Cornelius v. City of Ashland

• Court: Court of Appeals of Oregon
• Writing for the Court: Before SCHWAB; SCHWAB; THORNTON
• Citation: 506 P.2d 182,12 Or.App. 181
• Parties: William G. CORNELIUS, Appellant, v. CITY OF ASHLAND, Respondent.
• Decision Date: 12 February 1973

Page 182

506 P.2d 182 12 Or.App. 181 William G. CORNELIUS, Appellant,
v.
CITY OF ASHLAND, Respondent. Court of Appeals of Oregon. Argued and Submitted Nov. 28, 1972. Decided Feb. 12, 1973.
Review Denied March 30, 1973.

Donald M. Pinnock, Ashland, argued the cause and filed the brief for appellant.

[12 Or.App. 182] Ronald L. Salter, Ashland, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

An ordinance recently enacted by the city of Ashland authorizes police in Ashland to jail any person for up to two hours for, among other things, failing to give a 'reasonable explanation of his actions' when questioned by the police. ¹

Page 183

Plaintiff, a resident of Ashland,[12 Or.App. 183] initiated this declaratory judgment proceeding pursuant to ORS 28.020 to challenge the constitutionality of this ordinance. The defendant-city's demurrer was sustained by the trial court. Plaintiff appeals.

The questions presented revolve around whether the complaint alleges facts sufficient to establish that the issue of the constitutionality of the ordinance is a justiciable controversy, that plaintiff has standing to challenge the ordinance, and that the constitutional issue is ripe for adjudication. ²

The material portions of plaintiff's complaint allege that there is an 'actual controversy between the parties'; that he 'is a resident of the City of Ashland'; and that his 'rights and liberties are subject to being [12 Or.App. 184] deprived at any time by use of this ordinance by the police officers of defendant.'

A threshold problem, apparently not considered by the parties or circuit court, is whether the issues of justiciable controversy, standing and ripeness are properly raised in a declaratory judgment proceeding by way of demurrer.

Quoting from City of Cherryvale v. Wilson, 153 Kan. 505, 510, 112 P.2d 111 (1941), the Oregon Supreme Court in Cabell et al v. Cottage Grove et al, 170 Or. 256, 261, 130 P.2d 1013, 1015, 144 A.L.R. 286 (1943), stated:

'* * * 'It is rare that a demurrer is an appropriate pleading for the defendant to file to a petition for a declaratory judgment' * * *.'

More recently, in Webb v. Clatsop Co. School Dist. 3, 188 Or. 324, 332, 215 P.2d 368, 371 (1950), the court stated:

'Demurrer may be used to test the sufficiency of the complaint in these (declaratory judgment) cases, If it is vulnerable upon any of the statutory grounds of demurrer * * *.' (Emphasis supplied.)

The relevant statute, ORS 16.260, lists seven grounds for a demurrer. The only ones that appear possibly relevant are lack of subject matter jurisdiction, ORS 16.260(1), and failure to state a cause of action, ORS 16.260(6). It may be that the questions of justiciable controversy, standing and ripeness in this context are elements of subject matter jurisdiction, or elements of a cause of action, but we are not aware of any Oregon cases that expressly so state. Cf., Dickman et al v. School Dist. 62C et al, 232 Or. 238, 245, 366 P.2d 533 (1962), cert. denied 371 U.S. 823, 83 S.Ct. 41, 9 L.Ed.2d 62 (1963), holding that the question of standing in equity proceedings is not jurisdictional.

[12 Or.App. 185]

Page 184

It seems that the better practice in declaratory judgment actions would be to almost always require a responsive pleading, as implied in Cabell et al v. Cottage Grove et al, supra. It would do more justice more often if the questions of justiciable controversy, standing and ripeness were raised as defenses in an answer, ORS 16.290(2)(b), and then determined by examining both pleadings, rather than just the 'face of the complaint,' ORS 16.260. ³

Nevertheless, in spite of these considerations, we proceed on the assumption that the issues of justiciable controversy, standing and ripeness were properly raised in this case by defendant's demurrer.

