Brown v. Oregon State Bar

• Decision Date: 08 September 1981
• Docket Number: No. A7906-03119,A7906-03119
• Parties: James M. BROWN, Attorney General of Oregon, Appellant, v. OREGON STATE BAR, Respondent. ; CA 18935. *
• Court: Oregon Court of Appeals

Page 1338

632 P.2d 1338

53 Or.App. 759

James M. BROWN, Attorney General of Oregon, Appellant, v. OREGON STATE BAR, Respondent.

No. A7906-03119; CA 18935.

Court of Appeals of Oregon, In Banc ^*.

Argued and Submitted Feb. 6, 1981.

Resubmitted In Banc Sept. 2, 1981.

Decided Sept. 8, 1981.

Peter S. Herman, Senior Counsel, Salem, argued the cause for appellant. With him on the briefs were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., and Norman W. Legernes, Asst. Atty. Gen., Salem.

Barnes H. Ellis, Portland, argued the cause for respondent. With him on the brief was Andrew R. Gardner, Portland.

THORNTON, Judge.

Plaintiff appeals a summary judgment and assigns as error the trial court's dismissal of his complaint. Three questions are raised for our consideration: (1) did the trial court have subject matter jurisdiction in this case to issue a declaratory judgment; (2) did plaintiff's complaint allege a justiciable controversy; and (3) did the court abuse its discretion in denying plaintiff declaratory relief? We reverse.

Plaintiff received a request for legal advice from the Director of the Department of Land Conservation and Development concerning a hearings officer's draft opinion in a contested case proceeding before the Land Conservation and Development Commission. In response, plaintiff assigned two assistant attorneys general to meet with the director and the hearings officer. The meeting was held in private, and no notice was given to either the litigants or their counsel. At the time, the agency had no rule prohibiting such contact. Plaintiff neither represented any party nor was a party himself.

The hearings officer felt he had been subjected to undue pressure by the two assistant attorneys general and, in December, 1978, filed a complaint with defendant. After initial investigation and consideration of the complaint, defendant's president requested a formal opinion from plaintiff on two questions: (1) whether plaintiff and his assistants, when requested to do so, were required to render legal advice to a state agency or its hearings officer with respect to a contested case proceeding pending before the agency for decision; and (2) whether plaintiff and his assistants could render such requested advice ex parte and in private.

In response to these inquiries, plaintiff issued an opinion, 39 Op.Atty.Gen. 431 (1978), in which he concluded that he had the statutory duty and right to give requested legal advice to any agency or its hearings officer in a contested case proceeding and that such advice could be given ex parte and in private if: (1) 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 employee or agent of the agency without independent status and authority to issue final and binding orders.

Defendant, through its legal ethics committee, also considered the same questions. In April, 1979, defendant's Board of Governors approved the issuance and publication of Ethics Opinion No. 428, which stated that the particular conduct under review in plaintiff's opinion violated DR 7-110(B) ¹ and DR 9-101. ² After considering the ethics opinion, plaintiff advised his assistants that he considered the opinion to be incorrect and instructed them to continue to give requested legal advice in similar circumstances. In June, 1979, plaintiff filed a complaint seeking declaratory relief. ³ ORS 28.010 et seq.

In response to plaintiff's allegations, defendant moved for summary judgment on the grounds that: (1) the trial court lacked subject matter jurisdiction; (2) plaintiff failed to allege a justiciable controversy in his complaint; and (3) the dual doctrines of primary jurisdiction and exhaustion of administrative remedies made an exercise of jurisdiction by the court premature. Attached to the motion was an affidavit of defendant's president stating that: (1) Ethics Opinion No. 428 was an advisory opinion; and (2) no disciplinary proceedings were pending against plaintiff or any of his assistants as a result of the ethics opinion.

In response, plaintiff filed a counter-affidavit asserting, inter alia, that: (1) he and his assistants had given and were continuing to give legal advice in contested cases as requested; (2) he had continued to implement and enforce this policy; (3) no public purpose would be served by requiring him and his assistants to submit to disciplinary proceedings as a prerequisite to determination of the issue in question; and (4) he had never been assured by defendant that it would not initiate disciplinary proceedings against him or his assistants if they violated the disciplinary rules as interpreted in the ethics opinion.

