter not limited federal or state questions repeatedly are to be stated that referring As to statutes. Court resolved Quality, Dept. No. 290 v. Environ. 323 Or stated Local (1996): 559, 566, 919 P2d 1168 issue, reviewing a ruling standing it is on a court “When issue, wording particular at must on the statute focus is, standing is a matter of common law but because not instead, by legislature.” conferred People Care, 95, Treatment v. Inst. Animal (1991) 312 Or Ethical for * * * by (“Standing is conferred P2d 1299 (“To say Legislative Assembly.”); at Eckles, 306 Or 383-84 standing’ say plaintiff plaintiff ‘no is to that a has have a tribunal decide a claim under the law has no person defining requested [.]”“[W]hether a is enti- relief * * * by commonly governed judicial a relief is tled to seek specific standard.”); County statutory v. Benton Friends of (1982) (“ County, 79, 82, 294 Or 653 P2d 1249 ‘Stand- Benton provide expressly ing’ Some statutes is common law. not actions.”); specific may governmental review of who seek Tri-Met, and Contractors Associated Builders (2000).2 12 P3d by majority for the decisions relied on In the generic proposition constitutional that there standing, proving purposes the court does not discuss for any generic requirement. Rather, the focus is on court’s such defining standing requirements specific of the statute for example, particular Gruber, case involved. In for kind of plaintiff sufficient had a the court discussed whether bring consequently, and, the case whether interest statutory standing requirement. plaintiffs interest met the statutory standing requirement applicable was the The Declaratory provided: Judgment Act, which ments pretation of here that the statements state[.]’ can be read as certain component inquiry 2 1 acknowledge constitutional considerations into the ”). control. legislative standing my Oregon. leaving standing opinion, is a matter open conferred People intent.”); there are also comments from the however, for entity seeking question by Market, Ethical ORS 183.480 exceeds the court has made direct and presented of whether Treatment, judicial by to determine standing review is confined this 312 Or at 99 n ‘the (“It reviewing frequent state not contended statute. (“[A]side constitutional power to an Court that court’s Those inter from “Any person deed, will, interested under a written con- tract or writing constituting contract, other or whose rights, status or other legal relations are affected a con- stitution, statute, charter, municipal ordinance, contract or franchise any question determined of construc- validity tion or tution, statute, under arising instrument, such consti- charter, ordinance,

municipal contract or franchise and obtain a rights, declaration of status or other legal relations thereunder.”

Gruber, 285 Or at 6. Eckles, the court focused on the statu-

Similarly, tory standing requirement, again Declaratory Judgment Act. The court concluded:

“The statute’s to an effect on ‘rights, status or reference other legal relations’ requires plaintiff seeking declara tory allege injury relief to ‘some or other impact legally on a recognized beyond interest an abstract interest in the cor application rect validity of a Budget law.’ Rent-A-Car (1979). Co., v. 93, 95, Multnomah 287 Or 597 P2d 1232 The interest perhaps most recognized often as sufficient for standing under ORS 28.020 a present or foreseeable interest, financial such taxpayer, as that of a e.g.,Lipscomb v. Higher Ed., State Bd. 472, [305 Or (1988)], 753 P2d 939 of many but other interests have been recognized well, including voters, the interests of e.g., Webb v. Clatsop Co. 3, 324, School Dist. users of a 331, Or 215 P2d 368 and of road, e.g., Rendler Co., 177, 182, Lincoln 302 Or (1986). 728 P2d 21 alleged hand, On the other taxpayer who only an interest in proper expenditure public of alleging funds without challenged government action would have an effect on his taxes was held to have no Gruber[, standing, 8], 285 Or parents at whose son had been murdered had no standing to obtain a declaration set ting forth limits on the Governor’s power to commute the death sentence murderer, of their child’s Eacret et ux v. (1958).” Holmes, 121, 124-25, 215 Or 333 P2d 741 added). Eckles, 306 Or at 385 (emphasis See Gortmaker v. Seaton, 440, 252 Or Oregon Cry. Mfgs. (1969); P2d 547 Ass’n v. White, 78 P2d 572 (1938); Erwin v. Oregon 159 Or Bar, State 149 Or (1997); deParrie v. 99, 941 P2d 1094 App State Oregon, 541, rev den Or 893 P2d of (1995). legislature may majority that the not concludes justiciable; leg- a matter to be in other that the words,

deem authority requirements jus- islature without to alter agree. ticiability. legislature may I not deem a matter Clearly, justiciable. legislature not alter necessary requirements establish constitutional aspects justiciability adversity, ripeness, and a lack — aspects of mootness. Failure to establish the constitutional any justiciability compel those will the dis- elements standing, respect however, missal of a case. With Oregon courts have not held that the is without parties necessary to define the interests standing; legally words, in other to define who has a establish protected interest in a matter.

Significantly, majority not does cite case statutory standing requirements were met where which was dismissed for lack of other than on case grounds adversity, E.g., ripeness, or of lack of mootness.3 Cry. (“plaintiffs’ Oregon Mfgs.Ass’n, 159 at 110-11 case is ripe for determination” where the defendant regulation “might promulgate or rule which and enforce some “practical might business”; use effects in affect their does not parties” rights phrase) (emphasis original); Eacret, particularized (plaintiffs at interest 124-25 lacked standing— public large apart created from no statute i.e.,— standing). accordingly, and, did not majority agree above, I do with the As mentioned relating case law that there is some murkiness in our justiciability. relationship standing I would between acknowledge Forbes, court’s in Mclntire v. discussion justiciable ment and cites number of cases tical effects never dismissed statement. statutory ples because The cases other cient to The than on cases that involved dismissals because satisfy standing majority that controversy, I state requirement. plaintiffs grounds the “constitutional that requirement. case because states majority did in which mootness, that I am 176 Or not have a sufficient Oregon cites, of a which statutory standing requirements Eacret, practical lack courts have wrong failure were 553. adversity Poddar, dismissed for failure to meet effects to meet However, stating interest plaintiffs’ Erwin, requirement,” or dismissed that ripeness. practical majority interests were satisfy Oregon deParrie, case, were effects have been misreads for lack courts have App at 568. applicable dismissed require insuffi exam prac met, of a my language 909 P2d 846 includes which import generic practical could be read to constitutional requirement standing. effects into the consideration of majority “[t]here relies on the court’s statement that are two analysis aspects justiciability in this case. The first standing inquiry: practi- relates to the will a decision have a rights parties?” cal effect Id. at 433. This state- admittedly confusing. Reading ment is somewhat the state- opinion, ment in the context of the entire however, shows standing statutory the discussion of focuses on the standing requirement and that the discussion of only effects in Mclntire is about mootness and about moot- contrary decision, ness. Mclntire to the in fact, illustrates majority’s standing assertion, and mootness involve questions. different begins

