Utsey v. Coos County

32 P.3d 933, 176 Or. App. 524, 2001 Ore. App. LEXIS 1417

Opinions

LANDAU, J.

Intervenes, 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 conditional-use 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 opposed 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 P2d 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 US (Dall) 408, 1 L Ed 436 (1792); Marbury v. Madison, 5 US (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 US (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.” Henry P. Johnston ed, 3 The Correspondence and Public Papers of John Jay, 487 (1891). The Justices declined to provide the advice, on the ground that providing extrajudicial 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 LJ 816 (1969); Louis L. Jaffe, The Citizen as Litigant in Public Actions: The NonHohfeldian or Ideological Plaintiff, 116 U Pa L Rev 1033 (1968), although even those revisionists concede that at least Marbury plausibly supports the traditional view. See, e.g., Pushaw, 81 Cornell L Rev at 479.⁴ It is an interesting historiographical point, but ultimately an academic one. The important point is that the courts ultimately accepted the broader view.

Beginning in the early twentieth century, the federal courts began more explicitly to define the limits of the “judicial power” conferred under Article III. The early cases arose under the federal Declaratory Judgment Act. At least as early as 1911, in Muskrat v. United States, 219 US 346, 31 S Ct 250, 55 L Ed 246 (1911), the Supreme Court held that, although Congress may have enacted legislation authorizing individuals to seek a declaratory judgment from the courts, the judicial power conferred under the constitution permits courts to render such relief only in cases in which the parties have concrete and adverse interests in the outcome. See also Electric Bond Co. v. Comm’n, 303 US 419, 58 S Ct 678, 82 L Ed 936 (1938); Ashwander v. Valley Authority, 297 US 288, 324, 56 S Ct 466, 80 L Ed 688 (1936); New Jersey v. Sargent, 269 US 328, 46 S Ct 122, 70 L Ed 289 (1926).

Outside the context of the Declaratory Judgment Act, the Court invoked the same principle. In Massachusetts v. Mellon, 262 US 447, 43 S Ct 597, 67 L Ed 1078 (1923), the Court rejected a suit brought by a taxpayer to enjoin a federal spending program. The Court explained that

“[t]he party who invokes the [judicial] powermustbe able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”

Id. at 488. Similarly, in Ex Parte Levitt, 302 US 633, 58 S Ct 1, 82 L Ed 493 (1937), the Court rejected an individual’s standing to claim that Hugo Black was ineligible to serve on the Supreme Court. Citing Mellon, the Court explained:

“It is an established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.”

Id. at 634.

The Court justified its reliance on the doctrine of justiciability by reference to the intentions of the framers of the constitution. Perhaps most famous in that regard is Justice Frankfurter’s concurring opinion in Coleman v. Miller, 307 US 433, 59 S Ct 972, 83 L Ed 1385 (1939), in which he explicitly invoked Hayburn’s Case and the Correspondence of the Justices in support of the principle that the judicial power may be invoked only by one with a concrete stake in the outcome of a decision. Id. at 462-64 (Frankfurter, J., concurring).

To be sure, the Court flirted, at least briefly, with the notion that Mellon and its progeny were wrong. Flast v. Cohen, 392 US 83, 88 S Ct 1942, 20 L Ed 2d 947 (1968), in fact, expressly questioned Mellon. But more recently, Flast itself has been questioned, and the Supreme Court now consistently relies on Mellon, Levitt, and the historical justification articulated by Justice Frankfurter in Coleman. See, e.g., Valley Forge College v. Americans United, 454 US 464, 480-81, 102 S Ct 752, 70 L Ed 2d 700 (1982) (relying on Mellon and limiting Flast to a narrow “exception” to the concrete injury requirement); Schlesinger v. Reservists to Stop the War, 418 US 208, 220, 94 S Ct 2925, 41 L Ed 2d 706 (1974) (recognizing the “continued vitality” of Levitt and Mellon).

More recent cases have even recognized additional aspects of justiciability that are not necessarily required by the federal constitution. As a result, under current federal law, justiciability involves two layers of limitations. First, there are the traditional constitutional limitations, which amount to “the immutable requirements of Article III.” Bennett v. Spear, 520 US 154, 162, 117 S Ct 1154, 137 L Ed 2d 281 (1997). Those constitutional limitations include the “standing” requirement, now composed of three distinct parts:

“[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be ‘fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ”

Lujan v. Defenders of Wildlife, 504 US 555, 560-61, 112 S Ct 2130, 119 L Ed 2d 351 (1992) (citations omitted). The “irreducible constitutional minimum” is just that. It cannot be abrogated or modified by legislation. Bennett, 520 US at 162. For example, Congress may enact a “citizen suit” provision authorizing any person to seek enforcement of a statute, but, as the Court has made clear, “Article] Ill’s requirement remains: the plaintiff still must allege a distinct and palpable injury to himself.” Worth v. Seldin, 422 US 490, 501, 95 S Ct 2197, 45 L Ed 2d 343 (1975).⁵

Second, in addition to the traditional, constitutional limitations, the federal courts have created “prudential” limitations that amount to “self-imposed limits on the exercise of federal jurisdiction.” Allen v. Wright, 468 US 737, 751, 104 S Ct 3315, 82 L Ed 2d 556 (1984). For example, federal courts often conclude that, although a plaintiff has “standing” in the constitutional sense, they will not exercise jurisdiction because the plaintiffs grievance does not fall within “the zone of interests” protected by the statutory provision invoked in the suit. Id. Unlike their constitutional counterparts, the prudential limitations are subject to legislative modification; thus, to return to the example, Congress could determine that satisfaction of a zone of interest requirement is not required, and the courts would be obligated to hear the case if it otherwise complied with constitutional limitations. Bennett, 520 US at 154.⁶

Oregon justiciability doctrine followed a similar path of development. As we have noted, the Oregon Constitution does not expressly mention justiciability, much less standing. It does, however, confer on the courts the “judicial power.” The question is what the framers likely intended that to mean. Priest, 314 Or at 415-16. In light of the case law that existed up to the adoption of the original Article VII in 1857— and even the amended version in 1910 — it is likely that the framers would have understood the judicial power to conform to the limited, private rights model of adjudication that is reflected in early federal cases such as Marbury (“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.”), 5 US , and state decisions such as Doolittle (“No private person or number of persons, can assume to be the champions of the community, and in its behalf challenge the public officers to meet them in the courts of justice to defend their official acts.”), 16 How Pr at 520, and Bigelow (“To preserve and enforce the rights of persons, as individuals, and not as members of the community at large, is the very object of all suits, both at law and in equity.”), 14 Conn at 578.

Early cases reflect that reading of the state constitution. Indeed, the Oregon courts began by simply adopting existing federal law. As in the case of the federal decisions, Oregon courts first addressed the issue of justiciability in the declaratory judgment context. The leading case is Oregon Cry. Mfgs. Ass’n v. White, 159 Or 99, 78 P2d 572 (1938), in which the plaintiffs, dairy processors and distributors challenged the constitutionality of the Oregon Agricultural Marketing Act, which had not yet been applied to them. The court held that the matter was not justiciable. Notwithstanding that the plaintiffs had brought their suit under the declaratory judgment statute, the court held, the judicial power conferred by the Oregon Constitution permits courts to grant relief only when the party seeking it presents a justiciable controversy. The plaintiffs argued that their difference of opinion with the Department of Agriculture as to the constitutionality of the statute sufficed. The court disagreed: “Courts * * * insist upon an actual controversy — not a mere difference of opinion concerning the validity of a statute— before jurisdiction will be assumed.” Id. at 111. The court quoted from and relied on such federal decisions as Electric Bond Co. and New Jersey u. Sargent and, like those federal decisions, explicitly set its decision on constitutional footing. Oregon Cry. Mfgs. Ass’n, 159 Or at 109. According to the court, the “judicial power” conferred by the Oregon Constitution simply does not include rendering an advisory opinion that will have no practical effect on the party invoking the court’s jurisdiction. Id.

