CITY OF DAMASCUS, James B. De Young, Jeanne Robinson, Mark Fitz, and William Wehr, Petitioners, v. STATE OF OREGON, by and through Kate Brown, Governor; and Bev Clarno, Secretary of State, Respondents.
(SC S066939)
Supreme Court of Oregon
September 3, 2020
367 Or 41 (2020); 472 P.3d 741
BALMER, J.
Submitted on the briefs April 10, considered and under advisement May 7.
Oregon Laws 2019, chapter 545, declared valid September 3, 2020
After an attempt to disincorporate the City of Damascus under the voter-initiated process requiring the approval of an absolute majority of the city‘s electors, as provided in
Oregon Laws 2019, chapter 545, is declared valid.
En Banc
On petition for review under Oregon Laws 2019, chapter 545, section 4.
Edward H. Trompke, Jordan Ramis PC, Lake Oswego, and Tyler D. Smith, Tyler Smith & Associates PC, Canby, filed the briefs for petitioners City of Damascus, James B. De Young, Jeanne Robinson, Mike Fitz, and William Wehr.
Philip Thoennes, Assistant Attorney General, Salem, filed the brief for respondents. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
BALMER, J.
Oregon Laws 2019, chapter 545, is declared valid.
In Senate Bill (SB) 226 (2019), enacted as Oregon Laws 2019, chapter 545, sections 1 to 5, the Oregon legislature sought to retroactively cure defects in a 2016 local election in which voters approved disincorporating the City of Damascus (the city). Anticipating controversy as to the validity and effectiveness of SB 226 in curing the problem with the election, the legislature included a provision
I. BACKGROUND
We draw the following history from the parties’ stipulated facts. The City of Damascus was incorporated in 2004, after some area residents became convinced that incorporation would give them more control over land use decisions that would have to be made after the area was included in Portland Metro‘s urban growth boundary. Shortly thereafter, in 2005, the city‘s residents adopted a charter, which gave the city home rule authority. By 2013, however, some city residents had become dissatisfied with the city‘s performance in various respects and began a campaign to disincorporate it. Ultimately, the question of disincorporation was referred to the voters in accordance with the procedure for disincorporation provided by state law,
The disincorporation proposal failed. Although it was approved by a majority of those voting on the measure, it was not approved by “a majority of the electors of the city” as required by the applicable statute,
In 2015, a group of residents sought the legislature‘s help in obtaining another vote on disincorporation, under less stringent rules. The legislature obliged, enacting House Bill (HB) 3085 (2015), which referred to residents another disincorporation measure. Section 1(2) of HB 3085 provided that, “notwithstanding
A resident who was a member of the city council challenged the disincorporation vote, arguing that Measure 93 had been placed on the ballot in violation of the city charter,
The plaintiff‘s initial statutory argument in De Young focused on the fact that the 2016 disincorporation election had not complied with the requirements for disincorporation set out in
“[A]t the time of the Measure 93 election,
ORS 221.610 andORS 221.621 provided the only means by which a city could disincorporate and [] the legislature did not effectively exempt the election from complying with their terms. Moreover, defendants do not dispute that, if the Measure 93 election was required to comply with those terms, it failed to do so[.]”
Id. at 370 (emphasis added). The court further explained:
“The only provision, legislative or otherwise, for a special election at which a simple majority would prevail is that found in the substantive text of HB 3085, text that defendants acknowledge cannot have been given effect until after the election it purported to authorize. To our knowledge, the legislature did not, at the time it passed HB 3085, also issue an order dictating the manner in which its provisions would be submitted to a vote.”
Id. at 369. Having thus invalidated the election on statutory grounds, the court declined to consider the plaintiff‘s other arguments. Id. at 358.
The Court of Appeals decision in De Young threw the local governments that had filled the void left by the city‘s disincorporation into a state of confusion. Clackamas County, which had absorbed most of the city‘s employees into its own workforce along with the city‘s funds, lobbied for a legislative fix. Attorneys for Clackamas County and other affected governments (Happy Valley and Portland Metro) worked closely with legislators to draft a bill that would validate and make effective the outcome of the 2016 disincorporation election. The resulting bill, SB 226, which is the subject of our present review, was enacted by the legislature and then signed by the Governor on July 15, 2019. It became effective immediately thereafter.
