Appeal from Circuit Court, Jackson County. L. L. Sawyer, Judge. No. 72-564-E.
Donald M. Pinnock, Ashland, argued the cause and filed the brief for appellant.
Ronald L. Salter, Ashland, argued the cause and filed the brief for respondent.
Schwab, Chief Judge, and Langtry, Judge. Thornton, Judge, dissenting.
An ordinance recently enacted by the city of Ashland authorizes police in Ashland to jail any person for up to two hours for, among other things, failing to give a "reasonable explanation of his actions" when questioned by the police.*fn1 Plaintiff, a resident of Ashland,
initiated this declaratory judgment proceeding pursuant to ORS 28.020 to challenge the constitutionality of this ordinance. The defendant-city's demurrer was sustained by the trial court. Plaintiff appeals.
The questions presented revolve around whether the complaint alleges facts sufficient to establish that the issue of the constitutionality of the ordinance is a justiciable controversy, that plaintiff has standing to challenge the ordinance, and that the constitutional issue is ripe for adjudication.*fn2
The material portions of plaintiff's complaint allege that there is an "actual controversy between the parties"; that he "is a resident of the City of Ashland"; and that his "rights and liberties are subject to being
deprived at any time by use of this ordinance by the police officers of defendant."
A threshold problem, apparently not considered by the parties or circuit court, is whether the issues of justiciable controversy, standing and ripeness are properly raised in a declaratory judgment proceeding by way of demurrer.
Quoting from City of Cherryvale v. Wilson, 153 Kan 505, 510, 112 P2d 111 (1941), the Oregon Supreme Court in Cabell et al v. Cottage Grove et al, 170 Or 256, 261, 130 P2d 1013, 144 ALR 286 (1943), stated:
"* * * 'It is rare that a demurrer is an appropriate pleading for the defendant to file to a petition for a declaratory judgment' * * *."
More recently, in Webb v. Clatsop Co. School Dist. 3, 188 Or 324, 332, 215 P2d 368 (1950), the court stated:
"Demurrer may be used to test the sufficiency of the complaint in these [declaratory judgment] cases, if it is vulnerable upon any of the statutory grounds of demurrer * * *." (Emphasis supplied.)
The relevant statute, ORS 16.260, lists seven grounds for a demurrer. The only ones that appear possibly relevant are lack of subject matter jurisdiction, ORS 16.260(1), and failure to state a cause of action, ORS 16.260(6). It may be that the questions of justiciable controversy, standing and ripeness in this context are elements of subject matter jurisdiction, or elements of a cause of action, but we are not aware of any Oregon cases that expressly so state. Cf., Dickman et al v. School Dist. 62C et al, 232 Or 238, 245, 366 P2d 533 (1962), cert denied 371 U.S. 823, 83 S Ct 41, 9 L Ed 2d 62 (1963), holding that the question of standing in equity proceedings is not jurisdictional.
It seems that the better practice in declaratory judgment actions would be to almost always require a responsive pleading, as implied in Cabell et al v. Cottage Grove et al, supra. It would do more justice more often if the questions of justiciable controversy, standing and ripeness were raised as defenses in an answer, ORS 16.290(2)(b), and then determined by examining both pleadings, rather than just the "face of the complaint," ORS 16.260.*fn3
Nevertheless, in spite of these considerations, we proceed on the assumption that the issues of justiciable controversy, standing and ripeness were properly ...