Similarly, in Eacret et ux v. Holmes, 215 Or 121, 333 P2d 741 (1958), the plaintiffs, the parents of a murder victim, sought a declaration that the Governor lacked authority to commute the murderer’s death sentence. The court upheld the dismissal of the suit for want of a justiciable controversy:

“It must be at once apparent that the plaintiffs have no standing to maintain this suit. The wrong of which they complain — if there be a wrong — is public in character. The complaint discloses no special injury affecting the plaintiffs differently from other citizens.

“* * * No right, status, or legal relation of the plaintiffs is involved, and no legal interest of theirs will be affected by the action of the Governor. There is no case for declaratory relief where the ‘plaintiff seeks merely to vindicate a public right to have the laws of the state properly enforced and administered.’ The plaintiffs have a difference of opinion with the Governor, but that does not of itself make a justiciable controversy.”

Id. at 124-25 (citation omitted).

Much like their federal court counterparts, the Oregon opinions on the issue of justiciability became rather muddled beginning in the 1960s. In one case, for example, the Oregon Supreme Court held that — contrary to prior case law — justiciability is not a jurisdictional matter and may be freely waived by the parties. Dickman v. School Dist. 62 C, 232 Or 238, 245, 366 P2d 533 (1962). But a few years later, in Cummings Constr. v. School Dist. No. 9, 242 Or 106, 408 P2d 80 (1965), the court reverted to prior case law — expressly invoking federal case law — and held that justiciability is required as a predicate to the constitutional exercise of judicial power.⁷ See also Gortmaker v. Seaton, 252 Or 440, 442-43, 450 P2d 547 (1969) (constitutional exercise of judicial power requires justiciable controversy). In another case, the Supreme Court — again, contrary to both prior and later case law — attempted to set the justiciability requirements in declaratory judgment actions on purely statutory grounds. Eckles v. State of Oregon, 306 Or 380, 383-84, 760 P2d 846 (1988). Indeed, in the same case, the court relied on decisions holding that the justiciability requirements exist as a matter of constitutional law. Id.

Further complicating matters, decisions during this period, while on the one hand attempting to place standing on purely statutory grounds, on the other hand still left open the possibility that the constitution places limits on the legislature’s authority to grant standing. In Marbet v. Portland Gen. Elect., 277 Or 447, 457 n 4, 561 P2d 154 (1977), for example, the court confronted the question whether a petitioner satisfied the standing requirements of the Administrative Procedures Act (APA), ORS 183.480, commenting in a footnote that “[i]t is not contended here that the standing conferred by ORS 183.480 exceeds ‘the judicial power of the state.’ ”

Part of the problem appears to have been one of vocabulary, in particular, the use of the term “standing.”⁸ As the Supreme Court itself observed of its own cases, “[o]ur own treatment of the principle is not without ambiguity.” Oregon Medical Assn. v. Rawls, 276 Or 1101, 1105-06, 557 P2d 664 (1977). Borrowing from federal cases, the court sometimes used the term “standing” to refer to the aspect of justiciability that requires a plaintiff or an appellant to have a concrete stake in the outcome of a proceeding. See, e.g., Gortmaker, 252 Or at 443; Ore. Newspaper Pub. v. Peterson, 244 Or 116, 120-21, 415 P2d 21 (1966). But in other cases, the court attempted to circumscribe the term more narrowly to refer solely to the legislative determination of who may seek review of specific governmental actions. See, e.g., Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or 591, 609 n 8, 601 P2d 769 (1979).

The problem haunts Oregon appellate court decisions to this day. More recent decisions sometimes employ the broader, more traditional use of the term as generally referring to “the right to obtain an adjudication.” See, e.g., Eckles, 306 Or at 383; Poddar v. Clatsop County, 167 Or App 162, 168, 2 P3d 929, on recons 168 Or App 556, 7 P3d 677, rev den 331 Or 193 (2000). Others employ the term in the narrower sense of the legislatively imposed limitations on access to judicial remedy. See, e.g., Local No. 290 v. Dept. of Environ. Quality, 323 Or 559, 564, 919 P2d 1168 (1996); Associated Builders and Contractors v. Tri-Met, 170 Or App 271, 275-76, 12 P3d 62 (2000).

By the beginning of the last decade, however, the Oregon courts settled on a justiciability analysis that— regardless of inconsistencies in terminology — in substance has been applied consistently ever since. In People for Ethical Treatment v. Inst. Animal Care, 312 Or 95, 817 P2d 1299 (1991), the court determined that an association lacked standing to challenge a University of Oregon order approving research on the auditory system of barn owls. The court began by noting that

“aside from certain constitutional considerations not presented by this case, a reviewing court’s inquiry into the standing of an entity seeking judicial review is confined to an interpretation of legislative intent.”

Id. at 99 (emphasis added). The court then held that the association failed to satisfy the statutory standing requirements of the APA, ORS 183.480, because it could not demonstrate “a personal stake in the outcome.” Id. at 100-03. Because the court concluded that the association had failed to satisfy the statutory standing requirements of the APA, it did not need to address any “constitutional considerations.” The decision thus signaled a return to the court’s earlier practical effects jurisprudence. Indeed, in every subsequent case, the court has held explicitly that justiciability includes the requirement that “the court’s decision in the matter will have some practical effect on the rights of the parties.” Brumnett v. PSRB, 315 Or 402, 848 P2d 1194 (1993); see also Hamel v. Johnson, 330 Or 180, 184, 998 P2d 661, on remand 169 Or App 216, 9 P3d 719 (2000), on recons 173 Or App 448, 25 P3d 314 (2001) (“A court’s decision on a matter must have some practical effect on the rights of the parties to the controversy.”); Mclntire v. Forbes, 322 Or 426, 433, 909 P2d 846 (1996) (a justiciable controversy exists when the court’s decision in the matter will have some practical effects on the rights of the parties to the controversy); Barcik v. Kubiaczyk, 321 Or 174, 182, 895 P2d 765 (1995) (same); Joint Council of Teamsters #37 v. BOLI, 168 Or App 398, 407, 11 P3d 247, rev den 331 Or 429 (2000) (justiciability involves two-part inquiry: whether the parties are adverse and “whether the court’s decision will have a practical effect on the rights of the parties”); Baty v. Slater, 161 Or App 653, 656, 984 P2d 342 (1999), on recons 164 Or App 779, 984 P2d 342, rev den 331 Or 191 (2000) (a justiciable controversy exists when “the court’s decision in the matter will have some practical effect on the rights of the parties”); Barnes v. Thompson, 159 Or App 383, 386, 977 P2d 431, rev den 329 Or 447 (1999) (same); State v. Lavitsky, 158 Or App 660, 663, 976 P2d 82 (1999) (same).