The court in Mclntire its discussion of stand- ing by noting “questions petitioners’ the intervenor standing bring this action and the of this standing separate case.” Id. at 431. It then discusses under a Statutory Standing.” (emphasis section labeled “A. original). Id. statutory That entire discussion concerns the petitioner person” that a must be an “interested under the statute. Id. at 431-32. In section B discussion, ofits petitioners the court concluded that the in the case were persons interested with under the statute. Id. at 433. The court then moves to the section entitled “C.Justicia- bility.” (emphasis original). beginning Id. It is at the of this discussion that the court makes the statement cited above by majority. Immediately making and relied on after goes quote statement, however, the court on to Barcik, from quoted mootness which itself Brumnett, another moot- explain justiciable ness case, the standards for a contro- versy under law. challenge

The issue in Brumnett was whether a to a petitioner decision in which PSRB refused to release the from jurisdiction subsequently its became moot when PSRB discussing released him. In issue, the court stated that justiciable controversy, there must be a because a court will hypothetical, contingent question. abstract, not decide an noting preliminary question After that a is whether the inter- parties ests of the are it turned adverse, to whether 570 practical

“the court’s in the matter will have some decision See parties controversy. on the of the to the rights effect (1984) (to County, 290, Warren Lane 297 686 Or P2d 316 land decision is determine whether review use from moot, prac- onemust determine whether a decision will have effect; practical effect, controversy still is a the tical not there if moot). justiciable, are in which a “Cases that otherwise but longer practical decision no will have a effect on or court’s concerning rights the of the will be dismissed as parties, moot.” added). (emphasis 315 405-06 The Or at court

Brumnett, petitioner that that then held the most could show was might, possibility future, the state some time in the that money pos- for the ofhis care. That mere to recover cost seek sibility mootness. Id. at 406-07. was insufficient avoid When the court Brumnett considered whether its practical rights par- would have a effect on of decision justiciable examining the case ties, it was whether was it was Both we and the Court because moot. have as a mootness case ever since. treated Brumnett Chemicals, Dist. View v.Amoco Irrigation Shasta (1999); App 649, 169 P2d Or 166, 986 536 Dick, State v. (2000); #37, P3d 315 Joint Council Teamsters of App is, 407. the reference to whether a decision would That rights practical parties has not effect on the standing pertains aspect except as it considered as an been statutory requirement. rights applicable standing The to the rights parties referred were the that to which the court validity standing parties assert-—-in Brumnett, had question that court PSRB’s order. The was a decision at a in Brumnett mootness—whether decided rights.4 practical particular have a effect on those time would point majority language support from Brumnett its relies above, establishing standing. requirement As noted it practical effects relates “ justiciable ‘[a] points court’s second con to the statement * ** practical troversy have some effect on the decision will the court’s ” Brumnett, controversy.’ (quoting parties at 540 rights to the 405). however, majority, follows not include citation that this does Or at my mootness. That language supports view that effects relates to which language from Brumnett states: additional light fact of the cases on which relied and the only standing the court’s discussion of concerns statutory my only application of standard, view, thing that practical effects the court in Mclntire decided its discussion controversy was not Its

was moot. standing preceding concerning reference discussion simply Brumnett, as in indicated the nature rights plaintiffs’ defined the that the court exam- ined to decide whether the case that a is, was moot: whether practical decision of the case would have a utory rights effect on the stat- plaintiffs standing. gave the law, Consistent with above case our considera petitioner standing begin tion ofwhether “looking here has must with specific governing” to the statutes and cases this 197.830(2) type of relief. 306 Or at Eckles, 384. In ORS and (7), standing unusually an created broad definition legislature apparently

for land use decisions. The any person entity plays or a decided serious at role appropriate stages decision-making process should contrary to seek review of a decision is position legislature gave persons that it took. such legally recognized right partici and entities to continue to pate process. recogni in the That action well reflect its tion that without citizen which, under Goal involvement — part decision-making process— is an essential ofthe land use impossible comply it would ensure that local decisions requirements. any with the law’s In Land Jefferson Co., 280, 686 Comm. v.Marion 297 Or P2d 310 fill exactly it Court made clear that the statute means says. what statutory standing require-

Petitioner here met the above, however, ment. As discussed once that is hurdle justiciability controversy crossed, the of the must still be controversy established. was estab- stage is at lished here. This case the court can make where (1984) (to County, Warren v. Lane 686 P2d 316 “See determine moot, land whether review from use decision is one must determine effect, practical effect; practical whether a decision will have if there still is a moot).” controversy is not 405-06. meaningful ripe. dispute— is There is a decision—it real advisory opinion adversity. an this would not be is —there concerning The decision will have effect on or right prop- rights parties respondents’ specific to use — erty petitioner’s legally recognized and as an interested participant abstract, in this land use decision. This is question hypothetical, contingent is not moot. —it summary, is we should determine that the case justiciable proceed to decide it on merits. The first and parties’ issue on the merits concerns the contentions as to operation of the motocross race track on exclusive farm use (EFU) League Petitioner, land. of Women Voters of Coos County (League), Department and Land Conservation (DLCD) Development argue that LUBA erred in conclud- ing According permissible EFU land. that motocross racetrack analysis League DLCD, LUBA’s was dictionary resting simple on the definition of the flawed “park.” term agree League

I and DLCD that LUBA’s with rely analysis It not sufficient on the the was not correct. determining dictionary “park” definition of term 215.283(2). scope permitted uses under ORS Such reason- among things, ing permit, replication would other Disneyland EFU, on land zoned a con- Yankee Stadium or self-evidently statute that we take is struction unlikely. Employment Department, As noted in we Steele (1996), App 113-14, 1252 328 Or 923 P2d aff'd dictionary only beginning is 292, 974 P2d 207 statutory process of the construction: “[M]any ings the language mean- in our several of the words meaning. However,it does followfrom or shades of not a word is fact there are several variations how dictionary per- ofthe variations are definedin the that all used, is the word each variation tinent whenever is arguably description plausible ofwhat the word means an as of the subject purpose particular it is in a statute. and used statutory language together statute, with the array question, of defi- narrow surrounds the word go alone affordand far that dictionaries nitional choices identifying meaning ofthe word as used in intended statute.” “park,” agree

I with that the term con- LUBA least ceptually, encompass land devoted to a number of differ- My problem is ent recreational activities. with LUBA’s con- permissible clusion that all recreational uses are therefore 215.283(2)(c) private park agricul- under in an ORS tural zone. per-

