443 P.3d 642
Or. Ct. App.2019Background
- Damascus, OR was incorporated in 2004. In 2015 the legislature referred HB 3085 (placed on the Damascus ballot as Measure 93) asking voters whether to disincorporate; a special election occurred May 17, 2016 and a majority of voters who voted on the measure approved it.
- Measure 93's text stated it was adopted "notwithstanding ORS 221.610 and 221.621" and set a timeline for winding down and transferring assets to Clackamas County; HB 3086 detailed post-approval winding-down steps and became operative only if Measure 93 passed.
- Plaintiff (then a Damascus councilor) sued before the election seeking to enjoin the vote; the trial court denied relief and after the election plaintiff sought declaratory relief arguing Measure 93 was unlawful because it failed to follow statutory disincorporation procedures.
- ORS 221.610 and ORS 221.621 are the only statutes in ORS chapter 221 addressing municipal disincorporation and prescribe a petitioner-initiated procedure, an "absolute majority" rule (majority of electors), and timing (general election in November).
- Defendants conceded the Measure 93 process did not follow ORS 221.610/221.621 but argued those statutes did not apply because (1) Measure 93 was a legislative referral (not a petition-based process) and (2) the legislature effectively exempted Damascus via HB 3085/HB 3086.
- The trial court granted summary judgment for defendants; the Court of Appeals reversed, holding the special election had to comply with ORS 221.610 and ORS 221.621 and it did not.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 221.610/221.621 were the exclusive statutory means for city disincorporation | ORS 221.610/221.621 supply the sole statutory procedure; Measure 93 could not override those statutes | Legislature could enact/referral an alternative process (legislative referral) that need not follow ORS 221.610/221.621 | Court: ORS 221.610/221.621 supply the governing procedure and, in any event, the legislature did not validly create an alternate path here |
| Whether the Measure 93 special election complied with ORS 221.610/221.621 | Measure 93 did not follow petition-calling requirements, required an absolute majority of electors, or timing rule (Nov. general election) | Measure 93 was a legislative referral/exempted by HB 3085 language and by HB 3086's concurrent enactment | Court: Defendants conceded noncompliance; because statutes applied, the election failed to comply and was invalid |
| Whether HB 3085/HB 3086 effectively exempted the Measure 93 election from ORS 221.610/221.621 | Voters could not validly exempt the election from statutory prerequisites before the statute-based procedure had run; HB 3086 did not take effect until after voter approval | HB 3085's "notwithstanding" clause and HB 3086's passage and gubernatorial signature effected an exemption | Court: HB 3086 did not exempt the election (its operative provisions depended on voter approval); HB 3085 could not by itself validly avoid statutory requirements prior to the vote |
| Mootness: Whether the case is moot because Damascus disincorporated and assets/employees were transferred | Reversal would have practical effect (restore corporate status, council positions, and permit resumption of city governance); collateral consequences exist | Election consequences (transfers, county actions) make relief impractical and thus case moot | Court: Defendants failed to meet burden to show mootness; case not moot and merits considered |
Key Cases Cited
- State v. Barrett, 350 Or. 390 (statutory questions resolved before constitutional ones)
- State v. K. J. B., 362 Or. ? (mootness burden on party asserting mootness and analysis of collateral consequences)
- Couey v. Atkins, 357 Or. ? (justiciability and practical effect of court decisions)
- Pamplin Media Group v. City of Salem, 293 Or. App. 755 (summary judgment review standard in cross-motions)
- State v. Gaines, 346 Or. 160 (statutory interpretation framework and use of text/legislative history)
- Wyers v. American Medical Response Northwest, Inc., 360 Or. 211 (definite article usage can indicate narrowing intent in statutory text)
- Chamberlain v. Myers, 344 Or. 605 (discussion of "absolute majority" election concept)
- Davis v. Van Winkle, 130 Or. 304 (referred measures are not laws until approved by voters)