The courts have held that this aspect of justiciability is so important that it must remain satisfied throughout the litigation, not just at the time of filing. Thus, if a claim is justiciable at the time of filing, but events transpire that later would deprive a court decision of a practical effect on the plaintiff or petitioner, the claim is no longer considered justiciable. It is “moot.” As the Supreme Court explained in Brumnett:

“Determining mootness is one part of the broader question of whether a justiciable controversy exists. Ajusticiable controversy must exist, for appellate courts may not ‘decide abstract, hypothetical or contingent questions.’

“A preliminary question related to whether a justiciable controversy exists is whether the interests of the parties to the action are adverse. * * *

“A second requirement for a justiciable controversy is that the court’s decision * * * will have some practical effect on the rights of the parties to the controversy.

“Cases that are otherwise justiciable, but in which a court’s decision no longer will have a practical effect on or concerning the rights of the parties, will be dismissed as moot.”

Brumnett, 315 Or at 405-06 (citations omitted). To say that a case is “moot,” in other words, is simply to say that a case that may once have been justiciable is no longer; conversely, to say that a case is not moot is simply to say that the court’s decision will have a practical effect on the rights of the parties. By definition, the mootness doctrine reaffirms the basic principle of justiciability that, at all times, the court’s decision must have a practical effect on the rights of the parties. See also Hamel, 330 Or at 184 (“Even if a case otherwise is justiciable, if the court’s decision ‘no longer will have a practical effect on or concerning the rights of the parties,’ then the matter will be dismissed as moot.”) (citation omitted); Barcik, 321 Or at 182 (“ ‘Cases that are otherwise justiciable, but in which a court’s decision no longer will have a practical effect on or concerning the rights of the parties,’ are moot.”) (citation omitted); State v. Macy, 320 Or 408, 412, 886 P2d 1010 (1994) (same); Lavitsky, 158 Or App at 663 (same); Jones v. Thompson, 156 Or App 226, 236, 968 P2d 380 (1998), rev den 330 Or 363 (2000) (same); Responsible Public Contracting Council, Inc. v. DAS, 153 Or App 96, 100, 956 P2d 993 (1998) (same).⁹

Two subsidiary questions emerge from the courts’ articulation of what justiciability requires: (1) What precisely does it mean to say that a decision must have “a practical effect” on the rights of the parties? And (2) to whom does the practical effects requirement apply?

We begin with the scope of the practical effects requirement. No prior decision defines its outer boundaries. Instead, the courts have contented themselves with offering examples of what suffices. See, e.g., Eckles, 306 Or at 385 (noting that, in prior cases, the court had held that justiciable interests included a present or foreseeable financial impact, an interference with the rights of voters, and an adverse impact on the users of a road). More often, the courts have defined a “practical effect on the rights of the parties” by what is not sufficient. See, e.g., Gruber v. Lincoln Hospital District, 285 Or 3, 8, 588 P2d 1281 (1979) (a taxpayer who alleged only an interest in the proper expenditure of public funds did not have standing to challenge the lawfulness of the expenditure).

Perhaps the one category of cases that the courts have most consistently held does not present a justiciable controversy is the simple assertion that another individual or government agency has violated the law. Without some demonstration that the challenged agency action will have a practical impact on the person challenging it, such a case amounts to no more than a request for an unconstitutional advisory opinion. The principle dates back at least to Oregon Cry. Mfgs. Ass’n, in which the Supreme Court held that “a mere difference of opinion concerning the validity of a statute” is insufficient to warrant a constitutional invocation of the judicial power. 159 Or at 99. Similarly, in Eacret, the court held that “[t]here is no case for declaratory relief where the ‘plaintiff seeks merely to vindicate a public right to have the laws of the state properly enforced and administered.’ ” 215 Or at 125 (citation omitted); see also Amer. F. of L. v. Bain, 165 Or 183, 215, 106 P2d 544 (1940) (“Mere difference of opinion as to the constitutionality of an act does not afford ground for invoking a judicial declaration having the effect of an adjudication.”).

Of more recent vintage is our decision in Poddar, in which the plaintiff alleged that the Board of County Commissioners for Clatsop County violated the law when it appointed individuals to various boards and service districts. 167 Or App 162. We held that the plaintiffs claims were not justiciable, because “[h]e has demonstrated only an abstract interest in the correct application of the county’s policies that he shares with every other member” of the public. Id. at 170. Similarly, in Erwin v. Oregon State Bar, 149 Or App 99, 941 P2d 1094 (1997), a lawyer sought to challenge the lawfulness of various state bar rules and practices. We upheld the dismissal of most of his claims on the ground that he had failed to demonstrate that the challenged rules or practices applied to him: “In each case, plaintiff failed to allege more than an abstract interest in the validity of the challenged laws.” Id. at 107. See also deParrie v. State of Oregon, 133 Or App 613, 617, 893 P2d 541 (1995) (the plaintiffs claim held not justiciable because “he [did] not demonstrate any ‘injury or other impact on a legally recognized interest beyond an abstract interest in the correct application or the validity of a law’ ” (quoting Budget Rent-A-Car v. Multnomah Co., 287 Or 93, 95, 597 P2d 1232 (1979)).

That leaves the question of to whom the practical effects requirement applies. On that question, the courts have been more categorical: To have standing, the person invoking the jurisdiction of the courts must establish that a decision would have a practical effect on him or her. As the Supreme Court declared in Gortmaker: “In order to have standing to maintain declaratory proceedings, one must allege a substantial interest in the matter in controversy.” Gortmaker, 252 Or at 443. It is not sufficient that the person against whom a proceeding is initiated might be affected by a judicial decision. Thus, for example, in Eacret, in which the parents of a murder victim challenged the authority of the Governor to commute a murderer’s sentence, a judicial decision clearly would have affected the authority of the Governor. The case nevertheless was dismissed because the parents could not satisfy the constitutional practical effects requirement. Eacret, 215 Or at 125. Similarly, in Poddar, a decision on the merits as to the authority of the county to make the challenged appointments certainly would have had a practical effect on the county. We nevertheless dismissed the case, because the plaintiff could not demonstrate that such a decision would practically affect him in any way. Poddar, 167 Or App at 170. Likewise, in Erwin, a decision on the merits concerning the validity of various rules of the Oregon State Bar clearly would have affected the Bar, yet we dismissed the plaintiff’s claims because he could not establish that such a decision would affect him. Erwin, 149 Or App at 107.

Thus far, we have described the origins and nature of the requirement that, for an individual to invoke the judicial power conferred under Article VII, there must be a justiciable controversy. There remains the question whether the legislature can abrogate or modify what the constitution requires. In that regard, we note that the Oregon courts apparently have chosen not to follow the federal courts in creating a two-tiered approach to justiciability, i.e., first, a constitutional threshold and second, a series of judicially created prudential considerations that the legislature may freely modify. Instead, the Oregon courts have described justiciability solely in constitutional terms. See, e.g., First Commerce of America v. Nimbus Center Assoc., 329 Or 199, 206, 986 P2d 556 (1999) (“under Article III, section 1, and Article VII (Amended), section 1, of the Oregon Constitution, the judicial power of the state vested in courts [is] limited to actual controversies between parties”) (citing Barcik, 321 Or at 188-89). That has significant implications, for, if indeed the justiciability conditions that the courts have imposed are constitutionally required for the exercise of the judicial power, it necessarily follows that the legislature cannot detract from those minimum requirements. In other words, if the “practical effects” requirement is truly a prerequisite to the constitutional exercise of the judicial power, the legislature cannot abrogate that requirement by statutory fiat.

