Burt v. Blumenauer

• Citation: 699 P.2d 168,299 Or. 55
• Decision Date: 23 April 1985
• Docket Number: No. A8112-07355,A8112-07355
• Parties: , 51 A.L.R.4th 679 Roger BURT, For Himself and All Other Taxpayers in Multnomah County, Respondent on Review, v. Earl BLUMENAUER, Dennis Buchanan, Don Clark, Robert Isman, David Lawrence and Gladys McCoy, Petitioners on Review. TC; CA A25112; SC S30238.
• Court: Oregon Supreme Court

Page 168

699 P.2d 168

299 Or. 55, 51 A.L.R.4th 679

Roger BURT, For Himself and All Other Taxpayers in Multnomah County, Respondent on Review, v. Earl BLUMENAUER, Dennis Buchanan, Don Clark, Robert Isman David Lawrence and Gladys McCoy, Petitioners on Review.

TC No. A8112-07355; CA A25112; SC S30238.

Supreme Court of Oregon In Banc.

Argued and Submitted May 1, 1984.

Decided April 23, 1985.

John B. Leahy, County Counsel for Multnomah County, Portland, argued the cause for petitioners on review. With him on the briefs was Rudolph S. Westerband, Asst. County Counsel, Portland.

Charles O. Porter, Eugene, argued the cause and filed the briefs for respondent on review.

Timothy J. Sercombe and Harrang, Swanson, Long & Watkinson, P.C., Eugene, filed a brief amicus curiae for City of Eugene.

Alan S. Bachman, Chief Asst. County Counsel, Hillsboro, Paul Snider, Legal Counsel, Ass'n of Oregon Counties, Salem, and Michael E. Judd, Asst. County [299 Or. 56-A] Counsel, Oregon City, filed a brief amicus curiae for Ass'n of Oregon Counties.

ROBERTS, Justice.

The issue is whether defendant public officials can be held personally liable for the return of public monies expended to promote water fluoridation during an election period when that issue was before the voters.

I. STATEMENT OF THE CASE

Plaintiff taxpayer sued three Multnomah County Commissioners, the county executive and two county health officers for unlawful expenditure of federal and matching county grant monies. The funds were used to pay salaries for persons, including one of the health officers, who staffed a "fluoridation public information project" and to hire advertising firms to publicize the project. The project promoted the benefits of fluoridation. Toward this end an advertising firm conducted public opinion surveys and a mass media campaign, which included newspaper advertisements. The county employes engaged in public presentations, distribution of posters and pamphlets, writing articles and press releases and operation of a telephone hotline.

ORS 294.100 provides in relevant part:

"(1) It is unlawful for any public official to expend any money in excess of the amounts, or for any other or different purpose than provided by law.

"(2) Any public official who expends any public money in excess of the amounts, or for any other or different purpose or purposes than authorized by law, shall be civilly liable for the return of the money by suit of the district attorney of the district where the offense is committed, or at the suit of any taxpayer of such district."

Plaintiff is a taxpayer in Multnomah County who is entitled to bring suit under this statute. Plaintiff contends that defendants expended money for a purpose different than authorized by law when they spent money in the fluoridation project at a time when an anti-fluoridation measure was on the City of Portland ballot. At the time relevant to this case, ORS 260.432 prohibited "any person" from, among other things, requiring a "public employe to * * * aid, promote or oppose * * * the adoption of a measure * * *." The statute also prohibits public employes from engaging in the same conduct voluntarily while on the job during working hours. ¹ Plaintiff asserts that county officials violated this statute by assigning public employes to work on the fluoridation project, with the result, according to plaintiff, that public employes were required to oppose the anti-fluoridation measure in violation of ORS 260.432. Plaintiff asserts that ORS 260.432 is a legislative declaration that public funds cannot be used to promote one side of an issue before the voters. He concludes that expenditure of funds in this way was for a "different purpose * * * than authorized by law" in violation of ORS 294.100.

Defendants respond that funding of the fluoridation project was authorized by ORS 431.416(2) which, at the time relevant to this case, directed district and county departments of health to "[c]onduct activities necessary for the preservation of health and prevention of disease in the area under [their] jurisdiction." ²

Both sides moved for summary judgment. The trial court ruled in favor of defendants. The Court of Appeals reversed, reasoning that if defendants violated ORS 260.432, they expended funds for an unauthorized purpose and could face personal liability under ORS 294.100 for the return of funds paid out. The Court of Appeals held that a specific provision, the election finance law, controls over a general statute authorizing public health activities, ORS 431.416. The court remanded for a factual determination whether defendants' activities were "promotional" or "informational." If the former, the court reasoned that the activities would conflict with the election finance law. 65 Or.App. 399, 672 P.2d 51 (1983).