It that, noted, is true as LUBA neither Goal 3— agricultural agricultural taining to lands—nor the lands express statutes contain those that are limitation on recreational uses to “appropriate” surrounding land. Never- pervasive theme in theless, both Goal and statutes preservation agricultural e.g., See, is the for use. land farm Accordingly, consistently ORS 215.243. court this inter- preted restrictively. ORS 215.213 and ORS 215.283 County, Communications, McCaw Inc. v. Marion (1989). Perhaps significantly, imple- P2d more guideline provides: mentation B.l Goal permitted “Non-farm uses within farm use zones under 215.213(2) (3) 215.283(2) (3) ORS and and and should be minimized maximum agricultural to allow for productiv- ity.” light foregoing contextual I authorities, do 215.283(2)(c) agree that ORS allows recreational uses private parks

without limitation in in EFU zones. Those legislative authorities demonstrate instead intent to limit intensity the nature and of recreational uses on farmland to at least the same extent Goal 4 limits recreational activ- ities on forest land. that, that, Given I would conclude same reasons that LUBA determined that the motocross component impermissible racetrack land, on forest it also impermissible EFU, land zoned as matter of law. necessary system It is next to address the OHVtrail component proposed development. again League analysis charges improperly that LUBA’s sim- was based on ple dictionary taking reliance on into account statutory regulatory context, relevant it is clear that imper- system, racetrack, an trail OHV like motocross agree explained on or As above, missible that EFU forest land. I analysis. in I hold, however, LUBA erred its would not system categorically an that, as matter of OHV trail law, impermissible. particular, note, I would that LCDC’srules public expressly permit apparently vehicle trails in off-road parks. indicates that LCDC considered that uses ofthat That appropriate EFU at least be an use on and forest kind could case-by-case analysis to lands and that there should be a proposed appropriate trail is determine whether OHV 215.283(2)(c). inquiry That must take into under ORS intensity particular proposed use account in the 3. other factual variables considered context Goal remedy appropriate Accordingly, would be I believe issue, either remand for LUBA to reconsider OHV trail by county, independently a remand to LUBA sees fit. League assignments, only other

The advances two League The contends that one of which merits discussion. expressly requiring remand, LUBA erred county “special aspect apply events” 215.296 to must ORS nominally oppose proposal. The Lillies of the Lillies’ assignment they acknowledge that the remand error, but county implicitly requires apply ordered that LUBA agree I make the to the issue. would ORS 215.296 respect- requirement explicit. reasons, For all of the above I fully dissent. joins

Armstrong, opinion. J., this dissenting. ARMSTRONG, J., majority of a our review decision The dismisses (LUBA) ground Appeals on the the Land Use Board justiciable. petitioner’s that conclu- are not It reaches claims petitioner holding establish that it failed to sion dispute the constitutional that meets interest majority’s requirements relief. to obtain misunderstanding fundamental is based on a decision Oregon Legislature judicial power and of the modify who has invoke that bears on law power. adjudicate disputes is to function courts necessary ele- means that contestants. That between dispute, controversy justiciable contestants, are ments of Every regarding dispute. grant that a court can and relief a Oregon case that has held case to be a nonjusticiable as con- is, matter, stitutional that on the that the ground Oregon Constitution it, barred courts from Oregon adjudicating an involved absence one elements. necessary held, cases have for a

Oregon example, dispute is not if is justiciable it not is moot.1 ripe or Both of those prin- for a ciples implement requirement justiciable contro- it versy that be one in which a court can effective relief. grant A case that is one in ripe judicial which relief is necessary to resolve the dispute, because nothing remains be done that could obviate the need judicial to obtain relief. Con- versely, a case not if ripe steps remain to be taken that could lead to a circumstance in which there is no need for judicial relief. Similarly, a moot case is one in which there is no relief to because the result grant, contes- tants seek to achieve in the case has been achieved or already there is no toway grant relief that would it. achieve

Oregon courts have also rejected nonjusticiable cases in which there is genuine no dispute between the con- testants. The most prominent example of such a case is Rawls, Medical v. Oregon Association 281 Or 574 P2d which involved action in which the plaintiff a declaration sought that a statute the defendant administered was constitutional. There was no dispute between the and the defendant plaintiff about the constitu- tionality statute, so the case was not justiciable.

There also are Oregon cases the third of involving the three requirements justiciable for a controversy: that there be requirement contestants sides of it. opposite Gruber v. Lincoln Hospital District, 588 P2d 1281 (1979), is a good example of such case. Gruber involved an action by taxpayer resident of defendant hospital district who sought declaratory injunctive relief against enforcement a contract between the defendant and a Because physician. plaintiff brought action under the state Declaratory he had to meet Judgment Act, the standing 1See, Forbes, 426, 434-35, (1996); Mclntire v. 909 P2d 846 (1993). PSRB, 402, 405-06, 848 Brumnett P2d by had act, established which meant he “rights, legal whose status or other relations” be someone sought the contract which he

were affected ration. about decla- 6-7; See id. at ORS 28.020. The court held that the plaintiff allege standard, failed to facts that met that so had justiciable necessary con- case was because lacked bring plaintiff testant: who could it.

Significantly, Oregon Gruber and other cases involving justiciability requirement require- third —the that there be contestants —have all involved instances ment plaintiffs legal meet the failed to standards which legislature or the courts who could be established dispute. particular No contestants in a I am aware has held or even case which by

suggested that a standard set legislature for could be a contestant in a case vio- who limit on who could be one.2 lated constitutional is it is

The reason that there no such case is because three, In unclear there is such a limit. contrast to that controversy requirements justiciable for a fixed —contes- ability grant dispute, content of tants, a and the to relief—the adjustment by subject requirements to both the three legislature who can be contes- words, and the courts. In other justiciable, disputes that and the relief that tants, the are subject change. Oregon grant all cases courts can are to require- of one of the three have all dealt with absence suggested lim- has that there are constitutional ments. None its by legislature made courts the choices to be on concerning requirements.3 the content of those majority apparent light, that the that it should be

In step It that there is a in this case. holds has taken a radical ongoing tax Gruber, example, debate over the court referred challenge governmental actions and payer to and other forms of citizen presented by suggested that debate “must await of the issues that the resolution Gruber, statutory judicial review.” systematic framework of reexamination of added). suggest was a (emphasis did not that there The court 285 Or at 7-8 & n that debate. constitutional dimension adjust ele the content of those imply that the freedom 3 1do not mean adjustment effect elimi truly element that An ments is limitless. Rawls, means that the Or at 296-300. That nating permitted. it justiciable a contestants legislature case lacks the courts cannot make grant dispute effective relief. genuine on which a court can who have a by Oregon imposed legislature’s limit Constitution on the authority Oregon to determine who can abe contestant in an involving governmental court in case review of a by body charged complying action undertaken with with a regulatory regime legislature. Oregon established No anything remotely case has done similar to it. undisputed legislature isIt and the courts adjust the content of the three justiciable disputes elements and to make that, before the adjustments, example, were not. For enacted Oregon Act, Administrative Procedures which altered the body disputes adjudicated Oregon that could courts, bring the contestants who them, could and the relief that granted thing could be in them.4 It did the same when Declaratory Judgment enacted the Act.5 they Courts have done that as well. Whenever rec- ognize they expand group a new claim for relief of contes- disputes example, tants and that can be heard in court. For recognized before courts the tort of intentional infliction of people distress, emotional who suffered extreme emotional against distress from actions directed them others did not recognize, suffer an effect the law would so there was no dispute objectionable adjudicate. about the conduct developed they

As courts have tort, impose by requiring it, have been careful to strict limits giving the emotional distress to be extreme and the conduct outrageous rise to it be to in the if, instead, extreme.6 What Oregon expand courts chose to the claim to cover emo- by unprivileged tional distress caused unlawful or conduct provide and to that the relief that a court would award for involving claims emotional distress that fell short of extreme required apology Leaving distress was a from the tortfeasor. doing give aside the wisdom of the effect it would be to legal recognition being to an interest free from emotional

4 to See ORS 183.310 ORS 183.550. 5See ORS 28.010 to ORS 28.255. 6See, May Stores, e.g., Dept. 131, 134-37, Hall The P2d 126 637 (1984).

