*1 1995, 12, petition for September affirmed June on record and briefs Submitted (324 18) 6,1996 August review allowed Reports Oregon See later issue MILLER, Roy Appellant, v. IMPROVEMENT DISTRICT
WATER WONDERLAND Seaborn, and Walter J.
Respondents.
A88388)
(94-CV-0387-AB; CA
Max Merrill filed the brief for respondent. sen & Dixon Presiding Judge, Warren, Before and Edmonds and Armstrong, Judges.
EDMONDS, J.
Armstrong, dissenting. J.,
EDMONDS, J. dismissing summary judgment appeals a
Plaintiff right sought had the that he complaint a declaration his Wonderland inspect defendant Water records of (WWID) pursuant the Public Improvement District appeals also 47. Plaintiff summary judgment, ORCP ORS 192.410. Law, Records his cross-motion the denial pursuant Seaborn of defendant dismissal
trial court’s A(8) WWID. of costs to the trial court’s award and ORCP argument plaintiff the trial court made to on the Based affirm. us, and to we nonprofit is a WWID, which is a member
Plaintiff August organized In 554. attempted inspect at plaintiff the records of WWID protest of WWID’sassessment of his in furtherance its office charge against within the district. each lot aof $40 pursuant appeared to ORS the tax rolls assessment sought the records because to examine Plaintiff also 544.130. had directors of WWID whether the concerned about he was 554.070. accordance with ORS elected in been *3 alleges access to records that he was denied Plaintiff (Seaborn), presi- by was the who Walter Seaborn of WWID dent of the board being refused After of directors of WWID. petitioned plaintiff the Deschutes records, access to WWID’s Attorney pursuant County 192.470 for an to ORS District plain- requiring to records available to make its order WWID Attorney copying. inspection declined The District and tiff for such an order. to issue against and WWID filed this action
Plaintiff then required seeking the records declaration “that a Seaborn subject Oregon public plaintiff law records under by plaintiff,” copying an order inspection, and examination an award requiring available, and make its records WWID attorney Sea- 192.460; 192.490. and costs.1See ORS fees A(8), pursuant to ORCP to dismiss a motion born filed right provisions granting individual the specific an contains ORS and corporation. See ORS 554.090 of an ORS the records to examine to exam argue appeal that he is entitled below or on did not 554.120. Plaintiff ORS pursuant provisions. to these WWID ine the records of he that was not
arguing proper party public records statutes. The trial court the motion. granted
WWID also filed a motion for summary judgment, that was arguing “public not a as defined in body” 192.410(3) and thus was not subject to the Public Records Law and requirement permit public inspection copy- of its records. Plaintiff then filed a ing cross motion for sum- WWID mary is a district” judgment arguing as “special 192.410(3) mentioned in ORS and in as defined ORS chapter 198 and is therefore of its records. public inspection The trial court WWID’s granted motion for summary judg- ment, and appeals. plaintiff provides:
“Every person right inspect any has a record of a body state, except expressly in pro- this as otherwise vided ORS 192.501 to 192.505.” body”: defines “public “ body’ every officer, ‘Public includes state agency, depart- ment, division, bureau, board commission; every and city county body, district, and governing school trict, municipal any board, and corporation, department, commission, council, thereof; agency pub- and other (Emphasis lic of this agency supplied.) state.” 192 does a “special not define district.” one appeal, plaintiff On makes only substantive of his contention that the trial argument support court erred in to WWID. granting summary judgment According is not entitled plaintiff, summary WWID judgment because it is district” within the “special meaning 192.410(3). Plaintiff reasons “[t]hrough language 198.110(2), 198.210(1), and ORS defen- * * dant is added WWID to those in ORS 198.010 *.”2 designated enumerates 24 different entities as a district. *4 included, Although chapter 554 not the statute does include the following management related to the control and of water: entities chapter, except specifically provided, as “As used in this otherwise ‘district’ any following:
means one of the “(15) irrigation organized under 545. An district “(16) drainage organized district under ORS 547. A that only argument address follows, that we the analysis In arguments, We address no other deem it unpersuasive. and in sup- could have made that otherwise, plaintiff statutory court erred in granting the trial contention of his port to WWID.3 summary judgment 198.330(2) provides: meaning given in addition to the in ORS 198.335 used
“As 198.010, means one of by ORS ‘district’ term the following: “(2) sup- water irrigation, drainage, A 554.” under ORS organized control or flood ply of inactive the dissolution governs and provides part: tricts 198.365, the context 198.335 to unless used in ORS
“As otherwise: requires
“(2) ‘district’ meaning given district’ has the ‘Special and 198.330.” by ORS 198.210 to the
Also, 198.180(3), compen- which relates district, provides members of a and of board expenses sation in part: requires the context other- 198.190, unless
“As used in by ORS term wise, meaning given has the ‘district’ (23). (5) (7) (2) addition, means In ‘district’ and following: any one of
“(17)
organized
improvement
552.
