Marquam Inv. Corp. v. Beers

• Decision Date: 11 August 1980
• Docket Number: No. A,A
• Parties: MARQUAM INVESTMENT CORPORATION, an Oregon Corporation, Appellant, v. The Honorable William C. BEERS, Presiding Judge of the District Court of the State of Oregon, for Multnomah County; the State of Oregon and Charlene Myers, Respondents. 7709 12615; CA 15690.
• Court: Oregon Court of Appeals

Page 1064

615 P.2d 1064

47 Or.App. 711

MARQUAM INVESTMENT CORPORATION, an Oregon Corporation, Appellant, v. The Honorable William C. BEERS, Presiding Judge of the District Court of the State of Oregon, for Multnomah County; the State of Oregon and Charlene Myers, Respondents.

No. A 7709 12615; CA 15690.

Court of Appeals of Oregon.

Argued and Submitted April 11, 1980.

Decided Aug. 11, 1980.

Warde H. Erwin, Portland, argued the cause and filed the briefs for appellant.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent, William C. Beers. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Michael H. Marcus, Legal Aid Service, Portland, argued the cause for respondent, Charlene Myers. With him on the brief were Louis Savage, Legal Aid Service and Frank Wall, Portland.

Before GILLETTE, P. J., and ROBERTS and CAMPBELL, JJ.

GILLETTE, Presiding Judge.

Plaintiff, Marquam Investment Corporation, which owns residential property which has been subject to past, and allegedly will be subject to future application of the Residential Landlord and Tenant Act, ¹ ORS 91.700- .91.895, brought this declaratory judgment action challenging the constitutionality of various provisions of the act. The trial court rejected Marquam's challenges and held that the act was constitutional. Marquam appeals. We affirm.

Marquam aims a disparate, scattered attack at the constitutionality of the act. ² Marquam contests the validity of most major provisions of the act, usually on the basis of a variety of state and federal constitutional provisions. We will examine each challenged statutory provision in turn. However, before turning to the question of the validity of specific statutes, we may first dispose of Marquam's "void for vagueness" claims.

Marquam argues that virtually the entirety of the Residential Landlord and Tenant Act is void for vagueness. This argument is inapposite because the act is not penal, and therefore is not subject to a void for vagueness analysis.

" * * * (The void for vagueness) principle, like that against ex post facto laws, is generally confined to penal sanctions. No one familiar with the common law expects due process to preserve one either from indefinite standards or from their delegations to juries or judges in civil cases, though one may stand to lose far more than under many criminal laws. * * * " Megdal v. Board of Dental Examiners, 288 Or. 293, 299, 605 P.2d 273 (1980); see also Anderson v. Peden, 284 Or. 313, 587 P.2d 59 (1978).

To paraphrase Megdal, Marquam " * * * cannot rest a constitutional attack on (the Residential Landlord and Tenant Act) on the decisions that hold penal laws unenforceable for vagueness." 288 Or. at 300, 605 P.2d at 276.

Having resisted what Megdal terms "the seductive alliteration 'void for vagueness'," 280 Or. at 297, 605 P.2d at 275, we proceed to Marquam's challenges to specific sections of the Act. ORS 91.865 is a major focus of Marquam's rather diffuse attack. It provides:

"(1) Except as provided in this section, a landlord may not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for possession after:

"(a) The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety;

"(b) The tenant has complained to the landlord of a violation under ORS 91.770; or

"(c) The tenant has organized or become a member of a tenants' union or similar organization.

"(2) If the landlord acts in violation of subsection (1) of this section the tenant is entitled to the remedies provided in ORS 91.815 and has a defense in any retaliatory action against him for possession. In an action by or against the tenant, evidence of a complaint within six months before the alleged act of retaliation creates a disputable presumption that the landlord's conduct was in retaliation. The presumption does not arise if the tenant made the complaint after notice of a proposed rent increase or diminution of services.

"(3) Notwithstanding subsections (1) and (2) of this section, a landlord may bring an action for possession if:

"(a) The violation of the applicable building or housing code was caused primarily by lack of reasonable care by the tenant or other person in his household or upon the premises with his consent;

"(b) The tenant is in default in rent; or

"(c) Compliance with the applicable building or housing code requires alteration, remodeling or demolition which would effectively deprive the tenant of use of the dwelling unit.

