Powell v. Bunn

Decision Date11 December 2002
Citation59 P.3d 559,185 Or.App. 334,326 Or. 557
PartiesNancy L. POWELL, an individual, Remington Powell, a minor, through his Guardian ad Litem Nancy L. Powell, Appellants, v. Stan BUNN, individually and as Superintendent of Public Instruction; Portland Public School District No. 1J, Respondents.
CourtOregon Court of Appeals

Andrea R. Meyer, Portland, argued the cause for appellants. With her on the briefs was Paul R. Meyer.

Janet Metcalf, Assistant Attorney General, argued the cause for respondent Stan Bunn. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

William J. Walters, Portland, argued the cause for Portland Public School District No. 1J. With him on the brief were Jeffrey B. Millner and Miller Nash, LLP, Portland.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

LINDER, J.

The Portland Public School District (district) allows community organizations to use school facilities, subject to certain restrictions. The Pacific Cascade Council of the Boy Scouts of America (Boy Scouts) is one of the organizations that takes advantage of that policy. For schools underserved by scouting programs, particularly those with disadvantaged student populations, the Boy Scouts engages in an outreach program designed to encourage interested school-aged boys to join the Boy Scouts. Plaintiff is the mother of a boy enrolled in one of the district's schools. Plaintiff brought these proceedings in circuit court to challenge the district's policy of permitting the Boy Scouts to make in-school membership presentations to students, contending that the Boy Scouts is a religious organization whose in-school activities violate state constitutional and statutory prohibitions of governmental establishment of religion. The circuit court rejected plaintiff's challenges. Plaintiff appeals, and we affirm.

I. BACKGROUND
A. Procedural Posture

Before describing the factual circumstances that gave rise to this dispute, it is helpful to clarify the procedural posture of the case and the nature of the record before us. To raise her objections to the Boy Scouts' access to public schools, plaintiff filed a complaint with the Superintendent of Public Instruction (superintendent)1 alleging a violation of ORS 327.109.2 In it, plaintiff asserted that the district, by permitting the Boy Scouts to present membership information to boys on school premises, "sponsors, financially supports or is actively involved with religious activity." In response, the superintendent conducted a preliminary investigation, after which he issued an order entitled "Finding of Preliminary Investigation." The superintendent concluded in that order that there was no substantial basis to believe that the district was impermissibly involved with religious activity. He therefore declined to hold a contested case hearing to determine whether state funding should be withdrawn from the district, which is the sanction that the statute provides if a complaint is well founded.

Plaintiff sought judicial review of the superintendent's order in circuit court pursuant to the procedures for review of an order in other than a contested case. See ORS 183.484. In her complaint, she also pleaded claims for civil declaratory and injunctive relief against the district, alleging that the district's policy and practice of permitting the Boy Scouts to have access to its schools to encourage membership in their organization violates the Oregon Constitution's prohibition against an establishment of religion. By way of relief on those claims, plaintiff sought an injunction prohibiting the district from continuing to allow the Boy Scouts to present membership information to students on public school premises.

All parties moved for summary judgment in their favor in the respective actions. The circuit court granted summary judgment in favor of each defendant in the two actions and denied plaintiff's motions for summary judgment. On appeal, plaintiff assigns error to the grant of summary judgment for each defendant and the denial of summary judgment in her favor. See To v. State Farm Mut. Ins., 123 Or.App. 404, 410, 860 P.2d 294 (1993), aff'd in part, rev'd in part on other grounds, 319 Or. 93, 873 P.2d 1072 (1994).

