Clackamas County v. Gay

• Decision Date: 05 March 1997
• Citation: 146 Or.App. 706,934 P.2d 551
• Parties: CLACKAMAS COUNTY, a political subdivision of the State of Oregon, Respondent, v. Cynthia R. GAY and Western Parachute Sales, Inc., an Oregon corporation, Appellants, and Jim Gidley, Ernest A. Kunze and Gary Linn, Intervenors-Respondents, and Thor Aronson, Intervenor. 91-11-217; CA A92660.
• Court: Oregon Court of Appeals

Page 551

934 P.2d 551

146 Or.App. 706

CLACKAMAS COUNTY, a political subdivision of the State of Oregon, Respondent, v. Cynthia R. GAY and Western Parachute Sales, Inc., an Oregon corporation, Appellants and Jim Gidley, Ernest A. Kunze and Gary Linn, Intervenors-Respondents and Thor Aronson, Intervenor.

91-11-217; CA A92660.

Court of Appeals of Oregon.

Argued and Submitted Jan. 15, 1997.

Decided March 5, 1997.

Lawrence R. Derr, Portland, argued the cause and filed the briefs for appellants.

Michael E. Judd, Oregon City, argued the cause and filed the brief for respondent Clackamas County.

Edward J. Sullivan argued the cause for intervenors-respondents Jim Gidley, Ernest A. Kunze and Gary Linn. With him on the brief were Jeffrey T. Lawrence and Preston Gates & Ellis, Portland.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

LEESON, Judge.

Plaintiff Clackamas County (county) brought this action to enjoin defendants from operating an airport and conducting a commercial skydiving business in an area of the county zoned for exclusive farm use. Intervenors, ¹ who are neighboring landowners, joined in the county's lawsuit. Defendants contended that their activities constituted a lawful nonconforming use. The trial court determined that defendants were correct only as to a narrow strip of land and entered a judgment enjoining defendants from operating their airport and conducting the skydiving business beyond the limited scope of the nonconforming use that the court recognized. Defendants appealed and filed a bond to stay the effect of the judgment. The trial court entered an order staying the judgment in all respects, except a restriction limiting the number of takeoffs and landings and a requirement that defendants log all flights to and from the property. We affirmed the trial court, except for a minor provision that allowed limited airport parking. Clackamas County v. Gay, 133 Or.App. 131, 890 P.2d 444, rev. den. 321 Or. 137, 894 P.2d 468 (1995).

Meanwhile, the legislature enacted ORS 836.625(1), which provides:

"The limitations on uses made of land in exclusive farm use zones described in ORS 215.213 and 215.283 and limitations imposed by or adopted pursuant to ORS 197.040 do not apply to the provisions of this chapter regarding airport zones."

That statute went into effect on passage. Defendants immediately moved to vacate the judgment, arguing that ORS 836.625(1) effectively repealed all local government regulations of airport uses in exclusive farm use zones. The county and intervenors contended that the statute merely establishes a timetable and process by which local governments must amend their comprehensive plans and land use regulations to create airport zones in the future and has no present effect on the county's existing comprehensive plan and land use regulations. The trial court agreed with the county and intervenors and denied defendants' motion to vacate. Defendants appeal, and we affirm.

On appeal, the parties repeat the arguments that they made below. The sole issue before us is construction of ORS 836.625(1). Our task is to determine the intent of the legislature by examining the text and context of the statute. We resort to legislative history only if the intent of the legislature is not clear from the text and context. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). We are "not to insert what has been omitted, or to omit what has been inserted." ORS 174.010.

Defendants concede that, by its terms, ORS 836.625(1) does not repeal existing local land use regulations. Nonetheless, they contend, we should read such language into the statute, because the legislative history indicates that, in adopting ORS 836.625(1), the legislature intended to repeal existing local land use regulations. According to defendants, Oregon appellate courts will "ignore or add to portions of legislation as necessary if that is the only way to avoid an unreasonable or unintended result." The lead example of that practice, according to defendants, is Johnson v. Star Machinery Co., 270 Or. 694, 530 P.2d 53 (1974). In that case, the Supreme Court applied "the rule of the equity of the statute" and held that ORS 12.115(1), the statute of limitations for negligent injury to person or property, also applies to products liability actions. Justice Holman explained:

"[T]he rule requiring the court to follow the plain meaning of seemingly unambiguous language is not inflexible and not without exceptions. Hence, if the literal import of the words is so at variance with the apparent policy of the legislation as a whole as to bring about an unreasonable result, the literal interpretation must give way and the court must look beyond the words of the act." Johnson, 270 Or. at 703-04, 530 P.2d 53.