A water
“(18)
organized under ORS
553.”
water control district
A
arguments
The dis
supporting
focus on the above assertion.
plaintiffs
All of
by
analysis
not raised
on which it relies was
that the
sub silentio
sent concedes
plaintiff
Nonetheless, opines
App
appeal.
at 414 n 6.
See 141 Or
or on
below
by
arguments
made
cannot be controlled
ofthe statute
construction
“our
interpretation of
curious and erroneous
evidences a
parties.” Id. That assertion
ORAP
Ashland,
App
City
Pacificorp.
89 Or
Moreover,
v.
reliance on
the dissent’s
of
case,
(1988),
similarly misplaced.
1189,
In that
rev den
“* * * “(3) corporation irrigation, A for drainage, sup- water ply organized or flood control chapter 554.”
Finally, provides part: ORS 198.210 in 198.220, “As meaning given used in in addition to the 198.010, the term ORS any ‘district’ means of the one following:
“(1) A for irrigation, drainage, sup- water organized or control ply chapter flood 554.” requires any governing body ORS 198.210 a member of any employee charged or or officer of a district who is with possession properties of and control district funds and must or maintain a bond irrevocable letter of credit. chapter corporations
WWID concedes 554 governed by chapter provisions some ORS 198 for limited “public purposes corporation,” and that as a it is portions chapter argues of However, certain 192.4 corporations the selective inclusion of ORS 554 in the of ORS 198 other and the omission of such organizations from the in enumerated plaintiffs argument. defeats 198.010 agree argument presents We with WWID. Plaintiffs statutory question interpretation. construing leg a In the intent, we islature’s look first to text and context of the 4 “public corporation.” instance, WWID concedes that it is a For ORS 192.005 through governs custody ORS 192.170 and maintenance of records. ORS part: provides in 192.170, requires
“As used in ORS 192.005 to unless the context otherwise: “(4) city, county, any ‘Political Subdivision’ means or other municipal public corporation (Emphasis supplied.) in or this state.” Similarly, govern public meetings. pro- ORS 192.610 to ORS 192.690 part: vides
“As used in ORS 192.610 to 192.690: “(4) state, any council, body’ regional city county, ‘Public means or dis- trict, board, any municipal corporation, any department, or or or com- council, mission, bureau, advisory group or or subcommittee committee agency (Emphasis supplied.) other thereof.” inquiry rules of construc level of includes The first statutes. PGE v. Bureau Labor and to read the text. tion on how (1993). P2d If the 611, Industries, meaning the context statute is clear from text and of the inquiry goes language no further. statute, of the our of the corpora legislature has included Here, the only specific scope of ORS tions within purposes. us to statute asks do Plaintiffs construction corpo 554 though law: to include what is forbidden language of ORS 198.010 even its rations within language We are not authorized to insert into stat is clear. *6 utory legislature has 174.010. the omitted. ORS scheme what by plaintiffs, argument made we conclude that Based the granted summary judg it the court was correct when trial ruling, light plaintiffs the ment In of our remain to WWID.5 ing require assignments of error do not discussion.
