796 July 6, 2023 No. 347

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

IBEW LOCAL 89, 

a labor organization, and 

Oregon Legislative Assembly,

Respondents,

v.

Kimberly WALLAN 

and Sarah Daley,

Petitioners.

Employment Relations Board

RC00121; A176604

Argued and submitted June 6, 2023.

Rebekah C. Millard argued the cause and filed the reply 

brief for petitioners. Also on the opening brief was James 

Abernathy.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Denise G. Fjordbeck, Assistant 

Attorney General, filed the brief for respondent Oregon 

Legislative Assembly.

Caitlin J. Kauffman and Daniel Hutzenbiler argued the 

cause for respondent IBEW Local 89. Also on the brief was 

McKanna Bishop Joffe, LLP.

Jason M. Weyand, Danielle Holmes, and Tedesco Law 

Group filed the brief amicus curiae for American Federation 

of State, County & Municipal Employees, Council 75, 

Local 189; American Federation of Teachers; Association 

of Engineering Employees; Oregon American Federation 

of Labor Congress; Oregon Education Association; Oregon 

School Employees Association; Oregon State Firefighters 

Council; Service Employees International Union, Local 503; 

and Teamsters Local 223.

Steve Elzinga and Sherman, Sherman, Johnnie & Hoyt 

LLP filed the brief amicus curiae for Shelly Boshart Davis, 

Jami Cate, Sarah El Ebiary, Lynn Findley, Jessica George, 
Cite as 326 Or App 796 (2023) 797

Christine Goodwin, Bill Hansell, Bryan Iverson, Vikki 

Breese Iverson, Tim Knopp, Bobby Levy, Rick Lewis, Dennis 

Linthicum, Diane Linthicum, Shelia Megson, Becky Mitts, 

Lily Morgan, Renee Perry, E. Werner Reshke, Anna Scharf, 

David Brock Smith, Duane Stark, Whitney Sullivan, Lenora 

Swift, Kim Thatcher, Chuck Thomsen, Suzanne Weber, and 

Boomer Wright.

Before Egan, Presiding Judge, and Lagesen, Chief Judge, 

and Kamins, Judge.

KAMINS, J.

Petition for judicial review dismissed.

Lagesen, C. J., concurring.
798 IBEW Local 89 v. Wallan

KAMINS, J.

Petitioners seek judicial review of a final order of 

the Employment Relations Board (ERB) certifying IBEW 

Local 89 (the Union) as the exclusive representative of a 

collective bargaining unit comprised of legislative assistants (LAs) supporting elected officials in the Oregon 

Legislative Assembly (Legislative Assembly). Petitioners, 

State Representative Wallan, a current representative in 

the Oregon House, and Sarah Daley, one of her senior LAs, 

assert that the Union certification is invalid based on a violation of the constitutionally required separation of powers 

and a failure to comply with the Public Employees Collective 

Bargaining Act. We conclude that petitioners lack standing 

to bring this petition for review, and we therefore dismiss.

The relevant facts are largely procedural. In 

January 2021, the Union filed a representation petition with 

ERB seeking certification as the exclusive representative of a 

bargaining unit consisting of LAs of the Oregon Legislative 

Assembly.1

 The Legislative Assembly filed objections on 

multiple grounds. A hearing was conducted by an administrative law judge (ALJ), and the matter was transferred to 

ERB. In April 2021, ERB determined that the Legislative 

Assembly’s objections were not valid, and ERB issued an 

Interim Order Directing an Election. Ballots were sent to 

eligible voters. Based on a majority of votes, ERB certified 

the Union as the exclusive representative of the bargaining unit and issued a final order to that effect on June 8, 

2021.

On August 5, 2021, petitioners, who were not parties 

to the proceedings before ERB, filed a petition for review of 

that order, asserting that the certification should be invalidated. Petitioners brought the action under ORS 183.480(1) 

as “any person adversely affected or aggrieved by an order,” 

and they each filed an affidavit in support of their petition 

for review, asserting the ways they are adversely affected 

1 The unit was comprised of the following classifications:

“Legislative Assistant I, Legislative Assistant II, Legislative Assistant 

III, and Legislative Assistant IV supporting elected officials in the Oregon 

Legislative Assembly, excluding supervisory, managerial, confidential, and 

caucus employees.”
Cite as 326 Or App 796 (2023) 799

or aggrieved.2

 The affidavits assert that the certification of 

the bargaining unit created a conflict of interest for certain 

LAs, inserted an administrative agency into the office oversight of LAs, and interfered with essential functions of the 

Legislative Branch.

