ORS 28.110¹
  • service on Attorney General when constitutional question involved

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal charter, ordinance or franchise, the municipality affected shall be made a party, and shall be entitled to be heard, and if the constitution, statute, charter, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.

Notes of Decisions

State is not necessarily proper party to every private litiga­tion in which constitu­tionality of a law is challenged, although state should properly be admitted as amicus curiae. Carden v. Johnson, 282 Or 169, 577 P2d 513 (1978)

Oregon Liquor Control Commission was necessary and indispensable party in suit brought under this sec­tion by retail wine sellers against wholesale wine sellers for declaratory judg­ment that certain dock sales were in viola­tion of Liquor Control Act. Pike v. Allen Interna­tional Ltd., 287 Or 55, 597 P2d 804 (1979)

Under this sec­tion, together with ORS 28.040 (Declaratory judgments on trusts or estates) and 111.095 (Powers of probate court), per­son seeking determina­tion of heirship may request declaratory relief in pro­ceed­ing to which all per­sons who have or claim any interest must be made parties. Decker v. Wiman, 288 Or 687, 607 P2d 1370 (1980)

Circuit court was without jurisdic­tion to hear allega­tions that state statute and municipal charter were unconstitu­tional where Attorney General had not been served with notice of the pro­ceed­ing and given opportunity to be heard. Warren v. City of Canby, 56 Or App 230, 641 P2d 615 (1982)

Where plaintiff failed to name all interested parties in a declaratory judg­ment ac­tion about validity of trust, even though cousins’ interests as beneficiaries might remain unaffected by decision that trust invalid, that possibility is not adequate basis for failing to comply with ORS 28.110 (Parties) and trial court could not enter binding judg­ment unless remaining beneficiaries of trust are joined within time to be set by trial court. Eddy v. Eddy, 95 Or App 733, 770 P2d 969 (1989), Sup Ct review denied

Party who may have or claim interest in land sale contract is necessary party and failure to join necessary party in declaratory judg­ment ac­tion deprives court of authority to render binding judg­ment. Futrell v. Wagner, 96 Or App 27, 771 P2d 292 (1989), Sup Ct review denied

Default judg­ment does not bar third party from litigating issue if party against whom issue was pre­vi­ously decided was not adversely affected by that adjudica­tion. Farmers Ins. Co. v. Stockton, 112 Or App 120, 827 P2d 938 (1992); Austin Mutual Ins. Co. v. McMannamy, 145 Or App 437, 929 P2d 1081 (1996), Sup Ct review denied

Although failure to join necessary parties prevents court from entering final declaratory judg­ment about subject matter, court may exercise power to join omitted parties rather than dismissing for lack of jurisdic­tion. Kaiser Founda­tion Health Plan v. Doe, 138 Or App 428, 908 P2d 850 (1996), Sup Ct review denied

Where necessary parties have not been joined in mo­tion for declaratory judg­ment, if parties lack identity of interest, mo­tion should be dismissed if parties are not joined after time set by court. Kaiser Founda­tion Health Plan v. Doe, 138 Or App 428, 908 P2d 850 (1996), Sup Ct review denied

Where necessary parties have not been joined in mo­tion for declaratory judg­ment, if parties have identity of interest, court should join parties and rule on mo­tion. Kaiser Founda­tion Health Plan v. Doe, 138 Or App 428, 908 P2d 850 (1996), Sup Ct review denied

All per­sons whose interests are affected by ac­tion must be joined in order to yield jurisdic­tion to enter declaratory judg­ment. AFSCME v. Dept. of Administrative Services, 150 Or App 87, 945 P2d 102 (1997)

Law Review Cita­tions

40 WLR 563 (2004)

Chapter 28

Notes of Decisions

Declaratory judg­ment pro­ceed­ings to determine coverage under insurance policies are legal in nature. Hartford v. Aetna/Mt. Hood Radio, 270 Or 226, 527 P2d 406 (1974)

Declaratory judg­ment pro­ceed­ings will be treated as either legal or equitable, depending upon the essential nature of the case. Intl. Health and Life Ins. Co. v. Lewis, 271 Or 35, 530 P2d 517 (1975)

Where complaint in declaratory judg­ment pro­ceed­ing sufficiently alleged justiciable controversy, it was error to grant mo­tion to dismiss for failure to state claim. Hupp v. Schumacher, 29 Or App 9, 562 P2d 217 (1977); Goose Hollow v. City of Portland, 58 Or App 722, 650 P2d 135 (1982)

Where a case sounds in law, an appellate court is precluded from testing the weight of evidence but rather to see if evidence exists from which the trier of fact could have drawn particular conclusions of fact. Lindsey v. Dairyland Ins. Co., 278 Or 681, 565 P2d 744 (1977)

The insurer was found not obligated to pay a propor­tionate share of the attorney fees of the insured incurred in the settle­ment of the per­sonal injury ac­tion. Lindsey v. Dairyland Ins. Co., 278 Or 681, 565 P2d 744 (1977)

Where students at college administered by Oregon State Board of Higher Educa­tion sought review of course grades through college grievance pro­ce­dures, judicial review was properly under ORS 183.490 (Agency may be compelled to act) and not declaratory judg­ment pro­vi­sions of this chapter. McBeth v. Elliott, 42 Or App 783, 601 P2d 871 (1979)

Declaratory judg­ment pro­ceed­ing filed by insured to determine its rights under an insurance policy insuring against loss or damage to prop­erty in its custody did not present a justiciable controversy. Mitchell Bros. Truck Lines v. Lexington Ins. Co., 287 Or 217, 598 P2d 294 (1979)

Challenging Board of Parole’s refusal to set release date through declaratory judg­ment was not proper as special statutory remedy under ORS 144.335 (Appeal from order of board to Court of Appeals) was available. Sterling v. Blalock, 47 Or App 275, 614 P2d 610 (1980)

City council’s removal of plaintiff as city attorney was quasi-judicial pro­ceed­ing, so proper ap­peal to circuit court was by way of writ of review and not declaratory judg­ment. Jordan v. City Council of Lake Oswego, 49 Or App 31, 618 P2d 1298 (1980), Sup Ct review denied

Where appraisal process pursuant to [former] ORS 743.648 had been initiated, declaratory judg­ment ac­tion to construe policy pro­vi­sions could not be commenced until appraisal was completed. Director v. So. Carolina Ins. Co., 49 Or App 179, 619 P2d 649 (1980), Sup Ct review denied

Circuit court had authority to determine whether Attorney General had statutory duty, but lacked authority to determine whether exercise of duty would violate attorney disciplinary rules. Brown v. Oregon State Bar, 293 Or 446, 648 P2d 1289 (1982)

Ac­tion seeking construc­tion of liability policy where there were legitimate ques­tions of coverage or noncoverage arising under policy issued for protec­tion of the insured against claims of third per­sons sustaining injury or damage presented justiciable controversy appropriate for declaratory judg­ment. State Farm Fire & Cas. Co. v. Reuter, 294 Or 446, 657 P2d 1231 (1983)

Plaintiff’s challenge to county charter failed to state justiciable claim because plaintiff only named sponsor of initiative as defendant. Hudson v. Feder, 115 Or App 1, 836 P2d 779 (1992), Sup Ct review denied

Law Review Cita­tions

10 WLJ 370 (1974); 15 EL 244 (1985)

1 Legislative Counsel Committee, CHAPTER 28—Declaratory Judgments; Certification of Questions of Law, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors028.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 28, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano028.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information