Brown v. Oregon State Bar
| Decision Date | 03 August 1982 |
| Parties | James M. BROWN, Attorney General of Oregon, Respondent on Review, v. OREGON STATE BAR, a public corporation, Petitioner on Review. CA 18935; SC 28132. |
| Court | Oregon Supreme Court |
Barnes H. Ellis, Portland, argued the cause and filed the brief for petitioner on review. With him on the brief was Andrew R. Gardner, Portland.
Dave Frohnmayer, present Atty. Gen., argued the cause for respondent on review. On the briefs were James M. Brown, Atty. Gen., John R. MuCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., Peter S. Herman, Senior Asst. Atty. Gen. Counsel, and Norman W. Legerness, Asst. Atty. Gen., Salem.
Before DENECKE, * C. J., and LENT, LINDE, TANZER, PETERSON and CAMPBELL, JJ.
Plaintiff brings this suit in his official capacity as Attorney General of Oregon to obtain a declaration of his responsibilities under state law and the disciplinary rules of this court. The only issue on appeal is whether declaratory relief is proper.
The demand for declaratory relief was precipitated by the following facts. The plaintiff received a request for legal advice from the Director of the Department of Land Conservation and Development concerning a draft opinion in a contested case before the Land Conservation and Development Commission (LCDC). Two assistant attorneys general met with the director and the hearings officer without notice to the litigants and in private. The hearings officer felt that he had been subjected to undue pressure and filed a complaint with defendant, the Oregon State Bar.
The president of the Bar requested an attorney general opinion on two questions-whether the attorney general must render legal advice on request to state agencies concerning a contested case, and whether the advice may be rendered ex parte and in private. In response, plaintiff issued an opinion concluding that he had the statutory duty to give requested legal advice to any agency or its hearings officers in a contested case proceeding and that such advice could be given ex parte and in private if (1) the plaintiff was not a party and did not represent a party, (2) agency rules did not prohibit such contact and (3) the hearings officer was an employe or agent of the agency without independent status and authority to issue final and binding orders. 39 Op.Atty.Gen. 431 (1978); ORS 180.060, 180.220.
The defendant, through its legal ethics committee, considered whether such ex parte advice was unethical under the disciplinary rules of this court. It issued an opinion, approved by the Board of Governors, which stated that the meeting with the director and hearings officer of LCDC violated DR 7-110(B) and DR 9-101, Oregon State Bar, Code of Professional Responsibility.
Plaintiff filed an action for declaratory relief in the circuit court requesting a declaration as to his rights and responsibilities under statutory law and the rules of this court. Defendant moved for summary judgment, which the court granted on the following grounds: that the complaint did not allege a justiciable controversy, and that even if it did, the court would exercise its discretion and deny jurisdiction. The Court of Appeals reversed and remanded. 53 Or.App. 759, 632 P.2d 1338 (1980).
We accepted review to decide whether declaratory relief is proper. The defendant asserts three grounds for reversing the Court of Appeals and affirming the summary judgment: (1) the circuit court lacked subject matter jurisdiction to interpret disciplinary rules; (2) there is no justiciable controversy, and (3) even if a justiciable controversy exists, refusing declaratory relief is a discretionary act which should not be reversed absent an abuse of discretion.
This Uniform Declaratory Judgment Act, ORS 28.010 et seq., confers on Oregon courts of record the ORS 28.010. In order for a court to entertain an action for declaratory relief, the complaint must present a justiciable controversy. Justiciability is a vague standard but entails several definite considerations. A controversy is justiciable, as opposed to abstract, where there is an actual and substantial controversy between parties having adverse legal interests. Cummings Constr. v. School Distr. No. 9, 242 Or. 106, 408 P.2d 80 (1965). The controversy must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue. Id. A justiciable controversy results in specific relief through a binding decree as opposed to an advisory opinion which is binding on no one. Id. The court cannot exercise jurisdiction over a nonjusticiable controversy because in the absence of constitutional authority, the court cannot render advisory opinions. Oregon Cty. Mfgs. Ass'n. v. White, 159 Or. 99, 109, 78 P.2d 572, 576 (1938).
To issue declaratory relief, the court must also have jurisdiction over the subject matter of the controversy. The Uniform Declaratory Judgment Act is not an independent grant of jurisdiction. Lokey v. Texas Methodist Foundation, 468 S.W.2d 945 (Tex.Civ.App.1971). The circuit court is described by the Oregon Constitution as a court of general jurisdiction having all power not otherwise vested. Or.Const.Art. VII (Original) 9. Bearing in mind these two jurisdictional requisites for entertaining an action for declaratory relief, we look to whether the circuit court may declare the plaintiff's rights under the Oregon statutes and the disciplinary rules.
Plaintiff contends that he has the right pursuant to ORS 180.220, to give advice to agencies upon request, with specific qualifications. Defendant, on the other hand, takes the position that plaintiff may not engage in such conduct because it violates the disciplinary rules. Although the pleadings indicate a substantial controversy, the defendant asserts that it is not justiciable because it involves only advisory ethics opinions, does not involve present facts and is moot because of a recent LCDC rule prohibiting the conduct.
We find, however, that the controversy is justiciable. While the controversy arises from advisory opinions, the substance of the controversy concerns the interpretation of a statute. The court is requested to consider a specific set of facts-whether plai...
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