The Legislative Assembly filed a motion with this 

court to determine jurisdiction, asserting that petitioners do not have standing to bring this request for judicial 

review.3

 Following briefing by the parties, the Appellate 

Commissioner issued an order concluding that petitioners 

had shown that they were sufficiently adversely affected or 

aggrieved to establish standing. However, upon reconsideration, the court vacated the order and deferred the motion to 

the merits department.

Whether a party has standing to bring a claim is 

a question of law. “The source of law that determines that 

question is the statute that confers standing in the particular proceeding that the party has initiated, because standing is not a matter of common law but is, instead, conferred 

by the legislature.” Cascadia Wildlands v. Dept. of State 

Lands, 293 Or App 127, 131, 427 P3d 1091 (2018), aff’d, 365 

Or 750, 425 P3d 938 (2019) (internal quotation marks omitted). Petitioners brought this action for judicial review of a 

final order of an agency in a contested case. We therefore 

look to the statute governing judicial review of contested 

cases, ORS 183.480, to determine whether petitioners have 

standing.

ORS 183.480(1) allows “any person adversely 

affected or aggrieved by an order” to seek judicial review. 

That standard is met if the petitioner can demonstrate one 

or more of the following: (1) the petitioner has “suffered an 

injury to a substantial interest resulting directly from the 

challenged governmental action”; (2) the petitioner “seeks to 

further an interest that the legislature expressly wished to 

2 ORS 183.482(2) provides that a petitioner who seeks judicial review as a 

person adversely affected or aggrieved by an agency order “shall, by supporting affidavit, state the facts showing how the petitioner is adversely affected or 

aggrieved by the agency order.”

3 Though designated as the respondent before ERB, the Legislative Assembly 

did not file an appeal of ERB’s decision, and indeed has joined the Union in opposing petitioners’ request for judicial review.
800 IBEW Local 89 v. Wallan

have considered”; or (3) the petitioner has “such a personal 

stake in the outcome of the controversy as to assure concrete 

adverseness to the proceeding.” People for Ethical Treatment 

v. Inst. Animal Care, 312 Or 95, 101-02, 817 P2d 1299 (1991), 

abrogation on other grounds recognized by Couey v. Atkins, 

357 Or 460, 515, 355 P3d 866 (2015) (PETA) (internal citations omitted). Standing under ORS 183.480(1) is not available “to those persons who merely are dissatisfied with the 

agency’s order, or who have only an abstract interest in the 

question presented, or who are mere bystanders.” Id. at 102 

(internal quotation marks and citations omitted).

Petitioners assert that the harms identified in their 

affidavits show they have a personal stake in the outcome 

consistent with the third factor in PETA, in that the creation of the bargaining unit directly impacts their ability to 

do their jobs and endangers the legislative function itself in 

a violation of the separation of powers.4

The third PETA factor requires a demonstration 

that the government action “‘will legally affect the petitioner 

in some way.’” McNichols v. Dept. of Fish and Wildlife, 308 

Or App 369, 373, 482 P3d 208 (2021) (quoting PETA, 312 Or 

at 104) (emphasis in McNichols). That legal effect must be 

particularized to the petitioner. See Local No. 290 v. Dept. of 

Environ. Quality, 323 Or 559, 567, 919 P2d 1168 (1996) (concluding ORS 183.484 regarding jurisdiction for review of 

orders other than contested cases does not allow for an organization to assert standing on behalf of a member because 

“that statute requires that the person bringing the petition 

show how that person is adversely affected or aggrieved,” 

and concluding that a union that was admittedly not itself 

aggrieved by an order did not have standing to bring suit on 

behalf of some of its members who were (emphasis in original)). An issue that has yet to be addressed in the Oregon 

4 Petitioners also argue, for the first time in their reply brief, that ERB’s decision injures a substantial interest they have in oversight and control of their LAs, 

consistent with the first factor in PETA, and that the legislature has expressed 

a desire to allow review of agency decisions for their constitutionality, consistent 

with the second factor in PETA. “[A]n issue raised for the first time in an appellant’s reply brief generally will not be considered on appeal.” State v. Murga, 291 

Or App 462, 468, 422 P3d 417 (2018). However, as discussed below, we consider 

the entirety of both affidavits in assessing whether petitioners have established 

that they are adversely affected or aggrieved.
Cite as 326 Or App 796 (2023) 801

appellate courts, however, is whether an individual may 

establish standing under ORS 183.480(1) by asserting an 

institutional harm—that is, whether an institutional harm 

can qualify as a “personal stake” or as having a legal effect 

on the individual.

