State ex rel. Kirsch v. Curnutt

• Decision Date: 24 August 1993
• Citation: 853 P.2d 1312,317 Or. 92
• Parties: STATE of Oregon ex rel. Thomas H. KIRSCH, John Hatfield, Lee Bissel, Donna Davis, Patricia Creelman, Mike Weber and Errol Schnider, Respondents on Review, v. John CURNUTT, Patricia Neff, Michael Throop, Steven Heydon and John Doe, Petitioners on Review. (CC 87 CV 0061-33; CA A67772; SC S39484).
• Court: Oregon Supreme Court

Page 1312

853 P.2d 1312

317 Or. 92

STATE of Oregon ex rel. Thomas H. KIRSCH, John Hatfield, Lee Bissel, Donna Davis, Patricia Creelman, Mike Weber and Errol Schnider, Respondents on Review, v. John CURNUTT, Patricia Neff, Michael Throop, Steven Heydon and John Doe, Petitioners on Review.

(CC 87 CV 0061-33; CA A67772; SC S39484).

Supreme Court of Oregon In Banc.

Argued and Submitted Jan. 8, 1993.

Reassigned March 31, 1993.

Decided July 1, 1993.

Reconsideration Denied Aug. 24, 1993.

Paul R.J. Connolly, of Donaldson, Albert, Tweet, Connolly, Hanna & Muniz, Salem, argued the cause and filed the petition for petitioners on review.

Timothy R. Volpert, of Davis Wright Tremaine, Portland, argued the cause for respondents on review. With him on the response were Steven R. Rinkle, Portland, and Edward E. Sites, of Glenn, Sites & Reeder, Madras.

VAN HOOMISSEN, Justice.

This is a case involving the permissibility of forming a health district within the boundaries of a previously established health district. ORS chapter 198 establishes procedures for the formation and organization of a number of types of special districts, including health districts authorized under ORS chapter 440. ORS 198.010(10). At issue in this case is the meaning of ORS 198.720, which provides in part:

"Except as otherwise specifically provided by the principal Act:

" * * * * *

"(2) A district may not include territory included within another district formed under the same principal Act when the other district is authorized to perform and is performing the services the affected district is authorized to perform, unless:

"(a) Withdrawal of such territory is proposed and the territory is withdrawn by withdrawal proceedings conducted in the other district simultaneously with the formation * * * proceedings * * *; or

"(b) The principal Act provides for automatic withdrawal of the affected territory in such a case." ¹ (Emphasis added.)

The material facts are not in dispute. Mountain View Hospital District (MVHD) was formed under ORS chapter 440 in 1964 and has existed continuously since then. It is located within, and includes most of, Jefferson County. MVHD performs some of the health services authorized by ORS chapter 440, including operation of a hospital, ORS 440.360(10), but does not perform ambulance service, ORS 440.360(12). Between 1964 and 1985, the City of Madras furnished ambulance service to the area. In 1985, Madras discontinued its ambulance service and donated its ambulance equipment to a group of volunteers.

The volunteers considered, but rejected, the possibility of affiliating with MVHD in providing ambulance service. Instead, pursuant to ORS chapter 198, the volunteers petitioned for a special election to create a new health district. In September 1986, voters approved the new district, the Jefferson County Emergency Services District (JCESD). JCESD is entirely within the boundaries of MVHD, but it is smaller than MVHD.

MVHD and JCESD are authorized under the same principal act and have identical powers and purposes, including: the power to operate health care facilities and to provide ambulance services and clinic facilities, ORS 440.320(1), 440.360(12) and (13); to sue and be sued, ORS 440.360(1); to enter into contractual agreements, ORS 440.360(2); to borrow money, ORS 440.360(14); and to "assess, levy, and collect taxes" from inhabitants up to a statutory maximum rate, ORS 440.395(1). ² See ORS 440.360(2) ("Any corporation formed under this chapter MVHD brought an action under ORS 30.510(1), ³ seeking a declaration that JCESD was formed invalidly and that its officers were, therefore, holding office illegally. The trial court entered judgment in favor of JCESD, reasoning that, although MVHD and JCESD were formed under the same principal act, each was performing a different service and that ORS 198.720(2) prohibited the formation of a second district only where the pre-existing district actually is performing the same service that the second district proposes to perform. MVHD appealed.

shall have all the powers necessary to carry out the purposes of ORS 440.315 to 440.410 * * * ").

