IBEW Local 89 v. Wallan

796

Argued and submitted June 6, petition for judicial review dismissed

July 6, petition for review denied October 19, 2023 (371 Or 509)

IBEW LOCAL 89,

a labor organization, and

Oregon Legislative Assembly,

Respondents,

v.

Kimberly WALLAN

and Sarah Daley,

Petitioners.

Employment Relations Board

RC00121; A176604

533 P3d 1134

Petitioners bring this petition for judicial review of a final order of the

Employment Relations Board certifying a collective bargaining unit for

Legislative Assistants to the Oregon Legislative Assembly. Petitioners assert

that the certification of the collective bargaining unit was a violation of the

separation of powers and did not comply with the Public Employees Collective

Bargaining Act. Held: The Court of Appeals dismissed the petition for review for

lack of standing. The petitioners were a current legislator and one of her legisla-

tive assistants. The court concluded that those individuals did not have standing

to assert institutional harms to the legislative assembly as a whole and did not

otherwise allege sufficient facts to establish that they were entitled to petition as

persons “adversely affected or aggrieved” under ORS 183.480(1).

Petition for judicial review dismissed.

Rebekah C. Millard argued the cause and filed the reply

brief for petitioners. Also on the opening brief was James

Abernathy.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Denise G. Fjordbeck, Assistant

Attorney General, filed the brief for respondent Oregon

Legislative Assembly.

Caitlin J. Kauffman and Daniel Hutzenbiler argued the

cause for respondent IBEW Local 89. Also on the brief was

McKanna Bishop Joffe, LLP.

Jason M. Weyand, Danielle Holmes, and Tedesco Law

Group filed the brief amicus curiae for American Federation

Cite as 326 Or App 796 (2023) 797

of State, County & Municipal Employees, Council 75,

Local 189; American Federation of Teachers; Association

of Engineering Employees; Oregon American Federation

of Labor Congress; Oregon Education Association; Oregon

School Employees Association; Oregon State Firefighters

Council; Service Employees International Union, Local 503;

and Teamsters Local 223.

Steve Elzinga and Sherman, Sherman, Johnnie & Hoyt

LLP filed the brief amicus curiae for Shelly Boshart Davis,

Jami Cate, Sarah El Ebiary, Lynn Findley, Jessica George,

Christine Goodwin, Bill Hansell, Bryan Iverson, Vikki

Breese Iverson, Tim Knopp, Bobby Levy, Rick Lewis, Dennis

Linthicum, Diane Linthicum, Shelia Megson, Becky Mitts,

Lily Morgan, Renee Perry, E. Werner Reshke, Anna Scharf,

David Brock Smith, Duane Stark, Whitney Sullivan, Lenora

Swift, Kim Thatcher, Chuck Thomsen, Suzanne Weber, and

Boomer Wright.

Before Egan, Presiding Judge, and Lagesen, Chief Judge,

and Kamins, Judge.

KAMINS, J.

Petition for judicial review dismissed.

Lagesen, C. J., concurring.

798 IBEW Local 89 v. Wallan

KAMINS, J.

Petitioners seek judicial review of a final order of

the Employment Relations Board (ERB) certifying IBEW

Local 89 (the Union) as the exclusive representative of a

collective bargaining unit comprised of legislative assis-

tants (LAs) supporting elected officials in the Oregon

Legislative Assembly (Legislative Assembly). Petitioners,

State Representative Wallan, a current representative in

the Oregon House, and Sarah Daley, one of her senior LAs,

assert that the Union certification is invalid based on a vio-

lation of the constitutionally required separation of powers

and a failure to comply with the Public Employees Collective

Bargaining Act. We conclude that petitioners lack standing

to bring this petition for review, and we therefore dismiss.

The relevant facts are largely procedural. In

January 2021, the Union filed a representation petition with

ERB seeking certification as the exclusive representative of a

bargaining unit consisting of LAs of the Oregon Legislative

Assembly.1 The Legislative Assembly filed objections on

multiple grounds. A hearing was conducted by an adminis-

trative law judge (ALJ), and the matter was transferred to

ERB. In April 2021, ERB determined that the Legislative

Assembly’s objections were not valid, and ERB issued an

Interim Order Directing an Election. Ballots were sent to

eligible voters. Based on a majority of votes, ERB certified

the Union as the exclusive representative of the bargain-

ing unit and issued a final order to that effect on June 8,

2021.

