74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 950
 
                         House Bill 2123
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Attorney General Hardy
  Myers for Department of Justice)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Provides that court may not declare rule invalid in facial
challenge to rule because rule could be applied in manner that
violates constitutional provision, statute or statewide planning
goal.
 
                        A BILL FOR AN ACT
Relating to judicial review of rules; amending ORS 183.400.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 183.400 is amended to read:
  183.400. (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 - }  { +  may + } not declare a rule
invalid solely because   { - it - }  { +  the rule + } 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 - }  { +  the agency's + } failure to do so did not
substantially prejudice the interests of the parties.
   { +  (7) The court may not declare a rule invalid in a
proceeding under subsection (1) of this section solely because
the rule could be applied in a manner that violates a
constitutional provision, a statute or a statewide planning
goal. + }
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