City of La Grande v. Public Employes Retirement Board

allowed, rehearing January petition 12,1977, July Argued reversed 25, 1978 October adhered to former decision GRANDE, Respondent, LA CITY OF

v. RETIREMENT EMPLOYES PUBLIC Petitioners. al, et BOARD 25230) (TC 22993, 5943, SC CA ASTORIA, Respondent, CITY OF RETIREMENT PUBLIC EMPLOYES al, et Petitioners. BOARD 25230) (TC 29437, CA SC 576 P2d [ 137] filed Jensen, K. cause and Gary Eugene, argued Firemen of petitioners a brief for Policemen and Astoria, a class. City Salem, Laue, General,

Al J. argued Solicitor cause for Retirement petitioner Employes’ Public him With on the brief Oregon. Board State General, and Michael Johnson, Attorney were Lee W.

Gillette, Solicitor General. Grande, cause

Ross La Hearing, argued of La Grande. filed a brief for respondent City Fischer, Astoria, cause argued D. Richard was him on the brief of Astoria. With respondent City [ ] 138-a Anderson, Fulton, Robert C. Anderson of & Lavis Van Thiel. Mattis,

James M. Counsel Eugene, Special curiae; Harms, Jr., amici Edward C. City Attorney, Jr., J. B. Coos Springfield; Bedingfield, Attorney, City Dalles; A. Charles Bay; Phipps, City Attorney, Hammond, John H. Jr. Attorney, (Oregon City), City Gladstone; (Hillsboro), J. D. Bailey City Attorney, (St. L. Tigard; Helens), Charles Purvis City Attorney, Rainier; McFarlan, and Earl Sweet City Attorney, Home, filed a brief for seven cities as amici curiae.

LINDE, J. Howell, JJ., dissent- Tongue, Bryson, separate ing opinions.

[ ] 138-b LINDE, J. assembly legislative

By enactment, a 1971 employed police required and firemen all officers brought county, any city, within the district to be or July System by Employes 1, Retirement state’s Public employer provides particular public unless equal Or retirement benefits. or better them with at ORS 237.610-237.640. 1971, ch Laws codified employers required public these also The same statute policy purchased pay premiums on an insurance provid- Department Services, of General the state’s ing fireman’s beneficiaries $10,000 to an officer’s or job-related again death, unless case of his or her employer provides equal or better benefits. ORS 243.005-243.055. validity provisions retirement of the separate declaratory judgment

statute was attacked proceedings brought by the Cities of La Grande against against state officials and Astoria various firefighters respective police a class or as their bargaining agents.1 represented by their collective challenged statutory requirement Astoria also insurance coverage. by requiring The cities claim that police provide them to officers and firemen with has retirement and insurance benefits by to local discretion invaded a domain reserved respective trial courts Constitution. The chapter request proceeding than a for an 1 A under 28 must be more "judicial advisory opinion; power,” art VII as an exercise of the Or Const (am), 1, requires assertedly § adverse interest identification of Seaton, 440, 444, 450 P2d 547 defendants. Gortmaker v. 252 Or named (1969), Moreover, against proceedings there cited. such and cases ripeness agencies require preliminary examination issues of often Oregon Newspaper possibly See exhaustion of administrative remedies. Peterson, (1966); See ORS 183.400. Pub. Ass’n v. Or 415 P2d cf. (1977), ERB, 291, 570 ex City P2d 663 and State also v. 280 Or of Hermiston Troutdale, today. Finally, may Haley City have to v. decided court rel 28.110; parties ORS have been named. determine whether all interested Docks, 255, 401 P2d 25 Public Stearns Commission of cases, sufficiently interest exists we conclude that a adverse In these employee groups and state plaintiff and the defendant between the cities agencies. agreed with this The Court of Appeals claim. affirmed 9, in a consolidated 28 Or 558 P2d 1236 appeal, App review, In granting we asked the specifically to discuss these parties questions: 1. In ex rel al, State v. Milwaukie et Heinig 473, (1962), 373 P2d 680 this court announced a test used in determining when legislate the state can on a matter of local concern. Should the Heinigtest be refined and, so, or reconsidered if way? what reconsidered, 2. If the test is refined or what might criteria define apply to areas of state or local concern in employe the context of relations and employe benefits?

The cases have been briefed extensively and parties numerous amici curiae. For the reasons follow, that we that in enacting conclude these retire- ment and insurance did requirements legislature not exceed re- accordingly constitutional bounds verse the decisions below.

I The issues in these cases arise from two provisions of the Oregon Constitution together provide "home rule” for cities and towns.2 Enacted together by initiative amendment in they two appear in the places constitution. The pertinent of article part XI, section provides: enact, Legislative Assembly

The shall not amend or repeal any any incorporation charter or act of municipality, city and legal every city or town. The voters of hereby granted power

town are to enact and amend charter, municipal subject their to the Constitution criminal Oregon, laws of the State of . . . term, "Home rule” itself is not a constitutional and the actual constitutional terms differ from state to state. But "home rule” has been symbol” "political objectives authority. described as the for the of local One study perhaps political warned "there is no term in the literature of susceptible variety misconception

science or law which is more ” meaning Sandalow, Municipal than 'home rule.’ The Power Limits of 3, 4 Courts, 643, 644, Under A Home Rule: Role 48 Minn L Rev & nn. (1964), citing sources. (now In IV, 1(5)), article section la the statewide initiative and referendum powers "reserved” to people by IV, amendment of article section in 1902 were "further reserved to the qualified voters of each municipality local, and district as to all special municipal legislation of character their every or for municipality district.3 between the relationship authority and that of governments under these

provisions during the has past years occupied court in more than 75 cases. As might be expected, court has a employed variety of formulations explaining these decisions. This is only proper, since that relationship presents a number of distinct issues rather than a issue. In single any case, it is given (1) necessary distinguish whether it involves validity of a local act in the absence of a state contrary (2) law;4 of a state validity law the absence of a (3) contrary act;5 of a validity local act said to (4) conflict with a law;6 state of validity a state IV, 1(5), 3 Article section continues: exercising The manner powers of provided by general those shall be laws, may provide but cities exercising powers the manner of those as municipal legislation. to their qualified tive, city, percent In a not more than 15 of the may required voters propose legislation by be the initia- percent and not qualified may more than 10 of the voters be

required to order a legislation. referendum on Another amendment authority in 1958 extended to counties the to form their own powers charters and the voters’ of initiative and referendum. Or VI, § Const art 10. 4 E.g., Court, 109, (1926); Municipal La Grande v. 120 Or 251 P 308 Tufts, 304, (1915); City West Linn v. 75 Or 146 P 986 Lines v. see of Milwaukie, (1973). 280, App 15 Or 515 P2d 938 5E.g., City Cornelius, 505, v. Schmidt (1957); Or 316 P2d 511 of Portland, City 191, (1908). McKenna v. 52 Or 96 P 552 6 E.g., Miller, 54, (1961); Terry City Fischer v. 228 Or 363 P2d v. Portland, 478, (1954); 204 Or 269 P2d 544 Southern Pac. Co. v. Consoli Inc., Freightways, 657, 281 (1955); dated City 203 Or P2d 693 Portland v. 365, Duntley, (1949); 538, City Bay 185 Or 203 P2d 640 Coos v.Aerie No. 83, (1946); Bisaillon, 179 Or 1169 170 P2d 389 Winters v. 152 Or 54 P2d (1936); Lyons City Portland, (1925); v. 115 Or 235 P 691 Lovejoy City Portland, 459, 188 P 207 of this Often cases issue, kind party defending validity also raise the next when the of the validity conflicting local act attacks the of the state law. T law said to conflict with a local act.7 o reduce authority their effect of the amendments on local authority single effect on the state’s to a formula only that these are two differ would ent obscure the fact questions.

It is useful to recall the role of the amendments respect arrangements. the state’s constitutional With authority, object to local their allow the central people locality upon organization to decide government scope powers their of its under its having statutory charter without to obtain authoriza legislature, tion was case before the from the as validity amendments. of local action de Thus pends, first, whether it is authorized the local on statute, initiative, charter or or if taken [or] qualifies special municipal "local, it whether 1(5); legislation” IV, second, under article section on whether respect it With contravenes state or federal law. it, law,

to a taken under on the or action elementary hand, other it is that the has may plenary authority except for such limits as found in law. Thus the the constitution or federal local entities does not validity of a state law vis-a-vis authority depend upon law, for the nor on a source of authority locality may whether on the have act subject; imposed by depends same the limitations on XI, article section supra.8 provisions

Moreover, these constitutional are con- organizational cerned with the structural arrangements the exercise of local self- government, power with the of local voters to enact 7E.g., City Comm’n, 633, 413 Woodbum v. State Tax P2d 606 243 Or of (1966); Boyle Bend, 91, City (1963); v. 234 Or 380 P2d State ex rel 625 of City Milwaukie, 473, (1962); City v. 231 Or 373 P2d 680 of of Carlson, 557, (1939); City Cascade v. Locks 161 Or 90 Klamath P2d 787 of Oregon Liquor Commission, 83, (1934); Falls v. Control 146 Or 29 P2d 564 City Comm’n, 114, (1916); Woodbum v. Public Service 82 Or 161 P 391 of (1914). Albee, 188, Branch v. 71 Or 142 P 598 amendments, limitation, which is 8 Another antedates the "home rule” IV, prohibition against "special in article various or local” laws detailed section 23. charters and to municipal and amend their own "local, spe- and referendum for initiative employ address They cial municipal legislation.” [or] granted manner which governmental it is exercised, put. not the concrete uses to which initiative and referendum for the limits on the Except 1(5), IV, in the of article section implied quoted phrase areas of the amendments do not to divide purport government. substantive between the levels of policy of state and local the accommodation Accordingly, most involves the amendments authority directly when a invokes a state law as some party governing election,9 the process of local such as government, of local qualification government person- selection 11 nel,10 taxation and or judicial procedures.12 finance in the over the important early issue disputes effects of the whether amendments was prohibi- 2, XI, tion of article extended laws beyond section changing a charter to laws single municipal amending sharply The court had been generally. such charters 1914,13 Chief divided in two cases decided McBride, Justice a main of the who had been sponsor amendments, 1906 in dissent. This led the court soon Comm’n, 633, 413 P2d City 606 9 E.g., Woodburn v. Tax 243 Or State of (1946); Stadelman, 646, 167 Thompson (1966); v. P2d 936 v. 178 Or Seufert (1936); Eugene, Nelson, 43, Campbell City 116 Or 62 P2d 267 v. 155 Or of 191, Portland, 264, (1925); City P 552 52 Or 96 McKenna v. 240 P 418 of (1908). issue, challenge procedure example opposite on For an to local concern, subject v. ground see Allison was one of statewide (1976). 571, Washington County, App 24 Or 548 P2d 188 10 Milwaukie, 473, 373 E.g., rel Heinig v. City ex P2d 680 State 231 Or of (1962). 11 (1968); Salem, 150, City E.g., Bennet Brown v. 251 Or 444 P2d 936 539, (1967); City City of Oceanlake, v. Woodburn v. 247 Or 430 P2d 1004 Bend, Comm’n, 633, (1966); City Boyle v. State Tax 243 Or 413 P2d 606 Carlson, (1963); 91, City 161 Or 234 Or 380 P2d 625 Cascade Locks v. 286, 557, (1939); Welch, City 59 P2d 228 P2d 787 Portland v. 154 Or 90 (1934). (1936); Gibbons, 370, P2d Burton v. 148 Or 36 786 12 (1963); Bend, 91, v. Boyle City Schmidt Eg., 234 380 P2d 625 v. Or (1957); Municipal Cornelius, 505, City v. 211 P2d 511 La Grande Or 316 (1926). Court, P 120 Or 251 308 (1914); Knapp, 73 Or 188, 142 v. Albee, Kalich P Branch denied, rehearing 145 P 142 P ^[143] thorough the text and review of to undertake a after amendments, history in a unani- recent of these still by opinion Rose v. Port Harris. Justice mous origin of The 541, 162 P 498 Portland, 82 Or the desire found, had been amendments, the court the own charters their to enact of local communities having from the action to secure without ordinances by proposal, legislature. a com- circulated The Justice and Chief W. S. U’Ren mittee that included People’s organized the itself as and that later McBride by accompanied Oregon, a League was Power existing describing to be situation the statement remedied: in the city charters making method of "The usual the agree on state, few men been, for a in this has past introduced Then it was city. the wanted for they charter county their by one of assembly legislative in the consisting of committee referred to a It was members. favorably, of reported county, from his members the legisla- consent course, by unanimous and enacted about anything or cares member ever sees other ture. No at 560-561.14 . .” 82 Or it . . opinion continued:

