Merrick v. Board of Higher Education

NEWMAN, J. In this ORS 183.4001 proceeding, petitioner asks us to determine the validity of OAR 580-22-050, OAR 580-15-010 and OAR 580-15-065 (the “rules”),2 which the Board of [331] Higher Education (“Board”) promulgated pursuant to ORS 351.070(2) (b).3 Respondents move to dismiss the petition on the grounds that (1) we do not have jurisdiction over a petition to confirm the validity of administrative rules and (2) there is no justiciable controversy. We deny the motion to dismiss. Taking as true the facts that petitioner pleads, she is a lesbian whom the Board employs as a National Student Loan Manpower Assistant; in that capacity, she supervises other state employees and student employees. The Board is a state agency, appoints all employees at state higher educational facilities, determines their compensation and tenure and has general statutory authority, under ORS 351.070(2) (b), to adopt rules for the governance of those facilities and employees. The rules, each of which was effective no later than March 16, 1988, provide, among other things, that no institution or division under the Board’s governance may discriminate in employment on the basis of “sexual orientation.” Petitioner alleges that the Board did not exceed its statutory authority when it adopted the rules and that it followed all applicable rulemaking procedures. At the November 8,1988 general election, the people adopted Ballot Measure 8, effective December 8, 1988, now codified as ORS 236.380. Section 2 of the measure provides: “No state official shall forbid the taking of any personnel action against any state employee based on the sexual orientation of such employee.” Petitioner alleges that the rules and the measure impose inconsistent and mutually exclusive requirements on [332] her as a supervisor of state employees. She also alleges that the uncertainty as to whether her own activities as a lesbian expose her to adverse employment action under the measure chills her freedom of expression and association and adversely affects her employment interest. She asks us to review the rules and the effect of the measure on the statutory provision that authorizes them. She asserts that (1) the rules are valid in the face of Measure 8 and (2) the measure is invalid. She also asserts that she is entitled to a court determination that the rules are valid and that that requires a declaration that the measure violates Article I, sections 8 and 20, of the Oregon Constitution and the First Amendment. Respondents’ motion asserts that ORS 183.400 “contemplates only challenges to the validity of agency rules,” that petitioner actually seeks to test the constitutionality of Measure 8, that ORS 183.400 cannot be used to strike down legislation in the name of validating rules and that the remedy for petitioner’s uncertainty is a petition for a declaratory ruling under ORS 183.410.4 The motion also asserts that the Board has not withdrawn or changed the rules and that the Board is bound by them until they are repealed, amended or disavowed through appropriate legal procedures. It.argues that this is a nonadversarial proceeding, because the Board has not disavowed the rules and the state has not taken a position on the validity of the rules or the constitutionality of the measure. Accordingly, respondents argue that petitioner seeks only an advisory opinion and that there is not a “justiciable controversy.” Under ORS 183.400(1), we have jurisdiction to determine the validity of the rules. That statute unambiguously provides: “The validity of any rule may be determined upon a petition * * * to the Court of Appeals * * *. The court shall have jurisdiction to review the validity of the rule * * Petitioner seeks a declaration that the rules, insofar as they [333] relate to discrimination on the basis of sexual orientation, are valid, notwithstanding the specific provisions of Measure 8. Although petitioner has the option under ORS 183.410 to seek a discretionary ruling from the Board as to the applicability of the rules, she need not exercise that option. ORS 183.400 permits her to seek a court ruling without exhausting any other remedy. Moreover, her request that we confirm the validity of the rules necessarily puts before us the question whether the rules are invalid. Under ORS 183.400, it is not determinative, therefore, that the petition asks us to confirm the validity of the rules rather than to declare them invalid. In determining the validity of the rules, we may examine “the statutory provisions authorizing” them. ORS 183.400(3)(b). When we examine ORS 351.070(2)(b), we must also examine Measure 8 and consider whether the provisions of the measure affect the authority of the Board to continue to apply the rules. Measure 8 may contradict the rules and repeal by implication the statutory authority in ORS 351.070(2)(b), on which the rules are based, insofar as they prohibit discrimination on the basis of sexual orientation. The petition also presents a justiciable controversy. Measure 8 is presumptively constitutional and valid, and appears on its face to limit and negate ORS 351.070(2)(b) and the rules, insofar as they apply to discrimination based on sexual orientation. Respondents cannot avoid justiciability by their response that they take no position with respect to the possible conflict between the measure, on the one hand, and ORS 351.070(2) (b) and the rules, on the other hand. By declining to take a position in respect to the effect of Measure 8, respondents must be said to accept its presumed constitutionality and validity and to have concluded that there is no conflict between the rules and the measure. Respondents therefore have placed themselves in a position inconsistent with and adverse to petitioner’s position that there is a conflict between the rules and the measure and that the rules are valid and the measure is not. There is a justiciable controversy. Oregon Medical Association v. Rawls, 281 Or 293, 574 P2d 1103 (1978), is distinguishable. There the plaintiff sued the Insurance Commissioner to test the constitutionality of a plan for physicians to protect themselves against malpractice [334] liability. The statute authorizing the action stated that jurisdiction shall be acquired pursuant to the Declaratory Judgment Act and “a justiciable controversy ripe for determination shall be deemed to exist in the event the complaint is filed.” 281 Or at 296. The plaintiff sought a declaration that the law was constitutional. The Supreme Court held that the proceeding was not within the “judicial power of the state.” 