On August 5, 2021, petitioners, who were not parties

to the proceedings before ERB, filed a petition for review of

that order, asserting that the certification should be invali-

dated. Petitioners brought the action under ORS 183.480(1)

as “any person adversely affected or aggrieved by an order,”

and they each filed an affidavit in support of their petition

for review, asserting the ways they are adversely affected

1

The unit was comprised of the following classifications:

“Legislative Assistant I, Legislative Assistant II, Legislative Assistant

III, and Legislative Assistant IV supporting elected officials in the Oregon

Legislative Assembly, excluding supervisory, managerial, confidential, and

caucus employees.”

Cite as 326 Or App 796 (2023) 799

or aggrieved.2 The affidavits assert that the certification of

the bargaining unit created a conflict of interest for certain

LAs, inserted an administrative agency into the office over-

sight of LAs, and interfered with essential functions of the

Legislative Branch.

The Legislative Assembly filed a motion with this

court to determine jurisdiction, asserting that petition-

ers do not have standing to bring this request for judicial

review.3 Following briefing by the parties, the Appellate

Commissioner issued an order concluding that petitioners

had shown that they were sufficiently adversely affected or

aggrieved to establish standing. However, upon reconsider-

ation, the court vacated the order and deferred the motion to

the merits department.

Whether a party has standing to bring a claim is

a question of law. “The source of law that determines that

question is the statute that confers standing in the particu-

lar proceeding that the party has initiated, because stand-

ing is not a matter of common law but is, instead, conferred

by the legislature.” Cascadia Wildlands v. Dept. of State

Lands, 293 Or App 127, 131, 427 P3d 1091 (2018), aff’d, 365

Or 750, 425 P3d 938 (2019) (internal quotation marks omit-

ted). Petitioners brought this action for judicial review of a

final order of an agency in a contested case. We therefore

look to the statute governing judicial review of contested

cases, ORS 183.480, to determine whether petitioners have

standing.

ORS 183.480(1) allows “any person adversely

affected or aggrieved by an order” to seek judicial review.

That standard is met if the petitioner can demonstrate one

or more of the following: (1) the petitioner has “suffered an

injury to a substantial interest resulting directly from the

challenged governmental action”; (2) the petitioner “seeks to

further an interest that the legislature expressly wished to

2

ORS 183.482(2) provides that a petitioner who seeks judicial review as a

person adversely affected or aggrieved by an agency order “shall, by support-

ing affidavit, state the facts showing how the petitioner is adversely affected or

aggrieved by the agency order.”

3

Though designated as the respondent before ERB, the Legislative Assembly

did not file an appeal of ERB’s decision, and indeed has joined the Union in oppos-

ing petitioners’ request for judicial review.

800 IBEW Local 89 v. Wallan

have considered”; or (3) the petitioner has “such a personal

stake in the outcome of the controversy as to assure concrete

adverseness to the proceeding.” People for Ethical Treatment

v. Inst. Animal Care, 312 Or 95, 101-02, 817 P2d 1299 (1991),

abrogation on other grounds recognized by Couey v. Atkins,

357 Or 460, 515, 355 P3d 866 (2015) (PETA) (internal cita-

tions omitted). Standing under ORS 183.480(1) is not avail-

able “to those persons who merely are dissatisfied with the

agency’s order, or who have only an abstract interest in the

question presented, or who are mere bystanders.” Id. at 102

(internal quotation marks and citations omitted).

Petitioners assert that the harms identified in their

affidavits show they have a personal stake in the outcome

consistent with the third factor in PETA, in that the cre-

ation of the bargaining unit directly impacts their ability to

do their jobs and endangers the legislative function itself in

a violation of the separation of powers.4

The third PETA factor requires a demonstration

that the government action “ ‘will legally affect the petitioner

in some way.’ ” McNichols v. Dept. of Fish and Wildlife, 308

Or App 369, 373, 482 P3d 208 (2021) (quoting PETA, 312 Or

at 104) (emphasis in McNichols). That legal effect must be

particularized to the petitioner. See Local No. 290 v. Dept. of

Environ. Quality, 323 Or 559, 567, 919 P2d 1168 (1996) (con-

cluding ORS 183.484 regarding jurisdiction for review of

orders other than contested cases does not allow for an orga-

nization to assert standing on behalf of a member because

“that statute requires that the person bringing the petition

show how that person is adversely affected or aggrieved,”

and concluding that a union that was admittedly not itself

aggrieved by an order did not have standing to bring suit on

behalf of some of its members who were (emphasis in orig-

inal)). An issue that has yet to be addressed in the Oregon

4

Petitioners also argue, for the first time in their reply brief, that ERB’s deci-

sion injures a substantial interest they have in oversight and control of their LAs,

consistent with the first factor in PETA, and that the legislature has expressed

a desire to allow review of agency decisions for their constitutionality, consistent

with the second factor in PETA. “[A]n issue raised for the first time in an appel-

lant’s reply brief generally will not be considered on appeal.” State v. Murga, 291

Or App 462, 468, 422 P3d 417 (2018). However, as discussed below, we consider

the entirety of both affidavits in assessing whether petitioners have established

that they are adversely affected or aggrieved.

