Marks v. City of Roseburg

Court of Appeals of Oregon

Marks v. City of Roseburg

651 P.2d 748, 59 Or. App. 558, 1982 Ore. App. LEXIS 3820

CourtCourt of Appeals of Oregon

DecidedOctober 6, 1982

DocketNo. E80-1783, CA A20749

StatusPublished

Cited by1 cases

This text of 651 P.2d 748 (Marks v. City of Roseburg) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marks v. City of Roseburg, 651 P.2d 748, 59 Or. App. 558, 1982 Ore. App. LEXIS 3820 (Or. Ct. App. 1982).

Pincite

Opinion

PER CURIAM.

Plaintiffs brought this declaratory judgment action under ORS chapter 28, challenging the constitutionality of the City of Roseburg’s “occult arts” ordinance. The trial court denied the city’s motion to dismiss the action for lack of a justiciable controversy and plaintiffs’ lack of standing. Plaintiffs and the City then each filed motions for summary judgment. The trial court denied plaintiffs’ motion, granted the City’s motion and entered a judgment upholding the constitutionality of the ordinance. Plaintiffs appeal the trial court’s grant of the City’s summary judgment motion, and the City cross-appeals the trial court’s denial of its motion to dismiss.

We do not reach the merits. Although the parties did not raise the issue, it is apparent from the record that plaintiffs failed to serve the Attorney General with a copy of the proceeding, as required by ORS 28.110.¹ Service on the Attorney General in an action seeking a declaration that an ordinance is unconstitutional is a jurisdictional condition precedent to the authority of the trial court to make a final disposition of the case. See Warren v. City of Canby, 56 Or App 230, 641 P2d 615 (1982).

Accordingly, we vacate the judgment and remand the case to the trial court with instructions to abate the proceedings until the Attorney General is served with a copy of the summons and complaint in this action.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

Plaintiffs brought this declaratory judgment action under ORS chapter 28, challenging the constitutionality of the City of Roseburg’s “occult arts” ordinance. The trial court denied the city’s motion to dismiss the action for lack of a justiciable controversy and plaintiffs’ lack of standing. Plaintiffs and the City then each filed motions for summary judgment. The trial court denied plaintiffs’ motion, granted the City’s motion and entered a judgment upholding the constitutionality of the ordinance. Plaintiffs appeal the trial court’s grant of the City’s summary judgment motion, and the City cross-appeals the trial court’s denial of its motion to dismiss.

We do not reach the merits. Although the parties did not raise the issue, it is apparent from the record that plaintiffs failed to serve the Attorney General with a copy of the proceeding, as required by ORS 28.110.¹ Service on the Attorney General in an action seeking a declaration that an ordinance is unconstitutional is a jurisdictional condition precedent to the authority of the trial court to make a final disposition of the case. See Warren v. City of Canby, 56 Or App 230, 641 P2d 615 (1982).

Accordingly, we vacate the judgment and remand the case to the trial court with instructions to abate the proceedings until the Attorney General is served with a copy of the summons and complaint in this action.

Cite This Page — Counsel Stack

Bluebook (online)

651 P.2d 748, 59 Or. App. 558, 1982 Ore. App. LEXIS 3820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marks-v-city-of-roseburg-orctapp-1982.

Opinion

Related

Cite This Page — Counsel Stack