City of Corvallis v. State of OregonCity of Corvallis v. State of Oregon
In this declaratory judgment action, plaintiffs, the City of Corvallis and the City of Philomath, sought to have
Vacated and remanded for entry of a judgment that declares the rights of the parties.
Matthew J. Donohue, Judge.
James K. Brewer argued the cause for appellants. On the briefs were David E. Coulombe and Fewel, Brewer & Coulombe.
Peenesh Shah argued the cause for respondents State of Oregon, Kate Brown, Bev Clarno, and Jim Rue. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
No appearance for respondent Caldwell Farms, LLC.
Philip Thoennes filed the brief amicus curiae for League of Oregon Cities.
Before Ortega, Presiding Judge, and Aoyagi, Judge, and Powers, Judge.*
AOYAGI, J.
Vacated and remanded for entry of a judgment that declares the rights of the parties.
* Aoyagi, J., vice Garrett, J. pro tempore.
In this declaratory judgment action, plaintiffs the City of Corvallis (Corvallis) and the City of Philomath (Philomath) seek to have
The trial court granted the state defendants’2 motion for summary judgment, as well as their motion to strike certain declarations from the summary judgment record, and it denied plaintiffs’ cross-motions for summary judgment. For the reasons that follow, we affirm all those rulings on the merits. However, because the existing judgment contains no declarations, which is improper in a declaratory judgment action, we vacate and remand for entry of a judgment that declares the rights of the parties.
I. OVERVIEW OF “HOME RULE”
A basic understanding of “home rule” is necessary context for the parties’ arguments, so we begin by providing a very general overview.
Under federal constitutional law, municipal corporations are “convenient agencies” of their respective states. Hunter v. City of Pittsburgh, 207 US 161, 178-79, 28 S Ct 40, 52 L Ed 151 (1907). As such, states enjoy every prerogative to add or withdraw authority from their municipalities, merge municipalities, or abolish a municipality altogether, “unrestrained by any provision of the Constitution of the United States.” Id. It follows that cities lack inherent authority and possess only those powers affirmatively granted by the state. That principle, known as “Dillon‘s Rule“—referring to an influential treatise on municipal law—dominated American legal scholarship in the nineteenth and early twentieth centuries. See City of Corvallis v. Carlile, 10 Or 139, 141 (1882). Thus, in Oregon, prior to 1906, the state retained all power over local affairs and had the exclusive authority to adopt and amend city charters, to establish and alter municipal boundaries, and to grant and remove legislative authority. See id. at 140-41 (recognizing the lack of constitutional restraint on state authority over municipal corporations and stating that municipal corporations are “subordinate branch[es]” of the state).
In 1906, riding a wave of home-rule amendments in other states, Oregon voters amended the Oregon Constitution to endow cities with home-rule authority and limit the power of the state legislature over local matters. Specifically,
The passage of the home-rule amendments laid the foundation for what has now been over a century of legal disputes regarding the scope of local government authority vis-à-vis state authority. See State v. Port of Astoria, 79 Or 1, 17, 154 P 399 (1916) (by 1916, “[t]he language employed in Article XI, Section 2,” had already “been the subject of much discussion“).
In the resulting case law, a seminal home-rule decision of the modern era is La Grande/Astoria v. PERB, 281 Or 137, 576 P2d 1204, adh‘d to on recons, 284 Or 173, 586 P2d 765 (1978). In La Grande, the Supreme Court crafted a two-part test to determine where state authority ends and local authority begins. In short, if a state statute addresses “the structure and procedures of local agencies,” it “impinges on the powers reserved by the amendments to the citizens of local communities” and must be justified “by a need to safeguard the interests of persons or entities affected by the procedures of local government.” Id. at 156. Conversely, if it is “a general law addressed primarily to substantive social, economic, or other regulatory objectives of the state,” a state statute “prevails over contrary policies preferred by some local governments, if it is clearly intended to do so, unless the law is shown to be irreconcilable with the community‘s freedom to choose its own political form.” Id.3
Another significant home-rule principle is the distinction between intramural and extramural authority. “When the legal voters of a city enact municipal legislation [that] operates only on themselves and for themselves, and [that] is confined within and extends no further than the corporate limits, then such voters are exercising intramural authority.” Port of Astoria, 79 Or at 17. But when “the legal voters of a city attempt to exercise authority beyond the corporate limits of their municipality, they are using an extramural power.” Id. While cities have “inherent, home-rule authority” to exercise intramural power, the same is not true of exercising extramural power. Costco Wholesale Corp. v. City of Beaverton, 343 Or 18, 25, 161 P3d 926 (2007).