578 specified by the and to create a rem- distress caused edy conduct meaning people. that would have to That for that distress justiciable— appear to relief would because make claims for that genuine dispute, contestants, a there would be granted though to on effective relief be the claims—even granted claim relief interest addressed and the legally cognizable. not are now point give people can a

The is that the interests that constitutionally judicial to seek relief are not static or basis psychological, and aesthetic reactions to Emotional, fixed. they readily governmental real if cannot actions are even quantified money. governmental impose If action would person recognized person, would have a cost on $100 judicial person seek would entitle the to relief stake that against though cost than that action, even it would more lawyer imposition prevent hire a amount to cost. monetary govern- proposed cost, If, of a instead sufficiently consequences impor- mental would have action person expense her incur the time and tant to the to move put price why challenge it, has she not on the value to her recog- legislature stopping that a court or could action Nothing judicial power sug- the nature of the nize?7 gests about prevents Oregon the courts to me that the Constitution legislature implicitly recognizing interests ofthat or the from challenge govern- people giving a broad kind substantially long doing actions, so does mental so ability adjudicate impair courts to cases.8 Fletcher, Standing, The Yale generally A. Structure LJ See William law). (1988) standing (discussing principle of federal Petitioner in terms 228-34 comply self-evidently having respondents in this case with has an interest laws, have take the actions that it did. it would not bothered to land use otherwise by giving participants in the local land recognized has that interest legality right to of local land use deci process obtain review use having gov petitioner will vindicate its interest in A decision favorable to sions. and, consequence, comply in the as a with the land use laws issue ernment petitioner by ensuring compliance with effect on the decision will laws. those recognizes separation-of- qualifying language that the in that statement prevents gov branch of powers principle in the Constitution one embodied ability substantially taking impair the of another ernment from actions assigned it. perform the functions that the constitution branch Bar, Regulate Note, Legislative Or L Probing Power To Rev the Limits of (1977). grant Nothing suggests at issue in this case could perform adjudicatory conceivably ability role. impair the of courts to their

Oregon generalized right not residents do have a to governments a live in state which the state and local com- Oregon unlawfully they ply if with the law. Would courts act recognize recognized right? they it, If did it that would not fol- by Oregon challenging low that claims residents the lawful- any governmental jus- ness of state or local action would be people brought ticiable, because the who the claims would legally recognized protected a have interest that would be through grant against the relief that courts could the unlaw- Again, might Oregon ful conduct? not be wise for to courts recognize right, they a such but I do not believe that would Oregon they violate Constitution if did.9 warming recognized by climatologists Global most phenomenon conceivably to be a real that couldhave harmful everyone living planet years. on effects on the in 40 to Although energy-generating plant the effect of one on the global global consequences small, climate is the harmful of warming may long felt for a time, and the effect of consequences any specific necessarily those claimant is energy of uncertain, all us nevertheless have a stake facility siting legislature decisions, or at least could reasonably legislature believe that we do. If the enacted gave everyone right participate statute that to in the facility energy siting proceedings Energy Facility Sit- ing gave every participant proceedings Council and in those judicial right to seek review of a decision whether to site energy-generating facility, grant right would that taxpayer that standing Most courts confronted issue or citizen recognize type governmental standing challenge have chosen to that actions. Jaffe, Actions, Standing Louis L. To Secure Judicial Review: Public Note, 1265, 1276-78 (1961); Taxpayers' Survey Summary, Harv L Rev Suits: A (1960). so, By doing effectively recognized 69 Yale LJ 900-02 the courts have taxpayers having government complies and citizens have an interest in authority permit taxpayers with law. If courts have the or citizens to seek judicial against governmental regard relief unlawful action without to whether direct, they personal action, why legis have a stake in the it is difficult to see fact, thing. judicial rejection legislative lature authority lacks do same right judicial to determine who has the to seek of laws enforcement legislature presents significant separation-of-powers problem. enacted very point A. his Professor William Fletcher makes that the course of trenchant Fletcher, critique standing of federal law. See 98 Yale LJ at His 228-34. discussion clear, me, analytically doctrinally makes law least that federal body reject and constitutes should rather than incoherent law we embrace Oregon under the Constitution. Would review violate the Constitution?

seek analysis it make a difference to if enacted has a be free everyone a statute that provided that could have a harmful effect on from state decisions of an aside, climate? the wisdom such global Leaving again, enactment, it not follow that could seek anyone judi- would decision, an facility cial review of because energy siting a interest that would legally cognizable would have everyone the be affected decision?10 by are that can be proceedings

Mandamus actions compel in the name of the state to by govern- brought people the to with law. law is comply Oregon mental officials in a must have clear about the interest that relator entirely the Nevertheless, the relator to it.11 bring the action to entitle If has in its law enforced. having state an interest certainly is who deputize anyone state to legislature willing the as to the a who can act assignment person chooses accept law, to with state compliance the state secure governmental ability bring is it has done the giving people which what case, in this has it violated the constitution?12 the proceeding a adjudicating dispute? be barred from such would we Why 10 giving people right a to envi I am not that the enactment of statute sure analysis, ronmentally governmental affect the sound decisions would people right judicial govern very give review of to seek a because the decision legally decision, legislature gives which is what the did in this them a mental cognizable legislature dispute proceedings. create in the cannot interest see, Rawls, none, require e.g., to act in a case and it cannot a court where there see, Mclntire, grant, e.g., but effective relief the court can where there no ability interests, very doing rights act and its in that affects the can create their to obtain relief to vindicate interests. beneficiaries 11 433, 436-37, (1930); Norblad, 293 ex P 940 State Putnam Grace, 154, 156-58, (1890); 25 P ex rel. Shaw v. State rel. Durkheimer v. 382-83, 10 (1886); Ware, No. also Dickman et al v. School Dist. 13 Or al, P 885 see (1962)(holds 238, 244-45, 366P2d den 371 US 823 62C cert et bring jurisdictional). standing plaintiff is not an action gave words, legislature people right to enact a law In other could compliance local bring in the state to seek state and a court action name could, because, noted, the has an state with law? I assume that it officials interest in state comply legislature If state law. having state and local officials with constitution, dispensed why if it violating the would it matter could do without plaintiff gave state named as the nominal that the with the why directly? it would right bring I can think no reason people the action matter, legislature do it has done this case. can what which means gives pro- people bring Federal law ceedings government in the name of the federal to recover government person certain funds to which the is entitled.13A proceeding who is successful such a is entitled to receive a percentage of the amount both recovered,14which serves as person gen- private attorney an incentive for the to act aas incidentally, bring gives person and, eral to the action Oregon Legis- model, in it. interest lature Consistent with that presumably couple grant could its litigant land use cases with successful payment government, to thereby, receive from local $100 majority’s giving litigants personal view, in the all making justiciable. people stake in those cases and them If compliance would take the initiative on their own seek why government with land laws, use must the create a disputes further financial incentive in order to make justiciable? given people partici-