"(4) The maintenance of an action under subsection (3) of this section does not release the landlord from liability under subsection (2) of ORS 91.800." ³

Marquam first argues that ORS 91.865, in particular, and the Act in general, are invalid because they distinguish between residential and nonresidential tenancies. ⁴ Marquam contends that this is an unreasonable classification which results in a denial of equal protection. ⁵ According to Marquam, the legislature may not prohibit only residential landlords from retaliating against their tenants.

Our review of ORS 91.865, and of the act in general,

" * * * is limited to the minimal scrutiny test applicable to legislation in the areas of economics and social welfare. See Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). That test requires only that there be some rational basis for the classification made by the statute and '(a) statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 81 S.Ct. 1218, 6 L.Ed.2d 393 (1961). * * * " Or. State Homebuilders v. City of Tigard, 43 Or.App. 791, 797-98, 604 P.2d 886 (1979).

Focusing particularly on the Oregon Constitution,

" * * * Classification is rendered invalid by Article I, Section 20, Constitution of Oregon, only if it is arbitrary, unreasonable and not based upon differences in distinctive characteristics * * *." Foeller v. Housing Authority of Portland, 198 Or. 205, 259, 256 P.2d 752 (1953); see also Olsen v. State ex rel. Johnson, 276 Or. 9, 554 P.2d 139 (1976).

Here, the classification between residential and nonresidential tenancies is not irrational, arbitrary or unreasonable. The legislature could have rationally concluded that the disparity in bargaining power between residential tenants and their landlords, and the particular personal significance of residential housing to tenants, see Brewer v. Erwin, n. 1 supra, 287 Or. at 444-45, 600 P.2d 545, justified differing treatment for residential tenancies. The classification is not unconstitutional. See also Marcus Brown Co. v. Feldman, 256 U.S. 170, 198-99, 41 S.Ct. 465, 466, 65 L.Ed. 877 (1921).

Marquam next argues that ORS 91.865 impermissibly impedes its access to the courts. Marquam emphasizes the following language in subsection (1):

"Except as provided in this section, a landlord may not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for possession after (the happening of certain specified events.)" ⁶

Marquam contends that this language contravenes Article I, Section 10 of the Oregon Constitution, which provides:

"No court shall be secret, but justice shall be administered openly and without purchase, completely and without delay, and every man shall have a remedy by due course of law for injury done him or his person, property, or reputation." (emphasis added).

It is difficult to identify the precise conflict which Marquam apparently perceives between ORS 91.865(1) and Article I, Section 10. Marquam may misread the statute: The statute does not absolutely prohibit a landlord from bringing an action for possession even if the action ultimately is shown to be retaliatory. Rather, the statute provides that, in most situations, see ORS 91.865(3), supra, a tenant may defend against the action on the basis that it is retaliatory. ORS 91.865(2), supra. (The tenant may also recover damages if the action is, in fact, retaliatory. ORS 91.865(2); 91.815.)

On the other hand, Marquam may misinterpret the constitutional provision. Article I, Section 10 is not a guarantee that every litigant will be successful, or will not face efficacious defenses.

" '* * * Article I, Section 10, Oregon Constitution, was not intended to give anyone a vested right in the law either statutory or common; nor was it intended to render the law static * * *.' " Josephs v. Burns & Bear, 260 Or. 493, 503, 491 P.2d 203 (1971), quoting from Noonan v. City of Portland, 161 Or. 213, 249, 88 P.2d 808 (1939); see also Ortwein v. Schwab, 262 Or. 375, 382, 498 P.2d 757 (1972), aff'd, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572, reh. den. 411 U.S. 922, 93 S.Ct. 1551, 36 L.Ed.2d 315 (1973).

ORS 91.865(1) does not unconstitutionally impede Marquam's access to the courts.

Marquam also asserts that ORS 91.865 subjects it to involuntary servitude and that the application of the statute results in an uncompensated taking of its property. ⁷ These claims are interrelated. As Marquam reads the statute, it forces a landlord to continue to provide services and to rent the premises indefinitely.

Marquam exaggerates the effect of the statute. ORS 91.865(1) only prohibits a landlord from decreasing services or from seeking to recover possession when those actions are retaliatory. The statute does not require all landlords, in all situations, to continue to rent their property with no decrease in service. Even an otherwise retaliatory and prohibited action for possession may be brought in certain circumstances, as when the tenant is in default in rent. ORS 91.865(3). In any event, we hold that ORS 91.865 does not subject Marquam to involuntary servitude or result in a taking of its property.

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