Finally, with respect to annexation in particular, the power to annex territory into a municipality comes from the state and does not derive from home-rule authority. Thurber v. McMinnville, 63 Or 410, 414-15, 128 P 43 (1912), abrogated on other grounds by State ex rel. Heinig v. Milwaukie et al, 231 Or 473, 373 P2d 680 (1962). Annexation is an extramural act. Id. at 415-16. As such, it is well settled that the state may impose conditions on a municipality‘s act of annexing territory into the municipality. See, e.g., Morsman v. City of Madras, 203 Or App 546, 555, 126 P3d 6 (2006) (holding that the state has the authority to decide whether the residents of property subject to annexation get to vote on the annexation). What is not well settled—in that it was identified as an open question in 1990 and has yet to be answered—is whether some aspects of annexation are subject to exclusively local control:
“Even though a city must follow a legislatively-approved procedure to annex territory, it does not follow that the legislature can decree any annexation for any reason. There is still room to argue, *** that the borders of a municipal corporation are an integral part of the corporate charter which cannot be altered by the legislature.”
Mid-County Future Alternatives v. City of Portland, 310 Or 152, 163-64, 795 P2d 541 (1990).
II. FACTS
With that basic understanding of home rule in mind, we turn to the facts of this case. “On review of cross-motions for summary judgment, we view the record for each motion in the light most favorable to the party opposing it to determine whether there is a genuine issue of material fact and, if not, whether either party is entitled to judgment as a matter of law.” O‘Kain v. Landress, 299 Or App 417, 419, 450 P3d 508 (2019).
In early 2016, the legislature enacted SB 1573, now codified at
“(1) This section applies to a city whose laws require a petition proposing annexation of territory to be submitted to the electors of the city.
“(2) Notwithstanding a contrary provision of the city charter or a city ordinance, upon receipt of a petition proposing annexation of territory submitted by all owners of land in the territory, the legislative body of the city shall annex the territory without submitting the proposal to the electors of the city if:
“(a) The territory is included within an urban growth boundary adopted by the city or Metro, as defined in
ORS 197.015 ;
“(b) The territory is, or upon annexation of the territory into the city will be, subject to the acknowledged comprehensive plan of the city;
“(c) At least one lot or parcel within the territory is contiguous to the city limits or is separated from the city limits only by a public right of way or a body of water; and
“(d) The proposal conforms to all other requirements of the city‘s ordinances.”
As described in the legislative history, SB 1573 was intended to prevent local voters from unilaterally preventing the development of land that was placed within the urban growth boundaries of cities for the purpose of development. See Audio Recording, Senate Committee on Rules, SB 1573, Feb 24, 2016, at 39:43 (statements of John Van Landingham and Sen Lee Beyer), http://olis.oregonlegislature.gov (accessed Apr 22, 2020). The statute applies only to annexations of territory within the urban growth boundary that is subject to or will be subject to the city‘s acknowledged comprehensive plan. See
Corvallis, Philomath, and at least 33 other Oregon cities have city charters or city ordinances that require voter approval of some or all municipal annexations. Corvallis‘s charter provision, which is the result of a voter referendum and resulting 1976 charter amendment, provides:
“Section 53. Vote on Annexations. Unless mandated by State law, annexation, delayed or otherwise, to the City of Corvallis may only be approved by a prior majority vote among the electorate.”
Corvallis Charter of 2006, ch 10, § 53.4 Philomath‘s charter provision, which is the result of a voter referendum and resulting 1995 charter amendment, similarly provides:
“Section 11.1. Annexations by majority vote. Unless mandated by state law, annexations to the city of Philomath may only be approved by a prior majority vote among the electorate.”
Philomath Charter of 1987, ch 11, § 11.1.
