City of Corvallis v. State of Oregon

171

Argued and submitted July 13, 2018, vacated and remanded for entry of a

judgment that declares the rights of the parties May 13, 2020

CITY OF CORVALLIS,

an Oregon municipal corporation,

Plaintiff-Appellant,

and

LEAGUE OF OREGON CITIES,

Plaintiff-Intervenor below,

and

CITY OF PHILOMATH,

Intervenor-Appellant,

v.

STATE OF OREGON;

Kate Brown, Governor of Oregon;

Bev Clarno, Secretary of State; and

Jim Rue, Oregon Department of

Land Conservation and Development;

and Caldwell Farms, LLC,

Defendants-Respondents,

and

Michael GALPIN et al.,

Defendants.

Benton County Circuit Court

16CV17878; A164595

464 P3d 1127

In this declaratory judgment action, plaintiffs, the City of Corvallis and the

City of Philomath, sought to have ORS 222.127 declared unconstitutional on

its face or as applied to them. ORS 222.127 provides that, if certain conditions

are met, the legislative body of a city “shall annex” certain territory within its

urban growth boundary, “without submitting the proposal to the electors of the

city.” Plaintiffs contend that the statute impermissibly interferes with the pro-

cedures of municipal governments and thus violates the home-rule provisions of

the Oregon Constitution. The trial court granted the state defendants’ motion for

summary judgment, granted the state defendants’ motion to strike certain decla-

rations from the summary judgment record, and denied plaintiffs’ cross-motions

for summary judgment. Held: The trial court did not err in granting summary

judgment to the state defendants and denying summary judgment to plaintiffs.

ORS 222.127 is not unconstitutional on its face, because, at a minimum, it can

be applied to those municipalities whose charters do not conflict with it, and it

is not unconstitutional as applied to plaintiffs because their charters exclude

state-mandated annexations from the local voting requirement. As for striking

172 City of Corvallis v. State of Oregon

the declarations, any error was harmless. The trial court’s rulings are therefore

affirmed. The judgment is vacated and remanded, however, for the trial court

to make declarations consistent with its letter opinion and the Court of Appeals

decision.

Vacated and remanded for entry of a judgment that declares the rights of the

parties.

Matthew J. Donohue, Judge.

James K. Brewer argued the cause for appellants. On

the briefs were David E. Coulombe and Fewel, Brewer &

Coulombe.

Peenesh Shah argued the cause for respondents State

of Oregon, Kate Brown, Bev Clarno, and Jim Rue. Also on

the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

No appearance for respondent Caldwell Farms, LLC.

Philip Thoennes filed the brief amicus curiae for League

of Oregon Cities.

Before Ortega, Presiding Judge, and Aoyagi, Judge, and

Powers, Judge.*

AOYAGI, J.

Vacated and remanded for entry of a judgment that

declares the rights of the parties.

______________

* Aoyagi, J., vice Garrett, J. pro tempore.

Cite as 304 Or App 171 (2020) 173

AOYAGI, J.

In this declaratory judgment action, plaintiffs

the City of Corvallis (Corvallis) and the City of Philomath

(Philomath) seek to have ORS 222.127 declared unconsti-

tutional on its face or as applied to them. ORS 222.127 pro-

vides that, if certain conditions are met, the legislative body

of a city “shall annex” certain territory within its urban

growth boundary, “without submitting the proposal to the

electors of the city.” In plaintiffs’ view, the statute imper-

missibly interferes with the procedures of municipal govern-

ments and thus violates the “home rule” provisions of the

Oregon Constitution.1

The trial court granted the state defendants’2 motion

for summary judgment, as well as their motion to strike cer-

tain declarations from the summary judgment record, and it

denied plaintiffs’ cross-motions for summary judgment. For

the reasons that follow, we affirm all those rulings on the

merits. However, because the existing judgment contains no

declarations, which is improper in a declaratory judgment

action, we vacate and remand for entry of a judgment that

declares the rights of the parties.

I. OVERVIEW OF “HOME RULE”

A basic understanding of “home rule” is necessary

context for the parties’ arguments, so we begin by providing

a very general overview.

