Bell v. City of Hood River

• Decision Date: 21 December 2016
• Docket Number: A156481
• Citation: 283 Or.App. 13,388 P.3d 1128
• Parties: Richard Derek BELL, an individual; and Corie Lahr, an individual, Plaintiffs-Appellants, and Friends of the Hood River Waterfront, an Oregon non-profit corporation, Plaintiff, v. CITY OF HOOD RIVER, a Municipal corporation; and NBW Hood River, LLC, an Oregon corporation, Defendants-Respondents.
• Court: Oregon Court of Appeals

283 Or.App. 13

388 P.3d 1128

Richard Derek BELL, an individual; and Corie Lahr, an individual, Plaintiffs-Appellants,andFriends of the Hood River Waterfront, an Oregon non-profit corporation, Plaintiff,

v.CITY OF HOOD RIVER, a Municipal corporation; and NBW Hood River, LLC, an Oregon corporation, Defendants-Respondents.

A156481

Court of Appeals of Oregon.

Argued and submitted June 15, 2015.

December 21, 2016

Brent C. Foster, Portland, argued the cause and filed the briefs for appellants.

Daniel Kearns, Portland, argued the cause for respondent City of Hood River. With him on the brief was Reeve Kearns, PC.

Steven D. McCoy filed the brief amicus curiae for 1000 Friends of Oregon.

Katherine Thomas, Sean E. O'Day, and Rob Bovett filed the brief amicus curiae for League of Oregon Cities and Association of Oregon Counties.

No appearance for respondent NBW Hood River, LLC.

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.^*

ARMSTRONG, P.J.

Plaintiffs appeal the trial court's dismissal of a declaratory judgment action that they brought against the City of Hood River and a developer, NBW Hood River, LLC. Plaintiffs sought to have declared unconstitutional, under Article I, section 10, of the Oregon Constitution, the city's imposition of a nonwaivable fee that must be paid to appeal land use decisions of the city's planning commission to the city council. On the parties' cross-motions for summary judgment, the trial court concluded that Article I, section 10, did not apply to the city's fee and dismissed plaintiffs' action. We also conclude that Article I, section 10, does not apply to the city's fee in this case. However, we further conclude that the trial court's dismissal of plaintiffs' declaratory judgment action was not the proper disposition of the case. Rather, the court must issue a judgment declaring the effect of Article I, section 10, on the city's appeal fee. We therefore vacate the judgment and remand for entry of such a judgment.

"When, as here, the facts are not in dispute, we review rulings on cross-motions for summary judgment to determine whether either party is entitled to judgment as a matter of law." Busch v. Farmington Centers Beaverton , 203 Or.App. 349, 352, 124 P.3d 1282 (2005), rev. den. , 341 Or. 216, 140 P.3d 1133 (2006).

NWB Hood River proposed a commercial development on the waterfront in the City of Hood River, which plaintiffs oppose. Plaintiffs testified before the city planning commission that the development violated land use laws and would cause various harmful effects. The planning commission, however, approved the development. The city requires a person to pay a fee equal to the application fee to appeal the planning commission's land use decisions to the city council, and it does not provide a process to obtain a waiver or reduction of that fee.¹ Here, the city ultimately told plaintiffs that the appeal fee would be $3,258. Plaintiffs asked the city council to waive the fee because they could not afford to pay it, but the city council declined to do that.

Plaintiffs thereafter filed this declaratory judgment action against the city and NWB Hood River, seeking a declaration that the city's fee is invalid under the "justice without purchase" clause in Article I, section 10.² Plaintiffs asserted below, and reassert on appeal, that, for land use decisions, they are required to exhaust their remedies at the city level, including appealing to the city council, before they can appeal to the Land Use Board of Appeals (LUBA). ORS 197.825(2)(a). In turn, they argue, they are required to pursue an appeal to LUBA before they can appeal a land use decision to the Court of Appeals. ORS 197.850(3)(a). Thus, plaintiffs reason that the city's appeal fee, which is more than most people can pay, is an invalid bar to the access to courts "without purchase" that Article I, section 10, guarantees.