That reasoning certainly comports with the historical concerns reflected in such early pronouncements as Hayburn’s Case, in which the justices held that the legislative branch is simply without constitutional authority to require the judicial branch to act outside the scope of authority conferred by the grant of “judicial power” in the constitution. That also is the position that the federal courts have taken, in holding that the constitutional components of justiciability amount to an “immutable” and “irreducible minimum.” E.g., Lujan, 504 US at 560-61.

Likewise, it is the course followed by the Oregon courts. The lead opinion in that regard is In re Ballot Title, 247 Or 488, 431 P2d 1 (1967). In that case, the legislature enacted a statute that required the Supreme Court to review all ballot titles prepared by the Attorney General, even those unchallenged by any voter. The court held that the statute amounted to an unconstitutional attempt to confer on the courts authority that exceeded the “judicial power.” Invoking the intentions of the framers of the federal constitution — in particular, those explained in Hayburn’s Case and the Correspondence of the Justices — the court explained:

“The first doctrine to evolve in this nation’s constitutional jurisprudence was that courts are limited to the exercise of the judicial function and should not and cannot render advisory opinions. When first required by Congress to act in a nonjudicial capacity, Chief Justice John Jay responded:

“ * * [U]nder the Constitution, the Government was divided into three “distinct and independent branches, and that it is the duty of each to abstain from and to oppose encroachment on either, that neither the Legislative nor the Executive branch can constitutionally assign to the Judicial any duties but such as are properly judicial, and to be performed in a judicial manner”; * * *.’ 1 Warren, The Supreme Court in United States History, p 70, referring in part to Hayburn’s Case, 2 US 408 (1792).

“A like request by President Washington received the same answer. Haines, The Role of the Supreme Court in American Government and Politics, 1789-1835,1944, pp 143-148. The doctrine became equally well-imbedded [sic] in the jurisprudence of the state courts.”

In re Ballot Title, 247 Or at 492. The court noted that, because the giving of advisory opinions is not a judicial function, any attempt legislatively to empower the courts to do so violates constitutional principles of the separation of powers. Id. at 494-95.

Oregon Medical Association v. Rawls, 281 Or 293, 574 P2d 1103 (1978), similarly holds that the legislature is without authority to alter the requirements of justiciability. In that case, the legislature enacted a statute providing a plan under which participating physicians could secure themselves against personal liability for professional negligence. Or Laws 1977, ch 269. The legislature further provided for “judicial examination and judgment” of the constitutionality of the enactment. Id. at § 11. The legislature declared that the state Insurance Commissioner, the Oregon Medical Association, and any other interested person could petition the Supreme Court for immediate review of the constitutionality of the statute. Id. Pursuant to that law, the Insurance Commissioner and the Oregon Medical Association petitioned the Supreme Court for review of the statute, both of them asserting that the statute was entirely constitutional. On its own motion, the Supreme Court dismissed the petition on the ground that it failed to present ajusticiable controversy. According to the court, a matter may not be “ ‘deemed’ a ‘justiciable controversy within the judicial power vested by [A]rticle VII ([A]mended).” Rawls, 281 Or at 300. Specifically, the court noted, the first of the two essential requirements of justiciability — adversity—was not present, and the requirement could not simply be waived by legislative fiat. Id. at 297-300.

To be sure, the precise holding of the case was that the legislature cannot waive the requirement of adversity, the first of the two components of justiciability. By parity of reasoning, however, the same rule must apply to the requirement of practical effects, the second of the two components, as well.

That the legislature cannot constitutionally confer authority on the courts to render opinions in the absence of a practical effect is borne out by the declaratory judgment cases that we have described above. In each case, the courts have held that the practical effects component must be satisfied regardless of the terms of the statute under which a plaintiff brings a claim. Thus, for example, in Cummings Constr., the Supreme Court noted that the declaratory judgment statute created a broad remedy by which individuals may obtain a judicial pronouncement on the validity or construction of an enactment. It then held:

“Despite this statute, courts do not have jurisdiction to entertain a declaratory judgment action requesting the interpretation of a statute or a declaration of one’s rights thereunder unless there is a ‘justiciable controversy’ between the parties.”

Cummings Constr., 242 Or at 109 (emphasis added) (quoting Oregon Cry. Mfgs. Ass’n, 159 Or at 111).

It bears emphasis that the declaratory judgment cases hold that the justiciability requirement exists as a matter of constitutional principle independent of what conditions the declaratory judgment act does or does not impose. As the Supreme Court noted in Barcik: “This court has applied the justiciability requirement to declaratory judgment actions for over fifty years and has noted the constitutional origins of that requirement.” 321 Or at 188 (citing Oregon Cry. Mfgs. Ass’n, 159 Or at 109); see also Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289 (1982) (“The court cannot exercise jurisdiction over a nonjusticiable controversy because in the absence of constitutional authority, the court cannot render advisory opinions.”). Thus, the fact that the cases arose under the declaratory judgment statute affords no basis for distinguishing them. Indeed, the court has expressly held that the rules of justiciability do not vary merely because a case arises under tbe declaratory judgment statute. See, e.g., Barcik, 321 Or at 188.

The independent constitutional basis of the practical effects requirement is further confirmed by the Supreme Court’s decision in Mclntire. In that case, the legislature enacted a statute that, among other things, partially funded a light-rail project, expanded the availability of card-lock service stations, regulated confined animal feeding, preempted local pesticide regulation, and adopted new timber harvesting rules. In the same statute, the legislature provided that any “interested person” may petition the Supreme Court for a determination of the constitutionality of such a wide-ranging enactment. Or Laws 1995, ch 3, § 18 (Spec Sess). The petitioners, two taxpayers, sought just such a determination, naming as the respondent the Director of the Department of Transportation. The Tri-County Metropolitan Transportation District of Oregon (Tri-Met), the regional entity responsible for the light-rail project, intervened and challenged the petition on grounds of statutory and constitutional standing. The court responded to the challenge by analyzing each issue separately.

The court began with the question whether the petitioners satisfied the statutory requirement that petitioners be “interested persons.” The court held that the petitioners were “interested” within the meaning of the statute, because upholding the statute would mean that the petitioners would have to pay property taxes to retire the general obligation bonds that Tri-Met would have to issue to pay for the light-rail project and because state funds would have to be diverted to help pay for the project, funds that would have gone to cities and counties in which the petitioners resided. Mclntire, 322 Or at 433-34.

Next, and separately, the court addressed whether — even though they satisfied the standing requirements of the statute — the petitioners also satisfied the justiciability requirements of the constitution. Citing Brumnett, the court began by noting the familiar two-part test of justiciability: that the parties be adverse and that a decision would have a practical effect. Mclntire, 322 Or at 433-34. The court quickly observed that the interests of the parties obviously were adverse. As for a practical effect of a decision on the merits, the court held that the facts that established that the parties were “interested” within the meaning of the statute also established a sufficient practical effect to satisfy the constitutional standard. Id. The court did not say that the petitioners’ claims were justiciable merely because they had statutory standing. To the contrary — consistent with its declaratory judgment decisions over the past six decades— the court independently examined the facts that established statutory standing to determine whether those facts also would be sufficient to establish the practical effects necessary to satisfy the constitution. Id.

In short, regardless of what the legislature provides regarding the standing of litigants to obtain judicial relief, the courts always must determine that the constitutional requirements of justiciability are satisfied. Any legislation conferring the authority to render an opinion in the absence of a practical effect on the party seeking relief, by definition, amounts to a conferral of authority to render an advisory opinion. And, as consistently manifested in a line of decisions tracing back over two centuries, such a conferral violates basic constitutional principles of the separation of powers.