SB 226 consists of four sections and provides two alternative mechanisms for ratifying the results of the 2016 disincorporation election. Section 1 provides the first alternative. It declares that “notwithstanding
Sections 2 and 3 of SB 226, taken together, provide another means of ratifying the 2016 election. Section 2 provides an alternative procedure for disincorporating a city to the one provided in
Finally, section 4(1) of SB 226 states the intent of the legislature in passing the law:
“It is the intent of the Legislative Assembly by enacting sections 1 to 3 of this 2019 Act to cure any defect in the procedures, and to ratify the results of any vote on the question of the disincorporation of a city in which the disincorporation was approved by a majority of the voters of the city voting on the question at an election held on the date of a primary election held throughout this state before the effective date of this 2019 Act.”
Section 4 also provides for expedited review by this court of the validity of sections 1 through 3 upon a petition for review filed within 30 days following enactment, by a person “interested or affected or aggrieved” by those sections, and it sets out detailed instructions for such review. Among other things, section 4(5) instructs the court to first determine whether section 1 of SB 226 is valid and to proceed to determine the validity of sections 2 and 3 if, and only if, it determines that section 1 is not valid.
Petitioners, at least one of whom meets the statute‘s standing requirement, timely filed a petition for review.5 Petitioners argue that SB 226 violates various provisions of the
II. ANALYSIS
Of the numerous constitutional and statutory flaws in SB 226 that petitioners assert, only some require extended discussion, and we focus on those. As noted, section 4(5) of SB 226 directs this court to determine the validity of section 1 before considering sections 2 and 3, and to consider the latter sections only if we first determine that section 1 is invalid. We consider in greater detail below whether we must or should follow that legislative directive; however, that directive is not relevant to most of petitioners’ arguments, which apply equally to section 1 and to sections 2 and 3 (combined), and for that reason we consider those arguments first.
Petitioners contend that there was a fundamental problem in the 2016 disincorporation election that precludes any ratification of its results by SB 226. In particular, petitioners assert that, in referring Measure 93 to the voters of Damascus, the legislature purported to delegate to those voters a decision that the legislature had no authority to make—the decision to repeal the city‘s charter. To support that assertion, petitioners point to
Petitioners appear to be confusing the continued existence of a city with the continued existence of its charter, and disincorporation with the charter‘s repeal. But the two circumstances are distinct. In fact, while
B. Implied Prohibition on Retroactive Amendments to Elections Laws
Petitioners contend that the
As an initial matter, we reject petitioner‘s characterization of the effect of SB 226 as changing the applicable rules for the election after the fact. The Measure 93 election was held under the rules set out in Measure 93 itself—it was held during a primary election, with the understanding that the measure would pass and disincorporation result if it received the votes of the majority of those who actually voted. While the Court of Appeals decided years later that those election rules were not effective because the legislature had failed to exempt the measure from the different election rules set out in
It is for that reason that we decline to engage with petitioners’ framing of the issue, i.e., as asking whether we will in this case
The general rule, outside the context of criminal law, is that “a legislature may pass a retroactive law which could validate any act which it could in the first instance have authorized, subject to the restriction that it could not impair the obligation of a contract or a vested right.” Smith v. Cameron et al., 123 Or 501, 507, 262 P 946 (1928). See also Carey v. Lincoln Loan Co., 342 Or 530, 539, 157 P3d 775 (2007) (“[D]efects in laws can be cured by subsequent legislative action, as long as the subsequent action does not impair vested rights or the obligations of contract.“). Thus, in Nottage v. City of Portland, 35 Or 539, 58 P 883 (1899), this court held that a procedural defect in a petition for a street assessment—a failure to include the names of one-half of the affected property owners in the petition, as required by the city charter—had been cured by a legislative amendment to the city charter enacted after the assessment had been made. In Cameron, on the other hand, the court concluded that a judgment against the state in an eminent domain action, which had resulted from a constitutional defect in the eminent domain statute, could not be “cured” through a retroactive amendment to the eminent domain statute, because the landowner in whose favor the judgment had been entered had obtained a vested right in the judgment. Id. at 506-07.