Affirmed. dissenting. ARMSTRONG, J., majority that Water The concludes Wonderland body pub- Improvement public subject the District is not a to inspection in because lic records law ORS 192 among the in ORS all not listed districts 198.010 to which of applies. majority’s analysis chapter 198 is flawed ORS nothing suggests in that the list of districts ORS because identify special to is intended the districts 198.010 192.410(3) subject public makes to the records law. legislature “special the included When the term dis- among governmental the in tricts” list of entities applies, public inspection which the records to law type presumably particular intended for the term cover a entity. of I do not doubt that the term was intended to cover 5 Moreover, Supreme specifically legislature recognized the the Court has corporation distinguished special an has between 554 and a district. Dist., 562,568,847 Improvement In P2d 841 Comeaux v. Water Wonderland 315 Or (1993), defendant, Supreme involving the Court stated: a case same — commonly things governments “A cannot can or do — example, subject special not do. For must (ORS (ORS 294.316(2)), 255.012), budget public laws con- laws local election (ORS (ORS 279.011(6)), municipal laws purchasing laws audit tract and 297.405(6)).” (Emphasis supplied.) equally
all of the districts in listed ORS 198.010. It is clear to me, however, that list of districts in ORS 198.010 is not special subject coextensive with the list of districts that are inspection records law. That is true for several reasons. by only
First,
definition, ORS 198.010 identifies
subject
provisions
chap-
that are
to all of the
of ORS
provides
“[a]s
[chapter
that,
ter
198.
in
used
except
specifically provided,
198],
as otherwise
‘district’
By
one”
means
of the entities listed in that section.
its
purport
identify
special
terms, the section does not
subject
inspection
tricts that are made
to the
e.g.,
records
192.410(3).
Monitoring
See,
law ORS
Enertrol Power
(1992)
Corp.
(definition
Oregon,
v. State
78, 84,
Third, the understanding. in ORS is not listed Port of Portland that chapter applies, even to which as a district 198.010 Compare port though are. districts other analysis, majority’s the Port is Under the ORS 778.010. with not inspection public records special to which a district in applies, the list of districts is omitted from because it law ORS 198.010. contrary, the Port is a no doubt that I have
To the 192.410(3), notwithstanding its special the Port from The omission of 198.010. from ORS omission only legislature think it nec did not that the means 198.010 provisions essary all of the the Port to to make provisions example, 198 has 198. For districts. See ORS of inactive with the dissolution that deal - by created a the Port was 198.365. Given legislative special 778.010, and that there is act, see surpris expect inactive, it to become is not little reason provisions legislature ing to make the did not choose that the applicable Port.2 of inactive districts on dissolution Finally, in districts that are not listed there are appear have or ORS 255.012 either ORS 198.010 of the dis- similar to those of some that are characteristics example, provisions. soil For that are listed in those tricts under ORS districts established conservation and water 255.012, but chapter drainage 198.010 or not listed under ORS 568 are 547 are. established districts types two of entities differences between There are why type and the other explain in ORS 198.010 is listed one appear relevant do not those differences not, is whether but special considered to be would be one district not. In sum- the other would and trict under mary, whether Water Wonderland the determination applicable making to those districts was to those sought to achieve applies. inspection which the records law identify why legislature much of ORS Interestingly, made as it is unclear example, the Port sub did. For ORS 198.425 makes applicable the Port as it recalled, yet, officials are 198 which elected ject provisions in ORS to the aware, office who are elected to their there are no Port officials far as I am as electors, *8 provisions apply apparent to to the Port. reason for the is no so there 412 192.410(3)
special district under ORS cannot be resolved examining ORS 198.010. majority support
The also claims for its decision Improvement from v. Water Dist., Comeaux Wonderland 315 (1993). nothing 841 847 P2d Comeaux adds relevant analysis. to the Comeaux involved whether Water Wonder- “governmental purposes land is a XI, unit” for of sec- Article llb(2)(B), Oregon Supreme of it tion Constitution. The principally not, Court held that is on based the fact that it “legal does not court or have voters” “electors.” Id. at 570-71. The subject went on note that Water Wonderland is not chapter chapter special 255, the elections, on district but surprising.3 chapter corporations is not Because such as Water do electors, Wonderland not have there is no reason to subject chapter make them to the election of 255. governmental entity a That does does not have conceivably special electors could bear on whether it is a 192.410(3), trict under ORS but the resolution of whether an entity subject is such district does not turn on whether is did, to ORS 255. If it several of the districts listed districts special ORS 198.010 would not be considered be 192.410(3), they, too, under ORS because are excluded from coverage Compare 255.
