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Tilbury v. Multnomah County

SUPREME COURT OF OREGON


Filed: September 28, 1995.

ROGER TILBURY; MARGARET M. TILBURY; JAMES MARQUARD; ELIZABETH MARQUARD; LINDA K. RICHARDSON; ALAN E. KINSEL, JR.; JOHN FERGUSON; SARAH FERGUSON; JOHN BULKLEY; HONOR BULKLEY; JASON CHO; CARLYLE MACHARG III; DALE DENSON, D.B.A. DALTON REALTY; JEFFREY A. REINGOLD; FRANCINE G. REINGOLD; GREG FOWLER/MARTIN SHORE, D.B.A. FOWLER/SHORE ACQUISITIONS; J.G. JONES CO.; FRAN MATSON; RUTH W. NORRIS; FRED W. NORRIS; EILEEN DAHLHEIM; MARTIN G. ZELL; RICHARD A. LEFFLER; AMY RICHARDSON-LEFFLER; SYLVIA MAY KISSINGER; BARBARA JEAN KISSINGER; ARNOLD ROCHLIN; KAYE ROCHLIN; JANICE SAKOFSKY; RENDA K. HORN, TRUSTEE FOR CLYDE V. AND E. MARGARET BRUMMELL TRUST; MAE G. STRONG; MARK S. PELAY, PR ESTATE OF ANTHONY PELAY, JR.; HENDRIKA S. FINCHER; JACK D. DIXON; CAROL J. DIXON; FLORENCE E. FRITZLER; HAROLD W. FRITZLER; JAMES J. MCLAUGHLIN; ROBERT D. RANDALL; THE ROBERT RANDALL CO.; CLIFFORD C. STEPHENS; RHONDA M. STEPHENS; KENNETH ALLEN PEREIRA; B & B METAL, INC.; ROBERT D. BANFORD; BETTY R. BANFORD; RONALD L. WILLIAMS; PHYLLIS M. WILLIAMS; VERN R. WILLIAMS; ROBERT LINCOLN; JANET L. BENSON; THOMAS M. ULLMANN; KATHRYN A. BLANCHARD; DONALD E. POLLOCK, D.B.A. DON POLLOCK INVESTMENTS; JULIA G. POLLOCK; JEFFREY P. FISH; LYNN E. FISH; ROBERT A. SCANLON; RICHARD I. KESSLER; HOLLY S. KESSLER; ROGER E. KURILO; JERRY L. WARD; NANCY A. WARD; RONALD R. MYERS; DARLENE K. MYERS; JOAN R. SALVATORE; DENNIS G. OGAN; KATHRYN H. OGAN; RICHARD D. LUTZ; DOROTHY M. LUTZ; ALBERT H. GRUEN; MAXINE P. GRUEN; CHARLES G. COULTER; EDNA M. COULTER; THOMAS P. MOYER, D.B.A. TOM MOYER THEATRES AND TMT DEVELOPMENT CO., INC.; HARDING G. CARLSON; ANITA L. CARLSON; CLIFF STEPHENS; RICHARD L. CARPENTER; DON BAKER; LEVERN J. STEVENS; RUTH E. MCNAMEE; BOBBY D. MCNAMEE; MARY MOTT; BRAD P. EVERY; RACHEL M. SEAL; FRED E. HUNGATE; DORIS W. EVATT; DAVID D. RAND; ARLENE J. RAND; VELMA HENDERSON; DEAN BECKER; JOYCE E. BECKER; JOSEPH E. WESTON, D.B.A. WESTON INVESTMENT CO.; JOHN W. RUSSELL, D.B.A. RUSSELL ACQUISITION CO., INC.; TWO HUNDRED MARKET ASSOC.; ELMER L. REHO; EDITH M. REHO; WILLIAM L. SELF; MARGARET M. SELF; JOHN W. STENKAMP; CARROLL J. STENKAMP; RICHARD A. PEDERSEN; PATRICIA R. PEDERSEN; HUGH W. MILLESON; SUSAN ROBERTSON; RAY K. O'DELL; SHIRLEY J. O'DELL; A.E. BRIM; WILLIAM C. REED, D.B.A. R & R HOMES, INC.; OREGON WORSTED COMPANY; EBEN HILL; MABEL HILL; JAMES C. BUTLER; ADDIE K. BENSON; SIVERS DEVELOPMENT