Under federal constitutional law, municipal corpo-

rations are “convenient agencies” of their respective states.

Hunter v. City of Pittsburgh, 207 US 161, 178-79, 28 S Ct

40, 52 L Ed 151 (1907). As such, states enjoy every preroga-

tive to add or withdraw authority from their municipalities,

merge municipalities, or abolish a municipality altogether,

“unrestrained by any provision of the Constitution of the

1

Corvallis filed the action, and Philomath and the League of Oregon Cities

(LOC) joined later as plaintiffs-intervenors. On appeal, LOC appears amicus cur-

iae but is not a party. Because we address only Corvallis’s and Philomath’s claims

in this opinion, we use “plaintiffs” to refer only to Corvallis and Philomath,

excluding LOC.

2

The state defendants are the State of Oregon, Governor Brown, Secretary

of State Clarno, and Oregon Department of Land Conservation and Development

Director Rue.

174 City of Corvallis v. State of Oregon

United States.” Id. It follows that cities lack inherent author-

ity and possess only those powers affirmatively granted

by the state. That principle, known as “Dillon’s Rule”—

referring to an influential treatise on municipal law—

dominated American legal scholarship in the nineteenth

and early twentieth centuries. See City of Corvallis v. Carlile,

10 Or 139, 141 (1882). Thus, in Oregon, prior to 1906, the

state retained all power over local affairs and had the exclu-

sive authority to adopt and amend city charters, to establish

and alter municipal boundaries, and to grant and remove

legislative authority. See id. at 140-41 (recognizing the lack

of constitutional restraint on state authority over municipal

corporations and stating that municipal corporations are

“subordinate branch[es]” of the state).

In 1906, riding a wave of home-rule amendments

in other states, Oregon voters amended the Oregon

Constitution to endow cities with home-rule authority and

limit the power of the state legislature over local matters.

Specifically, Article XI, section 2, was amended to preclude

the state legislature from enacting, amending, or repealing

“any charter or act of incorporation for any municipality,

city or town” and to grant to municipal voters the “power

to enact and amend their municipal charter, subject to the

Constitution and criminal laws of the State of Oregon.”

Further, Article IV, section 1, was amended to reserve initia-

tive and referendum powers “to the qualified voters of each

municipality and district as to all local, special and munici-

pal legislation of every character in or for their municipality

or district.”

The passage of the home-rule amendments laid the

foundation for what has now been over a century of legal

disputes regarding the scope of local government authority

vis-à-vis state authority. See State v. Port of Astoria, 79 Or 1,

17, 154 P 399 (1916) (by 1916, “[t]he language employed in

Article XI, Section 2,” had already “been the subject of much

discussion”).

In the resulting case law, a seminal home-rule deci-

sion of the modern era is La Grande/Astoria v. PERB, 281

Or 137, 576 P2d 1204, adh’d to on recons, 284 Or 173, 586

P2d 765 (1978). In La Grande, the Supreme Court crafted a

Cite as 304 Or App 171 (2020) 175

two-part test to determine where state authority ends and

local authority begins. In short, if a state statute addresses

“the structure and procedures of local agencies,” it “impinges

on the powers reserved by the amendments to the citizens

of local communities” and must be justified “by a need to

safeguard the interests of persons or entities affected by the

procedures of local government.” Id. at 156. Conversely, if it

is “a general law addressed primarily to substantive social,

economic, or other regulatory objectives of the state,” a state

statute “prevails over contrary policies preferred by some

local governments, if it is clearly intended to do so, unless

the law is shown to be irreconcilable with the community’s

freedom to choose its own political form.” Id.3

Another significant home-rule principle is the dis-

tinction between intramural and extramural authority.

“When the legal voters of a city enact municipal legislation

[that] operates only on themselves and for themselves, and

[that] is confined within and extends no further than the

corporate limits, then such voters are exercising intramu-

ral authority.” Port of Astoria, 79 Or at 17. But when “the

legal voters of a city attempt to exercise authority beyond

the corporate limits of their municipality, they are using an

extramural power.” Id. While cities have “inherent, home-

rule authority” to exercise intramural power, the same is

not true of exercising extramural power. Costco Wholesale

Corp. v. City of Beaverton, 343 Or 18, 25, 161 P3d 926 (2007).