281 Or at 296. It stated that no justiciable controversy existed because of a lack of “adversity.” Contrary to the circumstances here, no party, either expressly or implicitly, took a position inconsistent with that of the plaintiff. A determination in this proceeding would not be an adjudication of constitutionality “in the abstract,” as it would have been in Rawls. Petitioner pleads that she is responsible for enforcing the rules and is at the same time bound by Measure 8 and that she is in a contradictory position that affects her employment, speech and associations. Furthermore, a declaration of this court that determines whether the Board’s rules are valid in the light of Measure 8 will bind petitioner and respondents and not be merely advisory. See Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982).5 Respondents have also moved to strike an affidavit that described a telephone conversation between one of petitioner’s attorneys and the Compliance Officer and Director of [335] Legal Services for the Board. The affidavit is irrelevant to the exercise of our power under ORS 183.400(3), and we strike it. Motion to dismiss denied; motion to strike affidavit allowed. Footnotes [1] ORS 183.400 provides: “(1) The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases. The court shall have jurisdiction to review the validity of the rule whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, but not when the petitioner is a party to an order or a contested case in which the validity of the rule may be determined by a court. “(2) The validity of any applicable rule may also be determined by a court, upon review of an order in any manner provided by law or pursuant to ORS 183.480 or upon enforcement of such rule or order in the manner provided by law. “(3) Judicial review of a rule shall be limited to an examination of: “(a) The rule under review; “(b) The statutory provisions authorizing the rule; and “(c) Copies of all documents necessary to demonstrate compliance with applicable rulemaking procedures. “(4) The court shall declare the rule invalid only if it finds that the rule: “(a) Violates constitutional provisions; “(b) Exceeds the statutory authority of the agency; or “(c) Was adopted without compliance with applicable rulemaking procedures. “(5) In the case of disputed allegations of irregularities in procedure which, if proved, would warrant reversal or remand, the Court of Appeals may refer the allegations to a Master appointed by the court to take evidence and make findings of fact. The court’s review of the Master’s findings of fact shall be de novo on the evidence. “(6) The court shall not declare a rule invalid solely because it was adopted without compliance with applicable rulemaking procedures after a period of two years after the date the rule was filed in the office of the Secretary of State, if the agency attempted to comply with those procedures and its failure to do so did not substantially prejudice the interests of the parties.” [2] OAR 580-22-050 provides: “No institution or division shall discriminate in employment based on race, color, religion, national origin, handicap, age, marital status, sex or sexual orientation.” OAR 580-15-010 provides: “As used in rules 580-15-010 to 580-15-160, ‘discrimination’ means any act that either in form or operation, and whether intended or unintended, unreasonably differentiates among persons on the basis of age, handicap, national origin, race, marital status, religion, sex or sexual orientation.” OAR 580-15-065 provides: “(1) Institutions and divisions shall assure that nondiscriminatory policies are followed in student employment. Discrimination grievances arising out of student employment shall be addressed using the procedures required by or [331] described in OAR 580-15-015 and 580-15-090 through 155. “(2) Institutions and divisions shall not assist prospective employers or agencies known by them to discriminate on a prohibited basis in their recruitment, hiring, or employment practices. Placement officers and other Department personnel who assist in the recruiting and hiring of students shall take steps to inform prospective employers of the requirements of nondiscrimination under the law.” [3] ORS 351.070(2)(b) provides: “(2) Subject to such delegation as the state board may decide to make to the institutions, divisions and departments under its control, the State Board of Higher Education, for each institution, division and department under its control, shall: «* * * * * “(b) Adopt rules and bylaws for the government thereof, including the faculty, teachers, students and employees therein.” [4] ORS 183.410 states, in pertinent part: “On petition of any interested person, any agency may in its discretion issue a declaratory ruling with respect to the applicability to any person, property, or state of facts of any rule or statute enforceable by it. A declaratory ruling is binding between the agency and the petitioner on the state of facts alleged, unless it is altered or set aside by a court.” [5] We have concluded that the position of the parties is adverse and that a justicia-ble controversy exists. We emphasize, however, that we assume, but do not decide, that those are jurisdictional requirements for a proceeding under ORS 183.400. The “justiciable controversy” cases discussed in our opinion and in that of the dissent are, in the main, declaratory judgment actions, in which the question was whether the proceedings could be adjudicated consistently with the limits on judicial power under Article VII, section 1 (amended). The justiciable controversy analysis in that context may not be wholly applicable to proceedings under the Administrative Procedures Act. In particular, we note that none of the cases that we cite, or on which the dissent relies, are proceedings under ORS 183.400. Even assuming, however, that a justiciable controversy requirement similar to that required in declaratory judgment actions is applicable here, it is also open to doubt whether there must be an adversarial relationship between the parties for a rule challenge under ORS 183.400 to be justiciable. For example, in the usual situation, where the petitioner contends that the rule is invalid, the fact that the agency promulgated the rule may be sufficient to imply an adverse interest, regardless of whether the agency chooses to appear in the proceeding and defend the rule. Although we conclude that there is here an adverse relationship between the parties, it may be that that is not a necessary requirement for a justiciable controversy to exist in a proceeding under ORS 183.400.