Chapter §16.4 REMEDIES

• Jurisdiction: Oregon

§16.4 REMEDIES

§16.4-1 Declaratory and Injunctive Relief

Declaratory relief to determine the constitutional validity of a constitutional provision, statute, ordinance, or other governmental policy or practice is generally available under ORS 28.020. See, e.g., League of Oregon Cities v. State, 334 Or 645, 56 P3d 892 (2002) (declaring that Ballot Measure 7 (2000) was adopted in violation of the separate-vote requirement in Article XVII, section 1, of the Oregon Constitution). A claim for declaratory relief "may be dismissed only if there is no justiciable controversy." Advance Resorts of Am., Inc. v. City of Wheeler, 141 Or App 166, 180, 917 P2d 61 (1996). If there is a justiciable controversy, "the court must dispose of the matter by a judgment containing a declaration as to the matter in dispute." Advance Resorts, 141 Or App at 180. See also Jack Doe 1 v. Lake Oswego Sch. Dist., 242 Or App 605, 618 n 4, 259 P3d 27 (2011), rev'd, 353 Or 321, 297 P3d 1287 (2013) (applying principle).

CAVEAT: A declaratory judgment action is not the proper basis for litigating a claim that an agency's rule or order violates the Oregon Constitution. Such claims are ordinarily decided by the agency subject to judicial review under the Administrative Procedures Act (APA). See ORS 183.400 (judicial review of rules), ORS 183.482 (judicial review of contested case orders), ORS 183.484 (judicial review of other orders). There is a "general rule of administrative law that as to matters within the jurisdiction of an administrative agency, judicial review is only available after the procedure for relief within the administrative body itself has been followed without success." Outdoor Media Dimensions Inc. v. State, 331 Or 634, 661, 20 P3d 180 (2001) (internal citation omitted). See also Wallace v. State ex rel. Pub. Employees Ret. Bd., 245 Or App 16, 27, 263 P3d 1020 (2011) ("if APA review could resolve the legality of a challenged agency action, then a party may not initiate a declaratory judgment action regarding the challenged agency action while the APA proceeding is pending and, thereby, circumvent the exclusive APA review process") (emphasis in original); Fed'n of Oregon Parole & Prob. Officers v. County of Marion, 93 Or App 93, 97, 760 P2d 1353 (1988) (circuit court lacked authority to decide declaratory relief claims against Public Employees Retirement System (PERS) because "PERS is subject to the APA; therefore, the APA provides the exclusive methods for its actions and for

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