Finally, with respect to annexation in particular,

the power to annex territory into a municipality comes

from the state and does not derive from home-rule author-

ity. Thurber v. McMinnville, 63 Or 410, 414-15, 128 P 43

(1912), abrogated on other grounds by State ex rel. Heinig v.

Milwaukie et al, 231 Or 473, 373 P2d 680 (1962). Annexation

is an extramural act. Id. at 415-16. As such, it is well set-

tled that the state may impose conditions on a municipali-

ty’s act of annexing territory into the municipality. See, e.g.,

3

In their second assignment of error, plaintiffs request that we “revisit and

limit” or “abandon” La Grande’s methodology. Even if we were inclined to do so,

which we are not, we have no authority to overrule Supreme Court precedent.

State v. Turner, 235 Or App 462, 466, 234 P3d 993 (2010) (“[W]e remain bound by

Supreme Court precedent until such time as that court reconsiders and disavows

it.”). We reject plaintiffs’ second assignment of error without further discussion.

176 City of Corvallis v. State of Oregon

Morsman v. City of Madras, 203 Or App 546, 555, 126 P3d 6

(2006) (holding that the state has the authority to decide

whether the residents of property subject to annexation get

to vote on the annexation). What is not well settled—in that

it was identified as an open question in 1990 and has yet

to be answered—is whether some aspects of annexation are

subject to exclusively local control:

“Even though a city must follow a legislatively-approved

procedure to annex territory, it does not follow that the leg-

islature can decree any annexation for any reason. There

is still room to argue, * * * that the borders of a municipal

corporation are an integral part of the corporate charter

which cannot be altered by the legislature.”

Mid-County Future Alternatives v. City of Portland, 310 Or

152, 163-64, 795 P2d 541 (1990).

II. FACTS

With that basic understanding of home rule in

mind, we turn to the facts of this case. “On review of cross-

motions for summary judgment, we view the record for each

motion in the light most favorable to the party opposing it to

determine whether there is a genuine issue of material fact

and, if not, whether either party is entitled to judgment as a

matter of law.” O’Kain v. Landress, 299 Or App 417, 419, 450

P3d 508 (2019).

In early 2016, the legislature enacted SB 1573, now

codified at ORS 222.127. See Or Laws 2016, ch 51, § 2. As

relevant here, it provides:

“(1) This section applies to a city whose laws require a

petition proposing annexation of territory to be submitted

to the electors of the city.

“(2) Notwithstanding a contrary provision of the city

charter or a city ordinance, upon receipt of a petition propos-

ing annexation of territory submitted by all owners of land

in the territory, the legislative body of the city shall annex

the territory without submitting the proposal to the electors

of the city if:

“(a) The territory is included within an urban growth

boundary adopted by the city or Metro, as defined in ORS

197.015;

Cite as 304 Or App 171 (2020) 177

“(b) The territory is, or upon annexation of the terri-

tory into the city will be, subject to the acknowledged com-

prehensive plan of the city;

“(c) At least one lot or parcel within the territory is

contiguous to the city limits or is separated from the city

limits only by a public right of way or a body of water; and

“(d) The proposal conforms to all other requirements

of the city’s ordinances.”

ORS 222.127 (emphasis added).

As described in the legislative history, SB 1573 was

intended to prevent local voters from unilaterally preventing

the development of land that was placed within the urban

growth boundaries of cities for the purpose of development.

See Audio Recording, Senate Committee on Rules, SB 1573,

Feb 24, 2016, at 39:43 (statements of John Van Landingham

and Sen Lee Beyer), http://olis.oregonlegislature.gov (accessed

Apr 22, 2020). The statute applies only to annexations of

territory within the urban growth boundary that is sub-

ject to or will be subject to the city’s acknowledged compre-

hensive plan. See ORS 222.127(2)(a) - (b). Additionally, the

territory must satisfy the contiguity requirements of ORS

222.127(2)(c), and, per ORS 222.127(2)(d), the annexation

proposal must conform to all other requirements in the city’s

ordinances.