With those principles in mind, we turn to the question whether the League presents a justiciable controversy in this case. As we noted at the outset of this opinion, the League submitted a letter to the county in opposition to the Lillies’ application. The letter did not identify what the League is, nor did it provide any explanation of the League’s interest in the application. It simply stated that the League opposed the application on the ground that approval would be unlawful. When the Lillies appealed to LUBA, the League moved to intervene. Once again, the League did not explain what it is or the nature of its interest in the application or how it would be affected by a decision on it one way or the other. The motion merely stated the fact of the League’s appearance before the county. On appeal, the League provides no additional information concerning its composition, its interest in the application, or any practical effect that a decision would have on its rights. It simply cites ORS 197.850(1) and ORS 197.830(2) and (7) and contends that the legislature’s conferral of statutory standing on any person without regard to any practical interest in the outcome suffices to create a justiciable controversy.

ORS 197.850(1) provides that “[a]ny party to a proceeding before the Land Use Board of Appeals * * * may seek judicial review of a final order issued in those proceedings.” ORS 197.830(2) provides that any person who “[a]ppeared before the local government * * * orally or in writing” may petition LUBA for review of a land use decision. ORS 197.830(7) provides that any person who has made such an appearance may intervene in such a review proceeding. Thus, as the League suggests, the statutes confer a right to seek judicial review of a land use decision without having to establish any particular interest in the decision itself. As long as a person has appeared before the local government, that person has the right to intervene in a LUBA review proceeding and the further right to seek review in court of LUBA’s decision. In this case, there is no question that the League appeared before the local government. The sole question is whether having satisfied that statutory requirement makes this case justiciable.

In light of the principles of justiciability that we have described, we cannot but conclude that the satisfaction of the statutory requirement alone is insufficient to establish the justiciability of the League’s petition.

To begin with, as we have observed, because the League is the sole party that has invoked the jurisdiction of this court, it is the League’s obligation to establish the justiciability of its claim. Gortmaker, 252 Or at 443. Moreover, to establish such justiciability, the League must demonstrate that a decision in this case will have a practical effect on its rights. Barcik, 321 Or at 182; Brumnett, 315 Or at 405-06. The League must do so regardless of what the statutes provide by way of conditions — or lack of conditions — on obtaining judicial review. The case law concerning the “practical effects” requirement clearly states that an abstract interest in the proper application of the law is not sufficient. Eacret, 215 Or at 125; Oregon Cry. Mfgs. Ass’n, 159 Or at 109; Poddar, 167 Or App at 170. In this case, the League’s only contention is that its disagreement with LUBA concerning the lawfulness of the approval of the Lillies’ application is sufficient. That is at odds with settled principles of justiciability.

The League insists that, by conferring on it the right to seek judicial review of LUBA’s decision, the legislature, in effect, has conferred on it a statutory right to vindicate the proper application of the state’s land use laws. In other words, the League argues, a decision in this case will have a practical effect on its rights because the legislature has conferred on it the right to request such a decision.

The argument is entirely circular. The legislature surely has the authority to confer rights. But it does not follow that the conferral of statutory rights necessarily creates a justiciable controversy. As the Ballot Title and Rawls decisions make clear, the legislature does not have the constitutional authority to confer the right to seek from the courts a decision in a nonjusticiable case. Conferring such a right would grant the courts authority not included in the “judicial power” conferred under Article VII (Amended) and thus run afoul of separation of powers principles.

In this case, the only right conferred by ORS 197.830 and ORS 197.850 is the right to seek judicial review of a local government decision without having to establish that the decision will affect the person seeking the review. That is nothing more than the conferral of the right to obtain an advisory opinion, which is beyond the authority of the legislature to grant. Thus, the right conferred by those statutes cannot constitutionally suffice to establish the justiciability of the League’s petition. The League relies on no other ground for its contention that its petition is justiciable. We must therefore conclude that the petition is nonjusticiable.

We turn, then, to the several dissenting opinions. Chief Judge Deits contends that the constitution simply does not impose a practical effects requirement. Judge Armstrong similarly contends that the practical effects requirement mentioned in the case law refers only to mootness, not to a constitutional standing requirement, and that no constitutional limitation constrains the legislature in conferring on litigants the right to seek judicial review of government action. Finally, Judge Brewer attempts to stake out a middle position, namely that, although the constitution imposes a practical effects requirement, the requirement is satisfied when the legislature confers standing on members of the public to challenge administrative agency actions. Each dissent takes a slightly different approach and warrants addressing separately. But before doing that, it is perhaps •instructive to observe that there is a common strategy employed by all of them. All begin by assuming the validity of the case law during the 1970s and 1980s — cases in which the courts attempted to articulate a distinctly different approach to justiciability, an approach, as we have endeavored to make clear, that cannot be reconciled with either earlier or subsequent decisions. They then work backwards from there, either by attempting to distinguish contrary cases on their facts or by declaring the contrary earlier and subsequent cases simply to be incorrect. None attempts to examine the case law as a whole, without a priori assumptions, in historical perspective, as required under Priest.

We begin with Chief Judge Deits’s dissent. Judge Deits begins by complaining that we apparently “believe [] that [our] conclusion is driven by federal, as well as Oregon, case law.” 176 Or App at 563. That is simply wrong. The result in this case is in no way driven by federal law. It is driven by a well-developed body of state constitutional jurisprudence. In des cribing the development of that body of state law, however, we have attempted to show that it has some roots — both in terms of history and vocabulary — in federal case law. In so doing, we have simply followed Oregon Supreme Court practice, which frequently resorts to an analysis of federal case law as the context within which Oregon constitutional interpretation has taken place. See, e.g., State v. Fugate, 332 Or 195, 210-15, 26 P3d 802 (2001) (describing federal ex post facto case law as historical context for proper understanding of Oregon ex post facto clause). In fact, that is precisely the approach the Supreme Court previously has taken in articulating the justiciability requirements of Article VII (Amended) of the Oregon Constitution. See, e.g., In re Ballot Title, 247 Or at 492 (describing development of federal justiciability doctrine as context for Oregon justiciability analysis).

Judge Deits then moves to the heart of her thesis, that is, that the constitution simply does not require that the party seeking to invoke the judicial power must establish that a judicial decision will have a practical effect on his or her rights. According to Judge Deits, the imposition of an effects requirement is purely a matter of statute. In support of that thesis, Judge Deits places primary reliance on Eckles. She acknowledges that there is language in the case law to the contrary, in particular, in People for Ethical Treatment and Marbet. 176 Or App at 566 n 2. She simply concludes that such language is wrong. Instead, she suggests, we should understand any prior decisions concerning a practical effects requirement as pertaining solely to mootness. 176 Or App at 564.¹⁰

With respect, Judge Deits’s dissent reflects a misapprehension of the relationship between justiciability and mootness. As we have noted, the Supreme Court repeatedly has instructed that justiciability requires that a party invoking the judicial power must be able to establish that a decision will have a practical effect on his or her rights. Mootness merely refers to the temporal aspect of that essential requirement of justiciability. It refers to the requirement that the person invoking the courts’ authority be able to establish that practical effect at all times during the course of the litigation. If at any time the party invoking the authority of the courts cannot make that showing, the case has become moot. Thus, by definition, the mootness requirement reaffirms the basic requirement of justiciability that the party invoking the courts’ authority must be able to establish the requisite practical effect. Indeed, it is impossible to establish that a case is not moot without showing that it will have a practical effect on the rights of the parties. Brumnett, 315 Or at 405-06.

