City of Powers v. Coos County Airport

• Decision Date: 17 August 2005
• Docket Number: 03-CV0119; A122358.
• Citation: 201 Or. App. 222,119 P.3d 225
• Parties: STATE of Oregon ex rel. CITY OF POWERS and City of Lakeside, Oregon municipal corporations, and Arthur J. Schmidt, Eddie Gowan, Noble Adamek, and Claude Coffman, Appellants, and City of Myrtle Point, an Oregon municipal corporation, and Ferris Pinniger, Plaintiffs, v. COOS COUNTY AIRPORT DISTRICT, a quasi-municipal corporation of Oregon, and Judy Weeks, Sue Richardson, Helen Brunell Meneau, Clair Jones, and Michael Crow, Respondents.
• Court: Oregon Supreme Court

Page 225

119 P.3d 225

201 Or. App. 222

STATE of Oregon ex rel. CITY OF POWERS and City of Lakeside, Oregon municipal corporations, and Arthur J. Schmidt, Eddie Gowan, Noble Adamek, and Claude Coffman, Appellants, and City of Myrtle Point, an Oregon municipal corporation, and Ferris Pinniger, Plaintiffs, v. COOS COUNTY AIRPORT DISTRICT, a quasi-municipal corporation of Oregon, and Judy Weeks, Sue Richardson, Helen Brunell Meneau, Clair Jones, and Michael Crow, Respondents.

03-CV0119; A122358.

Court of Appeals of Oregon, En Banc.

Argued and Submitted January 24, 2005.

Resubmitted En Banc June 15, 2005.

Decided August 17, 2005.

Richard D. Rodeman argued the cause and filed the brief for appellants.

Jerry O. Lesan argued the cause and filed the brief for respondents.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, SCHUMAN, and ORTEGA, Judges.

ARMSTRONG, J.

Plaintiffs appeal a judgment dismissing their claims for lack of subject matter jurisdiction. We affirm.

Plaintiffs brought this action to challenge the validity of the formation of the Coos County Airport District. Pursuant to ORS 838.010, the city of North Bend passed a resolution calling for the formation of the airport district to finance the operation of its airport.¹ The proposed district was to include all of the territory within Coos County. North Bend filed the resolution with the Coos County Board of Commissioners, which held hearings on the matter as required by ORS 198.805. After those hearings, the county placed the matter on the November 2002 general election ballot, as required by ORS 198.815. In the election, the majority of voters approved the formation of the district; consequently, on December 4, 2002, the county issued an order forming the district.

On February 27, 2003, plaintiffs — three incorporated cities located in Coos County and several taxpayers in the airport district — filed this action against the district and the five individuals elected at the November 2002 election to serve on its governing board. Plaintiffs' amended complaint, filed by the city attorney for the cities of Lakeside and Myrtle Point, contained three claims. The first claim alleged that the formation of the district was flawed because the county had not obtained resolutions from the plaintiff cities supporting the formation of the district, as required by ORS 198.720(1).² The second claim alleged that the individual defendants were unlawfully holding office as the airport district's commissioners because the district had not been lawfully formed. Plaintiffs brought both claims under ORS 30.510, which provides the statutory action that replaced the common-law writ of quo warranto.³

The third claim sought a declaration that the airport district's formation violated the Oregon Constitution. After realleging the facts set forth in their first two claims, plaintiffs alleged in their third claim:

"In the event that the first two causes of action are not sustained, the plaintiffs (on their own standing, and not upon the relation of the State of Oregon for this count only) allege that the formation of the Coos County Airport District under ORS Chapter 838 and 198 is unconstitutional in violation of the provisions of Oregon Constitution Art IV § 2 (home rule provisions)."⁴

Rather than answering plaintiffs' complaint, defendants moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state ultimate facts sufficient to constitute a claim. Defendants argued that actions under ORS 30.510 must be commenced and prosecuted by the appropriate district attorney and that, because the district attorney for Coos County had not commenced and prosecuted the action, the trial court lacked subject matter jurisdiction of plaintiffs' first two claims. With regard to the declaratory judgment claim, defendants argued that it must be dismissed because a writ of review was plaintiffs' exclusive remedy to challenge the formation of the district and that, in any event, the claim was untimely because it was brought more than 60 days after the county had issued the order that plaintiffs challenged. The trial court granted defendants' motion and dismissed plaintiffs' complaint with prejudice.

