ORS 183.400
Judicial determination of validity of rule

Mentioned in

Agency Policy Challenges: A Different Way to Fight an Assessment

American Bar Association, March 8, 2018

“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


The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases. The court shall have jurisdiction to review the validity of the rule whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, but not when the petitioner is a party to an order or a contested case in which the validity of the rule may be determined by a court.


The validity of any applicable rule may also be determined by a court, upon review of an order in any manner provided by law or pursuant to ORS 183.480 (Judicial review of agency orders) or upon enforcement of such rule or order in the manner provided by law.


Judicial review of a rule shall be limited to an examination of:


The rule under review;


The statutory provisions authorizing the rule; and


Copies of all documents necessary to demonstrate compliance with applicable rulemaking procedures.


The court shall declare the rule invalid only if it finds that the rule:


Violates constitutional provisions;


Exceeds the statutory authority of the agency; or


Was adopted without compliance with applicable rulemaking procedures.


In the case of disputed allegations of irregularities in procedure which, if proved, would warrant reversal or remand, the Court of Appeals may refer the allegations to a master appointed by the court to take evidence and make findings of fact. The court’s review of the master’s findings of fact shall be de novo on the evidence.


The court shall not declare a rule invalid solely because it was adopted without compliance with applicable rulemaking procedures after a period of two years after the date the rule was filed in the office of the Secretary of State, if the agency attempted to comply with those procedures and its failure to do so did not substantially prejudice the interests of the parties. [1957 c.717 §6; 1971 c.734 §9; 1975 c.759 §9; 1979 c.593 §17; 1987 c.861 §3]

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)

Definitions for chapter
Application of provisions of chapter to certain agencies
Delegation of rulemaking authority to named officer or employee
Description of organization
Policy statement
Policy statement
Cost of compliance effect on small businesses
Procedure for agency adoption of federal rules
Model rules of procedure
Filing and taking effect of rules
Publication of rules and orders
Publication of administrative rules in electronic form
Distribution of published rules
Petitions requesting adoption of rules
Judicial determination of validity of rule
Agency report to Legislative Assembly regarding temporary rules
Agency review of rules
Small Business Rules Advisory Committee
Agency determination of applicability of rule or statute to petitioner
Delegation of final order authority
Notice to parties before hearing of rights and procedure
Notice of right to hearing
Procedure in contested case hearing
Depositions or subpoena of material witness
Hearing on refusal to renew license
Period allowed to request hearing for license refusal on grounds other than test or inspection results
Subpoenas in contested cases
Subpoena by agency or attorney of record of party when agency not subject to ORS 183.440
Evidence in contested cases
Representation of agencies at contested case hearings
Representation of Oregon Health Authority and Department of Human Services at contested case hearings
Representation of persons other than agencies participating in contested case hearings
Nonattorney and out-of-state attorney representation of parties in certain contested case hearings
Representation of home care worker by labor union representative
Examination of evidence by agency
Agency statement of ex parte communications
Proposed order by hearing officer
Orders in contested cases
Preservation of orders in electronic format
Judicial review of agency orders
Jurisdiction for review of contested cases
Jurisdiction for review of orders other than contested cases
Decision of court on review of contested case
Form and scope of decision of reviewing court
Agency may be compelled to act
Awarding costs and attorney fees when finding for petitioner
Authority of agencies to use alternative means of dispute resolution
Housing cost impact statement required for certain proposed rules
Housing cost impact statement described
Effect of failure to prepare housing cost impact statement
Reduction of economic impact on small business
Office of Administrative Hearings
Chief administrative law judge
Administrative law judges
Contract administrative law judges
Assignment of administrative law judges
Model rules of procedure
Agencies required to use administrative law judges from Office of Administrative Hearings
Use of Office of Administrative Hearings by exempt agencies and by political subdivisions
Request for change of administrative law judge
Form of order
Office of Administrative Hearings Operating Account
Estimates of office expenses
Alternative dispute resolution
Standards and training program
Ex parte communications
Office of Administrative Hearings Oversight Committee
Permits subject to ORS 183.702
Statement of criteria and procedures for evaluating permit application
Extended term for renewed licenses
Definitions for ORS 183.710 to 183.730
Submission of adopted rule to Legislative Counsel required
Procedure for review of agency rule
Required agency response to Legislative Counsel determination
Designation of interim committees for purposes of considering rule reports
Review of rule by Oregon Sunshine Committee
Civil penalty procedures
State agency required to prepare public writings in readable form
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