Judge Deits further asserts that in none of the decisions that we have canvassed has this court or the Supreme Court dismissed the case because of a failure to satisfy the practical effects requirement. 176 Or App at 568. That, too, is incorrect. As we have noted, Eacret, Bain, Poddar, Erwin, and deParrie — among others — are squarely to the contrary. In each, the courts dismissed not because of mootness or ripeness or adversity problems, but because the plaintiffs’ abstract disagreement with a challenged decision was held insufficient to satisfy the constitutional practical effects requirement.

Judge Deits suggests that the parties’ abstract disagreement was insufficient in those cases because the legislature had not statutorily conferred the right to seek the relief that they requested. Once again, that is incorrect. In each of those cases, the plaintiffs sought judicial relief conferred by the Declaratory Judgment Act. Notwithstanding the conferral of that statutory right to seek relief, the courts have repeatedly confirmed that the constitution requires satisfaction of a practical effects requirement. See, e.g., Barcik, 321 Or at 188 (noting the constitutional origins of practical effects test in declaratory judgment cases); Cummings Constr., 242 (requiring satisfaction of justiciability requirements in declaratory judgment cases “despite this statute”).

Finally, in a footnote, Judge Deits complains that our opinion “may also implicate separation of powers considerations.” 176 Or App at 565 n 1. According to Judge Deits, the power to define the rights that parties may seek to protect through the judicial process properly is part of the legislative power. Let there be no misunderstanding. Our opinion does not merely implicate separation of powers considerations. It is directly driven by separation of powers concerns. As we have been at pains to demonstrate, it is separation of powers considerations that have provided the principal underpinning for the creation of justiciability doctrine generally and the practical effects requirement particularly. Although it certainly is the legislature’s constitutional prerogative to create rights, the creation of those rights cannot call upon the judiciary to exercise power that has not been conferred by Article VII (Amended) of the constitution. That is precisely what would happen under Judge Deits’s conception of justiciability.

Judge Armstrong strikes a similar note in contending that, although the constitution may impose certain justiciability requirements, in no case has any court “suggested that there are constitutional limits on the choices to be made by the legislature and the courts concerning the content of those requirements.” 176 Or App at 576 (emphasis in original). Invoking separation of powers concerns, he contends that:

“Nothing about the nature of the judicial power suggests to me that the Oregon Constitution prevents the courts or the legislature from implicitly recognizing interests * * * by giving people a broad right to challenge governmental actions, so long as doing so does not substantially impair the ability of courts to adjudicate cases.”

176 Or App at 578. In a footnote, he elaborates:

“The qualifying language in that statement recognizes that the separation-of-powers principle embodied in the Oregon Constitution prevents one branch of government from taking actions that substantially impair the ability of another branch to perform the functions that the constitution has assigned to it. Nothing suggests that the grant of standing at issue in this case could conceivably impair the ability of courts to perform their adjudicatory role.”

176 Or App at 578 n 8 (citation omitted).

Judge Armstrong’s analysis is predicated on a misapprehension of Oregon separation of powers analysis. Article III, section 1, of the Oregon Constitution, certainly does prohibit the legislature from enacting legislation that would have the effect of impairing the judiciary from carrying out its constitutional functions. But that is not all that it prohibits. It also prohibits one branch of government from exercising the functions committed to another branch. See generally Roy Pulvers, Separation of Powers Under the Oregon Constitution: A User’s Guide, 75 Or L Rev 443, 448 (1996). More to the point: It prohibits the legislature from conferring on the judiciary the power to perform a nonjudicial function. See In re Ballot Title, 247 Or at 491-92, 495 (declaring statute unconstitutional because it “seeks to have the court perform a nonjudicial function, contrary to the prohibition of Art III, § 1”); see also Rooney v. Kulongoski (Elections Division # 13), 322 Or 15, 25-26, 902 P2d 1143 (1995) (Article III, section 1, prohibits legislature from assigning to judiciary nonjudicial functions). That is the constitutional infirmity of a statute that purports to grant to the courts the power to entertain a petition for judicial review by a petitioner who would be unaffected by a judicial decision. It is, in effect, an advisory opinion, unconstitutional under Article III, section 1. Thus, contrary to Judge Armstrong’s suggestion, there are indeed constitutional limits to what the legislature can do in the way of authorizing a petitioner to invoke the judicial power.

Judge Armstrong rejoins that, in fact, permitting any litigant to seek judicial review of government action would not require the courts to issue advisory opinions. He arrives at that conclusion by simply redefining what amounts to an advisory opinion. According to Judge Armstrong, the constitution requires only that there be a dispute between contestants and that the court can grant “relief’ regarding the dispute. By “relief,” Judge Armstrong apparently refers to the ability of the court to answer the legal question posed by the parties. He suggests that nothing in the constitution would preclude the legislature or the courts from permitting any person from challenging any government action, regardless of whether that person would be affected by it.¹¹

Judge Armstrong thus presumes that there simply is no practical effects requirement in the first place. That much assumed, he finds it easy to declare unobjectionable legislation that confers standing on anyone in virtually any case without regard to practical effects. The problem is that his premise is without foundation. There is, indeed, a practical effects requirement, as we have attempted to demonstrate in some detail. Because there is such a constitutional requirement, it necessarily follows that the legislature cannot constitutionally eliminate it.

Judge Armstrong in fact appears to concede that much. While on the one hand asserting that the legislature may “adjust the content” of the elements of justiciability, on the other hand, he acknowledges that there are limits:

“I do not mean to imply that the freedom to adjust the content of those elements is truly limitless. An adjustment to an element that has the effect of eliminating it is not permitted.”

176 Or App at 576 n 3 (emphasis added). That is precisely the problem in this case. The statute on which the League relies completely eliminates any requirement that a party seeking judicial relief must establish that such relief will have a practical effect on his or her rights.

We turn to Judge Brewer’s dissent. Unlike Judges Deits and Armstrong, Judge Brewer agrees that, to invoke the judicial power, litigants must establish that a decision will have a practical effect on their rights. He nevertheless insists that, in this case, the League has demonstrated the required practical effect. He reaches that conclusion by declaring that cases involving challenges to the lawfulness of administrative agency actions are different. According to Judge Brewer, where the legislature has conferred on a member of the public the right to challenge administrative agency action, the practical effects requirement has been satisfied by legislative act. In making that argument, he cautions that “[i]t is essential to remember that this case is not a private dispute between private parties.” 176 Or App at 586. To Judge Brewer, the fact that this case involves a challenge to an action of an administrative agency is the key to the proper disposition of the question of the justiciability of this case.

Why the legislature may simply declare that a justiciability requirement has been satisfied in some cases, but not in others, Judge Brewer never explains. He does emphasize that the legislative conferral of standing in this case is part of a comprehensive statutory program of land use enforcement. But that does not explain the source of the legislature’s authority to eliminate a requirement of justiciability that he concedes otherwise is required. Indeed, if anything, in cases in which the courts are called upon to invalidate an action of an agency of another branch, separation of powers concerns would counsel a heightened sensitivity to the requirements of justiciability, not a relaxation of those requirements. As the Supreme Court cautioned in Oregon Cry. Mfgs. Ass’n after describing the importance of courts not issuing opinions in the absence of a concrete controversy, “ [particularly should this be so when a court is asked to declare that a co-ordinate branch of the government has exceeded its power.” Oregon Creamery, 159 Or at 109.

