Sims v. Besaw's Café

• Decision Date: 26 January 2000
• Citation: 165 Or. App. 180,997 P.2d 201
• Parties: David SIMS, Appellant, and City of Portland, a municipal corporation, Intervenor-Appellant, v. BESAW'S CAFÉ, and Besaw's Café, an Oregon corporation, Defendants, and Richard G. Beasley, individually and dba Besaw's Café, and all predecessors and successors in interest, Respondent.
• Court: Oregon Court of Appeals

997 P.2d 201

165 Or. App. 180

David SIMS, Appellant, and City of Portland, a municipal corporation, Intervenor-Appellant, v. BESAW'S CAFÉ, and Besaw's Café, an Oregon corporation, Defendants, and Richard G. Beasley, individually and dba Besaw's Café, and all predecessors and successors in interest, Respondent.

(9611-08970; CA A99868)

Court of Appeals of Oregon, En banc.

Argued and Submitted October 9, 1998.

Resubmitted September 8, 1999.

Decided January 26, 2000.

Madelyn Wessel, Chief Deputy City Attorney, argued the cause and filed the brief for intervenor-appellant City of Portland.

Craig A. Crispin, Portland, filed the briefs for appellant David Sims. With him on the briefs were Shelley D. Russell and Crispin & Associates.

Charles W. Carnese, Portland, argued the cause and filed the brief for respondent Richard G. Beasley, individually and dba as Besaw's Café.

Lynn R. Nakamoto and Markowitz, Herbold, Glade & Mehlhaf, P.C., Portland, filed a brief amicus curiae for the American Civil Liberties Union Foundation of Oregon, Inc.

Before DEITS, Chief Judge, and EDMONDS, De MUNIZ, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, and BREWER, Judges.

Resubmitted En Banc September 8, 1999.

ARMSTRONG, J.

The City of Portland adopted an ordinance that prohibits Portland employers from discriminating against employees and prospective employees on a number of bases, including on the basis of sexual orientation. The ordinance implements the prohibition by providing people who are harmed by that conduct with a cause of action to redress the harm. The trial court held that Portland lacked authority to give people a cause of action that they could litigate in state court. We disagree with that conclusion and reverse, in part, the court's judgment.

Plaintiff filed an action for employment discrimination against defendant¹ in circuit court that alleged claims under the Portland ordinance, under a state statute, and under state tort law. Because plaintiff sought and defendant opposed a declaration that plaintiff could pursue a claim in state court under the Portland ordinance, the court allowed the City of Portland to intervene in the action to assert a claim for declaratory relief on the validity of its ordinance.² The court ultimately concluded that the city could not create a cause of action that plaintiff could litigate in state court. Based on that conclusion, the court dismissed the claims by plaintiff and the city under the Portland ordinance, and plaintiff stipulated to the dismissal of his state statutory claim.³ We conclude that the court erred in dismissing two of plaintiff's four claims and in dismissing the city's claim for declaratory relief.

Portland's charter gives the Portland City Council broad legislative authority. Defendant does not dispute that that authority includes the authority to prohibit employment discrimination by Portland employers. Indeed, defendant concedes that the city acted within its authority in enacting its anti-discrimination ordinance, except for its decision to include in the ordinance the provision that gives people "a cause of action in any court of competent jurisdiction" for harm that they suffer as a result of ordinance violations. Defendant raises a series of arguments against the validity of that provision. We address them in turn.⁴

Defendant first contends that the provision constitutes an impermissible delegation of the city's "police power,"⁵ because it authorizes private people, as opposed to city officials, to bring proceedings to enforce the ordinance. Defendant confuses law making with law enforcement. The authority that the Portland charter gives the city council to enact laws pursuant to the "police power" cannot be delegated by the council to others to exercise.⁶ The same prohibition applies to the delegation of legislative power by the state legislature.⁷ However, the prohibition against the delegation of law-making power has no application to legislative decisions about who can enforce the policies that the legislative body has chosen to establish. Defendant cites no authority and offers no analysis, and we are unaware of any, that supports the proposition that Portland impermissibly delegated its "police power" by giving people who are harmed by violations of its anti-discrimination ordinance a cause of action to redress the harm.