Here, the who pate proceeding right by in local use a land the to seek review proceeding LUBA of the decision in if and, that dissatisfied by legislature with decision, LUBA’s to seek review us. The essentially by investing time, has determined effort, money trying persuade governmental body and, often, to a comply participants to laws, with the land use the cognizable proceeding earned a stake the that entitles judicial compel governmental compli- them to seek to review ance the I with land use laws. do not see how the constitution

prohibits legislature making the from that choice. legitimate policy are, course,

There of that concerns give people right judicial bear on the to decision the seek to governmental Perhaps prominent review of actions. the most among people them is the concern that without direct and meaningful proceedings litigate stake the not will the mat- effectively, ter which could lead to an erroneous decision that could have durable and untoward effects on others. I believe that standing is one the that of concerns that underlies the federal by majority’s majority

cases and the cited the deci- sion itself. USC 3730. §§ See 31 3730(d). § See id. play,

Whatever role concern should it does not authority impose legislature’s the a constitutional limit on legality govern- give people right adjudicate the the of pursuant legal regime to a mental actions undertaken estab- by legislature. statutory grant standing A lished the broad of creating body private attorneys general the effect legislature can who act to ensure the law enacted against That the harm that is enforced. benefit balanced people effort those same making can have on enforcement process the enforcement more cumbersome and they costly by litigating are cases in which indifferent to actually prefer or, worse, the from the one that a result different result would they ostensibly leg- However, seek. it is Nothing that must decide how to strike that balance. islature legislature power nature about the denies couple an enactment of substantive law with grant people legislature whom the believes legislature help ensure the enforcement that law. The will may wrong partic- to be be about the benefits achieved from anyone grant standing, give such as its decision ular participates to seek in a local land use decision who us, its mis- of that decision with LUBA and with but review prudential mistake. take is a constitutional saying majority go com- should without

It my analy- my position. pletely It contends that misconstrues prac- essentially permits legislature to eliminate the sis held in Court tical effect Barcik v. Kubiaczyk, 895 P2d justiciability. requirements of the constitutional one require- permits to eliminate that Because it legisla- my analysis permit it would ment, follows that justiciability requirements, which ture to eliminate all of my analysis cannot be reconciled with means that legislature lacks the have made clear cases that App requirements. power 176 Or at 555- to eliminate those 56. majority wrong. discussion is Barcik"s

The requirement is practical mootness, con- concerns which effect grant relief that a court can whether the cerned, turn, with leg- parties. any If, here, the state as effect on will right parties have a to that certain has established islature a deci- state and local by governments, lawful conduct secure govern- that and unlawful right prevents sion that vindicates those effect on the practical rights mental conduct has view, that majority’s upholding leg- to the Contrary parties. effect practical does not eliminate islative judgment in the that is embodied requirement relief, and it does not open to grant meaningful court be able the other justi- to eliminate the door to legislative ciability requirements.15 action law, final By every

I should note one point. must be in the name of brought filed in an court Oregon 15See, Fletcher, majority my e.g., Yale LJ at 247-49. The contends that advisory opinions. App justiciability approach will lead courts to issue to not, this case confirms that it will not. Even if the relief awarded 555-56.It will practical petitioner, no effect on it will nevertheless cause in this case will have respondents laws, specific steps comply which take to with the land use means hypothetical provide or will do more than an answer to an abstract that the relief parties against question. practical whom It have a and immediate effect on the will relief, which, Oregon petitioner sought purposes, for these is all that the Con court by comparing petitioner’s requires. point is confirmed situa stitution The further motorcycle park. peti neighbor proposed with of the Assume tion tioner and the that of neighbor separately local seek review LUBA and us of the park, approval government’s approval that we overturn the in both certainly advisory neighbor, would not be an decision as cases. Our decision advisory peti how it could be characterized as an decision as to but I do not see give neighbor petitioner The decision would do more than either the tioner. law; by requiring it would enforce that law advice about the relevant land use local of the mootness doctrine is component component comply purpose practical government with it. The effects advisory opinions. prevent the issuance of When the majority misapplies applied properly, purpose. it achieves that mootness, by applying which leads it to treat it to rather than in this case the decision in this case as advisory when it is not. Because most claims involve claimant, personal generally mootness focuses effort secure relief that is from the relief that a court could will receive benefit on whether the claimant grant If, here, statutory right govern to seek the claimant has a on the claims. laws, right claim is compliance with land use is not secure and the mental not moot until the local government complied with the law. In such a that the claimant seeks to have a effect on the court’s decision will secure, compliance governmental with the law. which is my analysis majority suggests model that also reflects contemplated by those proposed that could not have been was first who framed the in the 1970s and same Oregon at 556 n 11. The Constitution 1857. body majority’s analysis. point It is based on a of law that made about the could be develop began in the 1930s that was no more Court the United States Oregon than was the contemplation Constitution within the of the drafters of Fletcher, body majority claims that I have advanced. of law that the justiciable this case is 224-28. The issue for us to resolve whether Yale LJ at it is. I have no doubt that under the Constitution. party person real in interest. ORCP 26 A. If a with a contrac- assigns tual claim the claim to else, someone the claim must brought by person be in court to whom the claim has been assigned. objection However, the that a claim has not been brought by party the real in interest is if waived it is not by responsive pleading. raised motion or in a See ORCP 21 G(2). Consequently, objection if the waived, a contractual brought litigated judgment by party claim can be and a practical whom the in decision the case will have no effect. party The decision will have a effect on the real in party party litigation. interest, but that will not be a If majority right, appear contrary the 21 would to ORCP

G(2), objection brought by that a claim has not been party the real in interest cannot be waived, because the con- adjudication brought by stitution bars of a claim that is some- one who lacks a stake in the outcome of it. That will come as surprise lawyers judges Oregon. a to most and in sure,