The federal courts and other state courts have issued 

persuasive case law discussing the difference between individual and institutional harms, generally concluding that 

an alleged injury to an institutional body does not give an 

individual standing to seek redress for that injury.

In Raines v. Byrd, 521 US 811, 117 S Ct 2312, 138 

L Ed 2d 849 (1997), six individual members of Congress 

brought suit challenging an act of Congress that the plaintiffs alleged diluted their votes. In that case, the United 

States Supreme Court found that the plaintiffs had claimed 

“a type of institutional injury (the diminution of legislative 

power), which necessarily damages all Members of Congress 

and both Houses of Congress equally.” Raines, 521 US at 821. 

The injury identified was “not claimed in any private capacity but solely because they are Members of Congress.” Id.

Thus, the Court concluded that the individual members did 

not have a sufficient personal stake in the dispute and had 

not alleged a sufficiently concrete injury to have established 

standing under Article III of the United States Constitution. 

Id. at 829-30. Similarly, in Virginia House of Delegates v. 

Bethune-Hill, ___ US ___, 139 S Ct 1945, 204 L Ed 2d 305 

(2019), the Court held that the House of Delegates of the 

Virginia General Assembly lacked standing to appeal a 

court’s invalidation of a redistricting plan that the state legislature had passed. The Court held that “a single House 

of a bicameral legislature lacks capacity to assert interests 

belonging to the legislature as a whole.” Virginia House of 

Delegates, ___ US at ___, 139 S Ct at 1953-54.

In contrast, in another case the Court held that 

a state legislature as a whole had standing to challenge a 

state-wide initiative that reduced the legislature’s power 

with respect to redistricting. Arizona State Legislature v. 

Arizona Independent Redistricting Comm’n, 576 US 787, 135 

S Ct 2652, 192 L Ed 2d 704 (2015). In contrast to Raines, 

where the institutional injury at issue “scarcely zeroed in 
802 IBEW Local 89 v. Wallan

on any individual Member” and was “widely dispersed,” 

thereby resulting in none of the plaintiffs tenably claiming a 

personal stake in the suit, the Court held that “the Arizona 

Legislature * ** is an institutional plaintiff asserting an 

institutional injury.” Id. at 802.5

The United States Supreme Court cases analyzed 

standing under Article III of the federal constitution, where 

“a plaintiff must allege personal injury fairly traceable to 

the defendant’s allegedly unlawful conduct,” by establishing that they have a “personal stake in the alleged dispute,” 

that the “alleged injury suffered is particularized” to them, 

and that the alleged injury is “legally and judicially cognizable.” Raines, 521 US at 818-19 (internal citations omitted; 

emphasis in original). Those requirements for Article III 

standing are consistent with the PETA factors for standing as an adversely affected or aggrieved person under 

ORS 183.480(1), which require a petitioner to demonstrate 

an injury to a substantial interest or a personal stake in 

5 Applying the standards set forth by the United States Supreme Court, 

other courts have limited individual standing to assert an institutional harm. 

See Yaw v. Delaware River Basin Comm’n, 49 F4th 302, 313-14 (3rd Cir 2022) 

(concluding that the allegations of usurpation of legislative powers and dilution 

of citizens’ voting rights were “quintessentially institutional” and “classic examples of institutional injuries” that individual legislators did not have standing 

to assert because the legislators had not alleged any injury to themselves as 

individuals); Collins v. Daniels, 916 F3d 1302, 1313-14 (10th Cir 2019), cert den, 

___ US ___, 140 S Ct 203 (2019) (concluding that state legislators’ allegation 

that the state Supreme Court’s action represented “an unconstitutional usurpation of [legislative] power” was an institutional injury that did not give the 

legislators standing, and the legislators’ allegations regarding the separation of 

powers issues involved in the case weighed against finding standing); Kerr v. 