The court’s at that prints issued public the An examination in the uppermost was the idea which time discloses power legislature take from the minds of all was to law. The by special a city a or town make charter single making of a was to be removed sought evil "on the agreed men who a few single city by charter for a was suggestion The city.” they wanted for charter explanatory continued: statement 14 The which under only exception in to this method is the charter satisfactory the governed, to be the most and which seems Portland is approved of citizens city This was drafted committee ever had. election, enacted people which it was at an after formality. Of needless legislature. is a But the action of of Klamath farmers laws of Portland to interest are the local what fishermen to the County, or ordinances of Lakeview or the charter step home towards River? This amendment is another the Columbia only relieve it will not If it is enacted in home affairs. rule legislature labor, place great it will deal of useless but of a obey them. people who have in the hands of the laws make 561. 82 Or at necessarily involved that evils were nowhere made all the which affected general laws enactment Indeed, gener- few comparatively and towns alike. cities it is a notewor- passed; laws had been municipal al municipal legislation general thy fact that most meritorious, example, the Bancroft for admittedly was County of Klamath act. While the farmers bonding applied only which to interested in a law might not be might fishermen not River Portland and Columbia Lakeview, in the charter or ordinances be concerned farmers and the Columbia yet, County both the Klamath general in a vitally interested might River fishermen be concerning policy a state-wide expressed law which just as vital as might and that interest municipalities, districts, or all affecting all road their interest a law Id. at 561-562. school districts or all counties. Judge by expressing satisfaction

And Harris ended fully supported by Chief that his conclusions were says sponsors McBride, that the Justice amendments neither intended nor "who

thought nor even prohibit would dreamed that the amendments relating legislature enacting general laws from municipalities, Id. at 572. cities and towns.” on review of the text and

Thus court history, contemporaneous reached the conclusion gener- legislature power that the retained the enact they if the charters of all or al laws even affected many purpose municipalities. Id. at 573. Our length quoting background is not to revive that this at not. Our Portland. We do conclusion of Rose v. Port question purpose only whether to show that general prevented as well as XI, article section municipalities special around was the issue laws competing that section were stated. which the views of argument about of this It in the context was also municipal prescribing validity general laws government was reex same issue that modes of amined most Heinig City recently ex rel in State (1962). There 473, 479, 373 P2d 680 Milwaukie, 231 Or city requiring a civil service to establish law a a state system, by prescribed city commission, administered ground applied was it defended on the that to all cities. rejected argument The court that this fact of itself XI, Instead, took the law outside article section 2. wrote, Justice O’Connell

we now expressly hold that does legislative assembly not have the authority relating city to enact a law government though general even it is of applicability all cities in the the subject state unless matter of the whole, general enactment is of concern to the state as a say is to matter than is a of more local concern to each the municipalities purported to be regulated by Borrowing language the enactment. Albee, 188, 193, from Branch v. (1914), 142 P we hold are people "subject that the not to the will of the in the management of purely municipal local business in which the state at interested, large any is not and which is not of interest any outside the at municipality.” Or 479. respect prescribing municipal But even with to a law government, general concluded, modes of the court might predominant law if it valid served a social extending beyond municipality. interest the local This many conclusion is consistent with of the court’s designed decisions which state standards safeguard persons private proce- in the the interest of government generally dures of local have been sustained.15 quoted holding

The of states the rule for testing general processes city govern laws for the of opinion Heinig explaining further, ment. went holding by a view of the state and its cities as competing sovereignties that seemed to extend to all policy. conflicts of and But we do not think local 15 E.g., City Salem, 150, 444 (1968); Brown v. 251 Or P2d 936 Bennet of City of Oceanlake, 539, (1967); v. City 247 Or 430 P2d 1004 Woodburn v. of Comm’n, 633, (1966); City Bend, State Tax Boyle 243 Or 413 P2d 606 v. of 91, (1963); City Carlson, 234 Or 380 P2d 625 Cascade Locks v. Washington County Comm’n, 90 P2d 787 See also Fasano v. (1973), progeny, procedural Or 507 P2d 23 and its in which protections persons for affected have been inferred from state laws authorizing government various local decisions. far, nor that that 2, extends XI, section that article the context beyond extended should be Heinig formula it was formu- in which city government of laws for First, constitutional reasons. is so for two lated. This instance rule in the first home like those for provisions how government to formulate designed are review. judicial exercise are to judges not how govern, to the instance, is addressed XI, section for Article cities, telling and legislative assembly of the the voters not do and may what interpreta- do. Judicial may what they several cities these articulate must strive to a provision tions such gui- no give formulations directives and avoid every dispute leave policy government dance to not mean course this does decision. Of judicial under the home-rule or local act to a state challenges review- review. We are beyond judicial are provisions Rather, it bears case. very in this challenge such a ing the provisions. on the proper interpretation does however, challenge such a when Secondly, be derived court, decision must reach a the court’s the court’s standard, not from from a constitutional The accommo policies. own view of competing public over the authority processes dation of state interests comparable at least involves city government government, in responsible —the citizens’ interests in the procedures elections, accountability, in official decision, borrowing, taxing policy planning instance, Woodburn See, City and the like. Comm’n, compared which State Tax supra, voters informing and the city’s provisions are of government a tax. These processes impact mentioned charters municipal chief of the object forth more 2, has been set XI, section article constitu formulated recently in the more expressly were They charters.16 county tional provisions VI, provides part: section 16Article whereby Assembly provide by method law a Legislative shall The legal voting voters any county, by of such vote voters 147] [ adoption historical reason for the of the constitutional comparison amendments, as reviewed above. When a competing policies pressed beyond this to all conflicts between acts, however, state and local it must among often involve a choice values have no common denominator either in or outside the constitu- agreed "weigh” tion. There is no common measure to "balance,” or instance, an esthetic environment against profit, Oregon City commercial see Hartke, (1965), prevention 240 Or 400 P2d 255 or the against strongly objections caries felt to fluoridation supply, City of the water Bend, see Baer v. (1956), policy 292 P2d 134 if state and local should differ on such matters.17 choices are the Such political, judicial, essence of not decision. prescribing

Outside the context of laws the modes government, municipalities of local both and the state legislature many pursuit cases have enacted laws objectives, respec of substantive each well within its authority, arguably tive that were inconsistent with inquiry one In cases, another. such the first must be incompatible whether the local rule in truth is legislative policy, either because both cannot operate concurrently legislature or because the meant interpret its law to be It exclusive. is reasonable possible, local enactments, if to be intended to function consistently equally laws, with state reasonable to displace assume that the does not mean to any legally election, amend, may at adopt, thereon repeal called revise or county county may provide charter. A charter for the exercise by county authority county over matters of concern. Local improvements taxes, only by charges shall be financed assessments or imposed property, provided by on benefited unless otherwise law or county prescribe organization county charter. A government charter shall provide directly, authority, and shall for the or its number, appointment, tenure, qualifications, compensation, election or powers county necessary. and duties of such officers as the deems Such among powers perform officers shall them exercise all the all the duties, county authority, as distributed now charter or its hereafter, by state, granted the Constitution or laws of this to or imposed upon any county officer. religious Baer, course, adjudicated freedom claim in had to under guaranteeing the state and federal freedom. clauses condi of local administrative regulation18 civil or local is that intention unless a statewide law tions Portland, 204 Or City v. See, Terry e.g., apparent. of Duntley, v. Portland (1954); City 478, P2d 544 269 of v. Bay Coos City (1949); 365, 203 P2d 640 185 Or v. Lyons (1946); 83, 170 P2d 389 Aerie No. 538, 179 Or (1925). Portland, 533, 235 P 691 115 Or City of incompat is found enactment However, a local when policy, of substantive area state law an ible with a See, e.g., local rule. law will displace (1936), P2d 1169 Bisaillon, 152 Or 578, 54 v. Winters Act displaced Vehicle the State Motor holding that that holding limits and overruling prior local speed Pac. Co. v. Southern authority paramount;19 P2d Inc., 203 Or 657, 281 Freightways, Consolidated City v. (1955) (same trains); Lovejoy as to 693 (1920) (licensing P 207 459, 188 Portland, 95 Or Service v. Public City Woodburn agents); insurance (1916) rates), Comm’n, (utility P 391 114, 82 161 Or Control Oregon Liquor Klamath Falls v. City of (1934) Comm’n, regula P2d 83, (liquor 146 Or 29 564 (1961) Miller, 228 P2d 1109 tion); Fischer v. 363 Or in an area state law No (hunting regulations). to a held subordinate been substantive has ever policy note supra v. Knapp, Kalich since rule contrary 19, was overruled. express- to the prohibition

It is therefore pertinent XI, 2, to determine whether section ed article to a concern primarily law is addressed challenged or to government the modes of local the state with economic, social, regulatory or other substantive objectives.

II reaching contend, in advance Petitioners conflicting that there is no issue question, XI, 2, supra, regarding state in article section The reservation assumption respect to such laws. reverses this criminal law denied, 594, rehearing 145 P 22 Knapp, 142 P Kalich ]

[ local laws in these cases because the pertinent policies of the Cities of La Grande and Astoria are not found in the charter or the ordinances of either It is true city. XI, article section literally only forbids the legislative "enact, assembly amend or such repeal” charters, granting power to the local voters. But cities sometimes place into charters specific actions on substantive matters that are unrelated to the city’s governmental and, processes hand, on the other place rules for the conduct of government ordinances, into or perhaps resolutions, by-laws, other forms of enact- ment allowed city’s charter. It is not the label that matters but the role of the provision local self-government.

The 1906 amendments were not designed exalt substance, form over on the one hand all local leaving modes of government at the mercy unless written into the local charter and on the other hand immunizing from state law local any policy on any if subject it only is in the placed They charter. were designed, said, we have to secure local control over the structure and organization of local govern- ment, and the capacity to act on a own community’s form, initiative so any as the long action is au- thorized voters either in a "local, charter or in special [or] municipal legislation” under adopted IV, 1(5), article section and is not otherwise contrary law.20 cases,

In the present the City of LaGrande had undertaken a pension and retirement program for its employees contractor, through private and Astoria had provided retirement benefits for its employees through collective bargaining. Since is not claimed that either scheme was unauthorized respective charters, will they be treated the same as their charters underlying for the purpose examining express possible initiative measure that 20 We no view on a amending v. Port a local charter without it. Rose contradicts Portland, Cf. 541, 552-556, Or 162 P 498 uncontitutionally law whether an inconsistent government.21 the cities’ mode of alters 243 requir of ORS 237 and chapters The provisions offi benefits for police retirement insurance ing above. The firemen do not fail test stated cers and legislative concern plainly embody statutes of per standards living securing postemployment families, in these and their not with occupations sons It not essen governmental organization. the cities’ legisla tial to the of this whether legitimacy goal out officers and firemen because it singled police ture these deemed hazardous or occupations particularly costly the desired benefits difficult to obtain nor whether its were well piecemeal, assumptions event, In any founded. the statutes are addressed to a substantive, than objective statewide social rather any asserted concern with the modes of local government. avoids legislation prescription

The present two involved precise municipal organization Branch v. nearly decisions most point, adverse ex rel Albee, and State (1914), 142 P 598 Milwaukie, In Branch City supra. a police statute undertook establish challenged state, "in fund the and cities of disability pension inhabitants,” the 50,000 than to create more having relief,” pension city police act itself a "board license fines to be the fees and designate precise and to court, the fund.22 used for Not the surprisingly noting 21 whether issue the unresolved leave An affirmative decision would police action on the laws remain valid for cities that have taken no Boyle City and firemen’s and insurance officers’ retirement benefits. Cf. Bend, present decision 234 Or & n. 380 P2d sustaining statutes these moots that issue. (1) mayor, police and treasurer provided chief of 22 Theact the Relief,” "hereby Board of Pension created and constituted a Police were chairman, (2) law, mayor be the charged administering the was to with (3) board, secretary, of the police to be treasurer and the treasurer chief of the city’s percentages collections direct fund of the was to into the board sources, fines. The including specified fees and license from seven named procedures of board remaining in detail the sections act set out dependents were to be police to which officers their and the benefits Laws 287. entitled. Or ch only city 50,000 that Portland was the with more than by attempt inhabitants, amend, found this to "an City indirection the charter of the of Portland” in the customary manner before the 1906 amendments. 71 Similarly, Or at 201.23 while the statute involved éingle city, by did not out one also undertook municipal the act itself to create civil service commis- composed sions, to be of three members selected prescribed by charged act, manner which would be supervising systems civil service for firemen. apart prescription Even from this direct of an element city’s structure, in the administrative the civil service displaced authority politi- law would have cally selection, accountable local officials over the assignment, discipline, replacement employees performance they respon- for whose were community’s sible, and done so not as a matter of negotiated policy agreement direction from but substantially the state. This is a different interference self-government obligation with local from an provide security public a measure of economic employees. Thus the act was held to be an intervention powers appointment, transfer, into charge and dis- personnel specified in the Milwaukie unjustified by any independent charter, statewide concern, XI, and therefore in violation of article 2. section any present contrast,

In not create statutes do agencies they government, of local nor do direct local governments They oblige communities to do so. bring police their and firemen under the officers provided respectively benefits the state’s retire- system policy, but ment and a statewide insurance obligation contingent upon an even that made is option provide equal benefits other or better city employees pensions for provision held that the The court also IV, meaning section legislation of article municipal within the proper however, 1(5). as the statement indisputable; insofar at 205. This is precedent legislation, the theory of state and local "either/or” reflected an at note 19 court, See text Knapp, overruled. Kalich v. was later cited supra.