On April 18, 2016, the Department of Land Conservation and Development (DLCD) sent a letter to local governments regarding “2016 Land Use Legislation,” citing DLCD‘s obligation under
About a week later, Corvallis received two separate annexation petitions—one from Caldwell Farms, LLC, and another from a group of eight landowners—seeking annexation pursuant to
The state defendants moved for summary judgment on all claims, making a variety of arguments as to why plaintiffs’ claims fail as a matter of law, including an argument regarding the specific language of Corvallis‘s and Philomath‘s charter provisions. Plaintiffs opposed the state defendants’ motion and filed their own cross-motions for summary judgment. Plaintiffs’ summary judgment materials included 10 declarations from Corvallis and Philomath voters and a declaration from the former deputy city attorney of Corvallis, regarding their understanding of the specific language of Corvallis‘s charter provision. The state moved to strike all 11 declarations as inadmissible on various grounds under the Oregon Evidence Code.
After a hearing, the trial court granted the state defendants’ motions and denied plaintiffs’ motions. The court provided its reasoning in a detailed letter opinion. The court struck the declarations as irrelevant for purposes of construing the charter, as containing inadmissible hearsay, and as not based on personal knowledge. As to the summary judgment motions, the court first addressed plaintiffs’ as-applied constitutional challenge, concluding that the state had not engaged in any enforcement action against plaintiffs that would permit an as-applied challenge. The court then addressed plaintiffs’ facial challenge and determined that, at a minimum,
The trial court entered a written order consistent with its letter opinion. It then entered a general judgment. The general judgment refers to the summary judgment order, states that there are “no further factual or legal issues to resolve,” and grants judgment “to defendants“; it contains no declarations. Plaintiffs appeal.
III. ANALYSIS
Plaintiffs raise three assignments of error on appeal, only two of which we address. See 304 Or App at 175 n 3. In their first assignment of error, plaintiffs argue that the trial court erred in rejecting their facial challenge to
As the state correctly notes, plaintiffs’ assignments of error do not comport with ORAP 5.45(3). See AS 2014-11 5W LLC v. Caplan Landlord, LLC, 273 Or App 751, 769, 359 P3d 1225 (2015) (“Under ORAP 5.45, each assignment of error should identify one—and only one—ruling that is being challenged.” (Internal quotation marks omitted.)).6 Nonetheless, it is clear from the
In doing so, we understand the first assignment of error to challenge two rulings, as related to plaintiffs’ facial challenge to
A. Facial Challenge to ORS 222.127
A statute is facially unconstitutional if it “is incapable of constitutional application in any circumstance.” Jensen v. Whitlow, 334 Or 412, 421, 51 P3d 599 (2002); see also State v. Christian, 354 Or 22, 40, 307 P3d 429 (2013) (“Our analysis of defendant‘s facial challenge is limited to whether the ordinance is capable of constitutional application in any circumstance.“); Northrup v. Hoyt, 31 Or 524, 529, 49 P 754 (1897) (if a statute may constitutionally operate upon certain persons or cases, it is not unconstitutional simply because there may be persons or cases to whom it constitutionally cannot apply). The state contends—and the trial court agreed—that
As discussed in more detail later, the Supreme Court and we have repeatedly held that charter language requiring a vote of the city‘s electorate on annexations does not conflict with state statutes requiring annexation in particular circumstances, so long as the city‘s charter contains language allowing for state-mandated annexations. See Pieper v. Health Division, 288 Or 551, 553, 557-58, 606 P2d 1145 (1980) (holding that state health division‘s order requiring Corvallis to annex territory in accordance with a state statute did not conflict with Corvallis charter provision requiring electorate to vote on annexations, because the charter provision allows for annexations “mandated by state law“); Mid-County, 310 Or at 163-64 (rejecting constitutional challenge to state statute on which local boundary commissions relied to order certain annexations to two cities, where both cities’ charters contained language that effectively allowed the state legislature to alter their borders without city approval); Hunter v. Portland Metro. Area Local Boundary Com., 160 Or App 508, 510-12, 981 P2d 1276 (1999) (relying on Mid-County to conclude that there was no conflict between a state statute and a city charter, where the city charter expressly permitted annexation without voter approval if “mandated by state law“).
