Judicial determination of validity of rule
Mentioned in
Agency Policy Challenges: A Different Way to Fight an Assessment
“Interestingly, tax cases do not often take advantage of these administrative challenges. This is surprising when ambiguities in tax statutes are generally construed against the state, giving taxpayers an advantage…”
Bibliographic info
Source:
Section 183.400 — Judicial determination of validity of rule, https://www.oregonlegislature.gov/bills_laws/ors/ors183.html.
Notes of Decisions
Appeal procedures established by Administrative Procedures Act were sufficient to sustain delegation of legislative authority made by [former] ORS 487.475, notwithstanding that rule promulgated pursuant to that section did not provide appeal safeguards. Bercot v. Oregon Transportation Commission, 31 Or App 449, 570 P2d 1195 (1977)
Rules can be declared invalid under this section only because of failure to comply with requirements specified herein and not because of failure to state reasoning or factual basis behind rule. International Council of Shopping Centers v. Environmental Quality Comm’n, 41 Or App 161, 597 P2d 847 (1979), Sup Ct review denied
Monetary relief is not available in proceeding to determine validity of rule. Burke v. Children’s Services Division, 288 Or 533, 607 P2d 141 (1980)
Proceedings for acknowledgment of local comprehensive plans are not a form of rulemaking subject to judicial review under this section. Oregon Business Planning Council v. LCDC, 290 Or 741, 626 P2d 350 (1981)
“Authority” in phrase “exceeds the statutory authority of the agency” cannot be taken to mean only overall area of agency’s authority or jurisdiction. Planned Parenthood Assn. v. Dept. of Human Resources, 297 Or 562, 687 P2d 785 (1984)
Only when party places rule’s validity at issue in separate civil action may circuit courts determine rule’s validity. Hay v. Dept. of Transportation, 301 Or 129, 719 P2d 860 (1986)
Where petitioner challenges Water Resources Commission’s temporary rule amending OAR 690-80-060 (5)(c), commission’s findings and statement of need do not provide adequate support for promulgation of temporary rule and rule was therefore, adopted without compliance with applicable rulemaking procedures and violates Scenic Waterways Act. Waterwatch of Oregon v. Oregon Water Res. Comm., 97 Or App 1, 774 P2d 1118 (1989)
Proper setting for testing application of administrative rule that is valid on its face is in contested case. Oregon Bankers Assn. v. Bureau of Labor and Ind., 102 Or App 539, 796 P2d 587 (1990)
There is justiciable controversy where agency believes there is no conflict and petitioner believes there is conflict, even if agency takes no position on effect of measure on statutes and rules, because agency is deemed to accept measure as constitutional. Merrick v. Board of Higher Education, 103 Or App 328, 797 P2d 388 (1990)
Prohibition in this section against independent challenge of rule by person while that person is engaged in pending contested case or order involving same rule only applies while rule still may be challenged in course of challenging order or result in contested case. Minor v. AFSD, 105 Or App 178, 804 P2d 1170 (1991)
Although Public Utilities Commission denominated action as “order,” action was rule under ORS 183.310 and circuit court did not have jurisdiction to determine rule’s validity. Pacific Northwest Bell Telephone Co. v. Eachus, 107 Or App 539, 813 P2d 46 (1991)
Inspection of prison inmates’ mail tends to promote prison security and fears about possibility of abuse were not cognizable in review under this section. Clark v. Schumacher, 109 Or App 354, 820 P2d 3 (1991)
Review under this statute does not include examination of factual basis for rule or, in case of fee assessment, inquiry into whether assessment is supported by evidence. Unified Sewerage Agency v. Dept. of Environ. Quality, 117 Or App 29, 843 P2d 502 (1992)
Where present permanent rule cross-references former temporary rule, any invalidity or indeterminacy of cross-reference is problem with present rule and challenge to former temporary rule is moot. Edmunson v. Dept. of Ins. and Finance, 314 Or 291, 838 P2d 589 (1992)
Ability of appellate court to declare rule invalid based upon violation of constitutional provisions is limited to instances of facial unconstitutionality. AFSCME Local 2623 v. Department of Corrections, 315 Or 74, 843 P2d 409 (1992)
Action seeking injunction against rule not yet in effect was not action involving enforcement within jurisdiction of circuit court. Alto v. State Fire Marshal, 319 Or 382, 876 P2d 774 (1994)
Court review of rule is limited to determination as to whether rule facially complies with statutory and constitutional requirements. Oregon Newspaper Publishers Association v. Department of Corrections, 329 Or 115, 988 P2d 359 (1999)
Petitioner challenging validity of administrative rule in “manner provided” for review of orders in contested cases is not subject to contested case standing requirement. Lovelace v. Board of Parole and Post-Prison Supervision, 183 Or App 283, 51 P3d 1269 (2002)
Where agency rule is incorporated into terms of contract, court lacks authority to assess validity of rule in action to enforce contract. Coats v. ODOT, 334 Or 587, 54 P3d 610 (2002); Oregon Restaurant Services, Inc. v. Oregon State Lottery, 199 Or App 545, 112 P3d 398 (2005), Sp Ct review denied
Where validity of rule is challenged, duty of court is to determine whether rule, on its face, departs from legal standard expressed in pertinent statutes. WaterWatch v. Water Resources Commission, 199 Or App 598, 112 P3d 443 (2005)
Rule purporting to implement statewide land use planning goal is invalid if rule departs from standard expressed in statute or in planning goal. City of West Linn v. Land Conservation and Development Commission, 200 Or App 269, 113 P3d 935 (2005), Sup Ct review denied
Grant of standing allowing any person to challenge rule does not violate limitations imposed by Oregon Constitution. Kellas v. Department of Corrections, 341 Or 471, 145 P3d 139 (2006)
Record on review of rule may consist only of information whether statutory rulemaking procedure was followed, wording of rule itself read in context and statutory provisions authorizing rule. Wolf v. Oregon Lottery Commission, 344 Or 345, 182 P3d 180 (2008)
“Applicable rulemaking procedures” is not limited solely to Administrative Procedures Act (APA) rulemaking, but includes any rulemaking procedure that legislature applies to state agency, such as agency enabling legislation or other statute mandating agency follow certain rulemaking procedures; thus, court may consider any documents necessary to determine compliance with all applicable rulemaking procedures, not just documents that determine compliance with APA requirements. Western States Petroleum Association v. Environmental Quality Commission, 296 Or App 298, 439 P3d 459 (2019)
Department of Corrections’ policies explaining requirements of rules related to religious practices and activities in specific context of searching inmate’s dreadlocks or Native American medicine bag are not rules subject to formalities of rulemaking and are not subject to judicial review. Smith v. Dept. of Corrections, 298 Or App 190, 445 P3d 329 (2019), Sup Ct review denied
Law Review Citations
2 EL 336 (1972); 15 EL 238 (1985)
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