Turning to the merits, we note that there are Oregon cases that tend to support each party's position. We also note that it is difficult, if not impossible, to reconcile all of the relevant cases.

The majority of cases support the plaintiff. Declaratory judgments were granted on the merits concerning the constitutionality of penal statutes in Anthony v. Veatch, 189 Or. 462, 220 P.2d 493, 221 P.2d 575 (1950), appeal dismissed 340 U.S. 923, 71 S.Ct. 499, 95 L.Ed. 667 (1951), and Amer. F. of L. et al. v. Bain et al., 165 Or. 183, 106 P.2d 544, 130 A.L.R. 1278 (1940). Declaratory judgments were granted on the merits concerning the applicability, as distinguished from validity, of penal statutes in McKee v. Foster, 219 Or. 322, 347 P.2d 585 (1959), and Mult. Co. Fair Ass'n v. Langley, 140 Or. 172, 13 P.2d 354 (1932).

Declaratory judgments have also been granted on the merits concerning the validity of non-penal [12 Or.App. 186] statutes and ordinances. Foeller v. Housing Authority of Portland, 198 Or. 205, 256 P.2d 752 (1953); City of Portland v. Welsh, 154 Or. 286, 59 P.2d 228, 106 A.L.R. 1188 (1936); Multnomah County v. First Nat. Bank, 151 Or. 342, 50 P.2d 129 (1935); See also, Recall Bennett Com. v. Bennett et al, 196 Or. 299, 249 P.2d 479 (1952).

In most of these cases the question of the availability of declaratory relief was not discussed, but since the Supreme Court on occasion has noted the absence of a justiciable controversy on its own initiative, e.g., Cummings Constr. v. School Dist. No. 9, 242 Or. 106, 408 P.2d 80 (1965), they are at least some authority for granting declaratory relief in this similar situation.

On the other hand, it must be conceded that defendant's position is supported by language in some Oregon cases, especially Gortmaker v. Seaton, 252 Or. 440, 450 P.2d 547 (1969), ⁴ and Oregon Cry. Mfgs. Ass'n v. White, 159 Or. 99, 78 P.2d 572 (1938). Relying on that language defendant seems to contend that the controversy over the constitutionality of the ordinance is too hypothetical and speculative to be justiciable, and that plaintiff's interests are not or will not be sufficiently affected by use of the ordinance to create standing.

In reconciling the cases we have determined plaintiff's complaint alleges facts that make a sufficient showing of justiciable controversy, standing and ripeness to survive demurrer for the following reasons.

(1) The majority of Oregon cases support this [12 Or.App. 187] result. Anthony v. Veatch; Amer. F. of L. et al. v. Bain et al.; McKee v. Foster; Mult. Co. Fair Ass'n v. Langley; Foeller v. Housing Authority of Portland; City of Portland v. Welsh; Multnomah County v. First Nat. Bank, all supra. The question on which plaintiff

Page 185

seeks a declaration in this case is no more hypothetical or speculative than the questions determined in those cases. Plaintiff's interests are as substantially affected by the ordinance in question in this case as were the plaintiffs' interests in those cases.

Language in the equity case of Dickman et al v. School Dist. 62C et al., supra at 244--245, 366 P.2d at 536, is also in accord:

'* * * The Oregon cases on standing do not provide us with a clear guide. It has been held that for some purposes at least a person contesting a public expenditure must plead and prove that the threatened action probably will result in a general increase in taxation. Plaintiffs did not expressly allege in their complaint that the expenditures made by the defendant district increase the tax burden upon them or upon taxpayers generallky, although the claim that such an increase occurs might be inferred from the allegations that plaintiffs are taxpayers, that public moneys were appropriated and expended in the purchase of textbooks for distribution to St. John's school and that this 'constitutes the imposition of a tax.' The precise question of whether a taxpayer has standing to contest the expenditure of public moneys for the support of religious education has been passed upon by other courts. In some of the adjudicated cases the taxpayer has been accorded standing even in the absence of allegation or proof that he will be damaged in a pecuniary way. And there is support for the proposition and the problem of standing will be overlooked when an issue...