[152] 237.620; government’s ORS choice. means of local machinery of these The administrative 243.055. ORS compelled local administration, not is state statutes administration.

Ill Though not man- in these laws has proved in the manner dated administration Heinig, pursuit its statewide in Branch and its of fatal undeniably displaces objective the ar- social rangements (or preferred arrangements) absence of government. uncommon, as the local This is not many generally is it of our cited decisions show. Nor assign "subject” legislation useful to define a of government. "local to one or the other level To treat subject, personnel” instance, would such a appear sweep beyond law invali- the civil service dated in raise doubt whether local occupa- employees also must be excluded from all state e.g., qualifications protective laws, tional or state compensation, wage standards, workers’ and hour safety standards, nondiscrimination, or child labor City Portland, 437, 144 24 laws. Pederson v. Or Cf. (1938), sustaining application a state P2d 1031 city employees.24 requiring pay if law But overtime by defining disappear these doubts can be made to "subject” safety, nondiscrimi- of the same laws to be merely job security, nation, or marks the definition argument than its the desired conclusion of an rather premise.25 predominant A or local search for a only "subject legislation in the can interest matter” of 24 e.g., City See Canby, App Von Walter v. 19 526 P2d 599 Or (1974). by "subject” analogue century ago Allocation had in the its federal Supreme deciding validity United States Court’s formula for of state (if by determining "subjects” potentially laws whether their within the commerce) Cooley power Congress over national.” were "in their nature (12 How) (1851). Wardens, v. Board It US 13 L Ed 996 is not why "subject” question, requirement to use obvious of the law pilots ports, "navigation” protection of docks than "the was rather wharves,” superseded others. or vice versa. The formula was later 440, 80 Detroit, City e.g., US Compare, Huron Portland Cement Co. S Ct 4 L Ed 2d 852 political process substitute for the to which we have political referred the the judgment court’s own whether policy prevail.26 or the local should Moreover, foregoing examples show, as the it misconceives the narrowly nature of a "state interest” to focus on performed by particular groups employees functions of employees to the exclusion of a with the as concern apart citizens. The "state” as such has no interest from present inhabitants, future; that of its and legislature may, chooses, if it so consider the interests perform job of those who as well as the interests of dependent performance.27 those on that geographic The are boundaries of local entities not excluding much more determinative in Arguments state concerns. Heinig, presented cases, in these as in point city police out that and firemen are officers assigned beyond cities, sometimes duties their but this hardly Large needed to a state concern. demonstrate complexes buildings personnel of state and state such college campuses, Capitol, as and indeed the state depend quality offices, court, executive and this on the police protection city limits, and fire within persons city frequent thousands of who streets every day The business districts are not residents. governments many state relies on local functions important boundaries, deemed to the state within local recently most ofSunny- land use controls.28 See South dissenting position, seeking apply Heinig approach 26 The explain why legislation, social or other substantive contains little to require approach present pension would invalidate the and insurance ments, compensation compared or minimum for instance with workers’ laws, why justify opposite wage equally nor the formula would not result. 27 by supposedly justifying legislation humanitarian The habit of consequences and the like pragmatic of labor unrest assertions about history bringing within the probably labor law from the stems federal clause, problem does not Congress under the commerce reach of 758, 330, 55 R., US S Ct Retirement Board v.Alton R. face. See Railroad 1, 57 (1935); Jones & Laughlin Corp., S 301 US NLRB v. Steel 79 L Ed 1468 (1937). L Ed 893 Ct 28 Indeed, boundaries; beyond (city sometimes even their ORS 92.042 cf. jurisdiction city). City over subdivisions within six See also Bell v. miles (1976) (water service). Corvallis, App 551 P2d 125 and sewer Comm’rs, 280 v. Board Neighborhood League side addition modern 569 P2d Or additional com- rule for counties would create home al- criterion for geographic plexities employing authority. constitutional locating mutually exclusive with legisla- differ Finally, may as individuals we standards that mandate substantive policies tive taxpayers for which local and activities programs bear will legislators officials rather than state other con- if there are fiscal But responsibility. rule” amend- than "home stitutional limitations financial effect ments that preclude particular have cases, parties the statutes involved in these simple brought them to the attention. not court’s Legisla- "[t]he that XI, section of article provision any enact, or repeal amend shall not Assembly tive any municipality, for or of incorporation charter act broadly.29 that sweep not or town” does purport local Thus in which the policy neither form law, nor cast, nor "subject” of itself determine existence of local boundaries can by 29 state, federal, Contemporary interrelationships fiscal between governments simple complex and local are far more than the notion of local programs property suggests. financed from local taxes instance, year, Oregon total of In one fiscal cities received a recent for revenues, taxes, fees, utility million and sources $223 from their own other state, federal, county, and $91 but also million in revenues from various Service, School of district sources. Bureau of Research and Governmental Affairs, Community University Oregon, Revenue Service and Public see, Cities, 1973-74, 1975); e.g., Oregon (Apr. Sources of Fiscal Year at 6-7 percent of state Laws ch which transferred an additional Or beyond prior percent liquor general purposes, to the cities revenues for listing perspective, ORS From a conservative share. 471.810. the other payments 1977-79 from the cities counties transfer state to sharing of at million. This includes $245 biennium would total least taxes, taxes, taxes, cigarette gasoline highway revenue use from Commission, Commission, Racing Oregon Liquor Control and, addition, general expenditures specified fund health, other programs ning, public safety, sources corrections, plan- community land use such as mental many public It include other state transit. does not school, payments agencies purposes, payments to such as for local transit, government. special port, and local councils Oregon and other districts Division, Adopted Dep’t, Budget Management Executive See (Dec. 1,1977). 1977-79, Assembly, Fifty-Ninth Legislative Budget, at 67-76 ]

[ of a validity Instead, statewide law. we conclude the following principles resolving a conflict between such a law and an inconsistent local provision for the conduct of city government are consistent with our of the "home rule” amend- past interpretations ments:30

When a statute is addressed to a concern of the state with the structure and procedures of local agen cies, the statute on impinges the powers reserved the amendments to the citizens of local communities. Such a state concern must be justified by a need to safeguard the interests of persons entities affected by the procedures of local government.

Conversely, a general law addressed primarily social, substantive economic, or other regulatory objec tives of the state prevails over contrary policies prefer red by some local governments if it is clearly intended so, to do unless the law is shown to be irreconcilable with the local community’s freedom to choose its own In case, form.31 political such a state law must in those yield particulars necessary to preserve that freedom of local organization.

As we said, have the statutes challenged by cities these cases second, are of the substantive kind. The provisions for financial security for police officers and firemen and their dependents the event of retirement, disability, or death address a social concern with the living standards of these classes of workers, not with local governments as such. Various categories of are employees not placed beyond the reach of the state’s social legislation merely because possible misunderstanding: principles 30 Toforestall These refer to the XI, legislation limitation on state stated in article section not powers granted local communities and voters under that section and article 1(5). IV, section general regulatory prob where Instances laws have this effect are rare, ably hypothetical examples might impose but be state laws that would policy responsibilities record-keeping, reporting, negotiating require or or persons contrary ments on or entities to their allocation under the local charter.

[156] and fire police functions —here their occupational transit or municipal elsewhere protection, perhaps in the to be found library happen or utility services — the statewide sector of local While public government. plans do other displace retirement insurance plans make, made, might have agencies that with the are not irreconcilable objectives, they these structures governmental freedom to charter their own and La of Astoria that are reserved to citizens XI, 2. Accordingly, Grande article section statutes are constitutional.

Reversed.

TONGUE, J., dissenting. that, rule,

I general dissenting opinions as a agree It do is difficult respectful. should be restrained however, when, so, because of a fortuitous purely court, there is now a in the of this change membership which, vote, has prevailed a of one by margin by an which: opinion

(1) balance Drastically upsets long-existing between cities and the state power Oregon legislature in the of "home rule” critical area abandonment rule” the "home long-established concept amendments to the Constitution Oregon granted to all Oregon legislate cities exclusive i.e., interest,” of "local grant matters of "local the state legisla- free from intervention autonomy,” ture, as the arbiters of disputes and with the courts and the state as to what are matters between cities 168.) {See "local interest.” 162 to (2) long-established concept Substitutes for that new rule of autonomy” "legislative suprema- "local may to the effect cy,” to involve to all matters which deems legislate as interest, exception some single state-wide and procedures some matters the "structure involving 184.) the fact 168 to Despite {See local agencies.” as a long protective that the courts have served "fence” between "the fox and chickens,” the the major- ity has now removed most of "fence,” the the leaving "chickens” at the mercy of the "fox.”

(3) Overrules a line of unanimous decisions extend- ing for a period of more than 40 years in which this court has carefully considered this entire matter. Also ignored the are the views expressed by many writers in accord with those decisions by this court. substitute, As a the majority has adopted a new and novel rule for which it cites no direct authority and which is a "hybrid {See of uncertain ancestry.” 171.)

(4) Permits the legislature to transfer to the cities the cost of expensive social programs of predominately interest, without the state assuming financial responsibility for such programs, thus compelling Oregon cities to make expenditures, debts, incur levy taxes to raise funds for such programs. {See 191 to 193.)

(5) Uses this case as a vehicle for a "judicial tourde the adoption of that new and unprecedented force” rule despite fact the majority could have sustained the of state laws validity cities to requiring provide pensions for police officers and firemen by application of the rule previously recognized by 191.) court for application {See such cases. 189 to (6) Decides this case upon basis of a new and drastic rule not urged by any or amicus parties case, curiae in this which upon these cities have had no fair opportunity which, to be heard and as a practical matter, them imposed upon "without due process.” 193.) 168, 171-174, 178, {See 182, 184, In order to evaluate the validity these conten- tions it becomes after necessary, some of the reviewing of "home background rule” Oregon, discuss the differences between the rule as adopted by major- and the ity decisions of previous this court on the (1) following subjects: purpose (2) proper to be amendments; test rule” "home determining are reserved applied what matters (3) courts rule”; the role for "home the cities (4) legisla- test; role of the application (5) proper test; application of that in the ture application (6) the case, this and test of that upon Oregon of impact of rule cities financial "legislative majority. adopted supremacy” previously rule” established law '’home I. The of Oregon. rule” authorities —the "home A. General amendments. impor- recognized

It on has been authorities this subject purposes tant that one of the basic of "home out a area local rule” is "stake limited where government legislate itself”1 could for and to "carve enjoys municipality a an area in which the out autonomy legislative inter- measure of local free from ”2 * * * recognized, or also been ference control It has "[h]ome however, mean, has does not and rule autonomy complete mean, been never intended to states, rule must within home cities because always integral parts government remain of responsibility cities, assume, must rule like non-home "[o]rdinarily, that, a law,” for enforcement of state but grant authority home rule transfers municipalities from to enact measures to the purely municipal Thus, more concern.”3 has been accurately is a stated that "home rule” method 1 Dyson, Ridding Problem, LKan Home 12 Rule the Local Affairs (1964). Rev 368 Sharp, Alaska: A Between Constitution Home Rule in Clash (at 3) 1,3 (1973), stating Court, and also 3 UCLA-Alaska L Rev "grant purpose a or basic is “protective and that the other function” is validating function.” States, 10 Municipal in the Vanlandingham, Rule United Home also See Mary L Rev Wm Vanlandingham, supra at 280. n. "distribution power by between two people levels of and local.”4 government —state to a

According recognized authority on this subject: exception, "Almost without modem students municipal urged affairs have desirability of a broad grant through of municipal initiative mechanism *”5 * * home rule. The problem, as recognized writer, another "* * * to a home devise rule scheme whereby the and state have a maximum degree freedom to on act community problems, separately together, while at the same providing time for the resolution jurisdictional conf licts.”5a

Generally speaking, there are two of state types (1) constitutional rule: provisions home those which grant to the cities "local autonomy” within area, limited the boundaries of which are left (2) determination, judicial those which recognize "legislative areas, supremacy” as to all but permit municipal legislation areas not state pre-empted by legislation.6 autonomy”