Before we address plaintiffs' arguments on appeal, we briefly describe the statutes that govern the formation of airport districts. ORS 838.005 to 838.075 authorize the formation of airport districts and prescribe the scope of their authority. As noted above, ORS 838.010(1)(b) provides that one method to initiate the formation of an airport district is by "[a] resolution adopted by the governing body of any city owning an airport within the proposed district and filed with the governing body of the principal county in the proposed district, petitioning that body to call an election." ORS 838.010(3) provides that, once the formation of an airport district has been initiated, the District Boundary Procedure Act, ORS 198.705 to 198.955, governs the formation process, except in certain circumstances not applicable here. ORS 198.785, a part of the act, provides for judicial review of aspects of the effort to form a district.

On appeal, plaintiffs first assign error to the trial court's conclusion that actions under ORS 30.510 must be commenced and prosecuted by the district attorney for the district in which the case is triable. Our recent decision in Mabon v. Wilson, 198 Or.App. 340, 108 P.3d 598, rev. allowed, 338 Or. 680, 115 P.3d 245 (2005), issued after this case was argued, almost entirely disposes of plaintiffs' arguments on that point. In Mabon, we held that ORS 30.610 requires that actions brought under ORS 30.510 be commenced and prosecuted by the appropriate district attorney and that that requirement is jurisdictional.⁵ 198 Or.App. at 343, 108 P.3d 598. As noted above, the district attorney for Coos County has not participated in this proceeding. Seeking to avoid the dismissal for lack of subject matter jurisdiction that would otherwise result from the application of Mabon to their case, plaintiffs insist that the city attorney who commenced and prosecuted their claims is the functional equivalent of the district attorney for purposes of ORS 30.610.

To support that novel argument, plaintiffs simply cite a number of statutes without further analysis. None of the cited statutes equates a city attorney with a district attorney for purposes of ORS 30.610. Many of the statutes cited by plaintiffs do, in fact, give city attorneys and district attorneys similar specific authority, e.g., ORS 33.055, or define the term "district attorney" to include "city attorney" for limited purposes, e.g., ORS 131.005(8). However, rather than bolstering plaintiffs' argument, those statutes undermine it by demonstrating that, when the legislature wants city attorneys and district attorneys to have equivalent authority, it provides so explicitly. The legislature has not done that with regard to ORS 30.610. The trial court correctly determined that it lacked subject matter jurisdiction of plaintiffs' first two claims.

The remaining question for us is whether the trial court had jurisdiction of plaintiffs' declaratory judgment claim. As the Supreme Court emphasized in League of Oregon Cities v. State of Oregon, 334 Or. 645, 652, 56 P.3d 892 (2002), "[a]lthough a trial court has broad power to provide declaratory relief, it lacks subject matter jurisdiction under ORS 28.010 if some other exclusive remedy exists. * * * In addition, the trial court should decline to exercise its jurisdiction under ORS 28.010 if some more appropriate remedy exists." (Citation omitted; emphasis in original.) We first address whether some other exclusive remedy exists, because that question is jurisdictional. See Dental v. City of Salem, 196 Or.App. 574, 579, 103 P.3d 1150 (2004) (addressing exclusivity question first).

ORS 198.785(2) provides:

"An action to determine the validity of a formation or change of organization proceeding may also be brought pursuant to ORS 33.710 and 33.720 or 34.010 to 34.100."

This much is clear from ORS 198.785: The formation of the airport district was subject to judicial review by either the method provided in ORS 33.710 and ORS 33.720 or the method provided in ORS 34.010 to 34.100-specifically, the writ of review.

ORS 33.710 and ORS 33.720 set forth the method by which certain local governmental entities can seek judicial examination of the legality of their establishment or of some of the actions that they take. Assuming that the airport district is the type of governmental entity that may avail itself of the proceeding provided by ORS 33.710 and ORS 33.720, such a proceeding must be initiated by the governing body of the governmental entity. ORS 33.710(2). Consequently, the proceeding established by ORS 33.710 and ORS 33.720 was not available to plaintiffs to challenge the formation of the airport district, even if the airport district could seek a determination of the validity of its own formation in such a proceeding.

The writ of review, on the other hand, is not so limited and was, in fact, available to plaintiffs pursuant to ORS 198.785 to challenge the formation of the airport district.⁶ We have recognized that, when the writ of review is available, it is the exclusive remedy and that a court lacks jurisdiction over a declaratory judgment action that seeks review of governmental actions that are subject to review by writ of review. See, e.g., Pangle v. Bend-Lapine School District, 169 Or.App. 376, 384-85, 10 P.3d 275 (2000), rev. den., 332 Or. 558, 34 P.3d 1176 (2001); Shipp v. Multnomah County, 133 Or.App. 583, 588, 591, 891 P.2d 1345, rev. den., 321 Or. 246, 895 P.2d 786 (1995). ORS 34.020 provides that, with certain exceptions not applicable here, "any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors, as...