Chapter §11.2 STANDING TO SUE

• 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 v. Dep't of Corr. , 341 Or 471, 484, 145 P3d 139 (2006) ("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 v. Daimler-Chrysler AG, 218 Or App 117, 121-22, 179 P3d 675, rev allowed, 345 Or 94 (2008) (discerning attributes needed for standing to sue despite lack of express requirements in law). For further information about the sources of standing requirements, see Oregon Administrative Law § 5.15 (OSB Legal Pubs 2010).

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 section 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 Corr. Services Corp. v. Malesko, 534 US 61, 66-68, 122 S Ct 515, 151 L Ed2d 456 (2001).

The State of Oregon, on the other hand, has not adopted a law like 42 USC section 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 section 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. See, e.g., Vannatta v. Oregon Gov't Ethics Comm'n, 348 Or 117, 228 P3d 574 (2010) (lobbyists not entitled to award of attorney fees when they succeeded on only part of their challenge to government ethics laws). 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 2 Oregon Civil Pleading and Practice § 43.1-1(f) (OSB Legal Pubs 2012).

As a general rule, a person may sue for damages for violation of the Oregon Constitution not because the injurious action is a violation of a right the constitution protects, but because the constitutional violation interferes with a right the common law protects from invasion. See, e.g., Scott v. Jackson County, 244 Or App 484, 495, 260 P3d 744 (2011) (warrantless search alleged to support claim for common-law trespass).

Oregon law does provide 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. 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. See, e.g., League of Oregon Cities v. State, 334 Or 645, 658-60, 56 P3d 892 (2002) (discussing standing requirements under Uniform Declaratory Judgments Act).

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 Uniform Declaratory Judgments Act (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 2 Oregon Civil Pleading and Practice ch 37 (OSB Legal Pubs 2012).

PRACTICE TIP: An attorney who considers bringing a claim against a government under the Uniform Declaratory Judgments Act should read Morgan v. Sisters Sch. Dist. No. 6, 353 Or 189, ___ P3d ___ (2013). 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 Uniform Declaratory Judgments Act.

To establish standing to bring a claim for violation of a constitutional right under the Uniform Declaratory Judgments Act, 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 v. State, 334 Or 645, 658, 56 P3d 892 (2002), 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). Whether an injury is sufficiently serious and sufficiently special to support a claim under the Uniform Declaratory Judgments Act depends on the specific circumstances of each case.

MacPherson v. Dep't of Admin. 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...