It that the approach has been said "local of meaningful offers a more substantial guarantee 4 Vaubel, (1975). Ohio, Municipal 3,11 Home Rule in 3 Ohio NUL Rev 5Sandalow, Municipal The Limits Under Power Home Rule: A Role of (1964). Courts, 643, the 48 Minn L Rev 652 is of It interest to note that for 3) (n.2 quotes approval the also at with from this article Sandalow. (at 656): goes 652, Sandalow on to state as follows «* * * Thg unanimity they virtual with have which arrived at reflects, part, rejection in municipal conclusion of the distrust of * * * government traditionally politics in which has marked American part, providing it also reflects a consensus that alternative methods of municipal powers unsatisfactory. are "***:£* "Ultimately, argument grant municipal the for a of initia- broad upon desirability permitting municipalities govern

tive rests of to generally, limiting particular than rather them to the exercise of * * functions. *.” 1, 5a Dyson, supra at n. 380. 6 Vanlandingham, Municipal See Constitutional Home Rule Since (NLC) (1975). Model, 1, Mary Wm and 2 AMA 17 L Rev difficult task although creating home rule power, are subject what areas determining in courts suprema- the "legislative whereas autonomy”; "local difficulty, of that obviating much while cy” approach, depend rule powers home substantial makes most legisla- encourages grace” upon "legislative cities.7 on financial burdens to impose tures "home rule” amendments 1906, when the As of five other were adopted, Constitution rule” "home amend- adopted states had previously California, Missouri, Washington, ments, including Colorado, results.8 varying with Minnesota 26, supra 6, 7 Vanlandingham, 20. n. at 18 and See also and at (at 47-50.) discussion below 100,000 grant popula 8 InMissouri the constitutional to cities of over 1875, tion, adopted [their] to "frame own was a charter government, subject with and laws of consistent the Constitution (1875). Missouri, IX, provision § Art That this State.” Constitution 16 interpreted by purely was the Missouri courts to mean that "Matters municipal and local concern the constitution intended to commit to local Dorr, City self-government.” St. 46 978 Louis 145 Mo SW (1898). Westbrook, Municipal See also Home Rule: An Evaluation of (1968). Experience, Mo Missouri 33 L Rev 52 adopted In was California an almost identical constitutional amendment California, XI, (1879), "subject § 1879. 6 Constitution of Art but words literally by general construed laws” were and controlled courts, provision was amended in 1896 that result that California "except municipal Constitution qualification affairs.” express to add (1896). XI, California, § Art original Washington provision In a constitutional similar to that of the literally, provision adopted California was in 1889 was also construed provoke Washington "largely a so as to the comment that home rule in was XI, § legislative grace.” Washington, matter of Art Constitution (1889); McBain, Municipal The Law Home Rule 455-56 and Practice (1916). provision adopted in 1896 more In specific was Minnesota constitutional general may provide by providing laws "[t]he * * Minnesota, IV, § Art relating of cities Constitution affairs conferring adopted was in 1902 In upon a constitutional amendment Colorado City County power in people exclusive of Denver "the ** amending making, altering, revising *.” that charter Constitu- or Colorado, XX, (1902), any §4 was not definitive tion of Art but construed 1906, opinions prior rule” was to when "home the Colorado courts McBain, Municipal adopted Oregon. Rule The Law and Practice of Home (1916). Johnson, People Attorney v. 34 505-26 see ex rel The General But (1905). 143, P Colo 86 233 ^[161] problems arising In view of the under the "home Missouri, rule” amendments to the California and (which Washington granted constitutions to cities the power adopt subject to charters "consistent with and Stated, constitution and this laws also subsequent view the amendment to the California grant specific relating Constitution awith to "munici- ” pal significant Oregon affairs, isit that in the "home (in 2)§ provided only rule” XI, amendments Art not city every granted power that the voters were city "subject enact amend their charters to the Oregon” Constitution and criminallacws of the State of (in 1(5)) § provided § IV, but also la, Art now that the powers previously initiative and referendum "re- people served” to the were extended to the voters of every city special municipal local, to all "as legislation every character previous interpretation Oregon

B. The "home rule” amendments this court. purpose 1. The such amendments. by majority,

As noted these amendments to the variously interpreted Constitution have been during years Indeed, the court. the first 30 there including two One, were distinct lines of cases. Branch (1914) (involving Albee, 188, 71 Or 142 P 598 validity City requiring of a state law of Portland to adopt pension system policemen a for —almost case), question presented exact held that these provisions grant power were intended to cities "full legislate municipal local, as to themselves all including other, matters.”9 The Rose v. Port Port- (1917), 541, land, Or 162 P 498 held these provisions grant not were such broad intended powers, only legislature but "to take from the by special to make a charter town law.”10 (1914). Knapp, 142 P 145 P 22 73 Or Kalich v.

9 See also, Commission, e.g., 320, 336, v. Public Service Hillsboro 10 See P 390 P During past years, however, been 40 there has City Welch, 1936, In in Portland v. no such division. previous 286, 228, 154 59 P2d much of the conflict Or question in the of this court on this was decisions opinion, court, resolved. In Welchthis quoted in a unanimous Municipal approval McQuillin, 1 with from (2d 1928), § authority Corporations leading 93 ed on municipal law, as follows: purpose (referring "The to the home rule amend-

ments) give was to communities full in power concern, is, matters of local in those matters which in peculiarly locality, affected the inhabitants of the not ** *” with the of the common inhabitants whole state. 154 Or at 297. (at 296) quoted also court in Welch

This Roseburg, opinion approval v. 77 Or an in Pearce from (1915), by McBride, 208, 195, 150 P 855 Chief Justice amendments, "framers” of the "home rule” one of the he stated that he considered to be which "* * * purely state that as to matters settled legislature can not intermeddle municipal special legislation, although general either generally power of the affecting people matters * * *” is still unlimited. particular significance This is of in view of the fact Portland, 541, v. 82 Or 162 P 498 Rose Port of (at 572) (1917), Justice Harris stated that Justice contrary then view—a statement McBride was (145) by majority opinion case to be deemed in this significance.11 of some 1936, law on

Since the in Welchin decision subject purpose the "home rule” amendments unchanged again and has been "settled” has been Oregon purpose "home rule” the effect that the of the grant cities of "full amendments was to make a Harris, It is of some stated a rule of interest that Justice who "legislative Portland, supremacy” in v. 162 P 498 Rose Port (1917), legislator Speaker was a former of the House Representatives. concern,” matters of local free from "legisla- tive interference.” Since then this court has not again held, Rose, as in that such was not the purpose Oregon "home rule” amendments.12

In 1962 this court reaffirmed the taken in position 1936 in Welch in a unanimous opinion Chief Justice O’Connell, State ex rel al, Milwaukie et Or P2d which reviewed not only previous decisions by this court on this but subject, also the writings by various authorities on municipal law. After carefully reviewing, considering citing many of these authorities, this court expressly held unanimously as follows: purpose, "That broadly, stated operative was to make concept that the closer those who make and execute the laws are to the they citizens represent the better are those citizens represented governed in accordance with democratic ideals. That objective would not be served if we should decide that the legislative assembly pre-empts field each time makes a appli- statute cable to all cities alike.” 231 Or at 481-82.

That purpose of the Oregon "home rule” amend ments, as held in both Welch in 1936 and in in Heinig 1962, was in a again opinion by reaffirmed unanimous Com., in v. Tax 243 City Justice Holman Woodburn of 633, 637, Or 413 (1966), P2d 606 quoting approv al Also, from both Heinig Welch.13 Boyle City (at Bend, 91, 234 (1963), Or 380 P2d 625 it was held 12 subsequent City In Welch, cases 286, Portland v. 154 Or 59 P2d (1936), quoted 228 Gibbons, this court 370, from Burton v. 148 Or 36 P2d (1934), 786 one of Bend, the cases in the Rose line. See State ex rel v. North 329, 338, (1943); 171 al, Or 137 P2d 607 State ex rel v. Chandler et 180 Or (1946); 34, Freightways, 657, 28, Co. v. Con P2d 448 So 203 Or 175 Pacific (1955). 664, City Cornelius, 505, P2d 281 693 In Schmidt et al v. 211 Or (1957), however, P2d apparent 316 511 this court noted an conflict Welch, between the "dictum” in Burton and the "clear statement” in qualified explaining that Welch the Burton dictum. 13 upon Oregon This rule has also been relied as the established law of Appeals the Court of in "home rule” decisions which we have declined to City of Canby, 60, 65, 526 (1974); App review. Von Walter v. 19 Or P2d 599 Fighters, 293, 303, 531 (1975); App City Beaverton v.I.A. Fire 20 Or P2d 730 ERB, 755, 761, App rev Hermiston v. 27 Or 557 P2d on other grounds, P2d 663 is inoperative "a statute that n.6), Heinig, citing on a ordinance with an it conflicts the extent concern.” matter of local opinion unanimous in another recently,

Most Denecke, Oregon, v. State Olsen Justice Chief directly (1976), not although P2d 139 9, 554 Or amendments, this rule” "home Oregon involving (at 25) that: said court

"In Oregon emphasis on local control is constitu- tionally XI, 2, VI, 10, § § accentuated. Art and Art provide Constitution for home rule cities and counties; is, the voters of the cities and counties can enact their own matters govern charters which shall on added) city county concerní (Emphasis be applied. 2. Test to to be held that "the real test”

In this court is matter particular whether applied determining is "not whether one of "local” or "state” concern matter, in the state or the has an interest city have, inter- both but whether state’s usually they In 231 Or at 481. est or that of the paramount.” other words: "* * * simply [T]he not whether question is it is but whether operations,

has an interest such the interest of enough to over predominate substantial city.” 231 Or at 484. was later "test,” Heinig, in as stated Again, in a unanimous this court by expressly approved Tax v. in Woodburn City Holman Justice opinion by of in decision 636, Com., following previous at supra, P2d 625 91, 99, 380 Bend, 234 Or City Boyle of Heinig approval.14 (1963), which also cites by applied the Court recognized and Again, has also been this test (See n.13, cases cited to review. we have declined Appeals in which cases supra) (State Heinig v. Heinig test, ex rel stated in application of the as by (1962)), 473, was well described al, 373 P2d 680 et 231 Or Milwaukie 755, 761, EKB, App City 27 Or Hermiston v. Judge in Schwab Chief (1977), 291, one as P2d 663 grounds, 280 Or other P2d rev on Oregon requires the courts which * <>** (2) identify (x) interest; the state’s identify city’s (3) predominates.” which interests; them to determine balance (at 488)

This court also held in Heinig that: "* * * Each case requires a weighing of the state’s * * *” against interest the interest of the municipality. 3. Jurisdiction the courts.

In Heinig was also held unanimously that it is for the courts of Oregon to determine what matters are of predominately interest, state-wide so as to be subject to the exclusive power of the legislature, and what matters are of predominately interest, so as to be subject to the exclusive power of in Oregon cities (at 483-84) holding that: "* * * [U]nder the theory of home rule which we

have adopted there are involved two political agencies making conflicting claims to sovereignty, and the resolu- tion of that conflict must be made the courts.” There was nothing "new” in this assertion jurisdiction Indeed, in Heinig. this court had exercised such jurisdiction in many previous cases. In previous cases, however, this court had not stated the "test” to applied the exercise of such jurisdiction, stated in subsequently Heinig)15 4. Power the legislature. (at

This 488) court held in expressly that: "* * * The grant 0f sovereignty emanates from the source, same the people of the state. There is nothing the manner of making the division of sovereignty which would suggest a preference constructional for state * * *” legislation. (at 479) that: legislative

"[T]he assembly does not have the authori- ty to enact a law relating city government even though it general is of applicability to all cities subject unless the matter of the enactment is of * * general concern to the state as a whole *. 15Again, subsequent City decisions v. Tax this court Woodburn Com., (1966), Appeals in 243 Or 413 P2d 606 Court (1975), Fighters, App Beaverton v. I.A. Fire 531 P2d 730 jurisdiction other cases have continued to exercise the courts n.13, Heinig. supra. under in the test as stated See cases cited

[ 166] “An simply enactment is not of state-wide interest in legislature because the decides that each of the cities * * *” the state should the same governed law. necessarily holding This result follows from the Afe/«z]g previous court, consistent with decisions of this Oregon questions that it is for the "conflicting courts to resolve sovereignty.”16 claims to filing complaint As of the date of the of the in these appear two cases it would to be a fair Oregon subject statement "home that the law of on the appeared settled, rule” to be at least to (1) recognition extent of a that one of the basic purposes Oregon’s "home rule” amendments towas autonomy” "carve out” an area of "local for the cities of Oregon by grant to the cities of full and exclusive power concern,” over matters of free "local from legislature, although interference ing reserv- legislature power legislate by general to the full (2) affecting people generally”; laws on "matters applied determining that the test to be particular whether a subject matter to the "home exclusive rule” of cities over matters of "local concern” city was to determine whether the has an interest (3) "predominates” state; which over that of the that application of this and the such test resolution of "jurisdictional disputes” between cities and the state was a matter to be decided courts; (1936), See, Welch, e.g., City Portland v. 59 P2d 228 (at 295) which this court held that: "* * * authority city legislate [W]e of the conclude purely municipal has been germane affairs matters relative to If that legislature itself. but from the constitution derived not from conclusion, legislature, under the can it be true is a sound right? law, We general exercise of such guise interfere with the of a can through legislature could not do so that the take it to be fundamental Hence, do can not special what the of a law. the enactment directly through indirection.” it can not do (at 296) that: *"* * constitution, not, general form can under A law in legislate germane to right purely affairs on deprive cities going incorporated,” on to cite purposes which the was effect. previous court to the same decisions of this (4) that legislature had no to "intermeddle” power by general laws matters of "local concern.” meant, course, This of that the courts must deter- mine in each case the of question whether the interest of the was city great "predominate” so as to over that state, of the so as to be within the exclusive "home rule” involved, of the powers city or whether interest of the state great was so as to "predominate” over that of the so as to be a city, proper subject of statute. general

It is most to note that significant none of the parties their briefs in these two cases denies that the law to the "home rule” relating Oregon amendments with (1) (2) (3) reference to test to purpose; role applied; (4) courts; of role legislature at the time of the filing Instead, of these cases was in Heinig. as stated the sole such dispute presented by briefs is over the whether, under the rule question as stated in Heinig, the pension program and life insurance re- policies quired by ORS 237.610 to 237.640 and 243.005 to ORS concern,” 243.055 are matters of "local so as to be subject to the "home exclusive rule” of the cities.