with ORS 255.012. bottom,
At there is no reason to conclude legislature specific had list of districts in mind when it “special identify used the term district” in ORS entity type governmental to which records inspection applies. majority wrong Hence, law con- corporations failure clude that the to list in ORS corporations 198.010 or ORS 255.012 bears whether those 192.410(3).4 special districts “special careful One must be about the use the term elections.” heading “Special Elections,” heading 255 is but District has no legal significance. heading may accurately identify import ORS 174.540. The chapter, simply equate “special cannot but one the term district” in ORS subject with districts that are made 255. 199.420(11) (identifies chapter See also as commissions). government boundary that are to local argues is a Wonderland that Water Plaintiff *9 192.410(3) subject to some of it is because under ORS district apply districts, that 198 in ORS special specifically districts. See including refer to some that if that, reasons He 198.330; 198.335. 198.210; 198.180; special for some treated as a is Wonderland Water pur- a district for purposes, as such be treated then it should “special 192.410(3), particularly the term when poses of ORS purpose. that defined for is not otherwise district” appeal, argument but it suffers has some Plaintiffs major- approach used the same flaw as does from ity, corporations are 554 in that it resolves whether special on whether cer- based districts special districts, when treat them as statutes tain other identifying wholly purposes unrelated serve statutes other purposes special what are simply appropriate looking it statutes, to other Instead of “special analyze in the con- district” mean the words what Oregon law. text performs gov- corporation that
A district is a geographic specific within a functions or services ernmental 1(5) (by implication); e.g., §IV, See, Art Or Const area. 778.010 per- (by implication). special that district is one A governmental such as services, functions selected forms by authorized statutes service, fire as water or which (domestic sup- e.g., See, 264 water ORS ch it is created. district). (rural protection district); It is ply fire ch 478 corporation, municipal respect distinguished from a in that usually specific city, limitation on the has no which as a such perform its bounda- can within that it or services functions 1(5); § § e.g., XI, 2; id. Art IV, Art See, Const, Or ries. 140-55, 137, PERB, v. 281 IAstoria
221.410; La Grande rehearing 173, 586 P2d 284 Or P2d affd (1978). corporations Chapter Wonder such as Water provide are authorized land are irrigation, supply drainage, control and flood domestic water geographic specific 545.020; area. See ORS within services traditionally provided are services Those services 545.050.5 nonprofit A corporation. ORS 554.040(2)(a), can be organized (7); as a for-profit corporation or as a 554.050. If organized as a
by governmental
Oregon.
e.g.,
entities,
See,
at least in
district);
(irrigation
district);
(drainage
ORS 547.005
(domestic
district).
supply
water
Because
public corporation
provides
Water Wonderland
ais
governmental
specific geographic
selected
area,
services within a
special
satisfies all of the relevant criteria for a
dis
Oregon
trict under
law. In the
absence of
reason
believe
“special
peculiar meaning
pub
district” has a
under the
law,
lic
records
follows that Water Wonderland is a
district under ORS
and that its
records
public inspection.
concluding
court
trial
erred in
Consequently,
respectfully
otherwise.6
I
dissent from the
judgment.7
decision to affirm the trial court’s
*10
nonprofit corporation,
public
corporation.
is considered to be a
554.050(6).
and, hence,
nonprofit corporation
Wonderland is a
Water
corporation.
analysis
rely
majority
notes that the
on which I
to conclude that Water
analy
Wonderland is a
district under ORS
is different from the
appeal.
plaintiff
sis on
relied
and on
task
which
below
Our
is to construe ORS
applies
public corporations.
to determine whether
Our
arguments
cannot be controlled
par
construction of the statute
made
City Ashland,
generally PacifiCorp
App 366, 370-71,
v.
ties. See
749 P2d
(1988).Here, majority
reject plaintiffs
den