interpreting “private park” in ORS 215.283(2)(c) restrictively because “the pervasive theme in both Goal 3 and the statutes is the preservation of agricultural land for farm use”
How later courts described this case
- interpreting “private park” in ORS 215.283(2)(c) restrictively because “the pervasive theme in both Goal 3 and the statutes is the preservation of agricultural land for farm use”
- “The vice of the statute is in its breadth — it has no mechanism, like the ‘aggrievement’ requirement of ORS 183.480(1), by which it limits the right of judicial review to those parties who have a personal stake in the outcome of the proceeding.” (Edmonds, J., concurring) (emphasis added)
- discussing the justiciability doctrine
- discussing justiciability case law
Written by the judges who cited it.
The opinion
EDMONDS, J.,
concurring.
I agree with the majority’s opinion in this case, but I write separately to express my understanding of the ramifications of the majority’s analysis.
The beginning point of the analysis is with the language of Article III, section 1, of the Oregon Constitution. It provides:
“The powers of the Government shall be divided into three sepe'rate [sic] departments, the Legislative, the Executive, including the administrative, and the Judicial: and no person charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”
Article VII (Amended), section 1, of the Oregon Constitution, provides, in relevant part, that “[t]he judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law.”
At issue is whether ORS 197.850(1) and (3)(a) encroach on the “judicial power” as contemplated by the constitution. Those provisions provide, in relevant part, that *561 “[a]ny party to a proceeding before the Land Use Board of Appeals under ORS 197.830 to 197.845 may seek judicial review of a final order issued in those proceedings [,]” and “(j]urisidiction for judicial review of proceedings under ORS 197.830 to 197.845 is conferred upon the Court of Appeals.” As the majority correctly reasons, Article III, section 1, prohibits the legislature from conferring authority to conduct judicial review on this court in such a manner that would cause the court to exercise the function of the executive. Under the constitution, the legislature is at liberty to make any individual or entity that it desires a party to an executive proceeding, including a party who represents only the public interest, rather than a personal interest. Consequently, there is nothing unconstitutional, insofar as Article III, section 1, is concerned, about the provisions of ORS 197.830 that permit any person or organization who has appeared before the local government, special district or state agency to appear as a party before the Land Use Board of Appeals (LUBA). Where the legislature potentially runs afoul of Article III, section 1, is in the conferral of judicial review of LUBA’s decisions on this court, without regard for the fact that executive proceedings may lack a justiciable controversy. The vice of the statute is in its breadth — it has no mechanism, like the “aggrievement” requirement of ORS 183.480(1), by which it limits the right of judicial review to those parties who have a personal stake in the outcome of the proceeding.
In this case, the League of Women’s Voters seeks review of LUBA’s decision when, based on the record before us, it has no personal stake in the matter. Any opinion as to it will necessarily be purely advisory. As the majority aptly points out, the judicial power does not include the power to issue advisory opinions. Consequently, I agree that ORS 197.850(1) and (3)(a), taken together, violate Article III, section 1, insofar as those provisions require this court to exercise a function of the executive department, i.e., to review that department’s decision when there is no justiciable controversy.
Haselton and Linder, JJ., join in this concurrence.