472 P.3d 741
Or.2020Background
- Damascus incorporated in 2004 and adopted a charter; by 2013 local campaigns sought disincorporation.
- ORS 221.610/221.621 required disincorporation to be approved by a majority of the city’s electors at a November election; an initial vote failed to meet that standard.
- In 2015 the Legislature referred HB 3085 (Measure 93) to Damascus voters to decide disincorporation at a May primary by a majority of those voting; Measure 93 passed in May 2016.
- The Court of Appeals (De Young v. Brown) later held the Measure 93 election invalid because HB 3085 did not effectively exempt the vote from ORS 221.610/221.621; by then Damascus had effectively disincorporated and local governments had acted on that change.
- In 2019 the Legislature enacted SB 226 (Oregon Laws 2019, ch. 545), offering two alternative cures: (1) a Secretary of State determination deeming qualifying Jan–Jul 2016 elections effective (sec. 1); and (2) a permanent legislative-referral procedure plus retroactivity applying to prior qualifying elections (secs. 2–3). SB 226 authorized expedited Supreme Court review.
- Petitioners challenged SB 226 on statutory and constitutional grounds; the Oregon Supreme Court upheld sections 2 and 3 as valid and therefore declared SB 226 valid, declining to decide the constitutionality of section 1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Delegation / Charter repeal authority | Legislature improperly delegated to voters power to repeal city charter; voters lacked constitutional power to repeal (Article XI §2) | Disincorporation is distinct from repeal; voters have statutory authority to disincorporate under state law | Court rejected delegation claim; Measure 93 did not violate Article XI §2 and voters had authority to disincorporate |
| Retroactive validation of election | Oregon Constitution contains an implied bar on retroactive changes to election rules that change outcomes; SB 226 unlawfully retroactively changed the rule | Legislature may retroactively validate acts it could have authorized originally, absent impairment of vested rights or contracts; Measure 93 was held under its own referred rules | Court held no implied constitutional prohibition; retroactive cure permissible here and petitioners failed to show vested-rights impairment |
| Equal Protection / Due Process (Bush) | SB 226 retroactively increased the value of "yes" votes and decreased value of "no" votes, violating equal protection / Due Process | SB 226 mirrored the rules voters faced in Measure 93; no post-election tabulation change that would make some votes more valuable | Court rejected Bush-style challenge: no unlawful post-hoc change in vote value occurred |
| Home rule / Structure & procedure (La Grande framework) | SB 226 (particularly sec. 1 and secs. 2–3) interferes with municipal "structure and procedures" and amends city charteral rights in violation of Article XI §2 and Article IV §1(5) | The Legislature regulates statewide procedures for disincorporation as a substantive state interest; secs. 2–3 create an alternative statutory path and are general/regulatory, not a prohibited charter amendment | Under La Grande, secs. 2 and 3 address a substantive state regulatory interest and do not unconstitutionally invade home rule; court upheld secs. 2–3 and declined to decide sec. 1 |
| Separation of powers (legislature reversing judicial decision) | SB 226 improperly overturns the Court of Appeals’ De Young decision and usurps judicial function | Legislature may enact retroactive statutes that revive or validate actions previously held defective without violating separation of powers, so long as it is not rewriting judicial constructions of statute | Court held secs. 2–3 do not violate Article III separation of powers; they effectuate legislative functions and do not simply overturn judicial law construction |
Key Cases Cited
- La Grande/Astoria v. PERB, 281 Or 137 (1978) (establishes home-rule analytical framework: differentiate local structure/procedure from substantive state law)
- La Grande/Astoria v. PERB, 284 Or 173 (1978) (rehearing confirming home-rule principles)
- De Young v. Brown, 297 Or App 355 (2019) (Court of Appeals held Measure 93 election invalid on statutory grounds)
- McFadden v. Dryvit Sys., Inc., 338 Or 528 (2005) (legislature may revive or retroactively alter statutory rights without violating separation of powers when not usurping judicial construction)
- Smith v. Cameron, 123 Or 501 (1928) (legislature may retroactively validate acts it could have authorized, subject to vested-rights limits)
- State v. James, 189 Or 268 (1950) (upholding retroactive legislative validation of a defective election)
- Carey v. Lincoln Loan Co., 342 Or 530 (2007) (defects in law may be cured by subsequent legislation unless vested rights or contracts impaired)
- Bush v. Gore, 531 U.S. 98 (2000) (equal protection limits in election administration—court explained why Bush was not controlling here)
- Fifth Avenue Corp. v. Washington Co., 282 Or 591 (1978) (deference principles for local governing bodies’ interpretation of charters)