II. The majority opinion.

A. Purpose amendments. Oregon 'home rule” which most upon The basic and foundation premise Justice Linde rests reasoning opinion of the (at 142) revealed his statement that the "central rule” amendments was object” of the "home to decide locality upon "allow the people its their and the government scope organization under its charter without having to obtain powers from the staturoiy legislature, authorization as was amendments,” and his statement the case before the (at 145) that, to Rose v. according Port 144 and the amendments Portland, "the supra, sponsors nor even dreamed thought neither intended nor 168] [ the amendments would from prohibit relating laws cities enacting general municipalities, and towns.” (at 143)

The majority says that "the accommodation of state and local most directly involves the authority ["home rule”] amendments when a party invokes a state law as governing some process of local govern- ment,” cases; citing in Heinig, which involved a civil service system, reference was made by this court (231 479) Or at to the authority of the state to enact a law (at government" "relating (at 146) 146); and that "[t]he quoted holding oí Heinig states the rule for processes testing general city gov- laws for the ernment.”

Based upon this then an- reasoning nounces a completely new that concept namely, — intended purpose of the "home rule” amend- Oregon ments was to only grant to the cities the limited power to legislate matters what the upon involving majority refers variously to as or "mode” of "processes” local government, or as or "structure and organization” "structure and procedures” of local as government, distinguished social, from or "substantive economic other regulatory objectives.” obvious,

It course, is that by this new concept that majority intended of the purpose Oregon "home rule” amendments is limited to matters involv ing "organization,” "structure” or of local "procedure” limitation the area government imposes upon drastic in which cities have to legislate, exclusive power for the compared the view as previously accepted Welch, and Woodb Heinig as stated in past years, urn, these to the effect that the intended purpose constitutional to make a grant amendments was concern,” cities of "full in all matters of "local power” It is free from "intermeddling” by legislature. concept compels obvious that this new equally in between the power dramatic shift the balance of cities Oregon important area of home rule. this change, nature of from the drastic

But aside this new submitted, that respect, with all due is which the upon is the foundation which concept, hybrid a curious only rests its is not opinion, majority and should have is unsound ancestry, but of uncertain reasons: following this court for rejected by been (1) as matters of "substance,” as well Matters of matters of "predominantly can be "procedure,” uniforms worn style For example: interest.” (an in this court referred to example firemen (231 485)) of benches the number and location Or at or hand, matters of On the other city park. in a swings or be of city government may "predomi- "procedure” interest,” the manner state-wide such as nantly measure is which a ballot measure for a tax municipal Woodburn City stated, for information of the voters. Com., v. Tax supra. (2) presented cases previous The fact that most "some involved including Heinig, may court, have itself, wholly is, of government” of local process the Oregon the conclusion to support insufficient make a were intended amendments "home rule” limited which was rule to cities of home grant "procedure,” or "structure” "organization,” matters conclusion for such a of a basis proper in the absence rule” amendments. "home Oregon the terms (3) terms of nothing There is which supports, amendments rule” "home conclusion its support, claimed amend- these constitutional of purpose the intended to rule powers of home limit the grant ments was to or "structure” "organization,” matters of to cities the exclusive the state to and to reserve "procedure” by general matters as to all other to legislate power (now 1(a) § IV, § Art contrary, laws. On "civil” cities voters of to the 1(5)), power reserves expressly legislation municipal and local, special "all over of that 2, XI, § provided character” and Art every to only subject was to cities granted rule process home "the Constitution and criminal laws of State Oregon.”17

(4) in- conclusion purpose tended of these amendments constitutional grant powers to was limit home rule to cities "organization,” "procedure” matters of "structure” or only contrary is not to the decisions this court Heinig past years, including Welch, 40 and Wood- contrary supported by, hum, to, but its is also and not previous "legisla- decision in Rose. Under rule supremacy” Rose, tive as stated in power general relating all would have to enact laws involving presumably including cities, matters mat- "organization,” "procedure.”18 ters "structure” (5) may While there be some in more virtue specific scope definition of the nature and subject grant matters to a constitutional of "home specific cities, rule” to in the absence of definitions or other terms as set forth in a constitutional home rule usually amendment,19 the courts have declined to attempt specify by "judicial such fiat,” matters but usually Oregon by Heinig held, have Welch, as and purpose Woodburn, that of amendments in such grant broad terms was to make a cities exclusive legislate concern,” all to matters of "local except adopted for those courts which have a rule of "legislative supremacy” as to all matters.20

(6) parties None of the in these or amicus curiae cases contended their briefs in these cases court Woodburn, should Welch, overrule on 17 (1914). Albee, 197-98, 188, See Branch 71 Or 142 P 598 18 Portland, 301, (1921), citing See Tichner v. 200 P 466 Portland, Rose v. Port supra n.11. 19 Island, (1951); See § Constitution of Rhode Amendment (as Colorado, 1912); § Constitution of Art amended American (National Municipal Cities), League Association Model Constitutional Municipal Provisions for Rule Home (3d McQuillin, 4.83,4.84,4.85 Municipal Corporations §§ 20 See2 rev ed 1966), therein, Antieau, Municipal Corporation cases cited Law 3.17, (1977), §§ 3.20 3.21 and cases cited therein. [ ]171 important proceeded upon matter, this but all implicit assumption purpose grant "home rule” amendments is to to cities exclusive legislate concern, all on matters of "local Heinig Welch, held in Woodbum, and that issue to be decided in these cases is whether these statutes involve matters of state or local concern. by argument court, in these cases this

Prior to oral parties prepared requested letter, that the be on oral following questions: argument respond to the al, 231 Heinig In ex rel v. Milwaukie et Or "1. State (1962), to be P2d this court announced a test 373 680 legislate can on determining used in when state be Heinigtest concern. Should the matter refined and, so, if way? reconsidered in what or reconsidered, what Heinigtest If the ex "2. refined or local apply to define areas of state might criteria employe employe concern in the context of relations added) (Emphasis benefits?” argument unions for the defendant

At oral counsel Heinig suggested, test time, that the and for the first by or a "substantial "refined” substitution of analysis significant interest” analysis. "predominant None of the state interest” parties, however, at oral either in their briefs or suggested Heinighe argument, "refined” or either theory by substituting it the now "reconsidered” adopted its decision. as the basis for party many that a cannot This court has held times present concepts that he did not raise issues or rely upon will not in the trial court and that this court theory of a for the decision a new as the basis consider case raised for appeal, even when

the first time on theory, having appeal on new been raised such a party party, a full afforded to the other brief of one opposition opportunity There to it.21 to be heard in 21 Hoevet, 284, 297, 200 See, Edwards, P2d e.g., 955 Guardian v. 185 Or (1949); Johnston, 315, 340, P2d 420 Nordling P2d 205 Or (1971), (1955); Co., 606, 613, 484 Chaney P2d 824 v. Fields Chevrolet 258 Or and cases cited therein. have been decided cases which been some have those urged than different grounds on theories court trial, have been but such cases at the time See, Agan e.g., than the rule. general rather exception, 619, 629, P2d 765 Bank, v. US. National so, only did but because (1961), in which this court to be afforded a fair opportunity had been parties the court or which theory ground upon on the heard heard A to be similar opportunity its decision. based on cases decided in other recent was also present on those urged different than or grounds theories trial.22 comes to a case

It unthinkable to me that because (as Appeals review from the Court of us on petition cases) court, by simply true of all this will soon be as to to for their views asking a letter counsel writing case should previous whether a rule as stated some free to "reconsidered,” now feel or should be "refined” includ- ground, such case on or any any theory decide such response not suggested by any party one ing had no has letter, losing and even the though party a me, such a heard so. To doing be before opportunity adversary the at roots of very strikes practice of "due concept process.” as well as the basic system, justifiable not forget should also judges Appellate aby loses a case of a or who lawyer litigant frustration had not which upon theory ground decision based he had no his and on which by opponent urged been to be heard. opportunity 189) (at theory adopted the new

As out later pointed in this case its decision as the basis for by majority the result reached necessary support was not have properly result could because same majority rule estab- under majority been reached That theory Woodbum. Welch, lished in in a basis for discussion could have provided proper 22 (1949); Irwin, 541, 558-59, P2d 330 v. 186 Or See Hanscom (1972); Davis, 387,400, Farm Fire 498 P2d 744 State Belleville v. 262 Or 299, Chaney Sevier, v. Fields See also 537 P2d 88 272 Or Co., 21, dissenting opinion, supra at 622-24. n. Chevrolet basis alternative proposed as a opinion concurring cases, for consideration possible these the decision of case, companion as in the such in a future "home rule” ERB, App Hermiston v. Or City case of 291, 270 P2d 663 grounds, rev on other P2d (1977), before this court on its again when that case is the benefit of could then have had merits. This court that proposal. of counsel arguments upon briefs Indeed, for it if has the merit claimed not why reason it should good there is no majority, scrutiny to the have been thus submitted view, In may in the usual case. adversary process, as new, however, untried adopt it is improper a bare opinion by rule as the basis for an untested drastically changes which so of this court balance of between the existing previously in the area important cities have had no fair rule” when these cities "home heard. opportunity The test to be applied.

B. unanimous its previous has overruled majority that in Woodburn both holdings a given whether deciding to be applied test” "real or of the state exclusive power subject matter is which interest has an determine which is to the cities a after the other the interest of over "predominates” a substitute each. As of the interest of "weighing” holding its test, upon based majority, that simple amend- rule” "home of the the purpose that rule” a of "home grant limited to ments is not as but "procedure,” on matters of legislate cities more much "substance,” a has adopted matters of formula, involving application complicated summarized which be may concepts, different wholly as follows: matters: to "substantive”

1. As * * «* to sub- primarily law addressed general [A] objectives economic, social, regulatory or other stantive by preferred contrary policies over prevails of the so, some local it is governments clearly intended to do if unless the law is shown to be irreconcilable with local community’s freedom to choose its own political * * *” added) 156) (Emphasis (Op form.

2. As to matters "procedure.” «* ** * * * [A] statute addressed to a concern of the state with the procedures structure and agencies local * * * impinges powers on the ["home reserved * * 156) rule”] amendments (Op rule, This however, second to two subject exceptions which the state to permit still as to legislate matters of city "procedures.”

(a) Whenever "the state concern” can "justified by a need to safeguard the interests [private] persons or entities procedures affected government.” 156) (Op (b) In involving employees cases of cities who are employed to operate carry out any "process” or (as cases) "procedure” city of a in these may nevertheless enact statutes which "embody legis- * * * lative concern with living standards of persons these occupations "substantive, and their families” as a objective,” social if it so desires and makes "clear” such intent, an in which event such laws prevail any will over 156) contrary. ordinances to the (Op No direct authority is cited majority of the support foregoing formula or of the various propositions and distinctions which make up formula, other than those relied upon by as the basis for its holding purpose Oregon "home rule” amendments is limited to grant to cities of "home rule” processes on matters involving the "structure” or "procedure” of city government.