The procedural posture of the case is important for its bearing on our standard of review. The standard of review for cross-motions for summary judgment is a familiar one. Each party that moves for summary judgment has the burden of demonstrating that there are no material issues of fact and that the movant is entitled to judgment as a matter of law. McKee v. Gilbert, 62 Or.App. 310, 321, 661 P.2d 97 (1983). The trial court must view the evidence and all reasonable inferences it may support in the light most favorable to the nonmoving party and determine whether the moving party, despite that view of the evidence, is entitled to judgment as a matter of law. ORCP 47 C; Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). On appeal, the trial court's "standard for decision" becomes our standard of review. We therefore review the evidence and all reasonable inferences in the light most favorable to the nonmoving party and determine whether the moving party is entitled to judgment as a matter of law. Jones, 325 Or. at 420,939 P.2d 608. In the case of cross-motions for summary judgment, we determine which party is entitled to judgment as a matter of law. Stevens v. Bispham, 316 Or. 221, 223, 851 P.2d 556 (1993).

That standard of review applies without difficulty to the judgment for the district on plaintiff's civil claim for declaratory and injunctive relief. But it is not appropriate for the judgment in favor of the superintendent on judicial review of the superintendent's administrative order. The circuit court's charge in that proceeding was to test the superintendent's factual determinations for "substantial evidence," which meant that the circuit court was to decide only whether "the record, viewed as a whole, would permit a reasonable person to make" the factual findings that the superintendent made. ORS 183.484(5)(c). On appeal, our function is to determine whether the circuit court correctly applied the standards of its review under ORS 183.484. Teel Irrigation Dist. v. Water Resources Dept., 135 Or.App. 16, 23, 898 P.2d 1344 (1995), aff'd in part and vac'd in part, 323 Or. 663, 919 P.2d 1172 (1996). Our review of factual issues, then, is limited to whether the circuit court correctly decided that the order is supported by substantial evidence. United Citizens v. Environmental Quality Comm., 104 Or.App. 51, 54, 799 P.2d 665 (1990), rev. den., 311 Or. 151, 806 P.2d 129 (1991).3 In short, the general standards for summary judgment—and, in particular, viewing factual disputes in the light most favorable to a nonmoving party—are not appropriate in the judicial review of an administrative order in a noncontested case proceeding.

As a practical matter, the procedural posture of the proceeding reviewing the superintendent's order does not impair our ability to review the circuit court judgment, because the issue ultimately is a legal one only.4 In the circuit court, plaintiff did not challenge any of the superintendent's factual findings as unsupported by the record, and she does not do so on appeal.5 The crux of her argument is that the superintendent incorrectly interpreted the legal standards that should apply to her challenge. The same argument forms the centerpiece of her position with respect to her civil declaratory and injunctive action, where summary judgment was an appropriate procedural mechanism to invoke, but the parties were (and remain) in agreement that there were no disputed issues of material fact. Thus, although the standards of review that apply to the civil action and the review proceeding differ, ultimately they converge, because the inquiry for both is legal only. We therefore review the cross-motions for summary judgment in plaintiff's civil action for declaratory judgment and injunctive relief to determine which partyplaintiff or the district—was entitled to judgment as a matter of law, which entails reviewing whether the trial court correctly applied the law to the facts. We review the judgment in favor of the superintendent on review of his order to determine if the trial court correctly interpreted and applied the correct legal standards. Teel Irrigation Dist.,135 Or.App. at 23,898 P.2d 1344.

B. The Facts

Pursuant to what appears to have been the mutual agreement of all concerned, the trial court treated the superintendent's order, together with affidavits, exhibits, and documentation submitted in support of the summary judgment motions, as a single record on which both proceedings (i.e., the civil action and the review proceeding) should be resolved. The record before us for our review therefore consists of the express factual findings in the superintendent's order, together with the evidentiary record developed by the combined summary judgment submissions.6 Although the parties disagree as to the legal significance of certain facts, the pertinent facts themselves are not disputed.

Pursuant to formally promulgated policies, the district permits "responsible school and nonschool organizations, associations, and individuals" to have access to school grounds and facilities during and after school hours under specified conditions.7 The district does so recognizing that schools and facilities are tax supported and that access for community groups enriches the education and the welfare of the students and enhances community life generally.8 The groups that the district's policies specifically anticipate will use school facilities at various times for various purposes include (1) school organizations (such as school clubs and parent-teacher organizations); (2) principal-approved nonschool...

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