Beal v. City of Gresham

• Decision Date: 12 April 2000
• Citation: 166 Or. App. 528,998 P.2d 237
• Parties: Steve BEAL, Respondent, v. CITY OF GRESHAM, a municipal corporation, Appellant.
• Court: Oregon Court of Appeals

998 P.2d 237

166 Or. App. 528

Steve BEAL, Respondent, v. CITY OF GRESHAM, a municipal corporation, Appellant.

(9707-05155; CA A102250).

Court of Appeals of Oregon.

Argued and Submitted September 21, 1999.

Decided April 12, 2000.

R. Daniel Lindahl, Portland, argued the cause for appellant. With him on the briefs were Susan G. Bischoff and Bullivant Houser Bailey.

Gregory W. Byrne, Portland, argued the cause and filed the brief for respondent.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

KISTLER, J.

The trial court ruled, on cross-motions for summary judgment, that defendant City of Gresham had passed a resolution in violation of its city charter. It also awarded plaintiff attorney fees under Deras v. Myers, 272 Or. 47, 535 P.2d 541 (1975). We affirm the trial court's ruling on the merits but reverse its award of attorney fees.

In 1988, the Oregon Department of Transportation (ODOT) began planning for the construction of the Mt. Hood Parkway, a limited access highway that would connect Interstate 84 and U.S. Highway 26. At least one of the proposed routes for the parkway went through the City of Gresham. Pursuant to federal law, ODOT and the city began a detailed planning process for the parkway. In 1988, the city began studying routes that the parkway might take through the city. In 1993, the city council passed a resolution endorsing Hogan Road as a route for the parkway. In 1994, the city submitted the proposed route to an advisory vote of its citizens. The measure asked: "Should Gresham support the Hogan Road route for the Mt. Hood Parkway only if it includes lids?"¹ A majority of the citizens voted in favor of the measure, and in 1995 the city council endorsed "Hogan Road with lids" as the route for the parkway.

In May 1996, the citizens of Gresham amended their city charter by initiative. The amendment, which became Section 36B of the charter, provides:

"(a) No limited access road or highway of four lanes or more shall be constructed within city limits, nor shall the City of Gresham promote or even acquiesce in any such construction, without prior approval of the location of the road and the general design of the project by a majority of the electors of the city voting in a regular May or November election.

"(b) Approval by the electors of the location of the road and approval of the general design of the project may be sought in separate elections.

"(c) This measure applies to all aforementioned road or highway projects which have not secured one hundred percent of the funding necessary to complete the project or have not had final environmental impact statements approved by the time the signatures on this petition have been submitted to the City Elections Office for validation."

In August 1996, ODOT recommended the "Hogan Corridor with Lids" as the preferred route for the Mt. Hood Parkway. In May 1997, the Gresham City Council passed Resolution 2106 without getting the voters' prior approval. That resolution recites the steps that the city and other governmental bodies had taken in planning the Mt. Hood Parkway. It also recites that the city had previously endorsed Hogan Road as the preferred route for the parkway. It then sets out the following resolution:

"1. The Council supports the cooperative, timely development of an interim (10 year) traffic improvements program for East County arterials that includes, at a minimum:

"(a) Improvements to all arterial routes between I-84 and U.S. 26 (Mt. Hood Hwy.) including north-south and east-west arterials; and

"(b) Full signal optimization system on East County arterials and major regional routes connecting to Portland; and

"(c) Improvements to State arterials, including Sandy and Powell, throughout East County cities; and

"2. Recognizing that final decisions rest with the state and region, Gresham, in cooperation with the region, will plan for and pursue funding for interim improvements through Metro, state and federal transportation improvement programs and other potential regional and local sources.

"3. The Council recognizes that the long-term ODOT recommendation for a Mt. Hood Parkway preferred corridor (Hogan with lids) confirms the alternative recommended in the 1993 and 1995 Council actions (Resolution 1703) and endorsed by the Gresham citizens in the November, 1994 general election advisory vote."

After the city council passed Resolution 2106, plaintiff filed this action seeking a declaration that the resolution violated Section 36B of the city charter. Plaintiff also sought his attorney fees under Deras. In its answer, the city denied that the resolution either promoted or acquiesced in the construction of the Mt. Hood Parkway. Alternatively, it alleged, as an affirmative defense, that the Section 36B was "unconstitutional and therefore a nullity." The city later explained that, in its view, Section 36B was not "municipal legislation" within the meaning of Article IV, section 1(5), of the Oregon Constitution.

