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Rossolo v. Multnomah County Elections Division

Court of Appeals of Oregon

July 29, 2015

Michelle ROSSOLO, Plaintiff-Appellant,
MULTNOMAH COUNTY ELECTIONS DIVISION and Tim Scott, Director, Defendants-Respondents, and METRO, Intervenor-Respondent

April 8, 2015, Argued and submitted, Madras High School, Madras

140100046. Multnomah County Circuit Court. Eric J. Bloch, Judge.

James T. McDermott argued the cause for appellant. On the briefs were Peter O. Watts and Jordan Ramis PC.

William F. Gary argued the cause for respondents. With him on the joint brief were Sharon A. Rudnick, Harrang Long Gary Rudnick P.C., and Jacqueline A. Weber.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.


Page 506

[272 Or.App. 573] SERCOMBE, P. J.

Plaintiff filed an action in the circuit court under ORS 246.910 to obtain review of a decision by the Multnomah County elections officer.[1] The decision rejected plaintiff's prospective petition to refer parts of a county transient lodging tax ordinance to the voters. The reviewing court granted summary judgment to the elections officer, Scott, and the county. The court concluded that the refusal to accept the prospective petition was lawful because the voters' authority to refer county enactments under the Oregon Constitution, state statutes, and local ordinances only extends to legislation, and the matter sought to be referred was administrative, and not legislative, in character. On appeal, plaintiff contends that the reviewing court's decision was incorrect as a matter of law because, if the matter is administrative in character, the county elections code allows referral of administrative ordinances, and, in any event, the matter sought to be referred was legislative in character, and appropriate to refer to the ballot under the Oregon Constitution. As explained below, we conclude that the reviewing court's decision was correct and, accordingly, affirm.

Pursuant to Article VI, section 10, of the Oregon Constitution, county voters have the power to " adopt, amend, revise or repeal a county charter." In addition, " [t]he initiative and referendum powers reserved to the people by this Constitution hereby are further reserved to the legal voters of every county relative to the adoption, amendment, revision or repeal of a county charter and to legislation passed by counties which have adopted such a charter[.]" Id. As the Supreme Court explained in Multnomah County v. Mittleman, 275 Or. 545, 551, 552 P.2d 242 (1976), Article VI, section 10, " reserve[s] to county voters with respect to county tax legislation the same 'referendum powers' [272 Or.App. 574] previously reserved to state voters with respect to state tax legislation[.]" Those include the referendum powers set forth in Article IV, section 1(3)(a),[2] and section 1(5),[3] of the Oregon Constitution,

Page 507

and the implicit referendum authority for an act " regulating taxation or exemption" in Article IX, section 1a, of the Oregon Constitution.[4]

In this case, plaintiff sought to refer portions of an ordinance amending county code provisions that regulated transient lodging taxes. The question presented in this case is whether the measure that plaintiff sought to refer qualifies as a " part thereof" of " legislation" that can be referred under the express and incorporated terms of Article VI, section 10, and the applicable statutes, charter provisions, and ordinances implementing that referendum authority. To address that question, we turn next to the specifics of the proposed referendum, the legal conclusions of the reviewing court, and the contentions of the parties on appeal.

The ordinance provisions plaintiff sought to refer are the culmination of a series of contracts and policy enactments by the county relating to the mutual imposition, [272 Or.App. 575] collection, and distribution of transient lodging taxes with the City of Portland (city). In 2001, the county, the city, and Metro[5] entered into a visitor facilities intergovernmental agreement that obligated the parties to collect and distribute public revenues (including transient lodging taxes and vehicle rental fees) to subsidize improvements to and operation of particular regional tourist facilities (including the Oregon Convention Center, the Portland Center for Performing Arts, and the stadium now known as Providence Park) and the visitor and hospitality industry.[6] The county board then adopted Ordinance No. 957, finding that the ordinance was " necessary to conform the code to the Visitor Facilities Intergovernmental Agreement with the City of Portland and Metro." The ordinance continued a transient occupancy tax of 11.5 percent of the rent charged by hotels, dedicating portions of the tax proceeds to the county general fund and various special funds, including an excise tax fund to be used for subsidizing particular regional tourist facilities, all as provided in the intergovernmental agreement.

Through the years, the governmental funding priorities and debt obligations for tourism-related facilities and programs changed. In 2013, the parties entered into an Amended and Restated Visitor Facilities Intergovernmental Agreement (VFIGA) under the authority of ORS 190.010. The VFIGA revised and updated different tourism-related projects and recast the priorities and obligations of the parties. It obligated the city to impose and dedicate a portion of its transient lodging taxes, and the county to likewise dedicate parts of its transient lodging taxes and vehicle rental fees, to various dedicated funds (including the Visitor Facilities Trust Account (VFTA) and the Excise Tax Fund) for particular tourism-related expenditures. One of the agreed-upon expenditures from the VFTA was to pay for Metro's financing costs for bonds for a part of the costs to construct [272 Or.App. 576] a privately-owned hotel adjacent to the Oregon Convention Center (OCC) " to bring additional national convention business to the OCC." [7] The VFIGA provides that the convention center hotel bond debt service is the fourth of thirteen spending priorities for

Page 508

the VFTA. Other spending priorities were also changed from the earlier agreement. The county committed to deposit tax collections into the VFTA, and specifically agreed to make payments from the VFTA to Metro for the hotel project bonds.

In particular, the county agreed that, " [w]ithin ninety (90) days of execution of this Agreement, the County will adopt an ordinance amending Multnomah County Code Chapter 11 consistent with this Agreement." In addition,

" [t]he County pledges [various transient lodging tax proceeds] to pay the OCC Hotel Project Bonds. The pledge is valid and binding from the date Metro signs an OCC Hotel Project Development Agreement, and will remain in effect until the OCC Hotel Project Bonds are fully paid. The [various transient lodging tax proceeds] pledged are immediately subject to the lien of the pledge, and * * * that lien is, and will remain, superior to other claims and liens."

The county agreed to maintain the transient lodging tax funds " in effect until all OCC Hotel Project Bonds have been paid or the County has transferred sufficient funds to Metro to defease the OCC Hotel Project Bonds." Finally, the VFIGA required that,

" [s]o long as the OCC Hotel Project Bonds are outstanding, and this Agreement is in effect, the obligations of the County to (i) collect the taxes imposed by Multnomah County Code 11.410(E), and (ii) maintain the TLT Net Revenues and transfer them to Metro to pay the OCC Hotel Project Bonds, as provided in this Agreement, may not be terminated for any reason, including a breach by any Party of its obligations under this Agreement or any amendment to this Agreement."

On September 19, 2013, the county board of commissioners adopted Resolution No. 2013-130, approving the [272 Or.App. 577] VFIGA, and further resolving that the board would amend Multnomah County Code (MCC) chapter 11 " as necessary to ...

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