To be someone other than the defendant will be by litigation brought by person affected other than the real party by interest, in but, token, the same someone other than respondents proceedings will be affected in this case. At minimum, the state will be affected the result in this having case, because the state has an interest in its land use petitioner pro- laws enforced. If the state could be a in this ceeding, and I assume as a constitutional matter that it people bring pro- could, and if the state could authorize ceeding again, on its I behalf, assume, that it could, then petitioner the failure to name the state as would consti- bring proceeding tute a failure to in the name of the real party interest, but that would abe waivable defect.16The essentially legal regime state has created in which it has dispensed proceedings with the ofthis kind brought by party in its name authorized to act on its people Instead, behalf. it has authorized who meet certain bring proceedings directly, thereby waiving criteria to objection proceeding a matter oflaw the has not been G(2) not, fact, apply Oregon ORCP 21 does to this because the Rules not, by terms, apply proceedings. of Civil Procedure do their review See However, principle justi ORCP 1 A. the waiver that it embodies is relevant to the Dickman, ciability (holding issue the case. See 232 Or at 244-45 plaintiff bring jurisdictional). an action is not party brought by Constitu- in interest. If the real just permit described, the state to do what I have tion would operates that it would, that it I do not believe and I believe nonjusticiable. make this case summary, leg- a contestant that the this case has that can seek has determined can be contestant

islature governmental compliance laws, land use there with the state requirements dispute the contestants over is a between grant to that a court can there is effective relief law, Oregon dispute. Constitution That is all that the resolve requires majority controversy. justiciable errs in for a concluding otherwise. dissenting.

BREWER, J., majority appears decide is The issue that to properly undisputed petitioner, which exercised its whether challenge statutory right appear to to before LUBA county’s in this now has constitutional stand- decision ing judicial review of LUBA’s adverse decision.1 to seek standing, concluding petitioner does not have that majority legislature’s misconceives the nature of the author- entity judicial ity permit nongovernmental to seek a legality governmental action when determination entity process participated in the that led to the has question. petitioner’s action in Because I believe that involve- Oregon give it an interest that the ment was sufficient to permits legislature recognize, I dissent Constitution majority’s from the decision. legislature’s grant standing broad ORS

197.830(2) part appeal decision to LUBA is a local land use sys- enforcing general land use scheme for the statewide ofits years ago it enacted almost 30 and that tem that it first majority “justiciabil say “appears to because the at times refers to 1 I decide” example, ity” among categories. distinguishing its various For seems without Rawls, cases, Oregon give weight Medical Association v. some such as White, 99, (1978), Cry. Mfgs. 78 P2d Ass’n v. 574 P2d 1103 (Rawls) adversity parties of a between the or lack that involve lack of Ass’n) standing. controversy Cry. Mfgs. in this ripe (Oregon rather than Because dispute parties and that their are adverse to each other case it is clear that decision, bearing ripe on our decision. A lack of consti those cases can have no for explain tutionally standing only aspect required that can majority’s decision. frequently has reinforced since then. See Or Laws ch chapter system, 80; governmental ORS 197. Under that local comply land use decisions must with criteria whose ultimate expressed source goals is state law, as in statewide (LCDC) Development Land Conservation Commission adopted. comply, To leg- ensure that those decisions provided appeals islature government from the local by any “person” standing requirements LUBA of ORS as a who meets the 197.830(2), including organizations petitioner. ORS like 197.015(18). provided person appears It also that a who party before LUBA seek review of LUBA’s doing decision. recognized ORS 197.850.In so, the difficulty relying solely agency on a state to enforce the requirements statewide in the multitude of land use deci- governments my sions that local disagree- make. The heart of majority recognize public ment with the policy is its failure to legislature’s considerations involved in the decision, including legislature’s broad discretion to determine who may challenge legality department of executive actions, recognize resulting and its concomitant failure to consti- sufficiency legislature’s tutional on those conferral of

persons. pri- It is essential to remember that this case is not a dispute private parties; imple- vate between it involves the through department, mentation, the action of the executive major legislative policy. of a Like other administrative deci- quasi-judicial begin sions in cases, it did not in the courts; fully gov- rather it came to us formed from another branch of Department, implementing ernment. The Executive the rel- accompanying legislative policy, evant statutes and their already has parties determined the issues in the case and the Only agency Department, LUBA, it. completed after ofthe Executive

its work could those involved seek review. e.g., Health Care Assn. v. Health Div., 329 (1999). judiciary 480, 992 P2d 434 Thus, the case comes to the parties, with the issues, and evidence that it had when it left department. judiciary’s the executive role is not to change things those but to determine whether the executive applicable legal requirements. acted in accordance with the 183.482(8). very See ORS fact that courts refer to their “judicial “appeal” role as review” rather than as an from a lower tribunal reflects the different nature of their involve- ment with administrative cases. aspect

One of administrative cases is that statutes may party govern that describe who be a to them the actions Department they of the Executive before effect on judiciary. Department simply Thus, the Executive will comply legislative grant standing appear with a broad agency; before an administrative so far as the Executive Department prob- concerned, there are no constitutional grants. lems. A number of statutes contain such broad As 197.830(2), permits person challenge noted, ORS which person participated land use decision before LUBA if the government, gives standing before the local broad as a mat- right. 183.310(6)(c), per- ter of hand, On the other ORS which agency any person party mits an to allow to be a to a con- agency person tested case when the determines that the represents public an interest in the case “or interest” in the 469.370(5), Energy Facility result, and ORS which allows the Siting permit any person party person Council to to be a if the participated stage proceeding, give agen- at an earlier grant person standing party. cies discretion to as a 183.310(6)(c)suggests, purposes As ORS one of the grant of a broad at the administrative level public fully represented. be to ensure that the interest is This point emphasized is a Court in Market v. (1977). Portland Gen. Elect., 561 P2d 154 rejecting challenge private party’s to a intervention in an 469.370(5) energy facility siting explained that ORS

“gives greater procedural weight per- no to an intervenor’s sonal self-interest than to an interest he shares with public. expresses legislature’s other members ofthe It judgment important public policy that decisions of EnergyFacilitySiting entrusted to the Councilare not to be dispute opposingprivate treated as a between interests.” Id. at 453-54.

