12 Or. Tax 359 | Or. T.C. | 1992
Preliminary ruling for plaintiff rendered December 29, 1992. Plaintiff seeks a determination of the effect of Article XI, section 11b, of the Oregon Constitution (hereinafter section 11b on storm drainage user charges imposed by defendants. Defendants move to dismiss plaintiff's complaint based on the following statutes:
"The provisions of ORS
305.583 ,305.585 ,305.587 and305.589 shall provide the exclusive remedy for determination of questions concerning the effect of the limits of section 11b, Article XI of the Oregon Constitution on taxes, fees, charges and assessments of units of government." ORS305.580 (1). (Emphasis added.)"Ten interested taxpayers may petition the Oregon Tax Court to determine the effect of the limits of section 11b, Article XI of the Oregon Constitution on any tax, fee, charge or assessment imposed by a unit of government. For purposes of this section, 'interested taxpayers' means persons who are subject to the tax, fee, charge or assessment in question." ORS
305.583 (1). (Emphasis added.)
Plaintiff filed this proceeding without associating nine or more interested taxpayers. Defendants' motion seeks dismissal solely on that ground.
The court has considered the written and oral arguments of the parties but those arguments do not address the constitutionality of ORS
ISSUE
Does ORS1. Since there are substantial differences between the state and federal constitutions, the court must decide the state issues first.
"[I]ssues of Oregon law, including issues under the Oregon Constitution, must be resolved before it can be decided whether the state's law fails to preserve a right that the national charter obliges every state to protect." Cole v. Dept. of Rev.,
294 Or. 188 ,190 ,655 P.2d 171 (1982).
OREGON CONSTITUTION
The applicable provision of the Oregon Constitution is Article I, section 10. That provision states:"No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."1 (Emphasis added.)
The meaning and purpose of this provision is not entirely clear due to the antiquity of its roots. One commentator traces it to chapter 40 of the Magna Carta. He sees it as a guarantee of a legal remedy for certain wrongs and not as another form of "due process" clause. See Linde, Without Due Process, 49 Or. L Rev 125, 138 (1970). Another commentator believes it originates with Coke's commentary on the Magna Carta and does provide for procedural due process. See Schuman, Oregon's Remedy Guarantee:Article I, Section 10 of the Oregon Constitution, 65 Or. L Rev 35, 38, 61-66 (1986). Yet another commentator, in reviewing all 34 states with similar constitutional provisions, views the guarantee as a right to access civil courts. See Note, TheRight of Access to Civil Courts Under State Constitutional Law:An Impediment to Modern Reforms, Or. A Receptacle of Important *362 Substantive and Procedural Rights?, 13 Rutgers L J 399 (1982).
Defendants' motion requires the court to focus on the "due course of law" language. That language has been analyzed by the Oregon Supreme Court.
"Section 10 of article I of the Oregon constitution is a 'due process of law' clause. * * * This clause guarantees the enforcement of all recognized rights by due course of law." Perozzi v. Ganiere,
149 Or. 330 ,350 ,40 P.2d 1009 (1935).
DEFERENCE TO LEGISLATURE
2. It is appropriate at this point to reflect on the deference due legislative decisions. A court should avoid, if possible, finding that a statute violates the due process requirements of the constitution. Simons et ux v. Smith,3. However, if a statute is not ambiguous, there is no need for construction. Whipple v. Howser,
SECTION 11b REMEDIES
4. The property tax limits imposed by section 11b establish a constitutional boundary. When government hands reach across that boundary for more taxes, the exaction is an unlawful taking of property. The legislature has strictly limited a taxpayer's right to protect this constitutional boundary. Three of those limits are: *363(1) ORS
305.580 provides that the specified remedies for determining the effects of section 11b on a tax are the exclusive remedies. This precludes taxpayers from using other procedures such as ORS305.275 , ORS306.115 and ORS311.806 to determine the effects of section 11b on a tax.(2) A relatively short statute of limitations requires taxpayers to file their petition within 60 days after the triggering acts. ORS
305.583 (3).(3) Except as to petitioners, any relief granted by a court is limited to prospective relief only. If a taxpayer is not a petitioner, the statute denies any refunds even though taxes exceeded the section 11b limits.