The mere statement of such a formula as a complex test for determining whether matter any given is subject cities, the "home rule” free from power "interference” by the state legislature, again reveals how drastically has shifted the "balance by a power” limitation of such "home rule” power to

[175] for the past existing area than that smaller a much this court by decisions the unanimous under years Welch, decisions Woodbum. Under those to all as rule” power exclusive "home had the cities awas of which interest,” the test "local matters of "pre- the cities whether the interest determination Under of the state. over the interest dominates” only not however, the cities the majority, by decision "substan- any rule” such "home have no "proce- city matters, even as to matters but tive” there when only still not dure,” legislate the state can the protection over "state concern” is a legitimate also but such procedures, affected persons discretion, in its may, legislature whenever living a statute out of "concern to enact decide or operate cities engaged by of persons standards” city "procedure.” out carry addition, complex the mere of such

In statement abandoning the majority, formula reveals "unchar- test, upon interest” has embarked "balance of not application seas” and will now require tered formula, interpreta- a more but complicated only least of at courts application by tion and different, phrases, words and but general, equally as the following: such

(1) primarily a state law is "addressed Whether objectives social, economic, substantive or other state,” from matters of "structure” as distinct "procedure”;

(2) intended” "clearly a law was Whether such charters city over prevail ordinances;

(3) with the a law is "irreconcilable” Whether such form”; political of a to "choose its own freedom (4) which Whether, if law is one even a state state with "addressed to a concern found to be government,” of local the structure and procedures concern” of a "state because prevail will nevertheless safeguard need to "justified which can interests of persons or entities affected” such by procedures; and

(5) Whether, in cities, cases involving of employees including those engaged to make their "pro- operative cedures,” the state has legitimate "concern with the standards” of living such persons. of

By way contrast, the rule as established and by recognized this court for the past 40 the years that purpose Oregon "home rule” amendments was to make to grant cities of exclusive in legislate to matters, without legislative interference, as held Welch, in and that the "test” to be in applied deciding whether any given matter is subject that exclusive power is to determine whether the interest of the city "predominates” state, over versa, the or vice held in Heinig Woodbum, inis accord with and by supported many authorities.23 23 See, Antieau, e.g., 3-59, Municipal (1975), Corporation § Law 3.21 stating that: "* * * open What is called is an of in a discussion whether the people greater, particular concern of the instance, of the entire state is certainly than the concern of the local residents. This will though large ordinarily mean that even certain areas are one labelled other, may or the subareas therein call for a different decision. This very by captured Oregon been has well Court which first acknowl- edged protection traditionally concern, that fire said to be a 'state’ but then went on to hold that the determination of the kinds of by city people uniforms to be worn firemen awas matter for the of the of the decide, municipality they people since were concerned and the entire had no discernible interest in the matter.” following Also Corporations McQuillin, Municipal is the interest statement from (3d 1966): 161-62, § 4.85 rev ed affairs,’ 'municipal “General definitions of affairs’ and 'state meaning governing legislative within the of the rules control of municipal corporations outlined, occasionally above an- have been judicial decisions, although frequently deliberately nounced in courts terms, may refuse to define these in order that each case as arises circumstances, upon complica- considered tion its own facts without the of prior pronouncements upon one or the other attributes category unwillingness inability designate of 'affairs.’ This certainty dividing matters, and, indeed, a line the two classes of futility attempts so, clearly by conflicting to do are demonstrated upon belonging particular and inharmonious decisions matters as 'municipal’ or in the 'state’ class affairs.” unfair, record, my it is state of on this Again, to abandon of this court a bare majority opinion, this recognized established as long the test the game” "rules of change completely and to court of a manner, adoption a drastic such rules, affording without new formula complex before be heard opportunity a fair cities of above) 171-174 so. doing CSee the courts. The jurisdiction C. holding noted, since the unanimous

As previously all between in Welch court conflicts over Oregon the cities of legislature the state the exclu- subject matters are whether particular of "local as matters of cities rule” powers sive "home courts. Oregon decided by have been concern” 146) (at that recognizes opinion The majority all "seemed to extend in later stated rule as to hold on goes but policy,” and local of state conflicts 2, XI, extends section think that article do not that "we (at 147) that holds then majority that far.” extends in "home rule” cases the courts jurisdiction between involving disputes to cases only gov- of city "the processes cities over involve a consideration such cases ernment,” because in interests citizens’ interests —the of "comparable ac- elections, in official government, responsible of policy planning in the procedures countability, McQuillin, supra, § 3.87. See also 2 differing limited because of Decisions other courts are of assistance however, appears, provisions rule.” It that constitutional for "home test, adopted by Heinig, "predominate is consistent as this court interest” provisions adopted with in other states similar constitutional the test 876, 516, Wilson, See, e.g., Apodaca P2d v. 86 NM 525 rule.” "home 1, Club, (1974); Ariz City 64 Tucson v. Tucson Sunshine Climate 881-82 Island, 654, 48 (1945); 598, 602 City Grand 154 Neb 164 P2d Michelson Tulsa, 769, (1951); Homes, City 552 P2d Funeral Inc. v. NW2d 775 Moore (Okla Board, 1976); 702, 41 Wis 2d ex v. Retirement State rel Brelsford (1968); City Joplin v. Industrial Commission 163 NW2d (Mo 1959). Missouri, 329 SW2d 687 the Constitution Sharp, in Alaska: A Clash Between Home Rule See also Court, L Rev and the 3 UCLA-Alaska decision, like,” and borrowing, and the and that taxing no jurisdiction courts extends to cases longer (at 148) over as involving disputes what describes reason "competing policies” that "such choices are the essence of not political, judicial, decision.” 147) (at upon Based holds reasoning, "home rule” constitutional amend- ments must so be because: interpreted

"* * * interpretations provision Judicial of such a must strive to articulate these directives and avoid give guidance government formulations no every policy dispute judicial leave decision.” and because "* * * court, challenge [W]hen such a does reach a

the court’s decision must derived from constitution- standard, al not from the court’s own view of competing * * *” public policies.

Although these statements may represent polit- ical of the writer of the philosophy majority opinion, me are little they more than rhetoric. The courts frequently apply "balancing test” of com- weighing social interests peting under constitutional provisions provide which no more aof "standard.” Examples, among others, are to be found cases which the must courts balance the interests of individuals against the interest of the involving state in cases claims by individuals to freedom of speech,24 equal laws,25 of the an protection administrative hear- abortion,27 Also, ing,26 to an but a mention few. the problem by confronted the courts under in "balancing of interest” as stated Heinig test approved Woodbum is no more difficult of applica- tion than the by "fairness” test as adopted 24 O’Brien, (1968); Myers, United States v. 391 367 Deras v. 272 Or US (1975). 47, 54, 535 P2d 541 25Shapiro Thompson, (1969); Oregon, v. 618 394 US v. State Olsen (1976). 9, 20, 276 Or 554 P2d 139 Eldridge, (1976); Tupper 26 Mathews v. 424 US 319 v. Fairview (1976). 657, Hospital, 276 Or 556 P2d 1340 27 (1973). Wade, v. Roe 410 US 113 of state involving application in cases other courts of competing statutes,28 balancing in the arm” "long involving conflicts custody cases in child interests cases negligence or in jurisdiction,29 competing applied.30 is sometimes test "continuum” in which the Although the majority professes to find in "the * * *” citizens’ interests in responsible government, a interests” for standard of "comparable more definite of local gov- in cases involving processes application ernment, I how that purported fail to understand a of "local standard is more definite than consideration involving and "state-wide” interest cases interest” event, interests In "citizens’ any matters. substantive * *” * a provide does not government in responsible standard,” as stated "constitutional any a based upon much less standard be required, {See rule” amendments. "home language above.) its this court unanimous decision By that: recognized

*"* * question It has said that 'The of which been government provide given level of should service is political one and essentially should be determined * * *” (231 agencies government.’ Or political 483) at but went to hold that: on

*"* * which we theory [UJnder the home rule agencies have there are involved adopted political two making claims to and the resolu- conflicting sovereignty, (231 tion of that conflict must be made the courts.” Or 483-84) at 28 (1945); Washington, Wakeman 326 US 310 Shoe v. International (1975).

Davis, P2d 796 (1972). 221, 239-40, Hawkins, 264 Or 504 P2d 709 29 Hawkins v. 603, 608, Co., Plywood 469 P2d 783 Stewart v. Or Jefferson ^[180] This is accord with the complete thinking of authorities.31 This view is also in writing many accord with the following classic statement Chief by (6 Justice Marshall in Cohens v. Virginia, 19 US Wheat.) (1821): 264, 404

"* * * judiciary cannot, may, The as the legislature avoid a measure it approaches because of confines pass by constitution. We cannot it it is because doubts, doubtful. With whatever with whatever difficul- ties, attended, may case be we must decide it if be * * *” brought before us. Indeed, the view previously held court it is for the courts to decide whether any particular matter concern,” is a matter of "local so as to subject to the exclusive "home rule” of a is the power city, generally rule, accepted as recognized by most au- thorities.32 Under the rule as stated such decisions are to be made by identifying interest of and that of the state in the matter which is the 31 Sandalow, As stated in Municipal The Limits Power Under Home (1964) (cited Courts, Rule: A Role 48 L approval Minn Rev 643 (at 3) (at 688) point), on another it is stated that: «* * * political, Characterization upon the issues as which all agree, can does necessity denying not establish the wisdom or judiciary question a role. The to be answered is not whether an issue political, regularly charged responsibility for courts are with the issues, deciding political type political but whether it is the issue toward the resolution of which the courts can make a contribution.” added) (Emphasis (at 721): "Inevitably, suggested requires the role for the courts the exercise judgment part. of judges ought argument self-restraint —on their —and responsibility identifying not to be entrusted with the values, however, lacking irony generally basic is not in view of their accepted power legislation grounds. to invalidate on A constitutional community judges legislation which trusts its to review all consistency greater with the constitution confers no on them authorizing municipal powers the invalidation of novel inconsistent * * *” values, ambiguity phrase. with basic whatever the of that effect, Vanlandingham, To the same see Constitutional Home Rule Since (NLC) (1975). Model, 1, 27, Mary the AMA 17 Wm and L Rev McQuillin, n.23, 4.88, supra therein; § See 2 and cases cited and 1 Antieau, n.23, 3.21, supra § and cases cited therein. n.6, 1; Vanlandingham, supra Bromage, See also at Home Rule —NML Model, 44 Nat’l Mun Rev case and whether any given by determining subject Although the interest of the one "predominates.” in- may social sometimes be "competing policies” volved, the the focus is identification primary upon the that of state and the interest of the the of such interests. balancing perfect be a may

It be admitted this not may in not be may test and that its some cases application Marshall, But, because by as stated Chief Justice easy. is not a reason for good cases difficulties may present the jurisdiction. the to decline exercise of courts case, Indeed, in this is do so the has done majority to as Oregon the of all jurisdiction not to abdicate only matters of involving all "home rule” cases courts over with the bath substance, is "throw the baby but out is "hot.” water” the "bath water” too because taken this of this court has Again, majority no contention the fact that such despite drastic step of which to these cases —all any party made by court to decide of this recognize jurisdiction is whether issue to be decided case and that basic of predominantly these two statutes involve matters unfair, irresponsible, not but only "local interest.” It is to abdicate of this court majority in a my opinion, between cities decide its jurisdiction disputes involving in all rule” cases "home legislature affording first matters,” at without least "substantive upon to be heard a fair opportunity cities them. such importance matter of the state legislature D. power The noted, As previously holdings since unanimous in this court Welch 1936 and by to cities of the grant that because has established been Con- from the emanates powers "home rule” to inter- has no stitution, legislature power the state general either by of such powers fere with the exercise all that, disputes corollary, as a laws and or special legislature by of exclusive over claims these within claimed cities over matters [ 182] are to be resolved powers exclusive "home rule” courts. (at 146, held, has 148 and however

156), the Oregon courts have jurisdiction no except "processes” cases of local involving govern- ment, that, in all corollary, cases involving "substance,” matters by the state "pursuit” of "its statewide undeni- social objective ably (or displaces arrangements absence arrangements) preferred the local In government.” words, other the state legislature now enact may whatever general may laws it in all please to enact "substance,” matters of despite cities to appeals by Oregon courts that such laws invade their exclusive powers. "home rule”

Thus, in effect, the majority has adopted rule of "legislative supremacy” in all cases involving matters of "substance.” This also includes this, cases such as in which city employees engaged to make the operative "processes of local government” are held by major- (at 154) ity 151 and to abe proper of a subject state "concern” as a "social objective” aas matter "substantive policy.” noted,

As previously state home rule constitutional (1) provisions general are two types: granting those to cities "local with autonomy,” exclusive to power (2) legislate as to "local matters” those under which the "home rule” is of cities to power legislate subject "legislative by the enactment of supremacy” general effect, laws. In holding by majority cities have rule” exclusive "home powers in the limited area of while the state "procedure,” still legislature has in the area of "supremacy” broader "substance” is a solely holding based "hybrid” upon by majority that such was the intended purpose the Oregon "home rule” amendments —a with- holding out basis either precedent or in the terms of such amendments. noted,

Again, this court held unani- previously in Welch that under the terms of the mously "home rule” amendments has no legislature to "intermeddle” law in matters of "local by general concern.” In holding, so this court a view adopted accord with the views many authorities to the effect a rule of adopt "legislative supremacy” is make home rule powers depend solely upon "legisla- tive and that if the is grace” of home rule purpose grant cities freedom from interference by legislature hardly advisable to make the state the "arbiter” of the state’s disputes the cities in such matters.33