Standing, depended representation thus, on the intervenor’s public public interest in a matter concern, not on the personal intervenor’s stake in the decision. unquestionably proper party

Petitioner was a proceeding, legislature LUBA because the has determined an important public in its persons position represent it also had to seek statutory standing interest. As party, ORS review of LUBA’s final order. this respect, judicial 197.850(1) 183.480(1), is identical in substance to ORS which includes to an any party agency proceeding permits —which discretion as a recognizes whom the its any agency person review of a final order.2 judicial obtain party —to linked the Court has to two of the that a be controversy justiciable provisions Article III, 1, Article section and VII Constitution: Oregon America v. section l.3 First Commerce Nimbus (Amended), Barcik v. 199, 206, (1999); 986 P2d 556 Assoc., Center 329 Or (1995). There is 174, 188-89, 895 P2d 765 Kubiaczyk, that cre provisions in the of those though, language nothing, authority by major legislative supposed ates the limit on here, the leading that bears emphasis In a discussion ity. criti vigorously administrative law have commentators on Court’s construction the United States Supreme cized 560-61, 112 555, 504 US S Ct Wildlife, Lujan Defenders of lim of the “case or 2130, 119 controversy” L Ed 2d 351 III the United States Constitution: itation in Article injury declared a form of “Once statutory enact- through process legally cognizable recog- to decline to ment, power the Court’s The Court’s injury severely limited. that form of nize 183.480(1) adversely by aggrieved permits person affected or also a That ORS grounds provision both creates additional to obtain review. final order for may party obtain review without show seeking it clear that a review and makes by Oregon adversely aggrieved Brian v. ing the order. See that it was affected (1994). Commission, 151, P2d 1294 Government Ethics Constitution, provides: III, Oregon of the Article section separate divided into three powers Government shall be “The administrative, Executive, including the Legislative, the departments, the Judicial; person charged duties under one of these with official

the departments, and no another, any except as in this of the functions shall exercise expressly provided.” Constitution Constitution, provides: (Amended), section Article VII supreme in one court and judicial power shall be vested ofthe state “The by judges of may law. The time to time be created from such other courts legal or of voters of the state supreme be elected courts shall and other compen- years, receive such of six and shall respective for a term their districts law, compensation shall not be diminished provided which sation as during they are elected.” for which the term power in this context is identical power to its to hold statutory enactment invalid. It can hold the statute invalid only if the statute conflicts with the Constitution. This provides observation an easy answer to the hypothetical question frequently posed by administrative law scholars: Could Congress confer standing to challenge a class of gov- ernment blue-eyed actions on all people? The answer is ‘no,’ clearly but that answer is based on the Equal Protec- tion Clause of the Fourteenth Amendment rather than the case or controversy limitation in Article III. course, “Of the case or controversy clause provides itself some limit on Congress’ power to enact a statute that * * *

makes a form injury legally cognizable. There prob- ably are injury forms of so abstract that Congress cannot make them legally cognizable by statutory enactment con- sistent with Article III. It would require an imagination more vivid even than that of most law professors to list examples, however.” Kenneth Culp Davis & Richard J. Pierce, Jr., 3 Administrative Law Treatise 16.8 51-52 § (1994). The authors further explained: “The attempt Court’s Lujan] [in transpose a doctrine judicial restraint into a judicially enforced doctrine of

congressional restraint does not work. Once Congress issues a that agencies command to and calls on courts to enforce

command, judicial refusal to enforce the command can no longer be judicial characterized as restraint. It is accurately more characterized as abdication judicial responsibility to enforce policy decision of a politically accountable Branch.” Id. 16.16 at § 95.

To restate the critical inquiry posed by Professors Davis and Pierce, under which provision of the Oregon Con- 197.850(1) stitution is ORS invalid as applied in this case? With respect, answer is none. By giving petitioner stand- ing seek judicial review of LUBA’s decision, the legislature has done nothing violates the separation powers prin- ciple expressed in Article III, section 1, or that transgresses the judicial power conferred by Article VII (Amended), sec- tion 1. It merely has exercised the authority accorded to it by III, Article section 1, to provide for the enforcement of its stat- utory enactments. The majority’s decision, fact, point actually threatens the legislature’s constitutional exercise of regard, provide for such enforcement. In that

its cannot be reconciled with several cases decided Court. pursuant applicable statute, Market, to an Facility Siting granted petitioner party Energy Council proceeding involving proposed Springs in a Pebble status challenged plants. petitioner’s PGE review, nuclear standing. On rejected challenge, pointing out The court per- governing permit the council to statute authorized person represented public party if to become a inter- son regard person’s result, in the individual est without important public pointing out that issues of interest. After policy raise that are different from those considerations disputes private parties, private between involved seek held that Marbet had review court only from individual of issues arose his intervention Or of all case. 277 at 455-57. but issues Co., 297 In Comm. v. Marion Or Jefferson Landfill (1984), P2d 310 the court construed ORS 686 197.830(3) (1983), predecessor which to the current was 197.830(2). per- earlier version, of ORS Under the version quasi-judicial use could seek LUBAreview of land deci- son person appeared government the local if the had before sion orally writing entitled notice of the or in and either was adversely hearing by “aggrieved has interests affected or was that the court decided was what the decision.” issue party aggrieved necessary under to show that was was showing court that a was suffi- the statute. The concluded if: cient recog- person’s in the decision was “1. The interest decision-makingbody; by land use

nized the local position person merits; on the and “2. asserted decision-makingbody reached “3. The localland use by contrary person.” position position Id. asserted the omitted). (footnote contrary by express determination to the absence ofan In the the local appeared person body, that a who the court assumed recog- position had a aggrieved on the merits it asserted a before and the outcome thus would interest in nized 591 Nothing suggests adverse decision. Jefferson Landfill statutory meaning court believed “aggrieved” required less of an interest than it when would purposes.4 used for constitutional People In Ethical Care, Treatment Inst. Animal for explained why court 95, 105, Or P2d despite petitioner, actively the fact that had it advocated agency standing lost,

before the lacked under ORS 183.480(1) agency’s statutory quorum requirem to enforce the ents.5 It first noted that “PETAhas not asserted an interest general public, different i.e., from PETA is a bystander, general public and the is interest give enough standing.” petitioner at PETA Id. 104. The argued aggrieved actively par also ticipated party. that it was because had agency proceeding, though

in the even it was not a response, the court said: participation explicit “This is our test land use decisions on standing person. for an ‘aggrieved’ Landfill, [Jefferson 284]; County County, at Benton v. Friends Benton (1982)]. 86[, supra, [79,] However, P2d 1249 County Benton was a land use case. imply [.Marbet]does not standing anyone may for who participate hearing in a agency. before an attempt incorporate PETA’s the test for under standing land use statutes the APA generally into not well taken. This court has stated that as an standing ‘aggrieved’ person in use proceedings land than broader the Oregon under APA. See Landfill[,] Jefferson 284-86. Although use same scope standing words to describe the under two different statutory schemes, ‘criteria no are means uniform or County], [Benton consistent.’ 294 Or at 82. deci Land use sions, and the seek criteria review these decisions, are Id. suigeneris.” at 105. 4 183.480(1) Landfill, party In no contended ORS that confers stand Jefferson (Amended) ing judicial power the exceeds the state that Article VII standing jurisdictional the Constitution confers on courts. Because is a requirement, judicial petitioner standing its decision that the had to seek review, necessarily statutory grant standing the court held the did not petition exceed constitutional limits. it would dismissed on Otherwise have the its own motion. 5 (PETA) People party Because for Ethical Treatment of Animals not a was agency being adversely proceeding, standing the had to base its affected or aggrieved by agency’s the decision.