On cross-motions for summary judgment, the trial court concluded that Article I, section 10, was inapplicable because the city council is not a court and "[t]here is nothing in the wording, historical context, or interpretive case law to suggest that the Justice Without Purchase Clause of Article I, section 10, has any applicability to an appeal fee set by a city council in accordance with guidelines established by the state legislature." The trial court was not persuaded by plaintiffs' argument that the city's fee violated their rights under Article I, section 10, because plaintiffs were required to exhaust remedies at the city level before obtaining court review. The trial court then entered a judgment for defendants that dismissed plaintiffs' action. Plaintiffs renew their arguments on appeal.³

We start our analysis with the text of Article I, section 10, which provides:

"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."

Recently, in Horton v. OHSU , 359 Or. 168, 376 P.3d 998 (2016), the Supreme Court discussed the text and historical origins of Article I, section 10, in interpreting the remedy clause of that provision. As to the text, and as pertinent here, the court stated:

"Textually, Article I, section 10, differs from other sections included in Oregon's bill of rights. It is not a protection against the exercise of governmental power. State ex rel. Oregonian Pub. Co. v. Deiz , 289 Or. 277, 288, 613 P.2d 23 (1980) (Linde, J., concurring). Rather, ‘[i]t is one of those provisions of the constitution that prescribe how the functions of government shall be conducted.’ Id. Specifically, ‘[s]ection 10 as a whole is plainly concerned with the administration of justice.’ Hans A. Linde, Without "Due Process": Unconstitutional Law in Oregon , 49 Or. L. Rev. 125, 136 (1970). Each of the three independent clauses that comprise Article I, section 10, addresses that topic.

"The first independent clause prohibits secret courts while the second provides that justice shall be administered ‘openly and without purchase, completely and without delay.’ The third independent clause provides that ‘every man shall have remedy by due course of law for injury done him in his person, property, or reputation.’ "

Id. at 179, 376 P.3d 998 (footnotes omitted). In Doe v. Corp. of Presiding Bishop , 352 Or. 77, 88, 280 P.3d 377 (2012), the court similarly emphasized that the second independent clause prescribes how justice must be administered in Oregon.

Looking again at the text, although the first two clauses are grammatically independent, their meaning is not. The first clause, "No court shall be secret," and the second clause, "justice shall be administered," are linked by the conjunction "but." That linkage suggests that the administration of justice prescribed (including "without purchase") is the means by which courts are to fulfill their obligation to operate openly. In that way, the prescriptions on how justice is to be administered apply only to the work done in a "court." The Supreme Court previously has examined the word "court" and concluded that, "within the meaning of Article I, section 10, a ‘court’ is a governmental institution, composed of judges and their supporting staff, whom the law charges with the responsibility to administer justice." Doe , 352 Or. at 90, 280 P.3d 377. Administering justice, in turn, is directed at adjudications, because " ‘[t]he fundamental function of courts is to determine legal rights based upon a presentation of evidence and argument.’ " Id. (quoting Oregonian Publishing Co. v. O'Leary , 303 Or. 297, 303, 736 P.2d 173 (1987) (brackets in Doe )); see also State v. MacBale , 353 Or. 789, 806, 305 P.3d 107 (2013) ("Justice is administered when a court determines legal rights based on the presentation of evidence and argument."); Oregonian Publishing Co. , 303 Or. at 303, 736 P.2d 173 ("The primary limitation on the scope of section 10 is that it is directed only at adjudications.

To the extent that adjudications are not involved, the administration of justice is not governed by it."). Thus, the administration of justice prescribed by Article I, section 10, is directed to courts that are conducting adjudications.

We also have previously addressed the "without purchase" portion of that clause in Allen v. Employment Dept. , 184 Or.App. 681, 57 P.3d 903 (2002). In that case, the petitioner challenged as unconstitutional the statutory fee for filing a petition for judicial review in this court. After applying the methodology set out in Priest v. Pearce , 314 Or. 411, 415-16, 840 P.2d 65 (1992), we concluded that "justice without purchase" in Article I, section 10, "was meant to prohibit (1) the procurement of legal redress through bribery and other forms of improper influence; and (2) the judicial imposition of fees and costs in amounts so onerous as to unreasonably limit access to the courts." Allen , 184 Or.App. at 688, 57 P.3d 903 (emphasis added); see also Bailey v. Frush...