League of Oregon Cities v. State

• Citation: 334 Or. 645,334 Ore. 645,56 P.3d 892
• Parties: LEAGUE OF OREGON CITIES, Benton County, City of Beaverton, City of Eugene, Junction City, City of Veneta, Bev Stein, Vera Katz, Multnomah County, City of Portland, and Washington County, Plaintiffs-Respondents, v. STATE of Oregon, John Kitzhaber, M.D., and Bill Bradbury, Defendants-Appellants, and Stuart Miller, Intervenor-Appellant. Audrey McCall, Hector MacPherson, Michael E. Swaim, James Lewis, and Mark Tipperman, Plaintiffs-Respondents, v. John Kitzhaber, M.D., Bill Bradbury, and State of Oregon, Defendants-Appellants, and Stuart Miller, Intervenor-Appellant.
• Decision Date: 04 October 2002
• Court: Supreme Court of Oregon

56 P.3d 892

334 Or. 645

334 Ore. 645

LEAGUE OF OREGON CITIES, Benton County, City of Beaverton, City of Eugene, Junction City, City of Veneta, Bev Stein, Vera Katz, Multnomah County, City of Portland, and Washington County, Plaintiffs-Respondents, v. STATE of Oregon, John Kitzhaber, M.D., and Bill Bradbury, Defendants-Appellants, and Stuart Miller, Intervenor-Appellant.

Audrey McCall, Hector MacPherson, Michael E. Swaim, James Lewis, and Mark Tipperman, Plaintiffs-Respondents, v. John Kitzhaber, M.D., Bill Bradbury, and State of Oregon, Defendants-Appellants, and Stuart Miller, Intervenor-Appellant.

(CC 00C-20156, 00C-19871; CA A113789, A113790; SC S48450 (Control), S48451).

Supreme Court of Oregon, En Banc.

Argued and Submitted September 10, 2001.

Decided October 4, 2002.

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause for defendants-appellants. With her on the briefs were Stephanie Striffler, Special Counsel to the Attorney General, Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

John A. DiLorenzo, Jr., of Hagen Dye Hirschy & DiLorenzo, P.C., Portland, argued the cause for intervenor-appellant. With him on the briefs were Aaron K. Stuckey, and Justin J. Burns, Portland.

William F. Gary, of Harrang Long Gary Rudnick, P.C., Eugene, argued the cause for respondents League of Oregon Cities, Benton County, City of Beaverton, City of Eugene, Junction City, City of Veneta, Bev Stein, Vera Katz, Multnomah County, City of Portland, and Washington County. With him on the briefs were Glenn Klein, James E. Mountain, Jr., Susan D. Marmaduke, and Janice L. Mackey. Also on the briefs were Jeffrey L. Rogers, City Attorney, and Madelyn Wessel and Linda Meng, Chief Deputy City Attorneys, Portland, and Thomas Sponsler, Multnomah County Attorney, and Sandra N. Duffy, Deputy County Attorney, Portland.

Thomas M. Christ, of Cosgrave, Vergeer & Kester, Portland, filed the brief and argued the cause for respondents Audrey McCall, Hector MacPherson, Michael E. Swaim, James Lewis, and Mark Tipperman.

James E. Leuenberger, Lake Oswego, filed the brief for amici curiae Don McIntire and Fred Hall.

John M. Groen, of Groen Stephens & Klinge, LLP, Bellevue, Washington, filed the brief for amici curiae Pacific Legal Foundation and Home Builders Association of Metropolitan Portland. With him on the brief were Robin L. Rivett and Benjamin C. Waggoner, of Pacific Legal Foundation, Bellevue, Washington.

Gregory W. Byrne, Portland, filed the brief for amicus curiae Oregon Taxpayers United.

Ross Day, Portland, filed the brief for amici curiae Frank Eisenzimmer, U.S. Term Limits, and Oregonians for Fair Term Limits.

David J. Hunnicutt, Tigard, filed the brief for amicus curiae Oregonians in Action-Legal Center.

Gerald P. Linder, Hillsboro, filed the brief for amicus curiae The Association of Clean Water Agencies. With him on the brief were Edward J. Sullivan and William K. Kabeiseman, Preston Gates & Ellis LLP, Portland, for amici curiae The American Planning Association and The Association of Clean Water Agencies.

Frederick A. Batson, of Gleaves Swearingen Larsen Potter Scott & Smith LLP, Eugene, filed the brief for amici curiae Betty Wiemers and Dorothy English.

CARSON, C.J.

In these two consolidated proceedings, plaintiffs seek to invalidate Ballot Measure 7 (2000), set out post, 334 Or. at 665-67, 56 P.3d at 905-06, an initiated amendment to the Oregon Constitution that the voters approved at the 2000 general election. The trial court agreed with plaintiffs that Measure 7 was adopted in violation of the "separate-vote" requirement of Article XVII, section 1, of the Oregon Constitution, also set out post. The trial court therefore declared Measure 7 to be invalid and entered judgment accordingly. The state¹ appealed to the Court of Appeals, that court certified the appeals to this court, and this court accepted certification. We now hold, as did the trial court, that Measure 7 was adopted in violation of the separate-vote requirement set out in Article XVII, section 1, and, therefore, is void in its entirety.