Notably, in at least one Oregon case, that general rule has been applied in the context of a defective election. In State v. James et al., 189 Or 268, 219 P2d 756 (1950), relators challenged the City of Springfield‘s formation of a park and recreation district and a bond election for funds for the district, arguing that the city had lacked authority to form the district and that the bond election had not followed applicable procedures. The adverse parties argued that any defect in the formation of the district and the bond election had been cured by subsequent legislation—a statute that purported to retroactively “validate[], ratif[y], authorize[], approve[] and confirm[] the organization of any park and recreation district organized pursuant to [a specified statute] * * * [and] all proceedings theretofore taken in the authorization and issuance of bonds by any park and recreation district.” Id. at 272. This court agreed, holding that the general rule stated in Nottage and other cases applied:
“If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the legislature might have dispensed with by a prior statute, then it is not beyond the power of the legislature to dispense with it by a subsequent statute.”
The same rule has been applied in other jurisdictions in a variety of cases involving elections, including elections to incorporate municipalities. See, e.g., Town of Fox v. Town of Kendall, 97 Ill 72 (1880) (vote upon the question of township support of paupers—submitted to voters before the law provided for submission of such question to voters—was defective, but defect in election could be cured by subsequent curative act to the effect that such elections should be treated as legal and binding); State ex rel Johnson v. Union Free High School Dist. of Polk and St. Croix Counties, 179 Wis 631, 191 NW 972 (1923) (where legislature had authority to provide for formation of school districts in any manner, it could enact legislation retroactively validating defective election to form school district); Sullivan v. Volusia County Canvassing Bd., 679 So 2d 1206 (Fla 1996) (state legislature had power to ratify election process that incorporated city and dissolved fire and municipal services district, despite alleged notice and ballot irregularities); City of Muscatine v. Waters, 251 NW2d 544 (1977) (Iowa 1977) (state legislature cured notice defect in municipal annexation election by retroactive legislation).
It appears, then, that there is no implied or inherent principle or law that precludes retroactive legislation to cure a defect in an earlier election, with the caveat that the
C. Equal Protection and Due Process under the United States Constitution
Petitioners note that, under Bush v. Gore, 531 US 98, 121 S Ct 525, 148 L Ed 2d 388 (2000), the Due Process and Equal Protection Clauses of the Fourteenth Amendment are violated when, in an election on a matter in which all electors have been granted an equal vote, the state makes arbitrary changes that might increase the value of the votes of some electors vis-à-vis that of others. Petitioners contend that, in enacting SB 226, the legislature did what was prohibited in Bush, because it “retroactively changed the value of the votes against [Measure 93], diminishing their value and increasing the value of those voting in favor.” Petitioners argue that because SB 226 authorized disincorporation upon the vote of a majority of those voting—rather than a majority of electors, as required by
The state responds that Bush is irrelevant because it is about uniformity of procedures for tabulating votes, and petitioners’ challenge here has nothing to do with the tabulation of votes. We agree. We also agree with the state that petitioners are wrong when they characterize SB 226 as changing the value of some votes cast in the Measure 93 election after the fact. The provision in SB 226 for disincorporation by a simple majority of those voting exactly mirrors what was provided in Measure 93 itself, so the electors who voted, or chose not to vote, in the 2016 disincorporation election can be presumed to have understood what their votes (or nonvotes) were worth at the time. In short, the notion of a post-election change of rules that underpins petitioners’ equal protection and due process argument is not consistent with the facts.6
D. Home Rule
We turn to petitioners’ arguments regarding the home rule provisions in the
The first home rule provision,
“The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws, but cities may provide the manner of exercising those powers as to their municipal legislation. In a city,
not more than 15 percent of the qualified voters may be required to propose legislation by initiative, and not more than 10 percent of the qualified voters may be required to order a referendum on legislation.”
