Gaffey v. Babb

• Citation: 624 P.2d 616,50 Or.App. 617
• Decision Date: 09 April 1981
• Docket Number: No. C78-12-114,C78-12-114
• Parties: Richard Lawrence GAFFEY, dba Underground World of Odds and Ends, Appellant, v. Robert E. BABB, Chief of the City of Brookings Police, and John Spicer, City Attorney for the City of Brookings, individually, and in their official capacities, and the City of Brookings, Respondents. ; CA 13882.
• Court: Court of Appeals of Oregon

Page 616

624 P.2d 616

50 Or.App. 617

Richard Lawrence GAFFEY, dba Underground World of Odds and Ends, Appellant, v. Robert E. BABB, Chief of the City of Brookings Police, and John Spicer, City Attorney for the City of

Brookings, individually, and in their

official capacities, and the

City of Brookings,

Respondents.

No. C78-12-114; CA 13882.

Court of Appeals of Oregon, In Banc.

Argued and Submitted March 14, 1980.

Resubmitted In Banc Feb. 12, 1981.

Decided Feb. 23, 1981.

Reconsideration Denied April 9, 1981.

John Henry Hingson, III, Oregon City, argued the cause and filed the briefs for appellant.

Hugh C. Downer, Jr., Gold Beach, argued the cause for respondents. With him on the brief was Spicer & Downer, Gold Beach.

RICHARDSON, Judge.

Petitioner brought this declaratory judgment action seeking a declaration that a criminal ordinance of the City of Brookings is unconstitutional and to enjoin enforcement of the ordinance. The trial court held that the ordinance was constitutional and petitioner appeals.

Petitioner owns a business establishment, described as a "head shop," which offers for sale pipes, cigarette rolling papers, books, magazines and posters, among other items. A "head shop" was described as "a place of business that is frequented by persons engaged in the use or sale of narcotics or controlled substances." That definition was amplified by the witness as follows:

"Well, head shops, by way of explanation now so I can answer your question, head shops today have taken on a different posture than they did originally. They're a mixed business now. Record shops where they sell legitimate records, and to entice that particular element, to enhance their business, they also engage in the sale of other items which draw this type of person, those persons engaged in the use, abuse of controlled substances in their shop."

In October, 1978, the City of Brookings adopted an ordinance prohibiting dealing in drug paraphernalia. In December, 1978, petitioner filed a declaratory judgment action alleging that the ordinance was unconstitutional. The city then repealed the ordinance and enacted the ordinance presently under review. The ordinance took effect immediately upon passage, and petitioner challenged the new ordinance in an amended complaint.

Petitioner has closed his shop on advice of counsel for fear he would be subjected to prosecution by the city attorney, however, he would reopen if the ordinance were declared invalid.

Threshold questions are whether the complaint alleges a justiciable controversy, whether petitioner has standing to challenge the ordinance and whether the issue is ripe for decision. Petitioner has not been charged with violation of the ordinance. The complaint alleges that there is a justiciable controversy and that petitioner is suffering irreparable injury and in the future will be harassed by defendant utilizing the ordinance. The complaint further alleges that the ordinance is unconstitutional on its face.

Defendants did not raise the issues of justiciability, standing or ripeness in their pleadings nor in a demurrer. In Cornelius v. City of Ashland, 12 Or.App. 181, 506 P.2d 182, rev. den. (1973), we suggested that the proper method of raising those issues was by way of responsive pleading and not by demurrer. If the issues, however, are not raised by the parties the court may determine if its adjudicative powers are properly invoked. The parties in a declaratory judgment action who seek judicial determination of the constitutional validity of an enactment may have no incentive to challenge the right of the court to determine the merits of the claim. If we depend entirely on the defendant in a declaratory judgment action to raise the issue of the court's authority to hear the case we may be led into issuing an advisory opinion or deciding an issue which the petitioner has no standing to urge. In Gortmaker v. Seaton, 252 Or. 440, 450 P.2d 547 (1969), the Supreme Court declined to reach the merits of a declaratory judgment on the basis that the petitioner did not have standing to bring the action. The court took that action despite the fact that neither party raised the issue in the trial court.

In this case, petitioner alleged that there is a justiciable controversy and that he would suffer irreparable injury and in the future will be harassed by defendants enforcing the ordinance he claims is unconstitutional on its face. He presented evidence tending to prove his allegations. There is thus evidence from which we can determine if petitioner has standing and if there is a justiciable controversy which is ripe for determination. During oral argument we raised the issue of the propriety of a declaratory judgment action to challenge a penal ordinance. We requested supplemental memoranda on the issue and both parties have complied with that request.

