SERGEANT'S TOWING v. City of Portland

• Decision Date: 04 April 2001
• Citation: 173 Or. App. 359,22 P.3d 237
• Parties: SERGEANT'S TOWING, INC, an Oregon corporation; Handy Andy Towing, Inc., an Oregon corporation; Oregon Towing Co., an Oregon corporation; and Speed's Automotive, Inc., an Oregon corporation dba Speed's Towing, Inc., Respondents, v. CITY OF PORTLAND, BUREAU OF POLICE, Appellant.
• Court: Oregon Court of Appeals

22 P.3d 237

173 Or. App. 359

SERGEANT'S TOWING, INC, an Oregon corporation; Handy Andy Towing, Inc., an Oregon corporation; Oregon Towing Co., an Oregon corporation; and Speed's Automotive, Inc., an Oregon corporation dba Speed's Towing, Inc., Respondents, v. CITY OF PORTLAND, BUREAU OF POLICE, Appellant.

(9806-04626; CA A104335)

Court of Appeals of Oregon.

Argued and Submitted November 12, 1999.

Decided April 4, 2001.

Nancy E. Ayres, Senior Deputy City Attorney, argued the cause and filed the brief for appellant.

Sean Donahue, Portland, argued the cause for respondents. With him on the brief was Donahue & Associates.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

ARMSTRONG, J.

Plaintiffs are four towing companies that have contracts with defendant City of Portland to tow and store vehicles for the city, including private vehicles that the city has ordered to be towed for parking or traffic violations. Plaintiffs brought a declaratory judgment proceeding to determine whether they are required to pay the city a $15 fee on certain towed vehicles after plaintiffs have foreclosed their statutory liens against the vehicles for towing and storage charges or otherwise have acquired ownership of them.¹ The court entered a judgment that declared that plaintiffs are not required to pay the fee, and the city appealed. We conclude that plaintiffs are required to pay the fee and, therefore, reverse.

Portland City Code (PCC) Chapter 16 governs the towing and release of private vehicles. PCC 16.30.520 is the provision that addresses release. It provides:

"A. Any private company that tows and stores any vehicle pursuant to this Chapter, shall have a lien on the vehicle, in accordance with ORS 87.152, for the just and reasonable charges for the tow and storage services performed. The company may retain possession of that vehicle, consistent with this Chapter, until towing and storage charges have been paid. Provided, however, the City shall pay all storage charges that accrue as a result of the hearings process [that is provided in this Chapter].

"B. If the required towing and storage charges have been paid, the vehicle must be immediately released to the person(s) entitled to lawful possession. A vehicle towed pursuant to [PCC] 16.30.220 K shall be immediately released to the person(s) entitled to lawful possession upon [presentation of] proof of insurance and payment of towing [and] storage and payment of a $15 fee to the police agency. If towing and storage charges have not been paid, a vehicle will not be released except upon order of the Towing Hearings Officer.

"C. A vehicle towed pursuant to this Chapter may only be released to the owner, or to the person who was lawfully in possession or control of the vehicle at the time it was towed, or to a person who purchased the vehicle from the owner and who produces written proof of ownership. In all cases, adequate evidence of the right to possession of the vehicle as determined by the City Towing Board of Review, must be presented prior to the release of the vehicle."

As the quoted language from subsection B indicates, the provision distinguishes between vehicles towed pursuant to PCC 16.30.220 K and all other towed vehicles. Only people seeking release of vehicles towed pursuant to PCC 16.30.220 K are required to pay a $15 fee before their vehicles are released. The vehicles subject to that fee are vehicles that have been towed at the order of police officers who reasonably believe that the drivers of the vehicles were driving uninsured, driving with a suspended or revoked license, or driving without a valid operator's license.²

Towing companies may acquire title to towed vehicles through the foreclosure of statutory liens for towing and storage charges or through the voluntary transfer of title by vehicle owners as payment for those charges. In 1994, the city began to demand that towing companies pay the city the $15 fee specified in PCC 16.30.520 B for the release of vehicles towed pursuant to PCC 16.30.220 K on which the companies have acquired title. A member of the city's Towing Board of Review raised a question about that policy at a July 1995 board meeting. That led the board's chair to request an opinion from the city attorney's office on the city's authority to require towing companies to pay the fee. A deputy city attorney responded to that request by sending the chair an interoffice memorandum that concluded that the city could require the companies to pay it.