I. FACTS AND PROCEDURAL BACKGROUND

On November 7, 2000, the voters appear to have approved Measure 7,² which, generally speaking, would have added to Article I, section 18, of the Oregon Constitution text requiring governments to compensate private real property owners for the cost of "restrict[ive]" regulations that reduce the value of their real property. On November 24, 2000, before the Secretary of State had completed canvassing the votes on Measure 7, McCall plaintiffs filed their complaint, alleging that the measure was invalid because it was adopted in violation of various provisions of the Oregon Constitution, including Article XVII, section 1, which sets out a separate-vote requirement for constitutional amendments.³ In their complaint, McCall plaintiffs sought a judicial declaration that Measure 7 was not validly adopted, and, three days after filing their complaint, they moved for a preliminary injunction preventing the Secretary of State from canvassing the votes on the measure and preventing the Governor from declaring whether the measure had passed. League of Oregon Cities (League) plaintiffs⁴ filed their complaint on December 5, 2000, also before completion of canvassing, raising essentially the same constitutional challenges as McCall plaintiffs and also seeking a declaratory judgment; League plaintiffs simultaneously moved for a preliminary injunction. McCall plaintiffs, but not League plaintiffs, also specifically sought recovery of attorney fees. In its answer to both complaints, the state asserted that some or all plaintiffs lacked standing and that the trial court lacked subject matter jurisdiction over both actions.

In December 2000, the trial court consolidated the actions and issued a preliminary injunction, enjoining the Secretary of State from canvassing the votes on Measure 7 and the Governor from declaring or proclaiming the results of the election. In early January 2001, Miller (intervenor), originally the chief petitioner of the initiative petition that ultimately became Measure 7, moved to intervene in the consolidated actions, and the trial court granted that motion. In his answer, intervenor contended, among other things, that the actions were not ripe for adjudication and that all plaintiffs lacked standing.

Shortly thereafter, all plaintiffs filed motions for summary judgment, and the state and intervenor filed cross-motions for summary judgment. At the summary judgment hearing, intervenor submitted evidence that set out the official county election results and demonstrated that Measure 7 had received more than 53 percent of the vote.

In February 2001, the trial court granted plaintiffs' motions for summary judgment and denied the state's and intervenor's cross-motions. The court rejected the state's and intervenor's arguments respecting jurisdiction, standing (except, as noted, the argument concerning plaintiff League of Oregon Cities), and ripeness, and also rejected most of plaintiffs' constitutional arguments. However, the court agreed with plaintiffs that Measure 7 violated the separate-vote provision of Article XVII, section 1, of the Oregon Constitution and, accordingly, was invalid. The court later entered judgment in both actions, declaring that the measure should not have been submitted to the voters, had not become effective, and was not part of the Oregon Constitution.⁵

The state appealed. The Court of Appeals certified the appeals to this court. This court accepted the certification and consolidated the proceedings for purposes of appeal.

II. JURISDICTION

• Jurisdiction under the Uniform Declaratory Judgments Act

The state contended below that the trial court did not have subject matter jurisdiction because plaintiffs filed their challenges to Measure 7 after the election, but before the Secretary of State had completed the process of canvassing the votes and certifying the measure. The trial court disagreed and assumed jurisdiction under ORS 28.010 to 28.160, the Uniform Declaratory Judgments Act (UDJA). On appeal, the state and intervenor argue that the trial court erred in assuming jurisdiction under the UDJA because another statute, ORS 250.044(1), provided plaintiffs with the exclusive method of challenging a ballot measure after the election. The state, but not intervenor, alternatively argues that, even if ORS 250.044(1) did not provide an exclusive method for plaintiffs' challenge, it at least provided a more appropriate method for the challenges at issue here. For the reasons set out below, we disagree with both contentions and hold that the trial court did not err in assuming jurisdiction under the UDJA.

ORS 28.010 provides, in part:

"Courts * * * within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. * * *"

Although 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. Alto v. State Fire Marshal, 319 Or. 382, 395, 876 P.2d 774 (1994). In addition, the trial court should decline to exercise its jurisdiction under ORS 28.010 if some more appropriate remedy exists. Brooks v. Dierker, 275 Or. 619, 624, 552 P.2d 533 (1976).

The state first argues that ORS 250.044(1)⁶ is the type of exclusive remedy addressed in Alto that prevents a trial court from assuming jurisdiction under ORS 28.010. As this court explained in Swett v. Bradbury, 333 Or. 597, 605, 43 P.3d 1094 (2002), decided after oral argument in this case, ORS 250.044(1) is not "exclusive" in the manner that the state asserts. That statute does not concern all ballot measure challenges; rather, it concerns only those ballot measure challenges brought on constitutional grounds during the six-month period after the Secretary of State certifies that...