Judge Brewer also emphasizes the importance of permitting the legislature to ensure that agency actions of significant “public interest” or “public concern” be subject to judicial review. The Oregon courts, however, consistently have ruled that the rules of justiciability do not vary with the public importance of the issues involved. See, e.g., Barcik, 321 Or at 188-89 (rejecting “public importance” exception to mootness doctrine); Rawls, 281 Or at 301 (rule against issuing advisory opinions is not subject to a “great public importance” exception).

Judge Brewer claims support for his distinction between private disputes and judicial review of agency actions in the Supreme Court’s decision in Marbet. According to Judge Brewer, in that case, the court held that standing “depended on the intervenor’s representation of the public interest in a matter of public concern, not on the intervenor’s personal stake in the decision.” 176 Or App at 587. Judge Brewer reasons that, because that case involved judicial review of agency action, the court must have at least implicitly held that the rules of justiciability are different in such cases.

The problem with that reading of the decision is that it ignores the fact that the court did not address standing as a constitutional issue. It addressed the extent to which the intervenors satisfied the standing requirements that applied under the APA. Indeed, the court expressly disclaimed any opinion on the question whether “the standing conferred by ORS 183.480 exceeds ‘the judicial power of the state’ ” conferred by Article VII (Amended). Marbet, 277 Or at 457 n 4. If, as Judge Brewer suggests, the legislative conferral of standing was sufficient, there was no constitutional issue for the court to reserve for another day, and its disclaimer makes no sense. To the contrary, as we noted in our discussion of People for Ethical Treatment, the court has not determined that a legislative conferral of standing, by itself, suffices. In that case — an administrative agency action case — the court declared that,

“aside from certain constitutional considerations not presented by this case, a reviewing court’s inquiry into the standing of an entity seeking judicial review is confined to an interpretation of legislative intent.”

312 Or at 99. Plainly, the legislative conferral of standing is not, by itself, sufficient, even in administrative agency action disputes.

Somewhat surprisingly, Judge Brewer claims that People for Ethical Treatment supports his view of justiciability. He acknowledges that the court held that the petitioner in that case lacked standing because it failed to satisfy the standing requirements of the APA, not the constitution. He nevertheless insists that the court’s construction has some constitutional significance, because if it did not, the court should have sua sponte dismissed for lack of standing on constitutional grounds. 176 Or App at 592 n 6.

We respectfully disagree. In addressing the statutory question first, the court merely followed the familiar “first things first” methodology that always requires consideration of nonconstitutional arguments before constitutional ones. See, e.g., State v. Moylett, 313 Or 540, 545, 836 P2d 1329 (1992) (“All issues should first be addressed on a subconstitutional level.”). By resolving the case at the statutory level, the court in People for Ethical Treatment appropriately avoided even addressing the issue of whether the association could have satisfied the constitutional requirements of justiciability. The decision provides no support for the suggestion that, while the constitutional practical effects requirement applies in all other cases, it does not in cases involving administrative agency actions.

Going on the offensive, Judge Brewer contends that there is no language in either Article III or Article VII (Amended) that imposes a limit on the legislature’s authority to confer standing on anyone it pleases. 176 Or App at 588.¹² Strictly speaking, that is correct. As we observed early in this opinion, there is nothing in the Oregon Constitution that speaks directly to the subject of justiciability, much less to ripeness, mootness, standing, or adversity. Yet from the reference in the constitution to the authority of the courts to exercise only the “judicial power,” the courts have created doctrines concerning each. What is more, on the basis of that language and the principles that it reflects, the courts have articulated limits on the authority of the legislature to enact statutes that confer on the courts power that is not contained in the “judicial power.” Thus, in Rawls and Ballot Title, the Supreme Court emphatically held that the legislature lacks the constitutional authority to confer the right to seek from the courts a decision in a nonjusticiable case.

Judge Brewer insists that those cases are distinguishable, because they involved different elements of justiciability than the practical effects element that is at issue in this case. 176 Or App at 585 n 1. But if the practical effects requirement is indeed a constitutional requirement — as Judge Brewer expressly acknowledges — we perceive no principled basis for treating that element differently. Just as the legislature cannot simply declare that the elements of ripeness, mootness, and adversity have been satisfied, it necessarily follows that the legislature likewise cannot simply declare — in administrative agency actions or any other case — that the practical effects element has been satisfied.

We therefore reject the contentions of the League and the dissenting opinions and conclude that the League has failed to demonstrate the justiciability of its petition.

Dismissed.

Footnotes

1

The rule that courts will not render judgment in the absence of an immediate or threatened injury to the plaintiff actually is much older, having roots in the English common law. See, e.g., James E. Radcliffe, The Case-or-Controversy Provision at 202 (1978); Eric B. Schnurer, Note, “More than an Intuition, Less than a Theory”: Toward a Coherent Doctrine of Standing, 86 Colum L Rev 564,570 (1986). The New York Court of Appeals, for example, has noted that “the principle that only proper parties will be allowed to maintain claims is an ancient one, long predating the Federal Constitution.” The Society of the Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761, 772, 573 NE2d 1034 (1991). See also Doolittle v. Board of Supervisors of Broome, 16 How Pr 512, 520 (1858) (“No private person or number of persons can assume to be the champions of the community, and in its behalf challenge the public officers to meet them in the courts of justice to defend their official acts.”); Bigelow v. The Hartford Bridge Co., 14 Conn 565, 578 (1842) (“To preserve and enforce the rights of persons, as individuals, and not as members of the community at large, is the very object of all suits, both at law and in equity.”).

2

Also occasionally cited is a reference in Madison’s notes from the Constitutional Convention that the jurisdiction of Article III courts “was constructively limited to cases of a Judiciary nature.” 2 The Records of the Federal Convention of 1787 at 430 (Max Farrand ed 1911). See generally Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 Cornell L Rev 393, 426 (1996).

3

In response to the circuit judges’ opinions, Attorney General Edmond Randolph asked the Supreme Court to issue a writ of mandamus ordering the circuit courts to act under the statute. Randolph acted without a client, filing the motion solely in his official capacity. The Court responded by asking him whether he had the right to ask the Court for any relief. Randolph argued that he had the right to request relief merely because he was Attorney General. The Court rejected his argument by a 3-3 vote. Randolph then appeared as counsel for Hayburn, at which point the Court decided to take up the mandamus petition. As a result, the case frequently has been cited as a progenitor of modern standing doctrine. See, e.g., University of California Regents v. Bakke, 438 US 265, 410, 98 S Ct 2733, 57 L Ed 2d 750 (1978) (Stevens, J., dissenting in part); Anti-Fascist Committee v. McGrath, 341 US 123, 150, 71 S Ct 624, 95 L Ed 817 (1951) (Frankfurter, J., concurring); Rochester Tel. Corp. v. United States, 307 US 125, 131 n 9, 59 S Ct 754, 83 L Ed 1147 (1939). More recent scholarship — based on an examination of the justices’ notes — suggests that the Court may not have intended such a broad reading of the decision. See generally Maeva Marcus and Robert Teir, Hayburn’s Case: A Misinterpretation of Precedent, 1988 Wise L Rev 527. That, however, has not stopped the Court from continuing to cite the case as authority for the proposition that federal courts lack constitutional authority to issue advisory opinions. See, e.g., Steel Co. v. Citizens for Better Environment, 523 US 83, 101, 118S Ct 1003, 140 L Ed 2d 210 (1998).