Much has been written about the meaning and effect of those two provisions, which were proposed by initiative and adopted by the people in 1906. The controlling interpretation of the provisions is the one that this court announced in La Grande/Astoria v. PERB, 281 Or 137, 576 P2d 1204 (1978) (La Grande I), and reaffirmed on rehearing, La Grande/Astoria v. PERB, 284 Or 173, 586 P2d 765 (1978) (La Grande II). In La Grande I, the court recounted the history of the adoption of the provisions as initiative measures. That history showed that the primary concern of those who advocated for the measures was that the voters of municipalities be permitted to determine the structure and organization of their own municipal governments, but that they did not intend to oust the state legislature from making substantive law affecting cities and towns. Id. at 142-45. Based on that history and the subsequent case law, this court held in La Grande I that the prohibition in
The court also explained, however, that the grants of authority to the voters of every municipality to enact and amend their own municipal charters and to exercise the initiative powers “as to all local, special and municipal legislation” did not impose limits on the legislature with respect to making substantive law that affects municipalities. Id. at 145. And because the municipal government and the state legislature will at times quite lawfully pursue substantive objectives regarding the same subjects, the court in La Grande I opined, there will be occasions when state and local substantive laws overlap or conflict. In such cases, the court added, the state and local law must be allowed to operate concurrently, if possible, but if that is not possible, the state law will displace the local law. Id. at 147-49.
La Grande I summarized those conclusions in a rule that has been applied in home rule challenges ever since:
“When a statute is addressed to a concern of the state with the structure and procedures of local agencies, the statute impinges on the powers reserved by the [1906] amendments to the citizens of local communities. Such a state concern must be justified by a need to safeguard the interests of persons or entities affected by the procedures of local government.
“Conversely, a general law addressed primarily to substantive social, economic, or other regulatory objectives of the state 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 local community‘s freedom to choose its own political form. In that case, such a state law must yield in those particulars necessary to preserve that freedom of local organization.”
Id. at 156. La Grande II confirmed the quoted rule in all of its particulars. Id. at 177-86.
Having set out that basic analytical framework for considering challenges under the home rule provisions of the
1. Is SB 226 a legislative attempt to “amend” section 27 of the city‘s charter in violation of the city‘s home rule authority?
Petitioners’ initial home rule argument focuses on the specific prohibition in
Petitioners first contend that the Damascus City Council has interpreted “state law” in section 27 of the charter as referring to state law as it existed on the date of the adoption of the charter, and they insist that, under Fifth Avenue Corp. v. Washington Co., 282 Or 591, 581 P2d 50 (1978), this court must defer to that interpretation. Petitioners then note that, when the city adopted its charter in 2005, state law, including
An initial problem with petitioners’ theory arises out of their bid for deference in respect to the meaning of section 27 of the city charter. It is true that, in Fifth Avenue Corp. we held that the interpretation of a county‘s charter by the county‘s governing body should be given deference. We explained there that the county board of commissioners “composed as it is of popularly elected local officials directly accountable to their constituency * * *, in the first instance, should have the power and right to interpret local enactments.” Id. at 599. But whether the interpretation of section 27 of the charter that petitioners offer here is entitled to deference under that rule is highly debatable. The interpretation of section 27 that petitioners offer was adopted not in 2005, when the charter was enacted, or 2016, when the Measure 93 vote occurred, but in 2019 and in anticipation of the present litigation, by a group of persons who have assumed the title of Damascus City Council without the benefit of being elected to that body. Whether or not the group has a legitimate basis for claiming that title, it cannot claim to be composed of “popularly elected local officials directly accountable” to the people of Damascus.
Even setting the deference issue aside, petitioners’ argument remains problematic. Petitioners assume that SB 226 “amends” the city‘s charter in violation of
Second, even if we accept petitioners’ reading of section 27 and their argument that SB 226 conflicts with that charter provision, their position ignores difficult questions about whether a statute that sets out requirements for a municipal disincorporation election is directed at the “structure and organization” of municipalities (as opposed to substantive policy)9 and, if so, whether it is “justified by a need to safeguard the interests of persons or entities affected by the procedures of local government.” La Grande I, 281 Or at 156. By framing the issue solely in terms of the text of
2. Does SB 226 violate the city‘s home rule authority by providing the “manner of exercising” initiative and referendum powers as to “municipal” legislation?
Petitioners’ second home rule argument focuses on the wording of
SB 226 and Measure 93 are not “municipal legislation,” and they do not interfere with the “manner in which” the city may exercise initiative and referendum powers over its “municipal legislation.” Rather, those measures are both legislative acts that provide a mechanism for triggering and carrying out a disincorporation election under state, not municipal, law, that supplements the procedure provided by state law before their passage. Petitioners never suggest that the long-standing state statutes regarding the procedures for the disincorporation of local governments—such as
that changes in those procedures, such as those contained in
3. Application of La Grande I
a. The parties’ arguments and home rule principles
Petitioners’ remaining argument with respect to the legislature‘s enactment of an alternative process for holding a disincorporation election and its ratification of the results of that election in
Petitioners argue that, insofar as
“When a statute is addressed to a concern of the state with the structure and procedures of local agencies, the statute impinges on the powers reserved by the [home rule] amendments to the citizens of local communities. Such a state concern must be justified by a need to safeguard the interests of persons or entities affected by the procedures of local government.