Defendant next contends that Portland lacks authority to give people a cause of action that can be litigated in state court because the creation of such a cause of action would add to the jurisdiction of the state courts, and only the state legislature can do that. Defendant is correct that local governments lack authority to change state court jurisdiction. He is mistaken, however, in believing that Portland's creation of a cause of action that can be litigated in state court does that.

There have been instances in which Oregon cities have exceeded their authority by enacting ordinances that purported to give state courts authority to perform functions that they had not been authorized by state law to perform. In La Grande v. Municipal Court et al., 120 Or. 109, 251 P. 308 (1926), for example, the La Grande charter gave people convicted of municipal offenses the right to appeal their convictions from municipal court to the local state circuit court. The Supreme Court had previously held that the provision in original Article VII, section 9, of the Oregon Constitution that gives circuit courts appellate jurisdiction over lower tribunals is not self-executing, which meant that additional law had to be adopted to give circuit courts authority to hear municipal appeals. See La Grande, 120 Or. at 116, 251 P. 308 (quoting Kadderly v. Portland, 44 Or. 118, 74 P. 710 (1903)). All that La Grande held was that the additional law had to be state rather than municipal law. In other words, the court held that the city could not assign a function to the local state circuit court—serving as the appellate court for the La Grande municipal court—that the state had not authorized the state court to perform.

Lines v. City of Milwaukie, 15 Or.App. 280, 515 P.2d 938 (1973), rev. den. (Or. 1974), applied the same principle. It involved a city charter that gave the circuit court appellate jurisdiction over the decisions of a city civil service commission. We held that the city lacked authority to add to the jurisdiction of the state courts and that the grant by the city to the circuit court of appellate jurisdiction over the city's civil service commission decisions had done that. See also Wong Sing v. Independence, 47 Or. 231, 234, 83 P. 387 (1905) (applied same principle).

Here, in contrast, the Portland ordinance does not purport to confer any jurisdiction on state courts or to assign any function to them. It provides only that people harmed by violations of it "shall have a cause of action in any court of competent jurisdiction." Whether the state circuit court is a court that has jurisdiction to adjudicate such a claim is an issue that we must address, but that is a different issue from the one presented in La Grande and Lines on whether cities can directly assign to state courts functions that they have not been authorized by state law to perform.⁸

As to the jurisdictional issue, we conclude that the state circuit court has jurisdiction to adjudicate a claim under the Portland ordinance. Except to the extent that it has been modified by statute, original Article VII, section 9, of the Oregon Constitution is the source of circuit court jurisdiction. See Or. Const., Art. VII, § 2 (amended). It provides:

"All judicial power, authority, and jurisdiction not vested by this Constitution, or by laws consistent therewith, exclusively in some other Court shall belong to the Circuit Courts, and they shall have appellate jurisdiction, and supervisory control over the County Courts, and all other inferior Courts, Officers, and tribunals."

No statute of which we are aware has changed that grant of jurisdiction in a way that is relevant to this case.

The judicial power identified in that provision includes the power to adjudicate civil, or private-law, disputes without regard to the source of the law. As long as a circuit court has personal jurisdiction over the parties, the parties can litigate claims based on the law of this and other states, of the United States, and of foreign countries.⁹ There are court-created principles that bear on the manner and extent to which an Oregon circuit court will adjudicate a private dispute based on foreign law, but the court has jurisdiction to do it.

Aldrich v. Anchor Coal Co., 24 Or. 32, 32 P. 756 (1893), illustrates the principle. Aldrich involved a claim by a contractor against a stockholder of a California corporation for a debt allegedly owed by the corporation to the contractor. The contractor based its claim on a California statute that made stockholders of California corporations individually liable for their proportionate share of corporate liabilities. It was not a claim that was cognizable under Oregon law, and the trial court dismissed it on that basis. The Supreme Court reversed, holding that the court had authority to adjudicate the claim:

"The [California] statute indeed creates a new right and liability not existing at common law, but [it] does not prescribe a peculiar remedy for its enforcement; it only declares that it may be enforced by action, leaving the creditor to select such common-law remedies as may be in use in the jurisdiction where the suit is brought to enforce such liability. * * * Where a liability * * * is created by statute, without making the procedure for its enforcement, as it were, a part of the liability, we cannot see why it should not be enforced in any court having jurisdiction of the subject matter and the parties."

Aldrich, 24 Or. at 38, 32 P. 756.¹⁰

Oregon municipal law also is a source of law that an Oregon circuit court can apply in adjudicating a...