While these limitations may be viewed as stringent, they are nevertheless within the legislature's discretion and must be upheld by the courts. The sole question here is whether the "ten" in ORS
ATTRIBUTES OF SECTION 10
5. It is helpful to consider some of the attributes of Article I, section 10. First, and perhaps most important to this case, the provision is written in the singular. The relevant portion provides:"[E]very man shall have remedy by due course of law for injury done him in his person, property, or reputation." (Emphasis added.)
These words address the individual, his ownership, his person, his reputation. They assure the individual of a remedy for legal wrongs. They do not establish a group or organizational right, but an individual right.
Second, the word "every" makes the provision allinclusive. This attribute precludes divisions or classifications which would exclude some individuals from the guarantee. It also suggests that limitations or conditions on the exercise of this right should be strictly scrutinized.
Third, the provision is mandatory in nature. The "shall" does not permit or allow a diminishing of the right *364 guaranteed. This constitutional provision assures an individual of the right without fear that the legislature might eliminate or diminish that right.3 It imposes an affirmative obligation on government to provide a "due course of law" by which the individual may seek his remedy. To the extent this implies a right of access to the courts, it obligates government to provide adequate courts which are available to the public.
6. What does this provision guarantee with regard to a taxpayer subject to taxation? It guarantees procedural due process.
"It is the prevailing rule that if provision is made for notice to each property owner, and an opportunity given for him to be heard, at some stage of the proceedings, upon the question of whether his property shall be subject to some exaction, and if so how much, there is no taking of property without due process of law, or any infringement of Article I, Section[ ] 10 * * * [of the Oregon Constitution]." Smith et al v. Hurlburt et al,
108 Or. 690 ,701 ,217 P. 1093 (1923).
REQUIREMENT VIOLATES OREGON CONSTITUTION
7. The court finds the word "ten" in ORSThe underlying premise of procedural due process assures every individual of the right to notice and hearing.
"We have described 'the root requirement' of the Due Process Clause as being 'that an individual be given an opportunity for a hearing before he is deprived of any significant *365 property interest.' " Cleveland Board of Education v. Loudermill,
470 U.S. 532 ,542 ,105 S Ct 1487 ,84 L Ed 2d 494 (1985) (quoting Boddie v. Connecticut,401 U.S. 371 ,379 ,91 S Ct 780 ,28 L Ed 2d 113 (1971) (emphasis in original)).
UNITED STATES CONSTITUTION
8. The court finds the "ten" requirement of ORS"[D]ue process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer,408 U.S. 471 ,481 ,92 S Ct 2593 ,33 L Ed 2d 484 (1972).
As noted above, we are concerned here with a private property interest and government taxation of that interest.
"This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. * * * The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' " Mathews v. Eldridge,424 U.S. 319 ,333 ,96 S Ct 893 ,47 L Ed 2d 18 (1976) (quoting Armstrong v. Manzo,380 U.S. 545 ,552 ,85 S Ct 1187 ,14 L Ed 2d 62 (1965)).
9. Moreover, the United States Supreme Court has imposed an affirmative duty on the state to "provide procedural safeguards against unlawful exactions." McKesson Corp. v. Florida Alcohol Tobacco Div.,
Application of these principles by the Oregon Supreme Court is in accord with these decisions. In Tupper v. FairviewHospital,
"The fourteenth amendment to the United States Constitution imposes procedural due process constraints on governmental actions which deprive individuals of significant liberty or property interests. * * *
"Governmental deprivation of such a property interest must be accompanied by at least minimal procedural protections including some form of notice of the contemplated action and some sort of opportunity to be heard if that action is contested." (Citations omitted.) *366
ORS
CONCLUSION
The court finds the word "ten" in ORSIT IS ORDERED that defendants' Motion to Dismiss is denied. Defendants shall have ten days from the date of this order to plead further.