“Conversely, a general law addressed primarily to substantive social, economic,
or other regulatory objectives of the state 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 local community‘s freedom to choose its own political form. In that case, such a state law must yield in those particulars necessary to preserve that freedom of local organization.”
Petitioners argue that only the first paragraph above is at issue here: whether
Petitioners continue that
The state responds that
The state also argues that
Based on the La Grande I rule‘s reference to “a general law addressed primarily to substantive social, economic, or other regulatory objectives of the state,” 281 Or at 156, both parties focus in part on the issue whether
“The limitation stated in [A]rticle XI, section 2, is only that ‘[t]he Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town.’ The opinion holds that this limitation refers to legislative interference with the political arrangements made in local charters and ‘charter-like’ provisions but does not invalidate general social, economic, or other regulatory statutes merely because they contradict local policies. This holding concerns only the constitutional limits on the state legislature; it does not concern what may be done under local authority granted by charter, statute, or ‘municipal legislature’ under [A]rticle IV, section 1(5), as petitioners appear to fear.
“The constitution shows, however, that beyond the limitation on enacting, amending, or repealing charters[,] the legislature did not lose the power to enact purely local laws.”
La Grande II, 284 Or at 183-84 (emphasis added).
What that means, in the end, is that the critical distinction is not between special or local laws and general laws, but, rather, between laws that address the “structures and procedures” of local government and those that address “substantive social, economic, or other regulatory objectives of the state.” That difference determines whether a statute enacted by the legislature violates the home rule provisions of the Oregon Constitution.
b. The legislature‘s instruction to the court regarding how to determine the validity of SB 226
Because petitioners’ arguments that we have considered thus far have been directed at the asserted invalidity of
Section 1 would accomplish the legislature‘s stated goals by providing that “notwithstanding
It is obvious from the precis above that section 1 and sections 2 and 3 raise in slightly different ways the home rule question, i.e., whether they unconstitutionally interfere with “structures and procedures of local agencies” or are instead permissible laws addressed “primarily to substantive social, economic, or other regulatory objectives of the state.” La Grande I, 281 Or at 156. Petitioners, of course, assert that both section 1 and sections 2 and 3 are invalid, as they must if they are to prevail. They argue that both paths strike at the heart of the “structure and procedures” of the City of Damascus by, in effect, using a state law (albeit one seeking to ratify a local election that took place pursuant to earlier legislative action) to eliminate the city itself, including its “structure and procedures.” For its part, the state argues that both sections are valid exercises of state regulatory authority over procedures for disincorporation elections and that they are valid for the same reason that the pre-SB 226 statutes regarding such elections are valid.
If we were to follow the legislature‘s instruction in
The avoidance canon, in part, is a rule of judicial restraint, in that it allows the court to avoid holding all or part of a statute unconstitutional and “thus minimize the possibility of conflict between the branches.” Jack L. Landau, Oregon Statutory Construction, 97 Or L Rev 583, 718 (2019) (discussing avoidance canon). Moreover, when there are two plausible constructions of a statute, one constitutional and the other unconstitutional, we assume that the legislature intended the constitutional meaning, so will adopt that construction. State v. Kitzman, 323 Or 589, 602, 920 P2d 134 (1996) (so holding).
