Allison v. Washington County

• Decision Date: 08 March 1976
• Citation: 548 P.2d 188,24 Or.App. 571
• Parties: James B. ALLISON, Appellant, v. WASHINGTON COUNTY, Oregon, and Roger Thomssen, Director of Records and Elections for Washington County, Oregon, Respondents.
• Court: Oregon Court of Appeals

Page 188

548 P.2d 188

24 Or.App. 571

James B. ALLISON, Appellant, v. WASHINGTON COUNTY, Oregon, and Roger Thomssen, Director of Records and Elections for Washington County Oregon, Respondents.

Court of Appeals of Oregon, In Banc.

Argued and Submitted Sept. 15, 1975.

Reargued and Submitted Dec. 18, 1975.

Decided March 8, 1976.

David G. Frost, Hillsboro, argued the cause and filed the briefs for appellant.

John M. Junkin, Asst. County Counsel, Hillsboro, argued the cause and filed the brief for respondents.

Before SCHWAB, C.J., and LANGTRY, FORT, THORNTON and LEE, JJ.

LANGTRY, Judge.

Plaintiff initiated this declaratory judgment proceeding to seek a determination that an amendment to the Washington County comprehensive plan, adopted by the County Commissioners on December 30, 1974, was subject to referendum in the unincorporated area of Washington County. The trial court dismissed plaintiff's complaint on the ground of sovereign immunity.

The questions presented are: (1) whether sovereign immunity is here applicable; (2) whether and to what extent zoning ordinances and comprehensive plans are subject to initiative and referendum; and (3) if the present comprehensive plan amendment is referable, whether it can be submitted only to the voters residing in the unincorporated area of the county.

The facts were established by the pleadings. Plaintiffs, a resident and property owner in the unincorporated area of Washington County, submitted to the defendant Director of Records and Elections a preliminary petition for a referendum on the comprehensive plan amendment, asking that it be submitted to the voters of the unincorporated areas of Washington County for their approval or rejection at the next general election. The defendant Director refused to accept plaintiff's tendered preliminary petition on the grounds that: (1) the amendment to the comprehensive plan was not subject to referendum; and (2) alternatively, if subject to referendum, it would have to be voted upon by all of the voters of Washington County. This declaratory judgment proceeding, the trial court's decision, and plaintiff's appeal followed.

I

We hold that the county is not immune from the present suit. In Schlicting v. Bergstrom, 13 Or.App. 562, 565, 511 P.2d 846, 847 (1973), in rejecting a claim of immunity, we said that public officials 'do not have any discretion to discharge any public employe for constitutionally impermissible reasons * * *.' The other questions presented in this case must be resolved under the initiative and referendum provisions of the Oregon Constitution. Paraphrasing Schlichting, the defendants do not have any discretion to violate the Oregon Constitution. See also, Hanson v. Mosser, 247 Or. 1, 7, 427 P.2d 97 (1967), Overruled in part on other grounds Smith v. Cooper, 256 Or. 485, 488, 475 P.2d 78, 45 A.L.R.3d 857 (1970); Denver v. Spears Hospital, 142 Colo. 347, 350 P.2d 1057 (1960); Walter v. Schuler, 176 So.2d 81 (Fla.1965); Baumgardt, d/b/a A & B Shop v. Isaacs, 29 Ill.2d 29, 193 N.E.2d 31 (1963).

II

Authority to legislate locally by initiative and referendum is guaranteed by Art. IV, § 1(5) of the Oregon Constitution. However, in Tatum v. Clackamas County, 19 Or.App. 770, 773, 529 P.2d 393 (1974), a majority of a panel of this court held that Art. IV, § 1(5) 'is not self-executing' and that it is essential to 'find additional legislative authority' allowing a local initiative or referendum election on any given question. In the quest for 'additional legislative authority,' the Tatum analysis disregards the constitution, and involves only statutory construction.

To illustrate, suppose a group of citizens wanted to adopt, by initiative, an ordinance requiring that a local mill stream be covered with planking. ¹ Under the Tatum analysis, it would be essential to find a statute authorizing a local initiative on this specific question. Since we think it safe to assume that no such statute exists, the Tatum analysis would lead to the conclusion that there could be no such initiative election.

It is possible for statutes and ordinances to extend rights to initiative and referendum beyond the minimum level secured by the constitution. See, e.g., ORS 276.712--276.722. However, the minimum guarantee of the constitution should not be allowed to be diluted by either legislative action or inaction. Therefore, a majority of the entire court is now persuaded that the present problem must be resolved under the Oregon Constitution, and joins in overruling Tatum v. Clackamas County, supra.