The trial court determined that: (1) it had subject matter jurisdiction; (2) no justiciable controversy upon which to base declaratory relief had been alleged in plaintiff's complaint; (3) if a justiciable controversy was alleged, it would exercise its discretion and deny jurisdiction; and (4) it was unnecessary to reach the issues presented by the doctrines of primary jurisdiction and exhaustion of administrative remedies.

On appeal, plaintiff argues that the trial court had jurisdiction to issue a declaratory judgment and that he was entitled to such relief because the performance of his statutory duties, and those of his assistants, was imminently threatened by the existence of Ethics Opinion No. 428. He argues that as a public official he is particularly entitled to judicial guidance, considering the public importance of the dispute involved in this case, and, further, that it would be egregious to require him or members of his staff to submit to disciplinary proceedings as a condition to determining the proper performance of their legal responsibilities.

Defendant submits that the trial court had no subject matter jurisdiction and erred in holding to the contrary. In addition, defendant asserts that, even if the court had the power to issue a declaratory judgment in this case, plaintiff merely seeks guidance on an abstract conflict arising from his disagreement with the view expressed in a wholly advisory ethics opinion. Defendant contends that since no disciplinary proceedings involving DR 7-110(B) or DR 9-101 are pending against plaintiff or members of his staff, they have not suffered any injury in fact or been subjected to any imminent threat of such injury. Thus, defendant contends, no justiciable controversy exists and plaintiff merely seeks an advisory opinion from the court. Finally, defendant submits that even if a justiciable controversy does exist, the trial court nonetheless had discretion to deny plaintiff declaratory relief and appropriately exercised its discretion.

The threshold issue is whether the trial court had jurisdiction to render a declaratory judgment in this case. Defendant contends that the Supreme Court has exclusive jurisdiction to review defendant's ethical opinions and that a judgment by the trial court here would necessarily have to ratify, modify or reject Ethical Opinion No. 428 and, therefore, would encroach upon the Supreme Court's exclusive jurisdiction involving the discipline of members of the bar. The trial court concluded that it had jurisdiction over the subject matter of the case pursuant to Article VII (Original) § 9 of the Oregon Constitution. ⁴ The court found that plaintiff was neither seeking the discipline of any attorney nor review of a disciplinary proceeding. The court stated that the mere existence of Ethics Opinion No. 428, neither ratified nor affirmed by the Supreme Court, could not affect the court's jurisdiction to interpret the rights and responsibilities of plaintiff under existing statutory law pursuant to ORS 28.010 et seq.

It is true that the responsibility for discipline of an attorney rests solely with the Supreme Court. ORS 9.480; In re Reuben G. Lenske, 269 Or. 146, 165, 523 P.2d 1262 (1974), cert. den. 420 U.S. 908, 95 S.Ct. 827, 42 L.Ed.2d 838 (1975). However, plaintiff is not seeking the discipline of an attorney or review of any disciplinary proceeding. Plaintiff is merely attempting to obtain a declaration of his rights and responsibilities under existing statutory law. Pursuant to ORS 28.010, courts of record of this state have the "power to declare rights, status and other legal relations, whether or not other relief is or could be claimed." Plaintiff sought no ruling which would encroach upon the Supreme Court's exclusive jurisdiction over disciplinary matters. We agree with the trial court that the mere existence of Ethics Opinion No. 428 did not affect its power under ORS 28.010 to determine plaintiff's statutory rights and responsibilities. The trial court had jurisdiction over the subject matter in issue in this case.

We next consider whether the trial court was correct in its determination that there was no justiciable controversy alleged by plaintiff and whether, in light of that determination, it properly denied plaintiff declaratory relief. As noted, ORS 28.010 confers upon the courts of record of this state the "power to declare rights, status, and other legal relations." The purpose of the declaratory judgment statutes is to "settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations." ORS 28.060. The statutes are "to be liberally construed and administered." id. See also Thom v. Bailey, 257 Or. 572, 595, 481 P.2d 355 (1971); Campbell v. Henderson, 241 Or. 75, 79, 403 P.2d 902 (1965); Recall Bennett Com. v. Bennett et al., 196 Or. 299, 322, 249 P.2d 479 (1952).

Limitations exist, however, on a court's issuance of declaratory relief. Thus, before a court can entertain a declaratory judgment action, there must be an actual or justiciable controversy. Mitchell Bros. Truck Lines v. Lexington, 287 Or. 217, 219, 598 P.2d 294 (1979); Oregon Medical Assn. v. Rawls, 276...