Hickenlooper, 824 F3d 1207, 1212, 1215 (10th Cir 2016) (holding that the legislators’ claim that a provision of the Colorado Constitution “deprives them of their 

ability to perform the legislative core functions of taxation and appropriation” 

alleged only an institutional injury because “it is based on the loss of legislative 

power that necessarily impacts all members of the General Assembly,” and the 

individual legislators therefore had not established standing); Alaska Legislative 

Council v. Babbitt, 181 F3d 1333, 1337-38 (DC Cir 1999) (holding that allegations 

by members of the state legislature that a certain federal law “interfered with 

their state duties” and “nullified their legislative prerogatives regarding fish and 

wildlife management” were insufficient to give the legislators standing because 

“[w]hile state legislation or regulations in conflict with [federal law] may be unenforceable * ** that type of injury does not entitle individual legislators to seek a 

judicial remedy”); Morrow v. Bentley, 261 So 3d 278 (Ala 2017) (collecting similar 

cases from other jurisdictions and holding that allegations that executive actions 

violated state law and “operated to usurp the legislature’s appropriation power” 

were allegations of institutional injury that a single legislator did not have standing to assert, absent authorization from the body as a whole).
Cite as 326 Or App 796 (2023) 803

the outcome of the controversy.6

 The reasoning set forth in 

Raines and its progeny map consistently with our own controlling precedent. A single legislator, asserting an injury 

to the legislative body as a whole, does not demonstrate an 

injury to their own substantial interests or a personal legal 

effect. An individual legislator cannot tenably claim a personal stake in a suit based on such an institutional injury.

In the matter at hand, petitioners claim that, even 

though many legislators and supervisory staff could be similarly impacted, the harms they have identified are individual to their own circumstances and are therefore not institutional injuries. The Union and the Legislative Assembly 

assert that the alleged injuries are purely institutional, as 

the impact is felt across the entire assembly equally.

We conclude that the bulk of petitioners’ affidavits 

allege institutional harms.7

 Apart from the passing references to the impact on the supervision of LAs and potential conflicts of interest, discussed in more detail below, 

both affidavits focus primarily on the bargaining unit’s 

interference “with the essential functions of the Legislative 

Branch” and the resulting violation of the separation of 

powers. Allegations that the certification of the bargaining 

unit vests authority with an executive agency rather than 

the legislative branch and interferes with the independence 

and functioning of the legislative branch are, by definition, 

allegations of harms to the institution, not the individuals. We further note that Representative Wallan has not 

been authorized by the Legislative Assembly to bring this 

action on behalf of the institution as a whole, and indeed, 

the Legislative Assembly is an adverse party in this petition 

6 In Oregon, “standing is not a generic concept but largely depends on the 

statute under which the plaintiff seeks relief.” MT & M Gaming, Inc. v. City of 

Portland, 360 Or 544, 553, 383 P3d 800 (2016). We therefore do not rely on “general pronouncements about standing” drawn from different statutes, nor are we 

bound by “federal notions of standing that do not apply in Oregon.” Id. at 554. 

However, the similarity between Article III standing and standing under ORS 

183.480 renders the federal case law persuasive in our view.

7 For the purposes of evaluating standing only, we accept petitioners’ assertions in their affidavits. Lee v. Secretary of State, 324 Or App 275, 279, 526 P3d 

775 (2023); McNichols, 308 Or App at 371; Cascadia Wildlands, 293 Or App at 

132. However, we note that some allegations in the affidavits conflict with the 

unchallenged findings of fact set forth in ERB’s order.
804 IBEW Local 89 v. Wallan

for judicial review. Petitioners do not have standing to bring 

this action based on the alleged institutional injuries.8

We thus turn to the few allegations in the affidavits that are not clearly institutional injuries. Specifically, 

Representative Wallan states in her affidavit:

“The institution of a labor union as exclusive representative for my Legislative Assistants adversely affects me 

because it creates a conflict of interest for my Legislative 

Assistants if the Union takes a position on a political issue 

or in a political race and my office holds a different position 

on that issue.”

Ms. Daley states in her affidavit:

“Instituting a labor union as exclusive representative 

for the Legislative Assistants whom I oversee adversely 

affects me because doing so inserts an administrative 

agency between me and the Assistants I oversee.”

The remainder of the affidavits contain only statements 

about the various parties’ roles and no further assertions 

are made regarding the adverse effects of ERB’s order.9

Neither of the quoted statements alleges an injury 

showing how the petitioners are “adversely affected or 

aggrieved.” Representative Wallan does not identify any 

personal stake or how she will be legally affected by any 

perceived conflict of interest, consistent with the third factor set forth in PETA. Furthermore, the circumstances she 

identifies are speculative and do not indicate any injury that 

she has suffered to a substantial interest as a result of ERB’s 

order certifying the bargaining unit. Even if we were to conclude that Representative Wallan has a substantial interest 

in her ability to trust and rely on her LAs, she has not alleged 

facts that demonstrate how that interest is injured by the 

8 We acknowledge that the Legislative Assembly as an entity would certainly 

have had standing to bring this petition for judicial review, as it was a party 

below. We also note that the institutional harms alleged largely parallel the 

arguments made by the Legislative Assembly before ERB in opposing certification of the bargaining unit.