4

The argument that Marbury cannot be read to endorse a more limited view of the judicial power generally involves concluding that the case cannot be taken to mean what it says, given that Marshall used it to deliver an essentially gratuitous, advisory opinion. See, e.g., Martin H. Redish, The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory at 91 (1991) (“although there can be little dispute about the facial import of the above-quoted passages, it is quite conceivable that Marshall’s words should not be taken at face value”); Pushaw, 81 Cornell L Rev at 479 (reliance on Marbury as authority for limited judicial power “is ironic because Marshall actually issued a gratuitous political broadside against the President”).

5

The Supreme Court typically invokes separation of powers principles to justify the rule that the legislative branch cannot confer on individuals the right to vindicate the public interest in court in the absence of a personal stake in the outcome:

“Whether the courts were to act on their own, or at the invitation of Congress, in ignoring the concrete injury requirement * * *, they would be discarding a principle fundamental to the separate and distinct constitutional role of the Third Branch. * * * ‘The province of the court,’ as Chief Justice Marshall said in Marbury u. Madison, ‘is solely to decide on the rights of individuals.’ Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of Congress and the Chief Executive.”

Lujan, 504 US at 576 (emphasis in original; citations omitted); see also Allen v. Wright, 468 US 737, 752, 104 S Ct 3315, 82 L Ed 2d 556 (1984) (“the law of * * * standing is built on a single basic idea — the idea of separation of powers”).

6

The more recent of the Supreme Court’s standing cases have generated quite a bit of controversy in academic circles. Lujan, in which the Court expressly held that Congress cannot confer standing on individuals who cannot satisfy the constitutional injury requirement, has been singled out for especially searching criticism. Nearly all of Lujan’s critics, however, attack the Court’s premise that there is an injury requirement in the first place, not the Court’s conclusion that, if such a requirement exists as a matter of constitutional law, Congress cannot abrogate it. See, e.g., Cass R. Sunstein, What’s Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich L Rev 163 (1992). Some critics of the injury requirement of federal standing doctrine contend that it is not supported by the historical record, see, e.g., Berger, 78 Yale LJ at 839, although there is no scholarly consensus on the point, see, e.g., Bradley S. Clanton, Standing and the English Prerogative Writs: The Original Understanding, 63 Brook L Rev 1001 (1997), which even critics acknowledge, see, e.g., Gene R. Nichol, The Impossibility of Lujan’s Project, 11 Duke Envtl L & Pol’y F193,199 (2001). Others suggest that, regardless of what the framers may have intended, justiciability is simply a social construction that reflects inevitable policy choices, and so courts should feel free to adopt a more “public rights” oriented model of adjudication developed in academic literature during the 1970s. See, e.g., Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv L Rev 1833,1841-42 (2001). The academic response to the Supreme Court’s standing jurisprudence, however, has been far from unanimous. Others suggest that the Court’s recent decisions, including Lujan, are supported by history, logic, and democratic theory. See, e.g., John G. Roberts, Jr., Article III Limits on Statutory Standing, 42 Duke LJ 1219 (1993); Harold J. Krent and Ethan G. Shenkman, Of Citizen Suits and Citizen Sunstein, 91 Mich L Rev 1793 (1993).

7

The court held:

“[CJourts do not have jurisdiction to entertain a declaratory judgment action * * * unless there is a ‘justiciable controversy’ between the parties. Neither can the parties confer jurisdiction upon the courts by stipulation in the absence of a justiciable controversy.”

Id. at 109-10 (citation omitted).

Interestingly, notwithstanding the declaration in Cummings Constr. that justiciability cannot be conferred by stipulation, in Lipscomb v. State Bd. of Higher Ed., 305 Or 472, 753 P2d 939 (1988), the court permitted the parties to do just that. The plaintiffs challenged the line-item veto authority of the Governor. They alleged as their interest in the outcome the fact that the Governor already unlawfully had vetoed provisions in bills that cost Oregon taxpayers over $85,000. The court noted that “[ajlthough the complaint did not allege the tax impact on these plaintiffs, and they are not entitled to rely on the cumulative cost to all ‘taxpayers of the State of Oregon,’ ” it was not necessary to address the question of justiciability, because the “defendants have accepted the allegation as adequate.” Id. at 476. Even more interesting, later that same year, in Eckles v. State of Oregon, 306 Or 380, 385, 760 P2d (1988), the Supreme Court characterized the holding of Lipscomb as establishing the sufficiency of an allegation of a plaintiffs “present or foreseeable financial interest,” when Lipscomb said nothing of the sort.

8

The use of the term “standing” as an aspect of justiciability actually is a fairly modern development. Originally, the term was used to refer to the extent to which a party had a claim on the merits. Thus, for example, the courts would determine whether a plaintiff could “maintain a stand in a court of equity.” City of Georgetown v. The Alexandria Canal Company, 37 US (12 Pet) 91, 99 (1838). See generally Steven L. Winter, The Metaphor of Standing and the Problem of Self-Governance, 40 Stan L Rev 1371,1418-52 (1988) (describing the history of the use of the term).

9

As Professor Henry P. Monaghan put it, mootness is “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale LJ 1363, 1384 (1973).

10

Judge Deits has a particularly difficult time distinguishing Mclntire. She suggests that the decision “is admittedly somewhat confusing.” 176 Or App at 569. She insists, however, that the court’s discussion of the practical effects really “is about mootness and only about mootness.” Id. To begin with, as we have explained, there is no way to demonstrate that a case is not moot without demonstrating that a decision will have a practical effect on the party invoking the authority of the court. Thus, to say that Mclntire “is about mootness” is simply to disagree about labels.

But, even assuming the apparently narrower understanding of mootness that Judge Deits employs, her reading of Mclntire does not withstand scrutiny. The plaintiffs in Mclntire had brought their challenge before the federal government had committed funds on which the operation of the challenged statute was made contingent. There certainly was a potential ripeness problem, and the court separately addressed it as such. But — not surprisingly — no one suggested that there was a mootness problem. Indeed, a review of the briefs in that case makes clear that the parties had addressed the practical effects issue in the context of a contention that the plaintiffs lacked constitutional standing, and the court addressed those arguments in exactly those terms. Mclntire, in other words, means exactly what it says.

11

It is perhaps worth pointing out that, in making the point, Judge Armstrong resorts to examples and references to academic commentary that reflect the public rights model of adjudication that was first proposed in the 1970s. Judge Armstrong does not explain, and we do not understand, how it is that the framers of the Oregon Constitution intended to adopt a theory of justiciability that had not been articulated until more than a century after ratification.

12

In making that point, Judge Brewer offers an extended digression regarding the flaws in the United States Supreme Court’s decision in Lujan, citing professors Davis and Pierce. As we have noted, Lujan certainly has its critics. But nearly all— including Davis and Pierce — assault the underlying premise of the decision that there is a practical effects requirement in the first place, not that the decision’s conclusion does not necessarily follow from that premise. Judge Brewer — unlike Davis and Pierce — purports to accept the premise that the constitution imposes a practical effects requirement while at the same time attempting to endorse the conclusion of commentators who do not accept that very premise. Logically, Judge Brewer cannot have it both ways, as even the critics on whom he relies concede.