Administrative Procedures Act

ORS 183.400
Judicial determination of validity of rule


(1)

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.

(2)

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.

(3)

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

(a)

The rule under review;

(b)

The statutory provisions authorizing the rule; and

(c)

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

(4)

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

(a)

Violates constitutional provisions;

(b)

Exceeds the statutory authority of the agency; or

(c)

Was adopted without compliance with applicable rulemaking procedures.

(5)

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.

(6)

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]

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)

Law Review Citations

2 EL 336 (1972); 15 EL 238 (1985)

§§ 183.330 to 183.400

Notes of Decisions

Where there were validly promulgated rules regarding situations analogous to requirement that petitioner, as condition of receiving further medical assistance, make monthly repayment of overpayments of public assistance funds, adjudication was desirable to establish rule to resolve instant case and subsequent similar situations. Larsen v. Adult and Family Services Division, 34 Or App 615, 579 P2d 866 (1978)

Law Review Citations

4 EL 215, 217 (1974)

§§ 183.310 to 183.550

See annotations under ORS chapter 183.

Chapter 183

Notes of Decisions

A legislative delegation of power in terms as broad as those used in [former] ORS 471.295 (1) places upon the administrative agency a responsibility to establish standards by which the law is to be applied. Sun Ray Drive-in Dairy, Inc. v. Ore. Liquor Control Comm., 16 Or App 63, 517 P2d 289 (1973)

Administrative regulation providing that failure to perform responsibilities adequately was a ground for employee's dismissal. Palen v. State Bd. of Higher Educ., 18 Or App 442, 525 P2d 1047 (1974), Sup Ct review denied

Where it was determined that agency invalidly terminated substantive policy, trial court did not have authority to order agency to resume policy in absence of validly adopted agency rule. Burke v. Children's Services Division, 39 Or App 819, 593 P2d 1262 (1979), aff'd 288 Or 533, 607 P2d 141 (1980)

"Trending factors" published by the Department of Revenue and used to appraise property for purposes of property taxation are not "rules" within the meaning of this chapter. Borden Inc. v. Dept. of Rev., 286 Or 567, 595 P2d 1372 (1979)

Appellate court may review proceeding meeting definition of contested case whether or not proceeding was formal administrative hearing. Patton v. State Bd. of Higher Ed., 293 Or 363, 647 P2d 931 (1982)

Circuit court could not entertain action for declaratory judgment directed at PERS, because PERS is subject to APA, which provides exclusive method for review of its actions. FOPPO v. County of Marion, 93 Or App 93, 760 P2d 1353 (1988), Sup Ct review denied

Board of Education approval of textbook for use in state public schools was not "rule," but was "order in other than contested case," and jurisdiction for judicial review is in circuit court. Oregon Env. Council v. Oregon State Bd. of Ed., 307 Or 30, 761 P2d 1322 (1988)

Preponderance of evidence standard applies where initial license application is denied based on willful fraud. Sobel v. Board of Pharmacy, 130 Or App 374, 882 P2d 606 (1994), Sup Ct review denied

Completed Citations

Wright v. Bateson, 5 Or App 628, 485 P2d 641 (1971), Sup Ct review denied, cert. denied, 405 US 930 (1972)

Atty. Gen. Opinions

State Speed Control Board subject to Administrative Procedures Act, (1974) Vol 36, p 1024; proxy voting at board meeting, (1974) Vol 36, p 1064; student conduct proceedings as "contested cases," (1976) Vol 37, p 1461; rulemaking authority of Statewide Health Coordinating Council and of Certificate of Need Appeals Board, (1977) Vol 38, p 1229; Oregon Medical Insurance Pool is fundamentally private-sector body, under virtually total private control, created by state to fulfill public purpose and is not state agency or public body subject to Administrative Procedures Act (APA), (1989) Vol 46, p 155

Law Review Citations

51 OLR 245 (1971); 53 OLR 364, 365 (1974); 10 WLJ 373, 420 (1974); 13 WLJ 499, 517, 525, 537 (1977); 57 OLR 334 (1978); 22 WLR 355 (1986); 36 WLR 219 (2000)


Source

Last accessed
Jun. 26, 2021