GROUP, D.B.A. SIVERS CONSTRUCTION CO., A WASHINGTON CORPORATION; SIVERS INVESTMENT PARTNERSHIP, A LIMITED PARTNERSHIP; PROPCO, INC., AN OREGON CORPORATION; T & W EQUIPMENT CO., AN OREGON CORPORATION; AIRPORT WAY ASSOCIATES, A LIMITED PARTNERSHIP; SIVERS REAL PROPERTY PARTNERSHIP, A LIMITED PARTNERSHIP; ELIZABETH SIVERS; GUARDIAN MANAGEMENT CORPORATION, AGENT IN FACT AND ASSIGNEE; JAMES P. KRAMER; MAMIE C. KRAMER; MELVIN BARCUS, CHRIS W. CHILBERG; LINDA S. CHILBERG; STUART COX AND RICHARD GERSTL, D.B.A. PYRAMID PROPERTIES; RICHARD H. FABRYCKI; JANICE E. FABRYCKI; HUGH EWART; ROGERS CONSTRUCTION, INC.; OREGON ASPHALTIC PAVING CO.; C.K. HAMMOND, TR; JEAN R. HAMMOND, TR; TERRY L. HOLDEN; LEO G. GRAHAM; ARTHUR A. RIEDEL; KENNETH J. PIPPS TO J & J PROPERTIES, INC.; MARQUAM VILLAGE INVESTORS; STEVE JOHNSON; JANE D. KEATING-JONES; DALE G. KING; MAXINE J. KING; WPL ASSOCIATES; HENRY G. LAUN; YVONNE L. LAUN, LEAVITT SHAY REAL ESTATE SERVICES, MANAGING AGENT FOR FLANDERS STREET PARTNERS & UPTOWN HEIGHTS ASSOCIATES; JAMES A. MONTGOMERY; ESTHER A. MONTGOMERY; ALVIN D. NADEAU; PETER A. NATHAN, M.D.; HELLE NATHAN; BERTIL OLSON; BEVERLY OLSON; CHARLES H. RANDOLPH; LEILA F. RANDOLPH; ROBERT F. RINKER; AUBREY P. SCHMIDT; GENERAL PARTNER IN TWENTY-SECOND & DAVIS OREGON, LTD. AND THE FLANDERS PARTNERSHIP; GERALDINE M. ZANCOLLI; UPSHUR COURTS, INC.; STEVE ROSE; BRISTOL EQUITIES, INC.; RICHARD O. HARTMANN; KRIS PRESLAN; BRUCE PRESLAN; SPAR INVESTMENT CO.; GALT ASSOCIATES; LA HACIENDA ASSOCIATES; BRIM, INC.; BRIM CAPITAL CORPORATION; EVONA BRIM; CHRISTOPHER B. SUMMERER; NANCY SUMMERER; EDWARD L. CLARE; HAZEL A. CLARE; PATRICIA S. CAVENS; NORMAN STOLL; MIKE SCHAEFFER; MILTON WIEDERHOLD; STEPHEN C. JOHNSON; JOSEFINA M. JOHNSON; OSWALD E. JAUCH; INGE H. JAUCH; BRENT H. JAUCH; ROGER P. JAUCH; WESTLAND INVESTMENT CO.; BENHARDT SCHMIDT; JUDITH SCHMIDT; JOHN D. MEDAK; EDWARD T. MEDAK; LEE J. ASCH; LEE J. ASCH, JR.; JACK C. HILBOURNE; IRENE HILBOURNE; RONALD WILLIAMSON; MAVIS WILLIAMSON; STEVEN P. MOZINSKI; EDWARD ZAKOCS, JR.; HARSCH INVESTMENT CORP. AND ITS SUBSIDIARIES; P/E WALKER TRUST; SHERRY BONNEY, APPELLANTS,
v.
MULTNOMAH COUNTY; THE CITY OF PORTLAND; THE PORTLAND DEVELOPMENT COMMISSION; WASCO COUNTY; THE CITY OF THE DALLES; COLUMBIA GATEWAY URBAN RENEWAL AGENCY; CLACKAMAS COUNTY; WASHINGTON COUNTY; THE CITY OF TUALATIN; TUALATIN DEVELOPMENT COMMISSION, RESPONDENTS, AND MARION COUNTY; THE CITY OF SALEM; SALEM URBAN DEVELOPMENT DIVISION; THE CITY OF OREGON CITY AND OREGON CITY URBAN RENEWAL AGENCY, RESPONDENTS.

