Roberts v. Thies

• Decision Date: 15 January 1985
• Citation: 70 Or.App. 256,689 P.2d 356
• Parties: Jo Lu ROBERTS, Respondent, v. Dorothy M. THIES, Defendant, and City of Eugene, a municipal corporation, Appellant. 16-80-04750; CA A29113.
• Court: Oregon Court of Appeals

Page 356

689 P.2d 356

70 Or.App. 256

Jo Lu ROBERTS, Respondent, v. Dorothy M. THIES, Defendant and City of Eugene, a municipal corporation, Appellant.

16-80-04750; CA A29113.

Court of Appeals of Oregon.

Argued and Submitted July 30, 1984.

Decided Oct. 10, 1984.

Reconsideration Denied Dec. 21, 1984.

Review Denied Jan. 15, 1985.

John Arnold, Eugene, argued the cause for appellant. On the briefs were Martha L. Walters, and Harrang, Swanson, Long & Watkinson, P.C., Eugene.

Wayne G. Helikson, Eugene, argued the cause and filed the brief for respondent.

William J. Juza, Salem, and Christopher P. Thomas, Portland, filed a brief amicus curiae for City of Salem and City of Portland. Fred Roy Neal III, Salem, for League of Oregon Cities, joined in the amicus curiae brief.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Defendant City of Eugene appeals from a judgment in which it was found liable under 42 U.S.C. § 1983 (1982), ¹ for refusing to issue a ballot title to refer to the city's voters an ordinance adopted by the Eugene City Council.

Defendant assigns as error the following rulings of the trial court: (1) granting plaintiff partial summary judgment on the issue of whether the ordinance was subject to a referendum and denying defendant's cross-motion on that issue; (2) granting plaintiff partial summary judgment on the issue of defendant's liability under 42 U.S.C. § 1983 (1982); and (3) denying defendant's motion to dismiss for failure to state ultimate facts sufficient to constitute a claim.

Defendant's three assignments of error raise two issues in this appeal. Because we decide that the ordinance in question is not municipal legislation subject to a referendum under Article IV of the Oregon Constitution, ² we need not discuss whether plaintiff may assert a claim under 42 U.S.C. § 1983 (1982).

In 1970, the Eugene City Council adopted the Eugene-Springfield Metropolitan 1990 General Comprehensive Land Use Plan; this plan was acknowledged by the Land Conservation and Development Commission in 1977. In 1978, the Eugene City Council adopted a refinement of the general plan for the Whiteaker Community that called for the development of a park in the Blair neighborhood. In August, 1979, pursuant to statutory authority, ³ the council adopted Ordinance No. 18488, authorizing the acquisition by eminent domain, of property for this purpose.

Plaintiff was opposed to that ordinance and applied for a ballot title to subject the ordinance to a municipal referendum. The city attorney refused to issue a ballot title on the ground that the ordinance is not subject to referendum. Plaintiff did not seek an injunction or writ of mandamus, but initiated this action for damages under 42 U.S.C. § 1983 (1982).

Article IV, section 1(5), of the Oregon Constitution provides that the referendum powers are reserved to the "voters of each municipality and district as to all local, special and municipal legislation." Defendant and amicus curiae contend that Ordinance No. 18488 was administrative, not legislative, in character, and was not referable.

Oregon cases clearly distinguish the acts of a city council which are subject to the referendum from those which are not.

" * * * The only acts of the council that are subject to the referendum, by Section 1[ (5) ], Article IV, are such as come within the term 'municipal legislation.' Legislation as here contemplated must be considered in the sense of general laws, namely, rules of civil conduct prescribed by the lawmaking power and of general application. * * * [T]he law is said to be a rule--not a transient, sudden order to and concerning a particular person, but something permanent, uniform, and universal. * * * " Long v. City of Portland, 53 Or. 92, 98 P. 149, reh. den. 53 Or. 99, 100-01, 98 P. 1111 (1909).

The Supreme Court applied this test in Monahan v. Funk, 137 Or. 580, 3 P.2d 778 (1931), a case similar to this one. A section of the Portland city charter authorized the issuance of bonds and the use of the proceeds to acquire property on which to construct an incinerating plant. To administer that provision of the charter, the city council enacted an ordinance authorizing the purchase of a particular parcel. The plaintiff sought to subject the ordinance to a referendum, and the city auditor refused to accept the referendum petition for filing on the ground that the ordinance was an administrative act not subject to the referendum. The plaintiff then sought a writ of mandamus.

In ordering the dismissal of the writ, the Supreme Court first noted that "[t]he form of the act is not determinative; that is, an ordinance may be legislative in character or it may be administrative. * * * " 137 Or. at 584, 3 P.2d 778. The court continued:

"The crucial test, for determining that which is legislative and that which is administrative, is whether the ordinance was one making a law or one executing a law already in existence. * * * The council, in directing the commissioner to purchase a tract of land, was executing that portion of the charter just referred to. If proceedings had been instituted by the city for the condemnation of the real property described, to be used for crematory purposes, it is very doubtful if the referendum petition would have been thought of. The act of purchasing a parcel of real estate is no more legislative than the act of purchasing a fire engine and truck. It is not the enactment of a...