Utsey v. Coos County

Decision Date26 September 2001
PartiesJordan UTSEY and Melanie Tang, Respondents, and League of Women Voters of Coos County, Petitioner, v. COOS COUNTY, Albert Lillie, Cindy Lillie, and Department of Land Conservation and Development, Respondents.
CourtOregon Court of Appeals

Douglas M. DuPriest, Eugene, argued the cause for petitioner League of Women Voters of Coos County. With him on the briefs was Hutchinson, Anderson, Cox, Coons & DuPriest, P.C. With him on the reply brief was Michelle A. Blackwell, Eugene.

Allen L. Johnson, Eugene, argued the cause for respondents Albert Lillie and Cindy Lillie. With him on the brief was Johnson & Sherton, P.C.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Denise G. Fjordbeck, Assistant Attorney General, filed the brief for respondent Department of Land Conservation and Development. No appearance for respondents Jordan Utsey and Melanie Tang.

No appearance for respondent Coos County.


Resubmitted En Banc April 11, 2001.


Intervenor the League of Women Voters of Coos County (League) petitions for judicial review of a decision of the Land Use Board of Appeals (LUBA) upholding a decision of Coos County (county) to permit the operation of an off-highway vehicle (OHV) trail system and an OHV "motocross" racetrack as a "private park" on a tract of land that is zoned exclusive farm use (EFU). Respondents Albert and Cindy Lillie, the applicants for the permit, move to dismiss the petition as nonjusticiable. We agree and dismiss.

The relevant facts are not in dispute. The Lillies applied to the county for a conditionaluse permit for an "OHV Recreational Trail System Park" on their 531-acre tract of land, which is zoned, among other things, EFU. The Lillies proposed that the park be approved as a "private park," which is a conditionally permitted use in EFU zones under ORS 215.283(2)(c). The county conducted an evidentiary hearing, at which neighboring property owners appeared in opposition to the application. The League filed a letter in opposition as well. The letter did not identify what the League is, nor did it provide any explanation of its interest in the Lillies' application. The letter simply stated that the League opposes the application on the ground that approval would be unlawful. The county ultimately approved the application with conditions.

Some of the neighboring property owners appealed to LUBA. The League filed a motion to intervene in the appeal. The motion was made on behalf of the League itself; the League did not purport to act in a representative capacity with respect to any of its individual members. The motion provided no explanation as to what the League is, nor did it provide any explanation as to the nature of the League's interest in the appeal. The stated grounds for the motion were, in their entirety, that

"[t]he facts establishing movant's right to intervene are that movant appeared in the proceeding below and filed a letter of objection in the proceeding."

LUBA allowed the motion to intervene and ultimately affirmed the county's decision in part and reversed and remanded in part.

The League—and only the League—now seeks review of LUBA's decision, arguing that land devoted to an OHV trail system and a motocross racetrack cannot be considered a "private park." The Lillies contend that the League's petition is not justiciable. According to the Lillies, the record fails to establish that the League will sustain any "direct or indirect, personal or representative" effects from the outcome of this proceeding. The League does not deny that. Instead, it contends that, under ORS 197.830(2) and (7), because it appeared in the county proceedings, it is authorized to appeal the county's decision, and, under ORS 197.850(1), any party to a LUBA proceeding may seek judicial review by this court. The Lillies reply that, although the League may have standing within the meaning of those statutes, its petition nevertheless is nonjusticiable because it has only an abstract interest in the outcome of the case. The Lillies do not contest that the League has satisfied the statutory standing requirements of ORS 197.830 and ORS 197.850. They nevertheless contend that statutory standing does not necessarily establish that a claim is constitutionally justiciable and that, in this case, because the League has no concrete interest in the outcome of the case, its claim is nonjusticiable as a matter of constitutional law.

