TITLE 3

REMEDIES AND SPECIAL ACTIONS AND PROCEEDINGS

Chapter 28. Declaratory Judgments; Certification of Questions of Law

30. Actions and Suits in Particular Cases

31. Tort Actions

33. Special Proceedings and Procedures

34. Writs

35. Eminent Domain; Public Acquisition of Property

36. Mediation and Arbitration

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Chapter 28 — Declaratory Judgments; Certification of Questions of Law

2011 EDITION

DECLARATORY JUDGMENTS; QUESTIONS OF LAW

SPECIAL ACTIONS AND PROCEEDINGS

DECLARATORY JUDGMENTS

28.010 Power of courts; form of declaration

28.020 Declarations as to writings and laws

28.030 Construction of contract before or after breach

28.040 Declaratory judgments on trusts or estates

28.050 Enumeration not exclusive

28.060 Discretion of court to refuse judgment

28.070 Appeal or review

28.080 Supplemental relief

28.090 Trial of issues of fact

28.100 Costs

28.110 Parties; service on Attorney General when constitutional question involved

28.120 Construction and administration

28.130 “Person” defined

28.140 Provisions severable

28.150 Uniformity of interpretation

28.160 Short title

CERTIFICATION OF QUESTIONS OF LAW

28.200 Supreme Court authorized to answer questions of law certified by other courts

28.205 Procedure to invoke ORS 28.200 to 28.255

28.210 Certification order

28.215 Form of certification order; submission of record

28.220 Fees; apportionment between parties

28.225 Procedure in certification matters

28.230 Opinion on certified question

28.235 Certification to another state

28.240 Procedure for certification to another state

28.245 Severability

28.250 Construction

28.255 Short title

DECLARATORY JUDGMENTS

28.010 Power of courts; form of declaration. Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment is prayed for. The declaration may be either affirmative or negative in form and effect, and such declarations shall have the force and effect of a judgment. [Amended by 2003 c.576 §302]

28.020 Declarations as to writings and laws. Any person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under any such instrument, constitution, statute, municipal charter, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.

28.030 Construction of contract before or after breach. A contract may be construed either before or after there has been a breach thereof.

28.040 Declaratory judgments on trusts or estates. Any person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, ward or insolvent, may have a declaration of rights or legal relations in respect thereto:

(1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or other; or

(2) To direct the executors, administrators, trustees, guardians or conservators to do or abstain from doing any particular act in their fiduciary capacity; or

(3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings. [Amended by 1961 c.344 §101]

28.050 Enumeration not exclusive. The enumeration in ORS 28.010 to 28.040 does not limit or restrict the exercise of the general powers conferred in ORS 28.010, in any proceedings where declaratory relief is sought, in which a judgment will terminate the controversy or remove an uncertainty. [Amended by 2003 c.576 §303]

28.060 Discretion of court to refuse judgment. The court may refuse to render or enter a declaratory judgment where such judgment, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding. [Amended by 2003 c.576 §304]

28.070 Appeal or review. All orders and judgments under this chapter may be appealed from or reviewed as other orders and judgments. [Amended by 2003 c.576 §305]

28.080 Supplemental relief. Further relief based on a declaratory judgment may be granted whenever necessary or proper. The application thereof shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment to show cause why further relief should not be granted forthwith. [Amended by 2003 c.576 §306]

28.090 Trial of issues of fact. When a proceeding under this chapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other actions at law or suits in equity in the court in which the proceeding is pending.

28.100 Costs. In any proceeding under this chapter the court may make such award of costs as may seem equitable and just.

28.110 Parties; service on Attorney General when constitutional question involved. When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal charter, ordinance or franchise, the municipality affected shall be made a party, and shall be entitled to be heard, and if the constitution, statute, charter, ordinance or franchise is alleged to be unconstitutional, the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard.

28.120 Construction and administration. This chapter is declared to be remedial. The purpose of this chapter is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and is to be liberally construed and administered. [Amended by 2005 c.22 §18]

28.130 “Person” defined. The word “person,” wherever used in this chapter, shall be construed to mean any person, partnership, joint stock company, unincorporated association or society, or municipal or other corporation of any character whatsoever.

28.140 Provisions severable. The several sections and provisions of this chapter, except ORS 28.010 and 28.020, are hereby declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the chapter invalid or inoperative.

28.150 Uniformity of interpretation. This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments. [Amended by 2003 c.576 §307]

28.160 Short title. This chapter may be cited as the “Uniform Declaratory Judgments Act.”

CERTIFICATION OF QUESTIONS OF LAW

28.200 Supreme Court authorized to answer questions of law certified by other courts. The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, a panel of the Bankruptcy Appellate Panel Service or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceedings before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court and the intermediate appellate courts of this state. [1983 c.103 §1; 1995 c.197 §1]

Note: 28.200 to 28.255 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 28 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

28.205 Procedure to invoke ORS 28.200 to 28.255. ORS 28.200 to 28.255 may be invoked by an order of any of the courts referred to in ORS 28.200 upon the court’s own motion or upon the motion of any party to the cause. [1983 c.103 §2]