9 To the extent the briefs identify other concrete harms, such as the requirement to provide the Union access to staff during working hours or the inability to 

take into consideration an LA’s union affiliation in the hiring and firing process, 

those injuries are not alleged in the affidavits and therefore do not provide a basis 

for standing under ORS 183.480(1) and ORS 183.482(2). 
Cite as 326 Or App 796 (2023) 805

certification of the bargaining unit. McNichols, 308 Or App 

at 373 (“[W]e do not read PETA to allow for standing based 

on apprehension that an agency decision may injure a person’s interests. The standard, as articulated by the Supreme 

Court, requires a showing that the person ‘has suffered an 

injury to a substantial interest.’” (Quoting PETA, 312 Or at 

101; emphasis in McNichols.)). Similarly, Ms. Daley does not 

identify any injury to a substantial interest that resulted 

from the alleged insertion of an administrative agency into 

her supervisory relationships. Likewise, she has not alleged 

any legal effect the decision had on her. We have no doubt 

that petitioners’ position and beliefs make them adversarial 

in this case; however, “zeal does not provide the requisite 

‘personal stake’ in the outcome. *** [A] personal stake in 

the outcome means that the agency’s decision will legally 

affect the petitioner in some way.” PETA, 312 Or at 104.

We conclude that petitioners have not alleged sufficient facts to establish that they are entitled to petition 

as persons “adversely affected or aggrieved” under ORS 

183.480(1). Because petitioners do not have standing, the 

petition for judicial review is dismissed, and we do not reach 

petitioners’ arguments on the merits of ERB’s order.

Petition for judicial review dismissed.

LAGESEN, C. J., concurring.

I concur fully in the majority opinion’s conclusion that petitioners have not demonstrated that they are 

“adversely affected or aggrieved by” the ERB order certifying a bargaining unit of legislative assistants. In particular, 

I agree with the majority opinion’s conclusion that, at this 

point, petitioners have not demonstrated that the certification of a bargaining unit will have a nonspeculative effect 

on either one of them as individuals.

That ERB’s decision has not caused injury to petitioners yet does not mean that it will not. Although the 

Legislative Assembly has appeared before us to argue only 

that petitioners lack standing, the Legislative Assembly 

appeared before ERB to make a broader range of arguments. Among other things, it argued vigorously (and not 

implausibly) that the certification of a collective bargaining 
806 IBEW Local 89 v. Wallan

unit would violate separation-of-powers principles under 

the Oregon Constitution. At this point in time, it remains 

to be seen whether the collective bargaining process, which 

is new to the legislative branch and still in its very beginnings, will “interfere[] with the [legislature] in a manner 

which prevents or obstructs the performance of its irreducible constitutional task, [legislation],” such that ERB’s decision to certify a bargaining unit will lead to a violation of 

separation of powers. Circuit Court v. AFSCME, 295 Or 542, 

550, 669 P2d 314 (1983). Under Oregon law, “apprehension[s] 

of unconstitutional interference” are not sufficient to show a 

separation of powers violation. Id. at 551; see also City of 

Roseburg v. Roseburg City Firefighters, 292 Or 266, 295-96, 

639 P2d 90 (1981) (Linde, J., concurring, explaining that it 

was premature to address whether ERB order requiring city 

to collectively bargain with its firefighters violated the home 

rule provisions of the Oregon Constitution).

If the apprehension of unconstitutional interference 

expressed by the Legislative Assembly before ERB, and reiterated by Representative Wallan before us, were to ripen 

into reality, that would change things. In that event, and 

in the event that the collective bargaining process, in fact, 

were to result in an identifiable and concrete impairment 

of Representative Wallan’s ability to carry out her role as a 

legislator, one that could be redressed by a judicial decision, 

then, in my view, in an appropriate challenge, she would 

be in a position to raise the separation-of-powers concerns 

she has attempted to raise here. See, e.g., Collins v. Yellen, 

___ US ___, 141 S Ct 1761, 1780, 210 L Ed 2d 432 (2021) 

(“As we have explained on many prior occasions, the separation of powers is designed to preserve the liberty of all the 

people. So whenever a separation-of-powers violation occurs, 

any aggrieved party with standing may file a constitutional 

challenge.” (Citations omitted.)).