The opinion
PETERSON, C. J.,
concurring.
I fully agree with the majority and write separately to raise a concern long felt but hitherto unexpressed in an opinion.
If a person intended to create an inefficient, unpredictable, ineffective, expensive, unresponsive system for review of governmental acts, he or she would use the system we have in Oregon as a perfect model. Ours is senseless and cries for revision. We need an all-purpose writ.
Under our monstrous system, the most intelligent lawyer rarely can advise the client with any measure of confidence. The wealthy client risks his fortune by venturing into the morass of review of a public body’s action. The middle class and the poor can’t afford the risk. Any administrative or judicial procedure which is so complex that intelligent persons cannot know how to bring their claims or objections to the *134 appropriate tribunal is more than suspect; it is incompatible with a system of effective government.
The problem arises because under Oregon statutes and judicial decisions, one is rarely sure which door should be opened, which path should be trod. The potential avenues include not less than seven:
Writ of review
Writ of mandamus
Declaratory judgment
Injunction
Appeal to circuit court under ORS ch 183
Appeal to LUBA
Appeal to Court of Appeals
I will cite a very few cases which illustrate the gallons of ink, hours of time and millions of dollars (not to mention the unfair results) which have senselessly been spent and wasted because Oregon’s system for review of actions of governmental bodies is so bad.
Patton v. St. Bd. of Higher Ed., 293 Or 363 , 647 P2d 931 (1982). The Court of Appeals was reversed because it erroneously believed that its jurisdiction turned on the kind of hearing actually conducted by the agency rather than on whether the proceeding qualified as a contested case. The agency had acted upon the advice of a law school professor.
Neuberger v. City of Portland, 288 Or 155 , 603 P2d 771 (1980). Question was whether city council’s decision was reviewable under writ of review.
Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or 591 , 601 P2d 769 (1979). Circuit court’s order quashing a writ of review was affirmed by a divided Court of Appeals. The Supreme Court reversed.
Brooks v. Dierker, 275 Or 619 , 552 P2d 533 (1976). Declaratory judgment proceeding ordered dismissed because the writ of review procedure should have been pursued.
*135 Western Amusement v. Springfield, 274 Or 37 , 545 P2d 592 (1976). Writ of review proceeding involved review of a special street assessment.
State ex rel School Dist. v. Columbia Co., 66 Or App 237 , 674 P2d 608 (1983). Question was whether declaratory relief or writ of review was the exclusive method of review.
Rogue Fly Fishers v. Water Policy Review Bd., 62 Or App 412 , 660 P2d 1089 (1983). Decision turned on whether a board’s action was a “rule.” The Court of Appeals held that it was not and dismissed the petition for judicial review.
Graziano v. City Council of Canby, 35 Or App 271 , 581 P2d 552 (1978). Petitioner sought relief in a writ of review. The Court of Appeals held that the claim was “not cognizable in a writ of review proceeding,” and that petitioner should have pursued “some other means, such as declaratory judgment, a suit in equity or an action at law.” 35 Or App at 273 .
Donald W. Brodie and my colleague, Hans A. Linde, touch upon some of these inadequacies in an article entitled State Court Review of Administrative Action: Prescribing the Scope of Review, 1977 Ariz St L J 537. Professor Davis makes these trenchant comments:
“No branch of administrative law is more seriously in need of reform than the common law of the state courts concerning methods of judicial review. No other branch is so easy to reform. It has been reformed in only a minority of states.
“An imaginary system cunningly planned for the evil purpose of thwarting justice and maximizing fruitless litigation would copy the major features of the extraordinary remedies. For the purpose of creating treacherous procedural snares and preventing or delaying the decision of cases on their merits, such a scheme would insist upon a plurality of remedies, no remedy would lie when another is available, the lines between remedies would be complex and shifting, the principal concepts confusing the boundaries of each remedy would be undefined and undefinable, judicial opinions would be filled with misleading generalities, and courts would studiously avoid discussing or even mentioning the lack of practical reasons behind the complexities of the system.
U* * * * *
“The most serious consequence of the system is the myriad of cases which fail to reach the merits. Almost as *136 grievous a fault is the concentration of effort of counsel and of courts on the solution of false problems. Even if miserable failure to clarify could be replaced by shining success, nothing would be gained by constructing bodies of law defining such concepts as judicial, nonjudicial, discretionary and ministerial. Attention should be directed to problems having practical significance — whether particular action should be reviewable, whether the time is ripe for review, what the scope of judicial inquiry ought to be. Furthermore, the extraordinary remedies too often compel unsound results. For instance, when mandamus is held to be the only correct remedy, many courts hold that administrative discretion may not be reviewed; yet one major purpose of judicial review should be to keep agencies’ action within the limits of reasonableness as conceived by the courts. To make the scope of review depend upon fortuities about technical remedies is obviously unsound.
“The cure is easy. Establish a single, simple form of proceeding for all review of administrative action. Call it ‘petition for review.’ Get rid of extraordinary remedies as means of review. Focus attention then on the problems having significance — whether, when, and how much, to review.” K. Davis, Administrative Law Text 458-9 (1972).
Under the system now in effect, the courts (and other bodies, such as LUBA) are cluttered with cases which are there for no other reason than that of uncertainty. Good lawyers are required to file multiple cases. The first course of action of attorneys resisting the claims is to raise a host of procedural objections because of the same uncertainties. Tribunals — sometimes multiple tribunals — are required to decide the procedural questions before reaching the merits. The result, in many cases, is that the parties never get a decision on the merits of the controversy.
I suggest that the legislature create a unitary system for review of decisions of governmental bodies. The system should be such that, in one proceeding, all objections of the objecting party can be raised, all contentions ruled upon by the tribunal, with one route of appeal thereafter. Under the system now in effect, lawyers sometimes file as many as three separate proceedings because of uncertainty of which mode of review is proper. Unfortunately, as this case illustrates, even *137 after a decision by one tribunal, a person is never sure that that ends the matter. 1
I pray for change.
Statutes such as ORS 46.063 are one means of avoiding the problem. It insures prompt resolution of “jurisdictional disputes” involving circuit and district courts, without dismissal of the case “for having been filed in the wrong court.”
See also former ORS 2.530 (repealed Or Laws 1977, ch 158, § 5), which provided for transfer of cases between the Supreme Court and the Court of Appeals. It also mandated that “[n]o appeal * * * shall be dismissed * * * for having been filed in the wrong court.”