And, again, has its rule of adopted "legislative supremacy” over all "substantive” mat- ters, the fact despite no such contention has been made any parties these cases and without affording these cities a fair to be heard opportunity before the adoption of a new rule in such resulting (See above) drastic consequences to them. 171-174 Siegweid, Municipal 33 Kratovil & Illinois Home Rule and Urban Constitution, Land —A (1972); Note, Run Test New 22 DePaul L Rev 361 n.7 Problems?, Municipal Wyo Home Rule: A Solution U (1961). 47, 62 writer, criticizing "legislative As stated cy” another suprema- the rule of constitutions, under some state home rule «* * * deliberately if destroy grass the states had set out to democracy, they hardly roots of device for could have invented a more effective doing system legislative tutelage many so than the which Mott, employ.” Strengthening Rule, of them Home 39 Nat’l Mun Rev effect, To the same as stated still another writer: "Historically, legislature, jealous legislative pre- of its * * *” rogatives, seldom has been an ardent advocate of home rule. n.6, Vanlandingham, supra at 22. Again, to the same effect: major objectives prevent legislative "One of the of home rule is to * * * government. interference with local "* * * satisfactory Government remote control is seldom government. government agency legislature And when the is a in minority representation, grow which the cities have but its evils like * * *” Mott, Cities, green bay

the tree. Home Rule for American (1949). Municipal American 11 Association

[184] Application E. the test in this case. of applying of in "weigh Instead the test established seeking identify and Woodbum of and to in the balance” the interest of the that of subject matter ORS 237.610-237.640 and analysis by major- 243.005-243.055, the ORS used (at 149) ity applying its new test is to consider primarily whether statutes are "addressed to a these [procedures] concern of the state with the modes government social, or to economic, substantive regulatory objectives.” other (at 156), majority reached conclusion application this test is that these statutes

after upon second, kind.” The substantive basis are "of the holding by appears to rest is the that conclusion which (at 151) "embody majority that the statutes securing postemployment legislative concern occupations” persons living (policemen in these standards firemen), "[i]t is not essential but goal legitimacy of this whether to the (as singled police firemen”; and that officers and out 156) a social concern at statutes "address held these living of these classes of workers” with the standards categories employees "[v]arious are not and that legislation beyond placed state’s the reach of the social * * * occupational merely functions their because public happen of local in the sector found government.” 151) (at reaching would

In result distinguish previous of this court decisions also (1914), 188, 142 P Albee, 71 v. Or Branch Heinig City al, 231 Or Milwaukie et State ex rel held In Branch this court 473, 373 P2d 680 popula- requiring all cities with law invalid a state pensions and a a board 50,000 tion to establish over pay police pension them officers and fund for equal their salaries to one-half of retirement benefits years, serving age upon after at retirement ground rule” upon "home under the § amendments Art XI, 2, IV, to la,§ and Art the matter of pensions for policemen a employed a by city was matter "municipal” IV, and that Art la,§ conferred upon voters cities "full to for power legislate local, {See themselves as to all matters.” municipal (at 205) 481) Or at 198 and In Heinig this court reaffirmed Branch and held expressly invalid state statute which undertook to create civil municipal service commissions to supervise systems civil service for firemen and noted that there was "no substantial difference between the establishment of a pension system Albee, city [as Branch v. police (1914)] 142 P 598 and the establishment of a civil system service firemen.” The principal ground upon which majority (at 152) would distinguish Branch and Heinig is that the statutes involved in those cases undertook to "agencies create of local government” and that a law which "would have displaced the authority politically accountable local officials over the selec- tion, assignment, discipline, replacement” of city employees "by direction from the state” is "a substan- different tially interference with self- government from an obligation to provide a measure of economic security public to employees.”

It follows from the of the majority opinion rationale has the to enact would be required similar statutes under which cities benefits, $10,000 to provide including a life pension insurance all its "citizens” all policy, employed by counties, clerks, cities and janitors, including typists, librarians, attendants swimming pool park maintenance employees.

It be true that the statutes involved these may cases do require not cities to establish new different However, "agencies government.” of local effect of the rationale upon city government operation for its adopted opinion as the basis by majority Instead, equally drastic. the cities are ORS required 237.620(1) participants” in state Public to "become "police System respect Employes’ Retirement employed them.” fact that firemen officers and existing required "participate” in an cities are thus "agency,” a new than "establish” rather hardly provide government” "agency can of local support proper the conclusion basis "proce- matters do not involve of that these statutes government, in- but instead dure” or "structure” pension plan Also, is as a matters of "substance.” volve government city "procedure” "process” and much a system. as is a civil service "processes” "proce- and

Moreover, even as to the government, city perform city a can and dures” of "procedures” operative "processes” and make such by only through employed employees them for that city purpose. If in this a is to have "home rule” even it must have full control limited area over such including right employees, to the to hire and fire and paid fix the consideration to be them. When including compensation, undertakes to fix both pensions wages "fringe benefits,” life and such as and paid by employees, insurance, which must be cities "processes” "procedures” its interference with the city fully government is serious as under state assign- "selection, laws which would interfere with discipline replacement” ment, of such em- ployees according which, to the interference —an (at 152) majority opinion improper. would be On contrary, appear greater the state would to have a city "discipline” in the "selection” and interest engaged police in of state officers enforcement particular compensation to laws than in the amount of paid requirement officers, in be such much less policies purchase $10,000 life that cities insurance police of all officers. beneficiaries by court previously a unanimous As stated interfering with Heinig, laws to state with reference city employees: discharge employment *"* * jf the legislative assembly has the deprive municipalities people self-government respect, an imagine would be difficult to area of activity engaged in by city which could not be (231 485) similarly controlled.” Or at The state’s interest the amount of by wages paid to its city employees different than the interest of the state under statutes requiring employees covered by workers compensation, wage hour standards, standards, safety nondiscrimination, or laws, child labor which are contended the majority (at 153) to involve "statewide social objective[s]” com- parable to those contended support the validity of these statutes. All of those statutes involve "statewide social objectivefs]” establishing minimum standards for all employees, whether public or private. statutes, These contrast, do not require cities provide pension $10,000 benefits and a insur- ance policy for all employees, whether public private, but only and, employees indeed, only for city police officers and Moreover, firemen. required pension $10,000 benefits and insurance poli- cy can hardly properly characterized a "mini- as standard, mum” at least in the same sense provided as under statutes requiring payment of minimum wages.34

Indeed, except in times of national emergency, neither federal nor state undertake government may to the amount of regulate wages paid by that must be either or to establish private public employees, except In National a minimum wage for common labor. (at (1976) League Usery, Cities v. it 851), 426 US 833 was held the United Court that the by Supreme States Fair Labor not to Standards Act does extend no of cities and because has employees Congress states 34 Indeed, on of defendant Public the brief filed in these cases behalf Board, providing expressly recognizes Employes’ that Retirement statutes compensation unemployment involve "areas for workers’ and benefits public relating employees, or to whether statewide social concern all private.” and states by cities paid to control compensation and of their "separate to their in view employees Moreover, precedent no existence.” independent state holding its that a to by support cited (much less may private require public employers in life $10,000 insurance employers) provide or their either a "minimum” otherwise. employees, hand, previous- the test as under the other even On Heinig repudiated {and now by this court ly adopted requir- that state laws it is majority) arguable officers police ing pensions payment that may upon ground firemen be held valid citizens of its interest of the state the protection payment requires and fire police protection proper suffi- benefits” "fringe such wages, including qualified policemen cient to attract and retain (at 488): it Heinig firemen. In was stated "* ^{[*] [*]} Each case requires weighing the state’s In some against municipality. interest the interest of a uniformity, the benefit instances the need for or law, recognition application of the widespread with other with is interrelated that the matter dealt will functions of the state and similar considerations the char- require preference the statute have over * * ter; *.” conflict, Indeed, not without the cases are although holding states there are courts of other decisions for police- pension that state laws benefits requiring men and firemen involve such an interest employ which over that of the cities prevail so as them.35

The majority is also critical of the test (at 154) stating it is not "generally useful define a ’subject’of one or legislation assign government,” other level of do because to so "misconceives nature a 'state to focus interest’ 35 4.106, therein, McQuillin, n.23, supra § 2 1 See cited and cases Antieau, n.23, 3.25, § ex rel supra State and cases cited therein. Cf. Board, 2d 153 v. Retirement 41 Wis 163 NW2d Brelsford

[189] narrowly on the functions performed by particular groups employees the exclusion of a concern with as citizens.” employees Thus, according (at 154), "the majority legislature may, chooses, if it so consider the interest those who as perform job well as the interests of those on dependent performance.” unclear,

This rhetoric at least to me. While the not majority may consider it "useful” to consider problems of "home rule” in of the terms "subject,” "subject matter” or "matter” of the in- legislation volved, such an approach these problems is not only implicit Heinig, but is the approach by many taken other courts and by other See, recognized authorities. 2 e.g., McQuillin, §§ Municipal Corporations 4.89 to (3d 4.113 1966), ed rev Antieau, Municipal Corporation §§ Law 3.22 to (1975), 3.34 and the numerous cases cited therein.36 (at

Also, according to the 153, 154), majority "[a] search for a predominant state or local interest in the 'subject matter’ of legislation can only substitute the political process to which we have referred the court’s own political judgment whether the state or the local view, should policy prevail.” This is a again, corollary political the courts philosophy should abdicate to all responsibility all cases involving what refers to as (See "substance,” matters previously as discussed. 179) McQuillin, n.23, supra 36 Asstated § 4.28: *"* * Generally, except provided by where otherwise the constitu-

tion, purely exempt matters conflicting concern are from state legislation, purely but state laws control as to matters not of local concern, generally referred to as state affairs.” and, §at 4.78: legislative concerned, far constitutions, "So control is state statutes, charters, municipal employ, and decisions of the courts often definition, (1) without distinguish various terms to between matters (2)

principally pertaining large, to the state at purely and matters of * * *” local concern. effect, Antieau, n.23, To supra the same §§ see 3.21 to 3.40. 147) (at in much engages itself Indeed, majority the as list it to undertakes when analysis the same city still subject of city government” "processes "official "elections,” following: the rule powers home and planning "procedures policy, accountability,” like.” the "and decision,” "taxing borrowing,” (as Thus, because 189), demonstrated the above at same result could be reached the upon application test previously established this court in Woodburn, the majority becomes obvious that what for has done has been as a vehicle to use these cases of new adoption concepts and new tests which have drastic in consequences area of rule limiting home cities, left to the despite fact not have they a had fair opportunity to be heard on these most important matters.

Indeed, be may the majority opinion properly characterized, view, in tour de as my "judicial forced."37 the rule cities upon impact

III The financial ” supremacy. "legislative legal theory, from its Wholly finespun aside matter, is opinion the majority as a wholly practical law,” majority in What my opinion. "bad simply "legislative supremacy” in a rule of adopting has done i.e., matters, matters which all all as to substantive policy,” to involve "societal deem legislature may cities require is to enable without social programs adopt expensive of such of the cost any part being responsible to the courts and without recourse programs This would also "jurisdictional disputes.” event of Oregon, counties of true as to the appear reasoning to the according 147) (at to counties. in its opinion

reference Process,” (1970), Linde, 49 Or L Rev 125 See Without ’Due (at 125) commenting previous decisions this court on "constitution litigation” "startling judicial tour[s] properly al cannot be characterized de .force.”