See also State ex rel. Kirsch v. Curnutt, 317 Or. 92, 98, 853 P.2d 1312 (1993) (citing Johnson rule with approval, notwithstanding rule against inserting what has been omitted or omitting what has been inserted).

In resolving this case, we need not decide whether the rule of Johnson is still viable in the wake of the interpretive template announced in PGE, because Johnson does not aid defendants. If the rule applies at all, it is where the literal interpretation of the words of a statute is so at variance with the apparent policy of the statute as to bring about an unreasonable result. ² Johnson, 270 Or. at 704, 530 P.2d 53. As written, ORS 836.625(1) brings about no unreasonable result by leaving existing land use regulations in effect. As intervenors point out, under chapter 836, which provides the relevant context for ORS 836.625(1), "a process is put in place, rather than an immediate effect ordered." (Emphasis in original.)

The trial court did not err in denying defendants' motion to vacate the judgment previously entered in this case.

Affirmed.

LANDAU, Judge, concurring.

I agree with the majority that we are without authority to add to ORS 836.625(1) the language that defendants ask us to insert to avoid an unreasonable or unintended result. I write separately, because defendants' reliance on the "rule of equity" as applied in Johnson v. Star Machinery Co., 270 Or. 694, 530 P.2d 53 (1974), raises an important issue of statutory construction, namely the extent to which courts are empowered to redraft the language of statutes. In Johnson, the Supreme Court did say that courts have the authority to extend the reach of a statute beyond its language, if that is necessary to avoid an unreasonable result. Id. at 706, 530 P.2d 53. The problem is that both before and after its Johnson decision, the Supreme Court also has said precisely the opposite in a number of cases--relying on the statutory command not to insert statutory language that has been omitted. ORS 174.010. This state of affairs cannot help but be confusing to both bench and bar. The two lines of cases are irreconcilable, and the conflict should be recognized and resolved.

In my view, we should discard the notion that courts have the authority to rewrite statutes. To begin with, although the court has not expressly overruled Johnson or disavowed its prior decisions in which it rewrote the language of various statutes, those cases implicitly have been superseded by the court's most recent template for construing statutes, described in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). Moreover, that is the only position that comports with the statutory command to refrain from adding to a statute language that the legislature did not enact, a statute that was, from all indications, enacted to prevent the very practice that Johnson and cases like it exemplify.

The "rule of equity" originated with the 1584 decision in Heydon's Case, 76 Eng.Rep. 637 (Ex. 1584), in which the English court called for an examination of, among other things, "the true reason of the remedy" in determining the meaning of an ambiguous statute. ¹ The rule, as originally enunciated, had nothing to do with departing from the language of the statute itself. Instead, it was a guide by which the courts could ascertain the intended meaning of enacted language. See generally S.E. Thorne, The Equity of a Statute and Heydon's Case, 31 Ill.L.Rev. 202, 215 (1936) ("The rules cannot be taken anachronistically as an early effort to inculcate in judges a view that the statute revealed an attitude that the appropriate exercise of judicial power permitted courts to advance. Courts had not yet reached the stage of looking beyond a statute's words." (Emphasis in original)). In later years, however, particularly in early 19th-century America, courts invoked Heydon's Case and the "rule of equity" as a basis for altering the language of statutes and even for invalidating them altogether. Typically, such courts held that

"many cases, not expressly named, may be comprehended within the equity of a statute; the letter of which may be enlarged or restrained, according to the true intent of the makers of the law."

Whitney v. Whitney, 14 Mass. 88, 92-93 (1817); see also Bridgeport v. Hubbell, 5 Conn 237, 243-44 (1824) ("a statute ought, sometimes, to have such equitable construction as is contrary to the letter"); see also generally William S. Blatt, The History of Statutory Interpretation: A Study in Form and Substance, 6 Cardozo L.Rev. 799, 802-04 (1985) (describing early-American decisions invalidating statutes on equitable grounds).

It was in that context that the Oregon legislature, in 1862, enacted what is now ORS 174.010, which commands courts

"to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted [.]"

(Emphasis supplied.) ² In the years following enactment of that statute, however, the courts have been less than uniform in following it.

In its 1891 decision in State ex rel. Everding v. Simon, 20 Or. 365, 26 P. 170 (1891), for example, ...