On cross-motions for summary judgment, the trial court ruled that the city's resolution was inconsistent with Section 36B. The court also ruled that the city was barred from bringing a post-enactment challenge to Section 36B on the ground that it did not constitute municipal legislation. Alternatively, the court held that Section 36B was municipal legislation within the meaning of Article IV, section 1(5). Finally, the court awarded plaintiff his attorney fees under Deras.

On appeal, the parties raise the same issues they pursued below. We begin with the question whether Resolution 2106 violates Section 36B. See State v. Rodriguez, 317 Or. 27, 31, 854 P.2d 399 (1993)

(considering nonconstitutional issues first). The city argues that its resolution did not promote or acquiesce in the construction of the Mt. Hood Parkway; it merely recognized that the route ODOT recommended was consistent with previous council recommendations. In the city's view, its resolution was nothing more than a statement of fact. We read the resolution differently. At most, the resolution impliedly reaffirms that the city prefers Hogan Road as the route for the parkway. At the least, it acquiesces in ODOT's choice of that route. Read either way, the resolution "promote[s] or * * * acquiesce[s] in" the construction of the Mt. Hood Parkway though Gresham in violation of Section 36B.²

The more significant question is whether Section 36B was "municipal legislation" and thus within the authority of the voters to enact under Article IV, section 1(5), of the Oregon Constitution. See Foster v. Clark, 309 Or. 464, 790 P.2d 1 (1990)

. Before we reach that question, however, we first address plaintiff's argument that the city cannot bring a post-enactment challenge to Section 36B based on Article IV, section 1(5). In making that argument, plaintiff distinguishes between two types of constitutional challenges to initiated measures: (1) claims that the substance of the measure violates a constitutional provision, such as Article I, section 8, and (2) claims that the measure fails to comply with a constitutional limitation on the exercise of the initiative power, such as the single-subject rule. As plaintiff recognizes, the first class of claims—constitutional challenges to the substance of initiated measures—may not be brought until after a measure has been enacted. See, e.g., Lowe v. Keisling, 130 Or.App. 1, 15-16, 882 P.2d 91 (1994),

rev. dismissed 320 Or. 570, 889 P.2d 916 (1995). Before then, any decision would be purely advisory. Id. Plaintiff argues, however, that the second class of claims—claims that the measure is not legally sufficient to be put on the ballot—not only may but must be brought before the measure is enacted.

Plaintiff never identifies the legal principle that requires that the second class of claims be brought before the people vote on a measure. Rather, he extracts the principle he advances from a perceived pattern in the Supreme Court's decisions. Before explaining why those cases do not go as far as plaintiff perceives, it is perhaps helpful to put his argument in perspective. Before 1986, the general rule was that "courts could not consider constitutional challenges to initiative or referendum petitions before the voters adopted the measures." OEA v. Roberts, 301 Or. 228, 231, 721 P.2d 833 (1986). That rule applied not only to constitutional challenges to the substance of initiated measures but also to constitutional claims that the measure was not in the proper form to be submitted to the voters—claims, for example, that the measure included more than one subject. Id.; Johnson v. City of Astoria, 227 Or. 585, 591-93, 363 P.2d 571 (1961); State ex rel. v. Newbry, 189 Or. 691, 693, 222 P.2d 737 (1950).

The general rule was not without exceptions.³ If, for example, an initiative petition had not received sufficient signatures, the courts would consider pre-enactment challenges to prevent it from being placed on the ballot. See Foster, 309 Or. at 469,

790 P.2d 1 (summarizing cases). As the court explained in Foster, the Oregon courts "will prevent a measure from being placed on the ballot if the measure is legally insufficient to qualify for that ballot." Id. Although the cases had not always agreed on what constitutes "legal insufficiency," the Foster court determined that the principle included more than an insufficient number of signatures. It held:

"Courts have jurisdiction and authority to determine whether a proposed initiative or referendum measure is one of the type authorized by Or Const, Art I, § 1(5) to be placed on the ballot. This means that a court may inquire into whether the measure is `municipal legislation,' because the qualifying language is used in the constitution itself. On the other hand, a court may not inquire into general questions of constitutionality, such as whether the proposed measure, if enacted, would violate some completely different portion of the constitution."

Id. at 471 (emphasis...