II. ILLUSTRATIVE HOLDINGS

Other state courts have considered variations on the question whether government may speak out or whether it must refrain from speaking. In tracing the development of the government speech cases, one finds the analyses shifting from demands for explicit authority for a particular government activity to concerns with an authorized action's conflict with other laws, both statutory and constitutional. In the earlier cases in this area, courts placed limitations on municipal spending power by narrowly defining "corporate purpose" and "municipal function," and uniformly prohibited expenditures for government speech.

This early view of municipal authority, also known as Dillon's rule, ³ appears in Elsenau v. City of Chicago, 334 Ill. 78, 165 N.E. 129 (1929), a taxpayer suit to enjoin expenditures by the city for advertisements in support of a proposed bond measure. The court recited the popular maxims of the day, that municipal corporations possess no inherent power, and that statutes granting powers to municipal corporations are strictly construed, and ruled that "[t]he conduct of a campaign, before an election, for the purpose of exerting an influence upon the voters is not the exercise of an authorized municipal function and hence is not a corporate purpose of the municipality." 334 Ill. at 81-82, 165 N.E. 129.

In State ex rel. Port of Seattle v. Sup'r Ct., 93 Wash. 267, 160 P. 755 (1916), the court enjoined port commissioners from spending public money to campaign in opposition to a referendum increasing their number and placing a debt limit on the port. The court found no authority for such an expenditure. It stated that municipal corporations possess "only those powers expressly granted or such as are necessarily implied." 93 Wash. at 269, 160 P. 755. Though the court did not articulate the constitutional issues underlying such government speech activities, it noted the similarities between the instant case and the possibility that "[t]he commissioners might determine that the best interests of the business of the port required that the individual members of the commission be perpetuated in office, and, because of that reason, use the funds of the port to insure their own election," 93 Wash. at 273, 160 P. 755. Shannon v. City of Huron, 9 S.D. 356, 69 N.W. 598 (1896), presents a similar analysis.

In Mines v. Del Valle, 201 Cal. 273, 257 P. 530 (1927), the court found the Board of Public Service Commissioners liable for funds expended for "printing cards, banners, automobile windshield stickers, automobile banners, labels, circulars, hand bills, dodgers, and postal cards; for distributing and circulating the same; for constructing a float; and for advertising in certain newspapers" in support of a bond measure. 201 Cal. at 276, 257 P. 530. The court found that the commissioners' claimed authority to promote a utility bond was neither "given to them by any express provisions of the charter, nor can it be implied from any of the terms thereof." 201 Cal. at 288, 257 P. 530.

In Citizens to Protect Public Funds v. Board of Education, 13 N.J. 172, 98 A.2d 673 (1953), the New Jersey Supreme Court found implied power for the school board to expend funds to publish an informational booklet about a bond proposal requiring voter approval. The court interpreted the school board's authority more broadly than older cases had done. Nonetheless, the expenditure was held unlawful because the school board had presented only one side of the issue, thereby shutting out those with dissenting views. In the court's words:

" * * * the board made use of public funds to advocate one side only of the controversial question without affording the dissenters the opportunity by means of that financed medium to present their side, and thus imperilled the propriety of the entire expenditure. The public funds entrusted to the board belong equally to the proponents and opponents of the proposition, and the use of the funds to finance not the presentation of facts merely but also arguments to persuade the voters that only one side has merit, gives the dissenters just cause for complaint." 13 N.J. at 180-81, 98 A.2d 673.

The power of local governments has expanded in recent times. Our own statutes illustrate the trend. Under the General Laws 1862, section 870 county courts and boards of county commissioners were given "authority and powers * * * to transact county business," by means of a specific enumeration of the types of business they were authorized to transact. They were authorized, for example, to erect and repair county public buildings such as jails and courthouses, to repair, establish and vacate county roads and bridges, and to grant and revoke licenses for dance halls and groceries. The specificity with which these authorities are listed by statute indicates the degree to which the legislature perceived local government authority to be circumscribed. In 1958, the Oregon Constitution was amended to permit county home rule. Or. Const., Art. VI, § 10. In 1973, ORS 203.035 was added to authorize all counties to "exercise authority within the county over matters of...