The Court of Appeals, interpreting ORS 198.720(2) according to "the well-settled fundamental principle of municipal law that there cannot be, at the same time, within the same territory, two distinct municipal corporations, exercising the same powers, jurisdiction and privileges," and noting that "MVHD is performing the services it is authorized to perform," concluded that the formation of JCESD was invalid, and that its officers were holding office illegally. State ex rel Kirsch v. Curnutt, 113 Or.App. 539, 542-43, 833 P.2d 331 (1992). For the reasons that follow, we reverse.

The outcome turns on the meaning of ORS 198.720(2). ⁴

In the construction of a statute, the intention of the legislature is to be pursued if possible. ORS 174.020; Mattiza v. Foster, 311 Or. 1, 4, 803 P.2d 723 (1990). Our function is simply to ascertain and declare what is, in terms or in substance, contained in the statute, not to insert what has been omitted, or to omit what has been inserted. ORS 174.010. The inquiry into legislative intent begins with a examination of the language and context of the statute itself. ORS 174.010; Sanders v. Oregon Pacific States Ins. Co., 314 Or. 521, 527, 840 P.2d 87 (1992). It is only appropriate to consider legislative history or other aids to construction when the language and context of the statute itself does not provide sufficient insight into the legislative intent.

In this case, the trial judge reasoned that the area's residents are entitled to have ambulance service if they want it and are willing to pay for it and that, if MVHD was not performing that service, the residents could form a second district to do so. Because JCESD otherwise does not compete with MVHD, the judge concluded that both districts could exist simultaneously. We agree.

This court has stated that "words used in a statute are to be given their 'plain' or 'ordinary' meaning." Davis v. Wasco IED, 286 Or. 261, 266, 593 P.2d 1152 (1979) (citation and footnote omitted). Moreover, this court "may not ignore the plain meaning of unambiguous words of a statute." Ibid. MVHD is authorized by statute to "perform" ambulance service. It is undisputed, however, that MVHD is not "performing" ambulance services. That is precisely why JCESD was created by the voters of the area. MVHD fails to satisfy the "and is performing" criterion of ORS 198.720(2), in regard to ambulance services. Thus, the plain language of the statute favors JCESD. To conclude otherwise is to read the words "and is performing" out of the statute.

Ignoring the plain words of the statute, i.e., "and is performing," the dissent proceeds to examine the legislative history of This court often has noted that, in discerning the intent of the legislature, a statute should not be construed "so as to ascribe to the legislature the intent to produce an unreasonable or absurd result." State v. Galligan, 312 Or. 35, 39, 816 P.2d 601 (1991) (quoting State v. Linthwaite, 295 Or. 162, 170, 665 P.2d 863 (1983)). To read the words "and is performing" out of the statute at issue here would produce an unreasonable result; it would allow a special district that does not provide certain essential services to prevent others from providing those services. Only when "the literal import of the words is so at variance with the apparent policy of the legislation as a whole as to bring about an unreasonable result, [must] the literal interpretation * * * give way and the court * * * look beyond the words of the act." Johnson v. Star Machinery Co., 270 Or. 694, 704, 530 P.2d 53 (1974). Here, the literal interpretation of "and is performing" does not bring about an unreasonable result that is at variance with the policy of the legislation. The language of the statute clearly indicates that a second district may not be formed to provide services that duplicate services that the existing district "is performing." As the dissent would have it, a health district that chose to operate only a nursing home could use the provisions of ORS 198.720 to prevent the voters of the district from arranging for a much-needed hospital, merely because the nursing home was already in operation, i.e. "is performing" one of the functions that a health district may perform. The legislative policy does not justify such a result.

the statute. ⁵ It is clear that the legislature never considered the question presented by this case. Although recognizing that both parties' policy arguments have merit, the dissent states on the basis of a most generous reading of the relatively scant and inconclusive legislative history that the legislature made the policy choice advocated by MVHD and that the terms of ORS 198.720(2) precluded the formation of JCESD. Such a construction either reads the words "and is performing" out of the statute, or perhaps reads into the statute "and is performing any of the services." ⁶ Neither construction is permitted under the rules of statutory construction set forth in ORS 174.010.

There is nothing to suggest that the legislature intended to deny the voters the right to form another service district when MVHD "is not performing" an essential service authorized by the principal Act under which both districts were formed. In the absence of a clear and unequivocal legislative mandate, this court will not override the will of the JCESD voters. In this case, as even the dissent concedes, no clear and unequivocal legislative mandate is present.

In summary, the plain language of the statute favors JCESD. Moreover, even if we were to consider the language of the statute to be ambiguous and turn to the The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

legislative history, nothing in that legislative history dictates the result sought by MVHD.

GILLETTE, Justice, ...