1000 Friends of Oregon v. Wasco County Court

• Jurisdiction: Oregon
• Parties: 1000 FRIENDS OF OREGON, the assumed name of Oregon Land Use Project, Inc., an Oregon non-profit Corporation, Kelly McGreer, Rosemary McGreer, James G. Perkins, Shirlee Perkins, David Dickson and Melinda Dickson, Petitioners-Cross- Respondents, v. WASCO COUNTY COURT, David Knapp, Kent Bullock, Samadhi Matthews, Respondents, City of Rajneeshpuram and Rajneesh Foundation International, formerly Chidvalis Rajneesh Meditation Center, Respondents-Cross-Petitioners. 81-132; CA A39509.
• Citation: 1000 Friends of Oregon v. Wasco County Court, 723 P.2d 1034, 80 Or.App. 532 (Or. App. 1986)
• Court: Oregon Court of Appeals
• Decision Date: 06 August 1986

Page 1034

723 P.2d 1034

80 Or.App. 532

1000 FRIENDS OF OREGON, the assumed name of Oregon Land Use Project, Inc., an Oregon non-profit Corporation, Kelly McGreer, Rosemary McGreer, James G. Perkins, Shirlee Perkins, David Dickson and Melinda Dickson Petitioners-Cross- Respondents, v. WASCO COUNTY COURT, David Knapp, Kent Bullock, Samadhi Matthews, Respondents City of Rajneeshpuram and Rajneesh Foundation International formerly Chidvalis Rajneesh Meditation Center Respondents-Cross-Petitioners.

81-132; CA A39509.

Court of Appeals of Oregon.

Argued and Submitted May 14, 1986.

Decided Aug. 6, 1986.

Kenneth M. Novack, Portland, argued the cause for petitioners-cross-respondents. With him on the brief were Ball, Janik and Novack, Mark J. Greenfield and Robert E. Stacey, Jr., Portland.

Leslie M. Roberts, Portland, argued the cause for respondents David Knapp, Richard Dennis Smith, Kent Bullick and Samadhi Matthews, and respondents-cross-petitioners City of Rajneeshpuram and Rajneesh Foundation International, formerly Chidvalis Rajneesh Meditation Center. With her on the brief were Sullivan, Josselson, Roberts, Johnson & Kloos and Rex Armstrong, Portland.

No appearance for respondent Wasco County.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

WARDEN, Presiding Judge.

Petitioners seek review of an order in which the Land Use Board of Appeals (LUBA) held that certain undisclosed business dealings between Wasco County Judge Richard Cantrell ¹ and those seeking to incorporate the City of Rajneeshpuram did not invalidate Cantrell's vote in favor of holding an election on a petition to incorporate the city. We reverse and remand.

This case is a companion to 1000 Friends of Oregon v. Wasco County Court, 80 Or.App. 532, 723 P.2d 1039 (decided this date) and involves a different portion of the same LUBA order. ² In 1000 Friends of Oregon v. Wasco County, 299 Or. 344, 703 P.2d 207 (1985) (Wasco County IV ), ³ the Supreme Court remanded the Rajneeshpuram incorporation issue to LUBA with instructions to consider "[w]hether the Wasco County judge acted improperly, with prejudice of substantial rights, rendering the Wasco County Court order invalid." 299 Or. at 376, 703 P.2d 207. Pursuant to the remand, LUBA permitted the parties to conduct discovery and then held an evidentiary hearing. On the basis of that evidence, LUBA found the following facts. ⁴

Cantrell visited Rancho Rajneesh (the former Big Muddy Ranch) in August, 1981, together with other members of the Wasco and Jefferson County Courts. ⁵ At that time representatives of the ranch--who were also representatives of the petitioners for incorporation--told Cantrell that they were interested in buying cattle. In early October, Cantrell and his wife dined at the ranch, and one of its leaders again raised the subject of buying cattle. Cantrell recommended that they buy "hamburger grade" cattle, which happened to be what he had for sale. He thereafter told the two Wasco County commissioners that he intended to sell cattle to the ranch, but he did not publicly disclose his dealings before the county court acted on the incorporation petition. He formally proposed to sell cattle to the ranch in a letter dated October 13, 1981, after the county court had rejected the original incorporation petition as legally deficient. On October 14, representatives of the proposed city presented a corrected petition.

Rancho Rajneesh leaders were conscious of the effect Cantrell's sale of cattle might have on his vote on the incorporation petition. One of the leaders asked the ranch foreman to keep the sale low-key so as not to embarrass Cantrell. Ma Anand Sheela, one of the ranch leaders, told the foreman to pay Cantrell's asking price, because "we needed him." On October 22, Cantrell and ranch officials reached an agreement on the sale. On November 4, the county court approved the incorporation election by a vote of two to one, Cantrell voting with the majority. On November 9, he delivered the cattle to the ranch's representatives.