It is not clear whether the constitutional challenges in Mid-County and Hunter were viewed as facial or as-applied challenges, to the extent that they required consideration of the plaintiffs’ specific charter provisions. Here, the trial court construed Corvallis‘s and Philomath‘s charters as part of resolving plaintiffs’ facial challenge to
B. As-Applied Challenge to ORS 222.127
Having concluded that
1. Lack of enforcement action
A prerequisite to challenging the constitutionality of a law as applied is that the law has been applied. That is, as relevant here, the law must have been enforced against the complainant. City of Eugene v. Lincoln, 183 Or App 36, 41, 50 P3d 1253 (2002) (“A facial challenge asserts that lawmakers violated the constitution when they enacted the ordinance; an as-applied challenge asserts that executive officials, including police and prosecutors, violated the constitution when they enforced the ordinance.“). The state defendants successfully argued to the trial court that that prerequisite was not met in this case.
Plaintiffs argue that the letter that they received from DLCD in April 2016 constituted executive enforcement action. The trial court correctly rejected that argument. The letter is a statutorily required notice from DLCD regarding recently enacted land use laws that may affect local governments. See
Alternatively, plaintiffs rely on the annexation petitions that they received after the enactment of
Normally, that would conclude our analysis of plaintiffs’ as-applied challenge to
Because it is relevant to what we will consider in construing Corvallis‘s and Philomath‘s charters, we next address whether the trial court erred in striking the 11 declarations from the summary judgment record. In support of their own interpretation of their charters, plaintiffs submitted 11 declarations: nine declarations from current or former Corvallis residents who voted on the 1976 charter amendment, a declaration from a current Philomath resident who voted on the 1987 charter amendment, and a declaration from the former deputy city counsel who proposed the “[u]nless mandated by state law” language included in Corvallis‘s 1976 charter amendment. The trial court struck all 11 declarations as irrelevant and otherwise inadmissible under the Oregon Evidence Code.
Even if we assume that the trial court‘s exclusion of the declarations was erroneous, any error was harmless. We may reverse a judgment only when an error “substantially affect[ed] the rights of a party,” i.e., was not harmless.
That is, even assuming that the declarations qualify as “legislative history” that we may consider under Gaines, we are only required to consider “useful” legislative history, and “the extent of the court‘s consideration of that history, and the evaluative weight that the court gives it, is for the court to determine.” Id. at 172. Applying that standard here, we would not give any evaluative weight to the 11 declarations stricken by the trial court, and their consideration would not affect our disposition. Any error in striking the declarations therefore was harmless.
3. Plaintiffs’ charters
That brings us to the content of plaintiffs’ charters. Charter amendments are the product of local legislation and are “to be interpreted by the same means as other legislation.” DeFazio v. WPPSS, 296 Or 550, 569, 679 P2d 1316 (1984). That is, we consider the text, context, and any useful legislative history offered by the parties. Gaines, 346 Or at 171-72. In this instance, we do not find any legislative history provided by the parties to be useful, so we limit our discussion to text and context, recognizing that text is always “primary” in the analysis. Id. The relevant text is brief.
As previously described, Corvallis‘s charter provides that, “[u]nless mandated by State law, annexation, delayed or otherwise, to the City of Corvallis may only be approved by a prior majority vote among the electorate.” Corvallis Charter of 2006, ch 10, § 53 (emphasis added). Similarly, Philomath‘s charter provides, that, “[u]nless mandated by state law, annexations to the city of Philomath may only be approved by a prior majority vote among the electorate.” Philomath
The state defendants argue that
Pieper involved the same provision of Corvallis‘s charter that is at issue in this case. 288 Or at 553. In Pieper, the state health division ordered Corvallis to adopt an ordinance annexing certain territory to the city, pursuant to
We affirmed, as did the Supreme Court. Id. at 558. The court rejected Corvallis‘s argument that an annexation without the vote of the people would conflict with the intent of its charter, explaining that it arose from a false premise—“the express desire of Corvallis residents to vote on all annexations“—that was contrary to the express charter language, which “specifically provides that annexations ‘mandated by state law’ need not be approved by such a vote.” Id. at 555 (emphasis in original). Given the express language of the charter, the “only remaining question” was “whether this annexation is one ‘mandated by state law.‘” Id. The court concluded that it was. Id. at 557. Because the annexation was “mandated by state law,” it did not require a vote of the Corvallis electorate, and there was no conflict between the statute and the charter. Id.