A

As a preliminary matter, it is important to draw a threshold distinction between legislative and quasi-judicial matters. Action is legislative when it affects a large area consisting of many parcels of property in disparate ownership. ² An example would be a zoning ordinance, that happened to be adopted by initiative, restricting buildings to a height of 30 feet in all of San Diego, California between Interstate 5 and the ocean. ³ Conversely, action is considered quasi-judicial when it applies a general rule to a specific interest, such as a zoning change affecting a single piece of property, a variance, or a conditional use permit. ⁴

We are here concerned solely with legislative action--a comprehensive plan or zoning ordinance adopted or amended by initiative or referendum that affects a large area in disparate ownership. In this context, a substantial majority of cases hold there is no constitutional right to notice or hearing, ⁵ a consideration that would arise in the separate context of quasi-judicial land-use determination. ⁶

B

Statewide initiative and referendum were added to the Oregon Constitution in 1902. Local initiative and referendum were added in 1906 as Art. IV, § 1(a). ⁷ In 1968, the 1902 and 1906 amendments were repealed and replaced by what is now Art. IV, § 1, with Art. IV, § 1(5) covering local initiative and referendum:

'The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws * * *.'

It is true that there are Oregon Supreme Court decisions holding the predecessor 1906 amendment was not 'self-executing.' ⁸ But we embark upon a difficult course when we attempt to reconcile all the early decisions interpreting and applying the 1906 amendment. For example, Acme Dairy Co. v. Astoria, 49 Or. 520, 523, 90 P. 153, 154 (1907), states:

'The (1906 constitutional) amendment * * * having expressly authorized cities and towns to provide for the manner of exercising the initiative and referendum powers as to their municipal legislation, the provision Is therefore Self-executing in respect to the class of enactments specified.' (Emphasis supplied.)

While, Kiernan v. Portland, 57 Or. 454, 459, 111 P. 379, 381, 112 P. 402, 37 L.R.A.,N.S., 1051 (1910), states:

'In Acme Dairy Co. v. Astoria * * * we held this (constitutional) provision Not to be Self-executing * * *.' (Emphasis supplied.)

Similar difficulties are encountered in analyzing the early cases involving the related home rule amendment, Art. XI, § 2, that was also adopted in 1906. ⁹

Nevertheless, looking at all the decisions, most are consistent with the following statements: (1) the statewide initiative and referendum amendment of 1902 is self-executing; ¹⁰ (2) the local initiative and referendum amendment of 1906 is self-executing as to cites; ¹¹ and (3) the 1906 amendment is not self-executing as to other units of local government. ¹²

Ultimately, however, our disagreement with the Tatum analysis comes down to the meaning of the term, 'self-executing.' Tatum suggests that this term means that nothing is a local matter subject to local initiative and referendum unless and until the legislature says so. While, to repeat, the cases are difficult to dissect, we think the term has actually been used in two different senses, neither of which is in accord with Tatum.

In one sense, 'not self-executing' has been used to mean that there must be general legislation to prescribe the Manner of exercising local initiative and referendum authority. Promptly after the adoption of the 1906 constitutional amendment the Legislative Assembly enacted 'An Act to provide for carrying into effect the initiative and referendum powers reserved by the people in section 1 and section la of article IV of the Constitution of the State of Oregon on general, local, special, and municipal legislation; to regulate elections thereunder * * *.' General Laws of Oregon 1907, ch. 226. This is now codified, with subsequent amendments, as ORS ch. 254. So whether the 1906 constitutional amendment was self-executing or not in this sense is only of historical or academic interest, since the 1906 amendment has long since been 'executed' by the 1907 legislation. Kosydar v. Collins, County Clerk, 201 Or. 271, 270 P.2d 132 (1954); Campbell v. City of Eugene, 116 Or. 264, 270, 272, 240 P. 418 (1925).

Kosydar v. Collins, County Clerk, supra, most clearly illustrates this point:

'* * * (The 1906 constitutional amendment) is not self-executing. By its precise terms, general laws prescribing the Manner in which the powers reserved are to be exercised are required. State ex rel. v. Portland Ry. L. & P. Co., 56 Or. 32, 37, 107 P. 958. But it is clear that the requirement for the adoption of general laws relates exclusively to the Procedure or Manner by which the powers are to be exercised, and has no reference whatever to the Substance of the power itself.

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'From the foregoing brief review of the statutes (i.e., ORS ch. 254) it is clear that ample provision is made for the manner in which the initiative and referendum powers may be exercised, not only in the state at large, but also in...