In 1997, a lawyer for an association of towing companies wrote a letter to the city's mayor asking her (1) to sponsor an ordinance that would exempt towing companies from the fee or (2) to direct the city's police department not to collect the fee from the companies. The mayor responded with a letter that rejected those requests. Her response led plaintiffs to file their declaratory judgment action, which led to the declaratory judgment from which the city appealed.

The city and plaintiffs present various issues on appeal, which we address in turn. The city first argues that the trial court lacked jurisdiction of the action and therefore erred in failing to dismiss it. The city reasons that the mayor's letter rejecting the request that she sponsor an ordinance to exempt the towing companies from paying the fee or that she direct the police department not to require them to pay it constituted a quasi-judicial decision by the mayor. If it were such a decision, it could be challenged only by filing a petition for a writ of review within 60 days of the mayor's letter, see ORS 34.020 to ORS 34.040, which plaintiffs did not do.

The short answer is that the mayor's decision to reject the association's request was not a quasi-judicial decision. For these purposes, a quasi-judicial decision is one that is the product of an adjudicative process. At a minimum, such a process is one that "is bound to result in a decision * * * that * * * is bound to apply preexisting criteria to concrete facts." Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or. 591, 602-03, 601 P.2d 769 (1979).³ The letter to the mayor from the association's lawyer sought a political solution to a legal dispute. The mayor's response to the letter indicates that she understood it that way.⁴ Although the letter threatened litigation if the dispute were not resolved, the mayor was under no legal obligation to respond to it or, if she did, to give anything other than a political response. Consequently, the letter did not initiate a process that was bound to result in a decision that applied preexisting criteria to concrete facts. It follows, therefore, that the mayor's response to the letter did not constitute a quasi-judicial decision that plaintiffs had to challenge, if at all, by writ of review.⁵

The city also argues that the court erred by failing to dismiss plaintiffs' action for failure to join as parties to the action all of the towing companies that could be affected by the court's declaration. ORS 28.110 provides that,

"[w]hen declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding."

The record indicates that there are 34 towing companies that have contracts with the city to provide towing services. Plaintiffs are four of those 34 companies. The city argues that ORS 28.110 required plaintiffs to join the other 30 companies in the declaratory judgment action, because the other companies have interests that would be affected by the declaration.

A declaration that the city could not collect the $15 fee from plaintiffs certainly could benefit the other 30 companies, because the city presumably would treat the declaration as one that applied to the collection of the fee from all towing companies, not just plaintiffs. However, a contrary declaration would not necessarily affect the other companies, because they would not be bound by it and would be free to litigate the issue themselves if they chose. We conclude that the potential effect of the declaration on the other towing companies is not the type of effect that required plaintiffs to join the other companies in the action.

The effect of a declaration on the absent towing companies is similar to the effect of the declaration in Deras v. Myers, 272 Or. 47, 535 P.2d 541 (1975), on people who had interests equivalent to those of the plaintiff in that case. The plaintiff in Deras was a state legislative candidate who sought a declaration that state statutes that restricted political campaign expenditures violated Article I, section 8, and Article I, section 26, of the Oregon Constitution. Other political candidates and citizens had interests equivalent to those of the plaintiff, and those interests could have been affected by the declaration in Deras in the same way that the interests of the absent towing companies could be affected by the declaration in this case. If the city is correct that ORS 28.110 requires the absent towing companies to be joined in this case, then the statute required the plaintiff in Deras to join all political candidates and citizens in his action as well, and it required the court to dismiss the action on its own motion for the plaintiff's failure to join them. See, e.g., Stanley, Adm. v. Mueller, 211 Or. 198, 200-02, 315 P.2d 125 (1957). Of course, the court did not dismiss the action in Deras, and the trial court properly rejected the city's argument that the absent towing companies had to be joined in this case.

The type of shared interests at issue in this case and in Deras differ from those at issue in the cases in which courts have held that ORS 28.110 required absent parties to be joined. For example, the court held in Stanley that the devisees under a will had to be joined in a declaratory judgment proceeding brought by an estate administrator...