Here, in addition to the issue of avoiding ruling on the constitutional validity of section 1—which we would be required to do if we followed the legislature‘s instruction—there is the additional potential constitutional issue of whether the legislature‘s instruction itself violates the separation of powers provision of the Oregon Constitution,
The legislature‘s instruction in
We first explain briefly why we consider the validity of the section 1 approach to ratifying the results of the
c. Sections 2 and 3 of SB 226
Sections 2 and 3 provide an alternative mechanism to section 1 by which the voters of a city can decide to disincorporate the city. To review,
Sections 2 and 3 do not directly effect the disincorporation of the City of Damascus or any other city. Rather, section 2 establishes as part of Oregon law a different statutory procedure for holding a vote on disincorporation in addition to that which already exists, and section 3 provides that that alternative procedure applies retroactively. Petitioners argue that the two sections are addressed to the “procedures” of local government and therefore impinge on powers reserved to the local government, but that argument ignores the state‘s persuasive response that it has a substantive interest in regulating the procedures for the disincorporation of local governments. The state‘s argument is even more persuasive when considering that, when
Having established that point, the question arises whether those sections are nevertheless invalid under the La Grande I rule, because they are “irreconcilable with the community‘s freedom to choose its own political form.” 281 Or at 156. Petitioners argue that
We conclude that sections 2 and 3 do not violate the home rule provisions of the Oregon Constitution.
E. Petitioners’ Separation of Powers Challenge to Sections 2 and 3 of SB 226
Because we do not reach the question of the validity of section 1 as a means of ratifying the 2016 disincorporation election, we need not consider how that section fares under petitioners’ argument that it violates separation of powers principles incorporated in
In McFadden v. Dryvit Systems, Inc., 338 Or 528, 112 P3d 1191 (2005), this court considered whether
“The legislature is not setting aside the court‘s original determination, which is final as to the law then existing. It is merely deciding that prior claimants should have another opportunity to file and litigate their claims under a new and different set of standards. If the legislature would originally have had authority to enact the statutes relating to the filing of claims as such statutes were subsequently amended (and it is plain it would have had), it had the authority to make the amendment retroactive and to permit claimant to refile despite the intervening litigation.”
McFadden, 338 Or at 537-38 (quoting Sulmonetti, 276 Or at 972). The court in McFadden contrasted such legislative acts that grant new rights of appeal and make those rights retroactive—a legislative function—with legislation that purports to construe previous legislative enactments—a judicial function, giving them a meaning that contradicts a judicial decision in the matter. The latter kind of legislation would violate
Although the underlying issue in McFadden is different from the issue here, that case nevertheless provides important insight into how to analyze claims that a retroactively applicable change of law violates constitutional separation of powers principles by overturning prior judicial decisions. Under McFadden, a statute that simply deems valid claims that a court has already determined to be invalid is an unconstitutional exercise of a judicial function by the legislature. But sections 2 and 3 of
III. CONCLUSION
Having considered petitioners’ various challenges to
Oregon Laws 2019, chapter 545, is declared valid.
Notes
“(1) This section establishes the procedure for determining whether a city shall disincorporate. The question shall be decided by election. The governing body of the city shall call an election when a petition is filed as provided in this section.
“(2) The requirements for preparing, circulating and filing a petition and calling an election under this section shall be as provided for an initiative measure under
“(3) Notwithstanding subsection (2) of this section, if
“(4) The question of disincorporation shall be submitted to the electors of the city at an election held on the first Tuesday after the first Monday in November in any year but shall not be submitted more than once in two consecutive calendar years.”
“Any city not liable for any debt or other obligation, may surrender its charter, disincorporate and cease to exist if a majority of the electors of the city authorize the surrender and disincorporation as provided in
“(1) Notwithstanding
“(a) The Legislative Assembly may refer an Act to the people of a city on the question of whether to disincorporate the city.
“(b) If the Legislative Assembly refers an Act under this section:
“(A) The election on the measure shall be held on the date of the next primary election held throughout this state that occurs after the enactment of the referred Act; and
“(B) The measure shall be approved if a majority of the voters voting on the question in the election votes in favor of disincorporation.”
“The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the state of Oregon.”
“The 1906 amendments were not designed to exalt form over substance, on the one hand leaving all local modes of government at the mercy of the legislature unless written into the local charter and on the other hand immunizing from state law any local policy on any subject if only it is placed in the charter.”
“Any change to the general laws of the State of Oregon regarding the processes for the use of the initiative, referendum and recall by city voters shall not be valid, unless such change has been proposed by initiative petition and approved by a majority of the voters in a general election.”
Petitioners’ theory as to why SB 226 conflicts with or creates an exception to section 6(a) of the city charter depends on their understanding of the holding in De Young, viz., that a disincorporation vote can be triggered only by an initiative petition. That understanding of De Young is incorrect: Although the Court of Appeals in De Young questioned whether “the legislature that enacted