Cite as 326 Or App 796 (2023) 801

appellate courts, however, is whether an individual may

establish standing under ORS 183.480(1) by asserting an

institutional harm—that is, whether an institutional harm

can qualify as a “personal stake” or as having a legal effect

on the individual.

The federal courts and other state courts have issued

persuasive case law discussing the difference between indi-

vidual and institutional harms, generally concluding that

an alleged injury to an institutional body does not give an

individual standing to seek redress for that injury.

In Raines v. Byrd, 521 US 811, 117 S Ct 2312, 138

L Ed 2d 849 (1997), six individual members of Congress

brought suit challenging an act of Congress that the plain-

tiffs alleged diluted their votes. In that case, the United

States Supreme Court found that the plaintiffs had claimed

“a type of institutional injury (the diminution of legislative

power), which necessarily damages all Members of Congress

and both Houses of Congress equally.” Raines, 521 US at 821.

The injury identified was “not claimed in any private capac-

ity but solely because they are Members of Congress.” Id.

Thus, the Court concluded that the individual members did

not have a sufficient personal stake in the dispute and had

not alleged a sufficiently concrete injury to have established

standing under Article III of the United States Constitution.

Id. at 829-30. Similarly, in Virginia House of Delegates v.

Bethune-Hill, 587 US ___, 139 S Ct 1945, 204 L Ed 2d 305

(2019), the Court held that the House of Delegates of the

Virginia General Assembly lacked standing to appeal a

court’s invalidation of a redistricting plan that the state leg-

islature had passed. The Court held that “a single House

of a bicameral legislature lacks capacity to assert interests

belonging to the legislature as a whole.” Virginia House of

Delegates, 587 US at ___, 139 S Ct at 1953-54.

In contrast, in another case the Court held that

a state legislature as a whole had standing to challenge a

state-wide initiative that reduced the legislature’s power

with respect to redistricting. Arizona State Legislature v.

Arizona Independent Redistricting Comm’n, 576 US 787, 135

S Ct 2652, 192 L Ed 2d 704 (2015). In contrast to Raines,

where the institutional injury at issue “scarcely zeroed in

802 IBEW Local 89 v. Wallan

on any individual Member” and was “widely dispersed,”

thereby resulting in none of the plaintiffs tenably claiming a

personal stake in the suit, the Court held that “the Arizona

Legislature * * * is an institutional plaintiff asserting an

institutional injury.” Id. at 802.5

The United States Supreme Court cases analyzed

standing under Article III of the federal constitution, where

“a plaintiff must allege personal injury fairly traceable to

the defendant’s allegedly unlawful conduct,” by establish-

ing that they have a “personal stake in the alleged dispute,”

that the “alleged injury suffered is particularized” to them,

and that the alleged injury is “legally and judicially cogniza-

ble.” Raines, 521 US at 818-19 (internal citations omitted;

emphasis in original). Those requirements for Article III

standing are consistent with the PETA factors for stand-

ing as an adversely affected or aggrieved person under

ORS 183.480(1), which require a petitioner to demonstrate

an injury to a substantial interest or a personal stake in

5

Applying the standards set forth by the United States Supreme Court,

other courts have limited individual standing to assert an institutional harm.

See Yaw v. Delaware River Basin Comm’n, 49 F4th 302, 313-14 (3rd Cir 2022)

(concluding that the allegations of usurpation of legislative powers and dilution

of citizens’ voting rights were “quintessentially institutional” and “classic exam-

ples of institutional injuries” that individual legislators did not have standing

to assert because the legislators had not alleged any injury to themselves as

individuals); Collins v. Daniels, 916 F3d 1302, 1313-14 (10th Cir 2019), cert den,

___ US ___, 140 S Ct 203 (2019) (concluding that state legislators’ allegation

that the state Supreme Court’s action represented “an unconstitutional usur-

pation of [legislative] power” was an institutional injury that did not give the

legislators standing, and the legislators’ allegations regarding the separation of

powers issues involved in the case weighed against finding standing); Kerr v.