Indeed, it is a matter of common knowledge that the "lion’s share” of the cost of the of a operation government consists of salaries and other wages, compensation paid to its employees. It also a matter of common knowledge that overextended pension benefits of a employees city may seriously endanger the financial solvency city, with its more income, limited sources of thereby putting jeopardy its ability perform any necessary the functions for the protection and welfare of its inhabitants— witness the recent experience City. New York

As by stated one writer:

"The pernicious most feature of the doctrine of state supremacy tendency over cities is the of the legislature * * *” cities.[38] lay the to burdens on impact The upon the is cities because compounded the legislature 1973, also in enacted 243.650 et ORS seq. guarantees which to all the to city employees right bargain collectively and for provides binding arbitra- tion in the event that cities and the of representatives their employees are unable agree compensa- to on the paid tion to be employees, to such including "fringe 38 Mott, n.33, supra at 46-47. See also 48-49. by

As also stated the same writer: «* * * legislature if a levy directly were to a tax on the cities the public objection would be police But pension tremendous. when a bill is legislature before opposition may the not be able to make itself policemen’s organization heard. The powerful lobby maintains a and public usually the Furthermore, budget. fails to see the effect the law on the local legislature by passing please special can a bill group being required levy necessary voters without to the taxes to pay public requires agency costs. Sound finance that the same expenditure responsible raising money. which orders the for are communities and affairs. equal partners "It is time to that our (1950). ^[*] ** ^[*] sfs *” Mott, Strengthening are democractic institutions can be recognize given in full gigantic that our cities have come of responsibility business of Home Rule, for government strong 39 Nat’l Mun Rev managing only age, in if our local their own that America, they Vanlandingham, n.6, supra See also Witt, Regulation at State Relations, Local Labor California?, The Demise Home Rule Hastings LJ pensions Thus, under and insurance. benefits” such repre- "legislative supremacy,” the union the rule of senting gets apple”: city employees bites of the "two binding including bargaining, first, arbi- collective objectives by then, tration, if unable to secure its high (perhaps cost those means because involved) by going cities legislation matters, as matters of "societal on such provide responsibility policy,” the cities to on legislation, pay for funds to the cost of such hope appeal the courts without the cities of adopted protection. has nevertheless affording opportunity rule to the a fair without cities to be heard. previously noted,

As this court held determining given matter of "local whether is one rule” concern,” so as be within the exclusive "home city, powers the test is determine whether the "pre- city interest of or interest city or the test, dominates.” Under that whether the pay program, of a its financial state is to the cost impact upon state, at least one would be important the court factor to be considered deciding given invalid as whether a statute valid or power an invasion of the constitutional "home rule” city. a legisla- newly adopted rule, however, the

Under despite free, rule” amendments ture is left "home any Oregon adopt Constitution, statute to the any involving one of it deems to be matter which imposed upon regardless policy,” the cost "societal of courts, and cities, them the without recourse opportunity heard these to be without even fair adoption rule new drastic of that cases before majority a bare of court. my judgment, opinion, makes a mockery to the Ore- rule” of "home amendments grant gon rule” Constitution, under which "home subject only "the constitution to cities is criminal of laws” the state and initiative are powers local, all reserved to the voters special of cities "as to ” legislation character. municipal It every also Oregon leaves cities and with complete counties no other remedy than for the of an campaign adoption provi- initiative measure to amend the "home rule” sions of Constitution which by provisions more may clearly grant "home rule” to cities and counties over matters action of local concern —an might which well it carry legiti- with some hazard mate and as a "predominating” interests the state whole.

For all of reasons, these I am compelled to dissent from the opinion by the majority. Rather than attempt to summarize a dissenting opinion that is already too long, reference is made to the summary set at forth of this beginning dissent.

HOWELL, J., dissenting.

I join the dissent of my colleague, Justice Tongue, except that I do not subscribe to parts rhetoric used in the dissenting opinion.

BRYSON, J., dissenting.

I concur in the dissenting opinion Tongue Justice it wherein would adhere to the rule law policy al, State ex rel et Heinig v. Milwaukie enunciated 373 P2d 680 In legislature enacted law the home rule requiring a civil provide system service for firemen. This court held could not do so. held: We further "* * * sure, To be it could be shown that the manner dealing personnel departments may local fire

have some relation to the affairs of the state outside of city boundary life a sense all events in are —in related —but our is question requiring answer signifi- whether the extramural effect substantial * * * cant. ^[194] "* * * course, and is, degree, question one The and munici- power legislature the allocation of between the in by us accordance pality must be made it, constitutional the as we understand purpose, an part and which the cities amendments vested free from control legislate to part exclusive assembly. legislative operative to make broadly, stated was purpose, “That make and execute that the those who concept closer are they better represent the laws are to citizens governed accordance represented those citizens would not be objective That with democratic ideals. assembly legislative if we should that the served decide appli- it a statute the field each time makes pre-empts (Footnotes 481-82. cable all cities alike.” at omitted.) opinion because I also dissent from the encourages a violation of allows relating statutory provisions to real constitutional property taxes. requiring laws enacted

In this case brought city police under firemen be officers and System or Employes law Retirement the state Public that equal municipality provide better an system. It ORS 237.610-237.640. also enacted statutes police provide fire- officers and life insurance for provides: 243.015 men. ORS

"* * * Services shall Department [T]he of General company licensed enter into a contract with an insurance insurance purchase to do business this state police described in ORS for all officers 243.025 employers.” public firemen in service of provides: ORS 243.035

“(1) incurred administrative costs premiums and insurance Department General Services paid shall be provided for in ORS 243.005 to 243.045 not come from and shall public employers affected System. funds of the Public Retirement Employes’ "(2) budget include its Every public employer shall accru- premiums the annual pay amounts sufficient to ORS pursuant ing policies on the of insurance issued 243.045, 243.005 to and amounts sufficient reimburse Department of General Services for its administra- expenses tive incurred under ORS 243.005 to 243.045.” directing In words, other city employer budget, subsequent- to include in its ly pay premiums. roll, on the tax an item to annual together

ORS 291.342 and 291.344 with ORS provide property 311.657 and 311.658 for a state tax to through paid be collected the counties and to be to the treasury payment state to insure of bonded indebted- 311.660(1) ness, interest and However, deficit. ORS specifically provides:

"(1) The Oregon State of shall any year not for fiscal tax, collect a property directly by appor- either tionment among counties, any greater several in amount it may than be necessary to collect means of such a property year tax for that pay bonded indebted- ness or the interest thereon.” clearly Under ORS 311.660 the state could not pension program enact a and insurance for local employees city of the of LaGrande and the by ordering place Astoria the local cities to the cost of budget. placed these items in their When the item is in budgets, levy the local cities’ it a becomes tax on real property. By ordering governments the local fund program such a in manner, the above the state has indirectly property purpose levied taxes for that since property tax is the chief source of revenue for local governments, many and in instances of small it cities doing is the sole source of revenue. The state is thus indirectly specifically what the statute forbids to do directly. legislation Such here involved also violates XI Article of the Constitution: (1) "Section 11. Tax Except limitation. in provided (3) section, unit, subsection taxing this no whether it state, any be the county, municipality, district or other body to which power levy a delegated, tax has been any year shall in greater so exercise that a to raise amount of revenue than its tax base as defined in (2) subsection of this portion any section. The tax by this section imposed any in excess of limitation levied shall be void.

"(2) year taxing given unit in a each The tax base of following: shall be one of "(a) six by by adding percent The amount obtained taxing lawfully levied the total amount of tax (a) in unit, paragraphs of amounts described exclusive (b) (3) section, any of the in one subsection by the tax was levied three which such a years last unit; or

"Go) tax as a new base approved An amount voting on taxing unit legal voters of specifying form question submitted them the tax base effect and cents the amount of dollars approval. The of the tax base submitted for the amount hase, levy to the apply tax if shall first approved, new following approval. next its year the fiscal (1) "(3) in subsection of this provided The limitation to: apply section shall not

"(a) any which is for the portion That tax levied or interest thereon. payment bonded indebtedness "Os) any specifi tax levied which is portion That cally imposed the subsection voted outside limitation (1) legal voters of the by majority of this section a the 1] voting the taxing unit on question.[ «*****” to above, if desired mandate Pursuant the the state for premiums police certain items of such as payment, it the and must policies, provide firemen insurance do This done out of the general funds to so. could be levy "tax and a or it a state base” provide fund could tax, of the six if it was outside general but the voters’ limitation it would have obtain percent ob- state, enacting legislation The in approval. this case, statutory in has followed jected to not Instead, it taken has procedure. constitutional tax bases governments’ the local advantage tax to fund state mandated machinery other property 1916; general Adopted originally people at election in amended election; present adopted by general general language 1932 at voters at election of 1962.

[ 197] words, programs. In other doing indirectly what constitution says cannot do with- directly out following specified procedures.

The rule” "home constitutional provisions2 were as a adopted by limitation on people legislature’s original "legislative supremacy.” of "legislative rule supremacy,” its finan- cial cities, on impact as adopted by is also majority, contrary to law rule” generally "home states. As stated 2 McQuillin, 248-50, Municipal Corporations (3d 1966): § 4.159 ed the absence constitutional prohibition,

legislature may compel municipal corporation, without consent, its obligations incur debts or assume as to public matters of perform- concern such as relate to the ance of municipal corporation functions as the * * * agent state, of the obligations and this includes the promotion general of the welfare security ** state and *. community nature

"The purpose which the debt or incurred, i.e., liability is relating whether to a state or municipal purpose, ordinarily determine whether the * * *” legislature may compel to act. municipality omitted.) added; (Emphasis footnotes In states, however, "home rule” rule is other- wise, § by McQuillin stated 4.160 at 251. "* * * [T]he legislature compel cannot expenditure

incur a debt or make levy an a tax for a * * *” strictly local interest or purpose. IV, Sec. 2 Article 1: ‡ ‡ ‡ «:£ "(5) powers people initiative and The referendum to reserved the (2) (3)

by subsections and of this section are further reserved to the qualified local, municipality special of each voters and to all district as legislation every municipal municipality character in their or of exercising powers or provided by district. The manner of those shall be laws, general may provide exercising but cities the of manner those * * *” added.) powers legislation. municipal (Emphasis their as to XI, Article 2: Sec. "* * * legal every city hereby granted voters of and town are charter, subject municipal to enact and amend their to the * * Oregon Constitution criminal of the laws State of

[198] as stated another writer: Alternatively, "* * * state, If matter strictly concerns the there is it, why city no reason the should or in finance whole To the part. require city to do so a serious of invasion Cities, autonomy.” Mott, local Home Rule for American Municipal American Association 9 Welch, 296, 59 286, Or v. 154 Portland City In of (1936), stated: the court P2d 228 "* * * [jjt subject the mind that should be borne pertain must legislative enactment general matter of the the people the general concern to things those not, the can under constitu- A in form general state. law purely on tion, right legislate deprive cities was the for which germane purposes affairs incorporated. the late Chief Justice was

"Since McBride one of Home principal framers Rule Amendments (Article la) IV, XI, undoubtedly § § Article he interpretation upon knew placed intended to be (150 855), he Roseburg, them. In Pearce v. 77 Or. 195 P. said that he considered it 'settled in this state that as not purely municipal legislature matters can general legislation, intermeddle either special although affecting generally people as matters it is power of the is still unlimited’. While keeping true that the result was in reached this case (142 594, 145 Knapp, 558 P. with Kalich 73 Or. P. E, overruled, 1051), Ann. which was later Cas. re never been has above announced [sic] principal today it was as as wholesome this court. It is pudiated undoubtedly as it declared first ago when was years of the Home object purpose with the is in keeping lo perpetuates interpretation Such Rule Amendments. sovereignty not yet does disturb self-government, cal state.” Oregon, in Olsen v. State recently, More (1976), validity of involving the P2d 139 dis- this court financing, system school "local control” concept and approved cussed follows: argument

"The local control political generally upon based principle governmental that the body supply- ing funds, despite initialprotestations contrary, to the ultimately directs how the shall be spent. funds

"* * * s}c * ^[*] In ^[*] Oregon, as well as most states, local government has raised locally funds to furnish services provided by that are government. local Examples of such service are police and fire protection, streets and certain utilities. At least some of these placed services must be in the 'important’ category. If primary the state’s re- liance on local taxes to fund education is unconstitution- al, primary its reliance on local taxes to fund some these other services would seem to equally violative of Equal Protection Clause. Yet this tradition of local government providing paid services local taxes existed at the time of statehood and continues to be a basic accepted principle of Oregon government. Oregon

"In emphasis on local control is constitu- tionally XI, 2, VI, 10, § accentuated. Art § and Art provide Constitution home rule cities and counties; is, the voters of the cities and counties can enact their own charters govern which shall on matters added.) county concern.” (Emphasis 276 Or at 23-25.

This certainly includes the amount of taxes to be levied on local real property.

The rule laid down majority opinion adopts theory "legislative This supremacy.” was the state of the constitutional law prior to adopting "home rule” provisions Therefore, in the constitution. it is difficult to conceive what the voters accomplished the home rule adopting if provisions interpreted accordance with the majority opinion.

It is common are knowledge governments local now near the end of their Budgets financial resources. outside the six limitation are to the percent submitted voters two and three times before some are passed— result, some are never As a local approved. govern- ments must within strict limits. The stay budgetary in this would arise if the problems presented case not ]

[200 state would provide to fund financing its mandated programs, state, but as long under the opinion, has require govern- ments to fund state mandated programs, this inequity will probably continue. The state gets credit for the programs enacted by heavy lobbying— —sometimes and the local government property owners renters the bill. pay

Woe will be the day when the citizens who real pay property taxes realize their why taxes keep rising result of state mandated Their legislation. —as indignation will be vented against such legislative action further requiring taxation and taxes on higher local real If the property. legislature desires to enact legislation provide benefits for one of citizens group it must for the pay same from the general fund.

For all of the reasons, above I dissent from the majority opinion and would affirm the circuit court judges and the Court of Appeals, which held the aforementioned legislation unconstitutional.

Case Details

Case Name: City of La Grande v. Public Employes Retirement Board

Court Name: Oregon Supreme Court

Date Published: Jan 31, 1978

Citation: 576 P.2d 1204

Docket Number: TC 22993, CA 5943, SC 25230; TC 29437, CA 6129, SC 25230

Court Abbreviation: Or.