592 According majority, People the in court for satisfy “that Ethical Treatment held the association failed to statutory standing requirements the APA, ORS personal because it could not demonstrate ‘a stake 183.480, ” App actually at 539. What the outcome.’ court 183.480(1) person “aggrieved” if that a under ORS said was person shows one or more of three factors: “(1) person injury has suffered an to a substantial inter- the resulting directly governmental from challenged est (2) action; person leg- seeks to interest further (3) considered; or expressly per- islature wished have personal in the outcome of the son has such stake contro- versy proceeding.” to assure concrete to the as adverseness (citations Treatment, Or People Ethical at 101-02 added). omitted; emphasis According Supreme Court, none ofthose factors confers persons merely “aggrieved” are status on “who ‘dissatisfied only agency’s order,’ or an ‘abstract inter- with the who * * * question presented,’ bystand- or who are mere est ers.” Id. (citations omitted). construction, at 102 Given that majority’s understanding “practical of the constitutional indistinguishable effect, from the is, effect” Supreme statutory description for an

Court’s test aggrieved person.6 foregoing clear, make

As decisions accepted standing legislative determinations to tie Court has directly participation in the admin- to seek istrative review statutory aggrievement.

proceeding party proceedings doing recognized has that administrative so, it disputes oppos- simply public interests, between involve private By deciding ing parties. did, as it it also those cases person recognized implicitly has that a who has agency under those criteria administrative before the leg- standing. whom the is, That someone on constitutional party status an executive has conferred before islature necessary aggrievement required to cre again, if a lesser effect than is Once claim, sponte justiciable compelled its claim would refuse ate a the court sua 929, 162, 164, Clatsop County, App 2 P3d standing. Or ant See Poddar (2000) (holding 7 P3d rev den adhered to 168 Or sponte, sua because it affects courts consider the issue of must jurisdiction judgment). court’s to enter a agency person represent public that so the can the in interest proceedings statutorily aggrieved branch, that or who is agency’s thereby acquired decision, has a inter- sufficient upon est in the outcome to call the courts to determine Department legally. whether the Executive has acted emphasis public policy The court’s in Marbet on the implications standing to seek review of administration particularly significant determinations is in this case special Oregon’s because legal system. role that land use law has in simply prop-

Land use decisions do not affect erty neighbors, public owners, and the bodies within whose jurisdiction question may they Rather, land lie. arise legislative regulate from a choice to use on land a statewide protection people basis, for benefit of the state why legislature gave as a That whole. is members of the public actively participate who in land use decisions the appeal judicial both to those decisions to LUBA and to seek assuming statutory review of LUBA’s actions. Even may, standing satisfy in extreme circumstances, fail to state requirements, proposition justify constitutional the standing does not majority’s legislature’s conclusion conferral of legislature’s determination of the state’s —and public policy policy and who enforce that in the courts— determining party irrelevant whether a has kind of standing. my interest that will create view, and as the suggested, general public Court a interest that legislature enough give has defined as such can be rise “practical majority necessary. effect” that the finds legislative policy judi- That choiceneither interferes with the ciary’s ability job brings nonjusticiable its do nor case supplant it; thus, before the courts are free it. by majority requires

None of on the cases relied contrary In Rawls, conclusion. the court refused to sanction a judgment sought by parties who were not adverse that would nonparties respect constitutionality bind with a stat- surprisingly, ute. Not the court declined to enter a declara- tory controversy judgment par- where no existed between the ties. Rawls did not turn on whether determination parties. would effect Instead, the court quite properly was concerned with effect of deter- such a nonparties. mination on atOr 298-99.

Again, presents very this case different set of cir- Nobody questions petitioner’s position cumstances. contrary, respondents. to the interests ofthe To the if adverse petitioner permitted decision, LUBA’s it will is not contest go unchallenged, even if erroneous. When the aggrieved persons, likely gave broad had cir- only organizations Often, such as these in mind. cumstances enough petitioner vigilant and resourceful to like will be that the state’s land use laws are enforced. For this ensure practical effect on to hold that LUBA’sdecision no court altogether. point petitioner misses that Forbes, 426, 909 P2d 846 Nor does Mclntire (1996), petition pose our determination that the a barrier to holding “any justiciable. that the term inter The court’s Light Funding person,” Act, as used in the Rail “at least ested likely taxpayer whose tax burden will be or is includes govern by operation Act,” id. at does not increased practical has a effect on LUBA’sdecision in this case whether simply petitioner. Mclntire, In the court reaffirmed its state P2d 1194 PSRB, in Brumnett v. ment that the “standing” aspect justiciability requires that a rights practical judicial have a effect on decision must analyzed justicia Although parties. Id. at 433. the court separate portion bility petitioners’ in a of the claims statutory petitioners’ opinion from its consideration authority bring it linked the two Act, a claim under the summary analyses “As discussed more with a declaration: by fully the court will have elsewhere, a decision parties.” had no Because the court effect on the Id. 433-34. as the one before a statute such reason to consider whether present here, the circumstances under us was constitutional determining meaningfully assist us in Mclntire does requirement. “practical effect” contours of the distinguishable decision in Poddar Likewise, our legislative conferral of of a it did not involve review because suggests foregoing standing. cases none of the short, seeking judi- party requires that a Constitution rigorous satisfy a more must of a LUBA decision cial review necessary prove standing he or she was than is test for aggrieved adversely agency party affected or or is before by its decision. majority’s holding, ultimately

IAs understand the it following epitomizes conclusion, reduces to the which our disagreement: onlyright “In this conferred ORS197.830and right judicial ORS 197.850is the to seek review aof local

government having decisionwithout establish seeking person decisionwill affectthe review.That is noth- ing than more the conferralof to obtain advi- sory opinion, beyond legisla- which is grant.” ture to at 550. requirements Petitioner satisfied the to seek review county’s LUBA of decision, seek review of recognized by LUBA’sdecision. Petitioner’s interest was county position and LUBA; it asserted a on merits before county those bodies. Both the and LUBA reached decision contrary petitioner’s position. nothing asserted There is advisory petitioner about the relief seeks on review. Peti- lawfully power tioner invokes this court’s indeed, its obli- — gation agency proceed- correct an erroneous decision ain —to ing properly party. adversely in which awas Petitioner was aggrieved affected or and therefore has to seek review of that decision. 297 Or at Landfill, 284. Jefferson agree Judge’s

Because I with the Chief view of petition, merits I likewise would remand. respectfully I dissent. joins

Wollheim, J., this dissent.

Case Details

Case Name: Utsey v. Coos County

Court Name: Court of Appeals of Oregon

Date Published: Sep 26, 2001

Citation: 32 P.3d 933

Docket Number: 2000-06; CA A111594

Court Abbreviation: Or. Ct. App.