The arguments of the parties thus raise the question whether a legislative conferral of standing is sufficient to establish the justiciability of a claim; said another way, the question is whether the constitution imposes limits on the authority of the legislature to confer a right to seek judicial review. To answer that question first requires a careful examination of the nature of the requirement that a party's claim must be "justiciable" and then an exploration of the nature of the legislature's authority to enact statutes that affect the justiciability of a given claim.

At the outset, we must be candid: The cases concerning the constitutional requirements of justiciability are murky at best; at times, they are flatly contradictory. Answering the question posed to us in this case, therefore, requires more than simply selecting a prior decision of this court or the Oregon Supreme Court, because, frankly, any number of cases may be cited to support any number of different outcomes. In consequence, rather than simply select a decision favorable to one outcome or another, we endeavor to return to first principles, see Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992), so that we may evaluate which among the prior cases represents the interpretation of the Oregon Constitution that is consistent with the meaning likely intended by those who ratified it.

The term "justiciable"—along with its companion terms "standing," "mootness," and "ripeness"—does not appear in the Oregon Constitution. Indeed, none of the terms appears in the case law until shortly after the turn of the last century. They are, in brief, judicial constructs, developed first in reference to the "judicial power" conferred on federal courts under Article III of the United States Constitution and later adopted by the Oregon courts in reference to the "judicial power" conferred under Article VII (Amended) of the state constitution.

The orthodox view is that the genealogy of modern doctrines of justiciability traces back to the era of the framers of the federal constitution.1 Three sources are commonly cited: Hayburn's Case, 2 U.S. (2 Dall. 409) 408, 1 L.Ed. 436 (1792); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803); and a letter from Chief Justice Jay to President Washington.2

In Hayburn's Case, three members of the Court, acting in their capacities as circuit judges, issued separate opinions on the constitutionality of a statute that authorized the courts to determine the pension eligibility of veterans, subject to the review of the Secretary of War and Congress. Each of the opinions concluded that the statute was unconstitutional, on the ground that the legislative branch cannot assign to the courts any duties that are not "judicial" in nature. According to each of the opinions, decisions that are subject to review by the executive or legislative branches are not final, and one of the defining characteristics of a "judicial" decision is that it have finality.3 The Supreme Court ultimately declined to rule on the matter because, in the meantime, Congress changed the statute, and the matter became academic.

In Marbury, as every law student knows, the Court was concerned that the issuance of a writ of mandamus to the Secretary of State to deliver Marbury's commission might be perceived as an attempt to "intermeddle with the prerogatives of the executive." 5 U.S. (1 Cranch) at 170. The court disclaimed that intention, explaining:

"It is scarcely necessary for the court to disclaim all pretentions to such a jurisdiction. An extravagance, so absurd and excessive, could not have been entertained for a moment. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion."

Id. (emphasis added).

Finally, in what is commonly referred to as "the Correspondence of the Justices," the Court responded to an inquiry by Secretary of State Thomas Jefferson regarding whether, in considering treaties and laws, the President could "be availed of [the Supreme Court's] advice on these questions." 3 The Correspondence and Public Papers of John Jay at 487 (Henry P. Johnston ed. 1891). The Justices declined to provide the advice, on the ground that providing extra-judicial advisory opinions implicated "the lines of separation drawn by the Constitution between the three departments of the government." Id. at 488.

According to the orthodox view, those three sources reflect an early concern that the "judicial power" be restricted to deciding actual cases between individuals with a stake in the outcome and that executive or legislative attempts to confer on the judiciary authority to go beyond that implicate core principles of the separation of powers. To be sure, some scholars have questioned that broad reading of the sources, see, e.g., Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo Federalist Approach, 81 Cornell L. Rev. 393 (1996); Raoul Berger, Standing to Sue in Public Actions: Is It a Constitutional Requirement?, 78 Yale L.J. 816 (1969); Louis L. Jaffe, The Citizen as Litigant in Public Actions: The Non Hohfeldian or Ideological Plaintiff, 116 U. Pa. L. Rev. 1033 (1968),...

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