Similarly, in Mid-County, local boundary commissions relied on
Plaintiffs argue that this case is distinguishable from Pieper and Mid-County, because, in their view, those cases involved state-mandated annexation, whereas this case involves a state-mandated process for
Plaintiffs next argue that the trial court‘s construction of “unless mandated by state law” violates the rule against prospective delegation. See Advocates for Effective Regulation v. City of Eugene, 160 Or App 292, 311-12, 981 P2d 368 (1999) (holding that that rule applies to municipal charters). The rule against prospective delegation, as relevant to municipal charters, comes from three constitutional provisions: (1)
There was no prospective delegation here. As was the case in Pieper and Hunter, the plain language of plaintiffs’ charter provisions demonstrates a complete legislative policy to generally require voter approval of annexation proposals except where state law mandates the annexation. Plaintiffs’ charter provisions do not incorporate the substance of state law. Cf. Advocates for Effective Regulation, 160 Or App at 313 (holding that city charter provision incorporating the definition of “hazardous substances” from future federal regulations was an improper delegation of legislative authority). There is no reason that a city cannot adopt a charter provision that favors the uniformity of state law when state law exists. See Mid-County, 310 Or at 163 n 11, 164 (describing city charter as giving “consent and approval” to legislative alteration of borders, and recognizing that “[t]he initial power to decree an annexation still lies where it has always been—with the legislature“).
We also reject plaintiffs’ argument that the trial court‘s construction of
Finally, Corvallis and Philomath protest that they are being compelled to annex territory against their will. The difficulty with that argument is that plaintiffs are only being compelled to do precisely what their voters provided for when they enacted the charter provisions at issue: comply with state law regarding mandated annexations. Cf. Pieper, 288 Or at 555 (Corvallis‘s argument that annexation without the vote of the people would conflict with the intent of its charter was fallacious because it rested on the false premise that Corvallis residents expressly desired to vote on all annexations, when in fact the charter specifically provided that annexations “mandated by state law” did not require voter approval). If plaintiffs’ voters are dissatisfied with the existing charter provisions, then amendment is always possible, or, as the state notes, plaintiffs could seek to have their charter provisions invalidated.12
For all of those reasons, plaintiffs have not identified any grounds for reversal with respect to their constitutional challenge to
IV. CONCLUSION AND DISPOSITION
Accordingly, we affirm the trial court‘s grant of the state defendants’ motion for summary judgment, grant of the state defendants’ motion to strike, and denial of plaintiffs’ cross-motions for summary judgment.
The judgment is defective in one regard, however, which is that it does not contain a declaration of the parties’ rights. “If there is a justiciable controversy, the plaintiff is entitled to a declaration of its rights, even if that declaration is directly contrary to what it believes its rights to be.” Beldt v. Leise, 185 Or App 572, 576, 60 P3d 1119 (2003). When a trial court dismisses a declaratory judgment claim after deciding it on the merits, it is our practice to vacate and remand for correction of the judgment, even if we are affirming on the merits. Kramer v. City of Lake Oswego, 285 Or App 181, 215-16, 395 P3d 592 (2017), aff‘d in part and rev‘d in part, 365 Or 422, 446 P3d 1, adh‘d to as modified on recons, 365 Or 691, 455 P3d 922 (2019); see also Doe v. Medford School Dist. 549C, 232 Or App 38, 46, 221 P3d 787 (2009) (“When the dismissal of a declaratory judgment action was clearly based on a determination of the merits of the claim ***, our practice has been to review that determination as a matter of law and then remand for the issuance of a judgment that declares the rights of the parties in accordance with our review of the merits.“).
Here, the trial court granted judgment to defendants, rather than dismissing plaintiffs’ claims, but the same principle applies. The correct disposition of a declaratory judgment claim is to enter a judgment declaring the parties’ rights. De Lanoy v. Taylor, 300 Or App 517, 520, 452 P3d 1036 (2019) (when a “party asks for a declaration, it is incumbent on the court to declare the respective rights of the parties“). Plaintiffs are entitled to a declaration, even if it is not the declaration they want. Beldt, 185 Or App at 576. Accordingly, we vacate and remand for the trial court to
Vacated and remanded for entry of a judgment that declares the rights of the parties.