LUBA found that Cantrell received more than the market price for the cattle, although it did not determine precisely how much more. It also found that the sale reflected an eager buyer, "one who was less concerned with obtaining the best bargain than with meeting the requirements of the seller." Although the buyers may have believed that the sale would improve their chances of favorable treatment on the incorporation petition, there is no proof that the sale was expressly contingent on Cantrell's vote. Neither was the transaction so one-sided that it was a sham or suggests a payoff. Because there was no direct connection between the sale and Cantrell's vote, LUBA held that he was not biased in a way that would invalidate his vote or the county's action.

Petitioners, who opposed the incorporation of Rajneeshpuram at the county hearing on November 4, 1981, assert that LUBA erred in failing to hold that Cantrell's activities deprived them of their right to an impartial decision-maker at the hearing. We hold that the county's action was quasi-judicial, that petitioners were among those who had a due process right to an impartial decision-maker and that Cantrell's financial involvement with those seeking incorporation disqualified him from participating in the vote, at least in the absence of a full public disclosure of his dealings. We therefore hold that the county's action in setting a date for the incorporation election was invalid.

In Fasano v. Washington Co. Comm, 264 Or. 574, 507 P.2d 23 (1973), overruled in part on other grounds, Neuberger v. City of Portland, 288 Or. 585, 607 P.2d 722 (1980), the Supreme Court held that a decision to change the zoning of a parcel of property was a quasi-judicial rather than a legislative act and that parties to the decision were entitled to various rights, including an impartial decision-maker. 264 Or. at 588, 607 P.2d 722. Since Fasano the determination of which land use decisions are quasi-judicial has created some difficulty. Shortly after Fasano, we held that a county's action on an incorporation petition was legislative rather than quasi-judicial. Millersburg Dev. Corp. v. Mullen, 14 Or.App. 614, 621-624, 514 P.2d 367 (1973). However, that holding has been superseded by more recent Supreme Court cases and is no longer controlling.

In Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or. 591, 601 P.2d 769 (1979), the court described a number of factors to consider in determining whether a county land use action is quasi-judicial. ⁶ "Generally, to characterize a process as an adjudication presupposes that the process is bound to result in a decision and that the decision is bound to apply preexisting criteria to concrete facts." 287 Or. at 602, 601 P.2d 769. Other relevant factors are the importance of assuring that the decision is factually correct and that the decision-maker gives fair attention to affected individuals. The number of people affected and the size of the area covered are less important considerations. 287 Or. at 603, 601 P.2d 769. That the decision-maker is applying the statewide planning goals to the decision is also an indication that its action is adjudicative. See Neuberger v. City of Portland, 288 Or. 155, 165-166, 603 P.2d [80 Or.App. 537] 771 (1979), rehearing den. 288 Or. 507, 607 P.2d 722 (1980). In this case, once the proponents presented the petition for an incorporation election, the process was bound to result in a decision. That decision had to be based in large part on preexisting criteria in the state incorporation statutes and the land use goals. Applying the goals necessarily involved extensive fact finding. A quasi-judicial process is best adapted to that function. We hold that the county's action on the incorporation petition was quasi-judicial.

When the Supreme Court held, in Fasano v. Washington Co. Comm., supra, that a quasi-judicial tribunal must be impartial, it did not state the basis for its holding. Since Fasano, we have recognized that its holding is based, at least in part, on the Due Process Clause of the Fourteenth Amendment. See, e.g. Tierney v. Duris, Pay Less Properties, 21 Or.App. 613, 628, 536 P.2d 435 (1975). We therefore look to Fourteenth Amendment cases to determine petitioner's rights and Cantrell's responsibilities in this case. ⁷ To be entitled to procedural due process under the Fourteenth Amendment--and that is what petitioners seek in attacking Cantrell's participation in the decision--one must have either a liberty or property interest at stake. Board of Regents v. Roth, 408 U.S. 564, 571-572, 92 S.Ct. 2701, 2705-07, 33 L.Ed.2d 548 (1972). Petitioners do not claim to have a liberty interest involved. Although they do not have a conventional property interest, the Fourteenth Amendment's protections are not limited to such interests alone. Rather, it protects "the security of interests that a person has already acquired in certain benefits. These interests--property interests--may take many forms." 408 U.S. at 576, 92 S.Ct. at 2708. A person has a property interest in a benefit if the person has a legitimate claim of entitlement to it. The constitution is only infrequently the source of that legitimate claim; rather, it is usually found in other law--often state law--outside the constitution.

Petitioners' interest in the Rajneeshpuram incorporation issue is their interest in ensuring that the county comply with the state's land use laws. By statute, petitioners have standing to challenge the county's action if it violates those laws. Their interest is therefore one to which they have a legitimate claim of entitlement under state law. It is thus a property interest to which the Due Process Clause applies. See ORS 197.830(3); Jefferson Landfill Comm. v. Marion Co., 297 Or. 280, 282 n. 1, 284, 686 P.2d 310 (1984). The legislature has given them the same rights in the local government process as those of a person with...