Oregon Mass Transp. Financing Authority, Matter of
| Decision Date | 15 November 1978 |
| Citation | 284 Or. 241,586 P.2d 784 |
| Parties | In the Matter of the Constitutionality of the OREGON MASS TRANSPORTATION FINANCING AUTHORITY. SC 25519. |
| Court | Oregon Supreme Court |
Leslie M. Roberts, Portland, argued the cause for petitioners Tri-County Metropolitan Transp. Dist. of Oregon, Lane County Mass Transit Dist., and Glenn L. Jackson. With her on the brief was Kell, Alterman & Runstein, Portland.
Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for the Oregon Mass Transp. Financing Authority. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.
George A. Rhoten, Salem, argued the cause for intervenor Jack Ripper. With him on the brief were David A. Rhoten, and Rhoten, Rhoten & Speerstra, Salem.
The 1977 legislature enacted the Oregon Mass Transportation Financing Act (). In this original proceeding, which is brought pursuant to Section 20 of the Act, we are asked to determine the Act's constitutionality.
The Act, briefly summarized, creates the Oregon Mass Transportation Financing Authority and authorizes the Authority to assist mass transit districts established under ORS 267.010 to 267.390 in financing transit facilities. Funds for this financial assistance are to be raised by the issuance of bonds of the Authority. The bonds are payable out of the monies received by the Authority from the mass transit districts in payment of loans made by the Authority to the districts or from the lease or sale by the Authority to the districts of transit facilities.
The Act contains detailed provisions for carrying out the financing plan and also provides in Section 20:
A timely petition was filed requesting a determination that the Act is constitutional. Petitioners are the Chairman of the Oregon Transportation Commission and two mass transit districts. The Authority is named in the petition as respondent, but did not file any pleading. At our request, the Attorney General filed a brief on the Authority's behalf. The Attorney General's brief supports the constitutionality of the Act. We allowed the petition of Jack Ripper that he be permitted to intervene in order to assert that the Act is unconstitutional.
We asked the parties to brief the question whether this proceeding presents a justiciable controversy. In Oregon Medical Association v. Rawls, 281 Or. 293, 574 P.2d 1103 (1978) ("OMA II "), we held that a similar proceeding to have a statutory scheme declared constitutional did not invoke the judicial power of the state which is vested in the courts by Article VII (amended) § 1 of the Oregon Constitution. In that case there was no controversy whatsoever between the parties; both contended that the statute was constitutional. The legislature had attempted to provide in advance for that eventuality by providing that "a justiciable controversy ripe for determination shall be deemed to exist" upon the mere filing of a petition for a determination of constitutionality. We held that attempt to be ineffectual, pointing out that the presence of a party raising a specific constitutional challenge for determination was "essential to responsible adjudication." 281 Or. at 298, 574 P.2d 1103. We pointed out that in Martin v. Oregon Building Authority, 276 Or. 135, 554 P.2d 126 (1976), which was brought under a provision for constitutional review in this court similar to Section 20 of the present Act, the petitioner had asserted a specific constitutional attack upon the statute. A court cannot, we held in OMA II, adjudicate "constitutionality in the abstract"; that is, the judicial power does not extend to a determination that a statute can never be successfully challenged in the future on any possible constitutional ground. 281 Or. at 298-99, 574 P.2d 1103.
Section 20 of the Act appears to contemplate just such a determination. It does not require the naming or the presence of adverse parties, nor does it require the petitioner to allege the existence of a controversy about the constitutionality of the Act. We would not, however, refuse to consider a justiciable controversy over which Section 20 gives us original jurisdiction merely because the statute also appears to authorize proceedings which do not meet that test. Instead, we examine the issues actually before us.
The petition alleges that the Authority "is unable or unwilling to proceed with the statutory program contemplated in (the Act) in the absence of a clear declaration that (the Act) is constitutional as enacted" and requests us to determine that the Act "complies with the Constitution of Oregon and is effective as enacted."
We allowed petitioners to place in the record the minutes of the Authority's organizational meeting. The minutes show that the petitioner transit districts presented to the Authority proposals for financing through the Authority certain mass transit equipment and facilities. By resolution, the Authority "decline(d) to proceed with consideration" of the districts' proposals "for the reason that the Authority is unable or unwilling to proceed with such financing in the absence of a determination that the Authority and the statutory enactment under which it is created is constitutional."
Even if we treat the minutes as though they were a part of the petition, the petition presents no constitutional issue for adjudication. Neither does the respondent Authority supply any constitutional controversy. Its only response is the brief of the Attorney General which was solicited by the court. This brief, as in the case of the petition, asserts the constitutionality of the Act. Therefore, there is no constitutional controversy between the original parties in this proceeding. It is impossible for this court, or for any other court, to make a principled adjudication of constitutionality in the vacuum which results from the lack of such controversy, to anticipate all possible claims of constitutional imperfection in every context that may arise concerning this or any other statutory scheme. Without an actual challenge which calls into question the constitutionality of some particular aspect of the Act, the duty placed upon us by Section 20 is an impossible one and does not invoke the judicial power of the court vested by the Constitution. An adjudication of constitutionality is necessarily a response to a claim of unconstitutionality and, as we have previously said, cannot be made in the abstract.
At most, if liberally construed, the petition discloses a controversy as to whether the Authority, when requested by a transit district to perform the function for which it was created, may refuse to do so on the ground that the legislation creating it has never been held by a court to be valid. Thus, the only controversy disclosed by the allegations of the petition concerns the limits of the Authority's discretion to refuse to act. That question involves not the constitutionality of the legislation but only its proper construction.
It may be that the allegations of the petition, thus construed, present a justiciable controversy appropriate for determination in a suitable proceeding. Such a controversy is not, however, within the original jurisdiction of this court as defined in Section 20 of the Act. Our jurisdiction under that section is limited to determining questions of constitutionality.
It is urged, however, that this proceeding does involve a controversy over constitutionality because of the presence of an intervenor who asserts that the Act is unconstitutional in certain particulars. However, in the absence of a petition or a response disclosing a controversy within our original jurisdiction under Section 20 there was no proceeding before this court in which to intervene....
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... ... matter is before us on plaintiff's motion to dismiss the appeal ... proceed where jurisdiction is lacking." In re Oregon Mass Transp. Fin. Auth., 284 Or. 241, 586 P.2d 784 (1978). 1 ... ...