Roger Tilbury, Portland, argued the cause in propria persona and filed the briefs on behalf of appellants. With him on the brief was Roch Steinbach, Portland. On the reply brief was Roger Tilbury.

Harry M. Auerbach, Portland, argued the cause on behalf of respondents City of Portland, Multnomah County, and the Portland Development Commission. With him on the brief were Kathryn Beaumont Imperati and Sandra N. Duffy, Portland. Joining in the brief were respondents City of Tualatin and Tualatin Development Commission.

Gene E. Parker, City Attorney, The Dalles, argued the cause on behalf of respondents City of The Dalles, Columbia Gateway Urban Renewal Agency, and Wasco County. With him on the brief was Bernard L. Smith, District Attorney for Wasco County, The Dalles.

Durham, Justice

In this proceeding before the Oregon Tax Court, plaintiffs, who reside in or own property in the cities of Portland, Salem, Oregon City, The Dalles, and Tualatin, sought refunds of urban renewal taxes collected by defendants *fn1 for tax year 1991-92. Plaintiffs contend that those taxes exceed the property tax limitation in Article XI, section 11b, of the Oregon Constitution. *fn2 See City of Portland v. Smith, 314 Or. 178, 193, 838 P.2d 568 (1992) (property taxes levied for repayment of urban renewal bonds are not exempt from the property tax limitation in Article XI, section 11b(1)).

The Tax Court entered summary judgment for defendants. The court first ruled that the procedure described in ORS 305.583 *fn3 was plaintiffs' exclusive remedy

[322 Or Page 119]

for the claim stated in the complaint. See Smith v. Multnomah County Board of Commissioners, 318 Or. 302, 309, 865 P.2d 356 (1994) (procedure described in ORS 305.583 is the exclusive remedy for a claim of unlawful taxation under Article XI, section 11b, of the Oregon Constitution). The court then ruled that plaintiffs' complaint was untimely, because they did not file it within the 60-day filing period established by ORS 305.583(3). Tilbury v. Multnomah County, 13 OTR 157, 165, 1994 WL 585667 (1994).

Plaintiffs admit that the 60-day filing period established by the statute expired no later than December 25, 1991. They filed their petition on January 5, 1993. On appeal, plaintiffs argue that their complaint was filed in a timely manner, because the 60-day filing requirement in ORS 305.583(3) is either inapplicable or unconstitutional. They contend that: (1) the 60-day rule is not severable from the 10-taxpayer requirement in ORS 305.583(1) and that the latter requirement unconstitutionally denies due process under the Fourteenth Amendment to the Constitution of the United States; *fn4 (2) the "Taxpayer Bill Of Rights," ORS 305.860(1)(c) and (2), *fn5 and "the minimum dictates of due

[322 Or Page 120]

process" require personal notice of the manner in which plaintiffs may contest the disputed taxes, but they did not receive such notice; and (3) plaintiffs did not receive fair notice of the procedure described in ORS 305.583, which became effective on September 29, 1991, because public law libraries did not receive the permanent volumes of the 1991 Oregon Revised Statutes until approximately 40 days of the 60-day filing period had expired.

We turn to the issue of the severability of the 60-day filing requirement in ORS 305.583(3). The Tax Court held that the 10-taxpayer requirement deprived individual taxpayers of their right to challenge a deprivation of property through exaction of a tax. Tilbury, 13 OTR at 164. Plaintiffs urge us to affirm that ruling, but we decline to address that question. Even if we assume, arguendo, that the Tax Court's due process ruling is correct, that says nothing about the severability of the 60-day filing requirement.

We pursue the intention of the legislature in deciding whether one part of a statute is severable from another unconstitutional part. ORS 174.040 guides our analysis of the question of severability:

"It shall be considered that it is the legislative intent, in the enactment of any statute, that if any part of the statute is held unconstitutional, the remaining parts shall remain in force unless:

"(1) The statute provides otherwise;

"(2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part; or

"(3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the legislative intent."

[322 Or Page 121]

None of the subsections of that statute applies here. Accordingly, even if the Tax Court's due process ruling is correct, the 60-day filing requirement is severable and, under ORS 174.040, "shall remain in force."

Neither can plaintiffs rely on the "Taxpayer Bill Of Rights," ORS 305.860 et seq., in attacking the adequacy of the tax notices that they received from defendants. Those statutes pertain to obligations of the Oregon Department of Revenue, not local government. The "Taxpayer Bill Of Rights" furnishes no basis for plaintiffs' attack on tax notices issued by local governments.

Finally, we reject, without Discussion, plaintiffs' contention regarding the timing of various law libraries' receipt of bound volumes of the Oregon Revised Statutes.

Plaintiffs' petition for refunds of urban renewal property taxes was filed too late. Accordingly, the Tax Court did not err in granting defendants' motions for summary judgment.

The judgment of the Tax Court is affirmed.


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