It is difficult to formulate a rule that will serve all purposes in determining if a declaratory judgment action is proper to challenge a criminal enactment. At the minimum, a petitioner must establish (1) that there is a genuine controversy between truly adverse parties; (2) that petitioner will be subjected to a particular concrete injury to a demonstrated property right or other substantial interest; (3) that the injury will be immediate and irreparable in terms of the likelihood of prosecution; (4) that the matter is ripe for adjudication in that there is a precise fact situation sufficient to allow final adjudication of the issue or that a fact situation is unnecessary to test the challenged law because it is alleged to be invalid on its face; and (5) that there are no other pending proceedings in which the legislation can be challenged.

The Declaratory Judgment Act expands the jurisdiction of courts to include those cases where the petitioner's "rights, status or other legal relations" are affected by the challenged enactment. ORS 28.010. The act is to be liberally construed, ORS 28.120. No actual wrong need be committed or loss incurred in order to invoke declaratory relief. The remedy of a declaratory judgment was designed to relieve litigants of uncertainty by adjudicating their rights before any wrong is committed or damage incurred.

There is a general rule that a declaratory judgment action is not available to interpret or challenge a criminal enactment. That rule has been continually eroded by ad hoc exceptions and a general trend toward expanding declaratory relief. Cornelius demonstrates an exception to the general rule and a recognition of the judicial trend. In discussing the availability of declaratory relief in relation to criminal legislation, we said in Cornelius:

" * * * The remedy of declaratory judgment was designed to relieve parties of uncertainty by adjudicating rights and duties before wrongs have actually been committed or damages have been suffered. In short, declaratory judgment is preventive justice.

"Such a result is consistent with a perceptible trend toward expansion of the availability of declaratory relief to test the validity and applicability of criminal statutes. Annotation, 10 ALR3d 727 (1966). Strong arguments support the continuation and expansion of this trend. Note, 80 Harv. L. Rev. 1490 (1967)." (Emphasis in original.) 12 Or.App. at 188, 506 P.2d 182.

In conjunction with expanding the trend to make declaratory judgment available as a vehicle to challenge criminal statutes, we noted a further reason to allow declaratory relief in Cornelius. Because the ordinance challenged in Cornelius provided only for detention but no criminal charge, a person detained would not have an effective proceeding available to challenge the basis of his detention. In discussing exceptions to the general rule, we said in Cornelius:

"A declaration of the validity or applicability of a substantive penal statute has never been denied on the grounds that the plaintiff had the potential alternative remedy of just defending a prosecution. Anthony v. Veach (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)); Amer. F. of L. et al v. Bain et al (165 Or. 183, 106 P.2d 544, 130 ALR 1278 (1940)); McKee v. Foster (219 Or. 322, 347 P.2d 585 (1959)); Mult. Co. Fair Ass'n v. Langley (140 Or. 172, 13 P.2d 354 (1932)). Instead, a declaration as to the applicability or validity of a criminal statute has only been denied when there is an existing alternative effective remedy, i. e., when a prosecution has already been initiated, as was the case in Nelson v. Knight, 254 Or. 370, 460 P.2d 355 (1969)." (Emphasis in original.) 12 Or.App. at 189, 506 P.2d 182.

The precedential value of Cornelius, which is the most current discussion of the issue in Oregon appellate opinions, is two-fold. First, Oregon has been aligned with the jurisdictions which have expanded the use of declaratory judgments to challenge the applicability or validity of criminal statutes. Second, declaratory relief will not be denied on the basis that there is a potential alternative means of challenging the enactment.

Consistent with the statement of the law in Cornelius, declaratory relief cannot be denied petitioner on the basis that he has an effective potential remedy by submitting himself to arrest and prosecution. See Ostrander v. Linn, 237 Iowa 694, 22 N.W.2d 223 (1946), cited with approval in Nelson v. Knight, supra; Anti-Fascist Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951).

The general rule prohibiting the use of a declaratory judgment action to challenge a criminal statute is based, inter alia, on two essential rationales, which are expressed in the requirements of justiciable controversy, standing and ripeness. One rationale is that courts are loath to issue advisory opinions which do not finally settle a controversy. Second is that constitutional issues should be decided based on a precise fact situation that property invokes the constitutional...