Hickenlooper, 824 F3d 1207, 1212, 1215 (10th Cir 2016) (holding that the legisla-

tors’ claim that a provision of the Colorado Constitution “deprives them of their

ability to perform the legislative core functions of taxation and appropriation”

alleged only an institutional injury because “it is based on the loss of legislative

power that necessarily impacts all members of the General Assembly,” and the

individual legislators therefore had not established standing); Alaska Legislative

Council v. Babbitt, 181 F3d 1333, 1337-38 (DC Cir 1999) (holding that allegations

by members of the state legislature that a certain federal law “interfered with

their state duties” and “nullified their legislative prerogatives regarding fish and

wildlife management” were insufficient to give the legislators standing because

“[w]hile state legislation or regulations in conflict with [federal law] may be unen-

forceable * * * that type of injury does not entitle individual legislators to seek a

judicial remedy”); Morrow v. Bentley, 261 So 3d 278 (Ala 2017) (collecting similar

cases from other jurisdictions and holding that allegations that executive actions

violated state law and “operated to usurp the legislature’s appropriation power”

were allegations of institutional injury that a single legislator did not have stand-

ing to assert, absent authorization from the body as a whole).

Cite as 326 Or App 796 (2023) 803

the outcome of the controversy.6 The reasoning set forth in

Raines and its progeny map consistently with our own con-

trolling precedent. A single legislator, asserting an injury

to the legislative body as a whole, does not demonstrate an

injury to their own substantial interests or a personal legal

effect. An individual legislator cannot tenably claim a per-

sonal stake in a suit based on such an institutional injury.

In the matter at hand, petitioners claim that, even

though many legislators and supervisory staff could be sim-

ilarly impacted, the harms they have identified are individ-

ual to their own circumstances and are therefore not insti-

tutional injuries. The Union and the Legislative Assembly

assert that the alleged injuries are purely institutional, as

the impact is felt across the entire assembly equally.

We conclude that the bulk of petitioners’ affidavits

allege institutional harms.7 Apart from the passing refer-

ences to the impact on the supervision of LAs and poten-

tial conflicts of interest, discussed in more detail below,

both affidavits focus primarily on the bargaining unit’s

interference “with the essential functions of the Legislative

Branch” and the resulting violation of the separation of

powers. Allegations that the certification of the bargaining

unit vests authority with an executive agency rather than

the legislative branch and interferes with the independence

and functioning of the legislative branch are, by definition,

allegations of harms to the institution, not the individu-

als. We further note that Representative Wallan has not

been authorized by the Legislative Assembly to bring this

action on behalf of the institution as a whole, and indeed,

the Legislative Assembly is an adverse party in this petition

6

In Oregon, “standing is not a generic concept but largely depends on the

statute under which the plaintiff seeks relief.” MT & M Gaming, Inc. v. City of

Portland, 360 Or 544, 553, 383 P3d 800 (2016). We therefore do not rely on “gen-

eral pronouncements about standing” drawn from different statutes, nor are we

bound by “federal notions of standing that do not apply in Oregon.” Id. at 554.

However, the similarity between Article III standing and standing under ORS

183.480 renders the federal case law persuasive in our view.

7

For the purposes of evaluating standing only, we accept petitioners’ asser-

tions in their affidavits. Lee v. Secretary of State, 324 Or App 275, 279, 526 P3d

775 (2023); McNichols, 308 Or App at 371; Cascadia Wildlands, 293 Or App at

132. However, we note that some allegations in the affidavits conflict with the

unchallenged findings of fact set forth in ERB’s order.

804 IBEW Local 89 v. Wallan

for judicial review. Petitioners do not have standing to bring

this action based on the alleged institutional injuries.8

We thus turn to the few allegations in the affida-

vits that are not clearly institutional injuries. Specifically,

Representative Wallan states in her affidavit:

“The institution of a labor union as exclusive represen-

tative for my Legislative Assistants adversely affects me

because it creates a conflict of interest for my Legislative

Assistants if the Union takes a position on a political issue

or in a political race and my office holds a different position

on that issue.”

Ms. Daley states in her affidavit:

“Instituting a labor union as exclusive representative

for the Legislative Assistants whom I oversee adversely

affects me because doing so inserts an administrative

agency between me and the Assistants I oversee.”

The remainder of the affidavits contain only statements

about the various parties’ roles and no further assertions

are made regarding the adverse effects of ERB’s order.9

Neither of the quoted statements alleges an injury

showing how the petitioners are “adversely affected or

aggrieved.” Representative Wallan does not identify any

personal stake or how she will be legally affected by any

perceived conflict of interest, consistent with the third fac-

tor set forth in PETA. Furthermore, the circumstances she

identifies are speculative and do not indicate any injury that

she has suffered to a substantial interest as a result of ERB’s

order certifying the bargaining unit. Even if we were to con-

clude that Representative Wallan has a substantial interest

in her ability to trust and rely on her LAs, she has not alleged

facts that demonstrate how that interest is injured by the

8

We acknowledge that the Legislative Assembly as an entity would certainly

have had standing to bring this petition for judicial review, as it was a party

below. We also note that the institutional harms alleged largely parallel the

arguments made by the Legislative Assembly before ERB in opposing certifica-

tion of the bargaining unit.

