Mid-County Future Alternatives Committee v. City of Portland , 95 Or. App. 556 ( 1989 )

770 P.2d 604 (1989) 95 Or.App. 556

MID-COUNTY FUTURE ALTERNATIVES COMMITTEE, an Oregon Corporation, and Peter M. Smith, Appellants,
v.
City of PORTLAND, City of Gresham, Portland Metropolitan Area Local Boundary Commission, Multnomah County, and State of Oregon, Respondents.

A8711-06867; CA A48513.

Court of Appeals of Oregon.

Argued and Submitted December 16, 1988. Decided March 8, 1989. Reconsideration Denied April 28, 1989.

Gregory W. Byrne, Portland, argued the cause and filed the briefs for appellants.

Michael D. Reynolds, Asst. Atty. Gen., Salem, argued the cause for respondents Portland Metropolitan Area Local Boundary Com'n and State of Oregon. With him on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Linda DeVries Grimms, Asst. Atty. Gen., Salem.

Jeffrey L. Rogers, City Atty., Portland, argued the cause for respondent City of Portland. With him on the brief was Adrianne Brockman, Deputy City Atty., Portland.

Matthew R. Baines, Asst. City Atty., Gresham, argued the cause for respondent City of Gresham. With him on the brief was Thomas Sponsler, City Atty., Gresham.

Laurence Kressel, Multnomah County Counsel, Portland, filed the brief for respondent Multnomah County.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

Plaintiffs in this declaratory judgment action challenge the constitutionality of Oregon Laws 1987, chapter 818, section 3, which provides, in pertinent part:

"Notwithstanding any other provision [ORS chapter 199] or ORS chapter 222, territory annexed or transferred to a city or district by a minor boundary change approved by a boundary commission's final order adopted after January 1, 1985, but before the effective date of this 1987 Act shall be in the annexing city or district by operation of this 1987 Act commencing upon the effective date of the boundary commission's final order."^[1]

The trial court held that the statute is constitutional, and plaintiffs appeal. We affirm.

Section 3 was enacted in apparent response to our decision in Mid-County Future Alt. v. Port. Metro. Area LGBC, 82 Or. App. 193, 728 P.2d 63 (1986), modified, 83 Or. App. 552, 733 P.2d 451, rev. dismissed, 304 Or. 89, 742 P.2d 47 (1987). We held there that the so-called "triple majority" annexation procedure of ORS 199.490^[2] and ORS 199.495 violated the equal privileges and immunities requirement of Or. Const., Art. I, § 20, because it allowed annexations with the consent of landowners in the affected areas and did not give nonlandowners the opportunity to consent or vote.

Plaintiffs argue that section 3 suffers from the same defect, because some of the annexations that it validates were initiated through the triple majority procedure. Therefore, plaintiffs contend, the statute offends Article I, section 20, and the Equal Protection Clause of the Fourteenth Amendment. They also argue that section 3 is contrary to the Home Rule Amendment, Or. Const., Art. XI, § 2, because it changes city boundaries and therefore constitutes a state legislative amendment of city charters.

In Donaldson v. Lane County Local Govt. Bdry. Comm., 93 Or. App. 280, 287-88, 761 P.2d 1349, rev. den., 307 Or. 245, 767 P.2d 75 (1988), we rejected a virtually identical home rule argument and held that statutory provisions that affect city boundaries are consistent with Article XI, section 2, at least with regard to cities whose charters do not describe their boundaries. The charters of the two cities involved in this case do not do so. Plaintiffs suggest that Donaldson was wrongly decided. We disagree.

Plaintiffs argue that the statute violates Article I, section 20, and the Fourteenth Amendment.^[3] However, the statute on its face does not violate those constitutional provisions, because it grants no one the privilege of franchise or consent and it creates no classifications. The essence of plaintiffs' arguments is that section 3 is tainted with the constitutional infirmity of the underlying annexation procedures that it purports to cure and does by "indirection" what the triple majority statutes did directly. Plaintiffs argue that a boundary commission's approval of an annexation cannot alter the fact that other procedural stages leading to the annexation were constitutionally defective and that section 3 cannot validate the end result of the defective process by singling out one of its stages — the commission's final order — as the sole effective event.

However, as suggested by the Supreme Court in Mid-County Future Alt. v. Port. Metro. Area LGBC, supra, the passage of section 3 rendered moot the issue of constitutionality of the tripple majority statutes.

"These annexations no longer depend for validity on the constitutionality of ORS 199.495(1) as it relates to annexations pursuant to ORS 199.490(2). The territory in dispute has been annexed by another means, legislative command." 304 Or. at 92, 742 P.2d 47.

In other words, section 3 became the operative authority for the annexations that it addresses, independent of the triple majority statutes or of any others that might have been involved in the process before the section was enacted. Therefore, any constitutional problems with other statutes became irrelevant to the validity of the annexations accomplished by the adoption of section 3.

Section 3 provides that the annexations to which it relates are effective "by operation of this 1987 Act." It also states that its provisions apply, notwithstanding any other provisions of ORS chapter 199. The legislature thus made clear that section 3 is an independent source of validity for the annexations that it covers. We hold that section 3 is constitutional.^[4]

AFFIRMED.

NOTES

[1] The section was codified as ORS 199.534. However, the codified version erroneously substituted the words "by operation of ORS 198.855, 199.490, 199.531, 199.534, 222.120 and 222.170 to 222.177" for the words "by operation of this 1987 Act" in the enacted version. The language enacted by the legislature, of course, prevails. We will refer to the challenged statute as "section 3."

[2] ORS 199.490 was later amended by Or Laws 1987, ch. 818, § 6. The amendment is not relevant here.

[3] We assume the correctness of our holding in Mid-County Future Alt. v. Port. Metro. Area LGBC, supra, that the triple majority procedure was unconstitutional. The Supreme Court dismissed the petition for review as moot, "[w]ithout expressing an opinion on the merits." 304 Or. at 92, 742 P.2d 47.

[4] Plaintiffs suggest that there may be an Oregon constitutional right to vote on annexations. They say, however, that that question "is beside the point in this case, as such a right is granted by statute." No such right is granted by section 3 and, by its terms, it applies, notwithstanding the provisions of ORS chapter 199 that plaintiffs identify as the source of electoral rights.