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Young v. Brown

Court of Appeals of Oregon

May 1, 2019

James B. De YOUNG, a resident of Damascus, Plaintiff-Appellant,
v.
Kate BROWN, in her offcial capacity as Governor of Oregon; State of Oregon; and Clackamas County, a political subdivision of the State of Oregon, Defendants-Respondents, and DAMASCUS, a municipal corporation, Defendant.

          Submitted November 7, 2017.

          Clackamas County Circuit Court 16CV12583, Katherine E. Weber, Judge.

          Tyler Smith and Tyler Smith & Associates, P.C., filed the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondents Kate Brown and State of Oregon. Stephen L. Madkour for respondent Clackamas County joined the brief.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Plaintiff, a former resident and city councilor of the City of Damascus, appeals a judgment declaring that the city validly disincorporated pursuant to Measure 93, which the voting residents of Damascus approved in a special election held in May 2016. Plaintiff argues, among other things, that the election failed to comply with ORS 221.610 and ORS 221.621, which govern [297 Or.App. 356] municipal disincorporation. Defendants respond that (1) the appeal is moot because the challenged election has passed and the city cannot resume operations; (2) the election was not required to comply with those statutes; and (3) the legislature exempted the election from those statutes when it referred Measure 93 to the voters of Damascus. Held: The appeal is not moot. Defendants did not satisfy their burden of establishing that a decision from this court would have no practical consequences. On the merits, the Court of Appeals concluded that the passage of Measure 93 did not comply with ORS 221.610 and ORS 221.621, which currently provide the only means for a city to disincorporate, and the legislature did not effectively exempt Measure 93 from the requirements of those statutes or otherwise provide an alternative means of disincorporation.

         Reversed and remanded.

         [297 Or.App. 357] DEHOOG, P.J.

         Plaintiff is a former resident and city councilor of Damascus, a city previously incorporated in Clackamas County. Both the City of Damascus and plaintiff's position as a councilor ceased to exist following a special election held in May 2016, when a majority of the city's residents voting on the issue elected to disincorporate Damascus. As a result of House Bill (HB) 3085 (2015), which legislatively referred the matter to the voters of Damascus, that decision-whether to disincorporate-had appeared on the ballots of all city residents as Measure 93.[1] Before the election, plaintiff sought declaratory and injunctive relief, contending that HB 3085 violated various constitutional and statutory provisions and conflicted with the city charter. The trial court denied plaintiff's request to enjoin the election. The city's residents subsequently voted to disincorporate, and, in accordance with procedures dictated by HB 3085 and House Bill (HB) 3086 (2015), [2] the City of Damascus proceeded to disincorporate. That is, among other things, the city paid off all of its debts, transferred its assets to Clackamas County, "surrender[ed] its charter," and "cease[d] to exist." In the course of winding down, the city also terminated or transferred all of its employees and closed its municipal offices. Following the election, plaintiff sought a declaration that Measure 93 violated the city charter, the Oregon Constitution, and various statutes governing municipal disincorporation and that, as a result, the purported disincorporation of Damascus was a nullity. Instead, the trial court granted summary judgment to defendants, thereby declaring Measure 93 valid. Plaintiff appeals.

         In three assignments of error, plaintiff challenges the trial court's summary judgment ruling and reprises his arguments that Measure 93 violates various provisions of [297 Or.App. 358] organic and statutory law. Specifically, plaintiff contends that Measure 93 violates (1) Article IV, section 1, and Article XI, section 2, of the Oregon Constitution; (2) the City of Damascus Charter; and (3) ORS 221.610 and ORS 221.621. Adhering to our practice of resolving cases when possible on statutory grounds before considering constitutional arguments-and recognizing that plaintiff's charter-based argument is, itself, largely based on constitutional grounds- we begin by addressing plaintiff's statutory argument. See State v. Barrett, 350 Or. 390, 397-98, 255 P.3d 472 (2011) (noting court's reluctance to reach constitutional issues before determining what ordinary laws authorize, require, or prohibit). For the reasons that follow, we agree with plaintiff's statutory argument and do not reach the remainder of his contentions. Consequently, we reverse the trial court's summary judgment ruling and remand for further proceedings.

         The underlying facts are procedural and undisputed. The City of Damascus was incorporated in 2004. On June 22, 2015, following an earlier but ultimately unsuccessful attempt by the city's voters to disincorporate, the Legislative Assembly passed HB 3085, a referendum directed to the voters of Damascus. The Secretary of State placed HB 3085-designated as Measure 93-on the ballots of all registered voters in Damascus, to be voted on in a special election scheduled for May 17, 2016. One month before the election, plaintiff-a resident of Damascus who at the time was also a member of the city council-filed this action contending that Measure 93 was unlawful and seeking declaratory and injunctive relief. Two weeks later, but still before the special election, plaintiff moved for a temporary restraining order enjoining a vote on Measure 93, but the trial court denied relief. Following the election, Measure 93 was deemed to have passed in accordance with its own terms, meaning that a majority of those who had voted on the measure voted to disincorporate. This litigation resumed after Measure 93 passed, with both sides filing motions for summary judgment. After hearing the parties' arguments, the court granted defendants' motion for summary judgment, denied plaintiffs cross-motion, and entered a judgment declaring the validity of HB 3085, Measure 93, and the results of the May election.

         [297 Or.App. 359] Now compiled at Oregon Laws 2015, chapter 603, the text of Measure 93 as approved by the voters of Damascus states:

"Be It Enacted by the People of the State of Oregon:
"Section 1. (1) Notwithstanding ORS 221.650, during the period that begins on the 30th day following the date of the election held pursuant to section 2 of this 2015 Act and ends on the 60th day following the date of the election, the City of Damascus shall:
"(a) Expend moneys in the funds of the city to satisfy all debts, obligations, liabilities and expenses of the city and transfer moneys to Clackamas County, in the manner required under section 1 (2), chapter 637, Oregon Laws 2015 (Enrolled House Bill 3086); and
"(b) Convey, grant, assign and deliver all of the city's real property and tangible and intangible personal property, other than moneys expended or transferred under paragraph
(a) of this subsection, by proper conveyance, to Clackamas County for the benefit and use of the county.
"(2) Notwithstanding ORS 221.610 and 221.621, on the 61st day following the date of the election held pursuant to section 2 of this 2015 Act:
"(a) The City of Damascus shall surrender its charter, disincorporate and cease to exist.
"(b)(A) The city shall cease to exist in its corporate capacity without any further or ...

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