Chapter § 11.2

• Jurisdiction: Oregon

§ 11.2 STANDING TO SUE

The legislature prescribes the qualifications needed for a person to prosecute a claim against a public body for taking an allegedly unconstitutional action. Kellas, 341 Or at 484 ("the question is whether the legislature has empowered citizens to initiate a judicial proceeding to vindicate the public's interest in requiring the government to respect the limits of its authority under law"). As a result, a person challenging a government decision must look to the statute that authorizes the challenge to determine the qualifications needed to bring the challenge. Man Aktiengesellschaft, 218 Or App at 121-22 (discerning attributes needed for standing to sue despite a lack of express requirements in the law). For further information about the sources of standing requirements, see Oregon Administrative Law § 5.15 (OSB Legal Pubs 2010 & Supp 2016).

The federal government grants broad remedies to enforce rights guaranteed by the United States Constitution. Through the federal Civil Rights Act of 1871, now codified in part at 42 USC § 1983, Congress grants persons the right to sue a state or political subdivision of a state for depriving the person of the "rights, privileges, or immunities secured by the [United States] Constitution." Despite the absence of a statute that permits enforcement of federal constitutional rights against federal officials, the United States Supreme Court has also implied from the Fourth, Fifth, and Eighth Amendments to the United States Constitution the right to enforce those provisions against federal officials. See generally Correctional Services Corp. v. Malesko, 534 US 61, 66-68, 122 S Ct 515, 151 L Ed 2d 456 (2001).

The State of Oregon, on the other hand, has not adopted a law like 42 USC § 1983 for the enforcement of rights conferred by Oregon's Constitution. No Oregon law grants a generally applicable right to sue a government for damages caused by a violation of the Oregon Constitution.

CAVEAT: Except on one ancillary issue, the Oregon Supreme Court has not acknowledged a claim for violation of a state constitutional provision in the absence of a statute. Although the Oregon Legislature has not adopted a statute like 42 USC § 1988(b) that authorizes the award of attorney fees to a person who establishes a violation of a constitutional right, the Oregon Supreme Court, using its equitable authority, authorized the award of attorney fees to some persons who establish some violations of some constitutional rights. Armatta v. Kitzhaber, 327 Or 250, 286-89, 959 P2d 49 (1998). Cf. ORS 20.085 (granting the right to attorney fees for prevailing on a claim under Article I, section 18, or Article XI, section 4, of the Oregon Constitution). For more information about the qualifications needed to claim attorney fees in constitutional cases, see 3 Oregon Civil Pleading and Litigation § 46.2-4(d) (OSB Legal Pubs 2020).

Oregon law provides remedies for violation of the Oregon Constitution; those remedies, however, generally involve stopping allegedly unconstitutional actions, not an award of damages caused by the actions. See, e.g., Hunter v. City of Eugene, 309 Or 298, 304, 787 P2d 881 (1990) (a person "may not bring an action . . . directly under the constitution, but will be limited to existing common-law, equitable, and statutory remedies"). A person may sue for damages for conduct that violates the Oregon Constitution because the constitutional violation interferes with a right that the common law protects from invasion. See, e.g., State v. Coffman, 266 Or App 171, 177, 337 P3d 898 (2014) ("warrantless intrusion onto residential curtilage is presumptively a trespass"); Scott v. Jackson County, 244 Or App 484, 495, 260 P3d 744 (2011) (a warrantless search was alleged to support a claim for common-law trespass).

Whether a person possesses the qualifications to prosecute a claim to vindicate a constitutional right depends on the statutory context in which the claim arises. Different statutes govern in different contexts; therefore, different qualifications are needed by different persons to challenge different government actions. MT & M Gaming, Inc. v. City of Portland, 360 Or 544, 553-54, 383 P3d 800 (2016) ("standing is not a generic concept but largely depends on the statute under which the plaintiff seeks relief").

The purpose of this chapter is not to identify all of the situations in which a person may raise an objection to the constitutionality of a government action. There are myriad instances as minor as the issuance of a traffic ticket in which a government initiates the process that gives rise to a challenge to the government's action. This chapter focuses on the major civil law processes that a person initiates to challenge the government and the qualifications needed to initiate those processes.

§ 11.2-1 Uniform Declaratory Judgments Act

The legislature has granted the ability to challenge a government action in the UDJA (ORS 28.010-28.160). ORS 28.020 confers a right of action on "[a]ny person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise." For information about declaratory-judgment proceedings generally, see 1 Oregon Civil Pleading and Litigation chapter 11 (OSB Legal Pubs 2020).

PRACTICE TIP: An attorney who considers bringing a claim against a government under the UDJA should read Morgan, 353 Or at 194-98, and MT & M Gaming, Inc., 360 Or at 561-65. In Morgan, the Oregon Supreme Court delineates in detail the allegations and evidence needed to pursue a claim to challenge the validity of a government decision under the UDJA. In MT & M Gaming, Inc., the Oregon Supreme Court explains the requirements Morgan delineates and clarifies that, to establish standing under the UDJA, a plaintiff need not fall within a "zone of interests" the legislature intended to protect.

To establish standing to bring a claim for violation of a constitutional right under the UDJA, a person must show (1) "some injury or other impact upon a legally recognized interest beyond an abstract interest in the correct application or the validity of a law" (League of Oregon Cities, 334 Or at 658), and (2) that the government's action "injures the [person] in some special sense that goes beyond the injury the [person] would expect as a member of the general public" (Eckles v. State, 306 Or 380, 386, 760 P2d 846 (1988)).

Another formulation of the test for standing to sue under the UDJA is the plaintiff must show that the challenged government action "(1) 'injur[es] or impact[s] . . . a legally recognized interest' of the plaintiff; (2) 'that the claimed injury or impact is real or probable, not hypothetical or speculative'; and (3) 'that a decision by the court will in some sense rectify the injury." McNichols v. Department of Fish & Wildlife, 308 Or App 369, 374, 482 P3d 208 (2021) (quoting MT & M Gaming, Inc., 360 Or at 554-55).

Whether an injury is sufficiently serious and sufficiently special to support a claim under the UDJA depends on the specific circumstances of each case. MacPherson v. Department of Administrative Services, 340 Or 117, 123-24, 130 P3d 308 (2006), demonstrates how a challenger may present a sufficiently serious and special injury to qualify to seek a declaration of rights under the Oregon Constitution. The plaintiffs challenged the constitutionality of Measure 37, a property-rights law. One of the plaintiffs, Adams, alleged that he owned property near property that, under the authority of Measure 37, the owner planned to develop. MacPherson, 340 Or at 124. Without Measure 37, the neighbor could not develop the property as planned. Adams alleged that he would suffer the following concrete harms from his neighbor's development under Measure 37: "(1) diminished water quantity and quality available to Adams's property; (2) increased traffic; (3) an increased tax burden due to increased enrollment in the local school system...