9

To the extent the briefs identify other concrete harms, such as the require-

ment to provide the Union access to staff during working hours or the inability to

take into consideration an LA’s union affiliation in the hiring and firing process,

those injuries are not alleged in the affidavits and therefore do not provide a basis

for standing under ORS 183.480(1) and ORS 183.482(2).

Cite as 326 Or App 796 (2023) 805

certification of the bargaining unit. McNichols, 308 Or App

at 373 (“[W]e do not read PETA to allow for standing based

on apprehension that an agency decision may injure a per-

son’s interests. The standard, as articulated by the Supreme

Court, requires a showing that the person ‘has suffered an

injury to a substantial interest.’ ” (Quoting PETA, 312 Or at

101; emphasis in McNichols.)). Similarly, Ms. Daley does not

identify any injury to a substantial interest that resulted

from the alleged insertion of an administrative agency into

her supervisory relationships. Likewise, she has not alleged

any legal effect the decision had on her. We have no doubt

that petitioners’ position and beliefs make them adversarial

in this case; however, “zeal does not provide the requisite

‘personal stake’ in the outcome. * * * [A] personal stake in

the outcome means that the agency’s decision will legally

affect the petitioner in some way.” PETA, 312 Or at 104.

We conclude that petitioners have not alleged suf-

ficient facts to establish that they are entitled to petition

as persons “adversely affected or aggrieved” under ORS

183.480(1). Because petitioners do not have standing, the

petition for judicial review is dismissed, and we do not reach

petitioners’ arguments on the merits of ERB’s order.

Petition for judicial review dismissed.

LAGESEN, C. J., concurring.

I concur fully in the majority opinion’s conclu-

sion that petitioners have not demonstrated that they are

“adversely affected or aggrieved by” the ERB order certify-

ing a bargaining unit of legislative assistants. In particular,

I agree with the majority opinion’s conclusion that, at this

point, petitioners have not demonstrated that the certifica-

tion of a bargaining unit will have a nonspeculative effect

on either one of them as individuals.

That ERB’s decision has not caused injury to peti-

tioners yet does not mean that it will not. Although the

Legislative Assembly has appeared before us to argue only

that petitioners lack standing, the Legislative Assembly

appeared before ERB to make a broader range of argu-

ments. Among other things, it argued vigorously (and not

implausibly) that the certification of a collective bargaining

806 IBEW Local 89 v. Wallan

unit would violate separation-of-powers principles under

the Oregon Constitution. At this point in time, it remains

to be seen whether the collective bargaining process, which

is new to the legislative branch and still in its very begin-

nings, will “interfere[ ] with the [legislature] in a manner

which prevents or obstructs the performance of its irreduc-

ible constitutional task, [legislation],” such that ERB’s deci-

sion to certify a bargaining unit will lead to a violation of

separation of powers. Circuit Court v. AFSCME, 295 Or 542,

550, 669 P2d 314 (1983). Under Oregon law, “apprehension[s]

of unconstitutional interference” are not sufficient to show a

separation of powers violation. Id. at 551; see also City of

Roseburg v. Roseburg City Firefighters, 292 Or 266, 295-96,

639 P2d 90 (1981) (Linde, J., concurring, explaining that it

was premature to address whether ERB order requiring city

to collectively bargain with its firefighters violated the home

rule provisions of the Oregon Constitution).

If the apprehension of unconstitutional interference

expressed by the Legislative Assembly before ERB, and reit-

erated by Representative Wallan before us, were to ripen

into reality, that would change things. In that event, and

in the event that the collective bargaining process, in fact,

were to result in an identifiable and concrete impairment

of Representative Wallan’s ability to carry out her role as a

legislator, one that could be redressed by a judicial decision,

then, in my view, in an appropriate challenge, she would

be in a position to raise the separation-of-powers concerns

she has attempted to raise here. See, e.g., Collins v. Yellen,

___ US ___, 141 S Ct 1761, 1780, 210 L Ed 2d 432 (2021)

(“As we have explained on many prior occasions, the separa-

tion of powers is designed to preserve the liberty of all the

people. So whenever a separation-of-powers violation occurs,

any aggrieved party with standing may file a constitutional

challenge.” (Citations omitted.)).