Boytano v. Fritz

• Decision Date: 25 May 1994
• Parties: Janet BOYTANO, Appellant, v. Elisa FRITZ, Election Officer of the City of Klamath Falls, Respondent. 93-500CV; CA A80515.
• Court: Oregon Court of Appeals

Page 476

875 P.2d 476

128 Or.App. 109

Janet BOYTANO, Appellant, v. Elisa FRITZ, Election Officer of the City of Klamath Falls,

Respondent.

93-500CV; CA A80515.

Court of Appeals of Oregon.

Argued and Submitted March 16, 1994.

Decided May 25, 1994.

Page 475

Janet Boytano, argued the cause pro se. With her on the brief was Phil Studenberg, Klamath Falls.

Jeffrey D. Ball, City Atty., waived appearance, for respondent.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

ROSSMAN, Presiding Judge.

Plaintiff, a resident of the City of Klamath Falls (city) and a registered voter, brought this declaratory judgment action seeking to enjoin defendant, city's elections officer, from placing on the ballot an initiative measure proposing to amend the city charter and challenging the ballot title. The Klamath County Circuit Court issued a judgment certifying the ballot title of the initiative and holding that the measure is a proper subject for the ballot. Plaintiff assigns error to that part of the court's decision holding that the measure is a proper subject for the ballot and that it is legally sufficient. ¹ Because we conclude that the appeal does not present a justiciable controversy, we do not reach the merits of the appeal.

The initiative measure would add to the city charter provisions prohibiting the adoption of any law extending "minority status, affirmative action, quotas, special class status, or any similar concept" to homosexual persons. Plaintiff contends that the measure, if enacted, would violate Oregon Laws 1993, chapter 556 (HB 3500). Section 1 of that act provides:

"(1) A political subdivision of the state may not enact or enforce any charter provision, ordinance, resolution or policy granting special rights, privileges or treatment to any citizen or group of citizens on account of sexual orientation, or enact or enforce any charter provision, ordinance, resolution or policy that singles out citizens or groups of citizens on account of sexual orientation.

"(2) Any person who believes that a political subdivision has enacted or is enforcing a charter provision, ordinance, resolution or policy in violation of this section may bring an action in circuit court to have the charter provision, ordinance, resolution or policy declared invalid, for injunctive relief and for such other relief as the court may consider appropriate. The court shall award reasonable attorney fees and costs to a plaintiff who prevails in an action under this section."

We do not reach the issue whether the initiative measure, if it were enacted and took effect, would be contrary to HB 3500. At this writing, the sponsors of the measure have yet to collect the number of signatures required to place the measure on the ballot. The question is whether the complaint states an actual controversy that is justiciable.

To be justiciable, rather than hypothetical or abstract,

" 'the controversy must be definite and concrete, touching the legal relations of the parties having adverse legal interest. It must be a real and substantial controversy admitting of specific relief through a decree of conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.' " (Citations omitted.)

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