Corvallis, Philomath, and at least 33 other Oregon

cities have city charters or city ordinances that require voter

approval of some or all municipal annexations. Corvallis’s

charter provision, which is the result of a voter referendum

and resulting 1976 charter amendment, provides:

“Section 53. Vote on Annexations. Unless mandated by

State law, annexation, delayed or otherwise, to the City of

Corvallis may only be approved by a prior majority vote

among the electorate.”

Corvallis Charter of 2006, ch 10, § 53.4 Philomath’s char-

ter provision, which is the result of a voter referendum and

resulting 1995 charter amendment, similarly provides:

4

The trial court construed the Corvallis Charter of 2006, so all references

herein are to the 2006 charter. The charter has since been amended, in 2017, but

those amendments do not affect the provision at issue.

178 City of Corvallis v. State of Oregon

“Section 11.1. Annexations by majority vote. Unless man-

dated by state law, annexations to the city of Philomath

may only be approved by a prior majority vote among the

electorate.”

Philomath Charter of 1987, ch 11, § 11.1.

On April 18, 2016, the Department of Land

Conservation and Development (DLCD) sent a letter to local

governments regarding “2016 Land Use Legislation,” citing

DLCD’s obligation under ORS 197.646 to notify local gov-

ernments of certain types of new statutory requirements.

The letter included notice that SB 1573 was “[o]ne of the

bills that may require changes to city acknowledged com-

prehensive plans and/or land use regulations” and might

also “affect city charters and other codes.” The letter and

attached report also addressed other new legislation.

About a week later, Corvallis received two separate

annexation petitions—one from Caldwell Farms, LLC, and

another from a group of eight landowners—seeking annex-

ation pursuant to ORS 222.127. Corvallis directed its staff

to comply with the city’s charter provisions and disregard

“contrary interpretations” of ORS 222.127. Subsequently,

Corvallis filed this declaratory judgment action, seeking

to have ORS 222.127 declared unconstitutional, either on

its face or as applied, because it conflicts with the home-

rule provisions of the Oregon Constitution. Philomath soon

joined as a plaintiff-intervenor.

The state defendants moved for summary judg-

ment on all claims, making a variety of arguments as to

why plaintiffs’ claims fail as a matter of law, including an

argument regarding the specific language of Corvallis’s and

Philomath’s charter provisions. Plaintiffs opposed the state

defendants’ motion and filed their own cross-motions for

summary judgment. Plaintiffs’ summary judgment materi-

als included 10 declarations from Corvallis and Philomath

voters and a declaration from the former deputy city attor-

ney of Corvallis, regarding their understanding of the spe-

cific language of Corvallis’s charter provision. The state

moved to strike all 11 declarations as inadmissible on vari-

ous grounds under the Oregon Evidence Code.

Cite as 304 Or App 171 (2020) 179

After a hearing, the trial court granted the state

defendants’ motions and denied plaintiffs’ motions. The

court provided its reasoning in a detailed letter opinion. The

court struck the declarations as irrelevant for purposes of

construing the charter, as containing inadmissible hearsay,

and as not based on personal knowledge. As to the sum-

mary judgment motions, the court first addressed plaintiffs’

as-applied constitutional challenge, concluding that the state

had not engaged in any enforcement action against plain-

tiffs that would permit an as-applied challenge. The court

then addressed plaintiffs’ facial challenge and determined

that, at a minimum, ORS 222.127 is not unconstitutional as

to cities such as Corvallis and Philomath, whose charters’

annexation provisions contain specific language—“[u]nless

mandated by state law”—that avoids any potential con-

flict between the statute and the charter. Finally, the court

addressed the constitutionality of ORS 222.127 as to cities

whose charters do not include such language, as relevant to

another plaintiff,5 and concluded that ORS 222.127 does not

violate the home-rule provisions of the Oregon Constitution

as to those cities either.

The trial court entered a written order consistent

with its letter opinion. It then entered a general judgment.

The general judgment refers to the summary judgment

order, states that there are “no further factual or legal issues

to resolve,” and grants judgment “to defendants”; it contains

no declarations. Plaintiffs appeal.

III. ANALYSIS

Plaintiffs raise three assignments of error on

appeal, only two of which we address. See 304 Or App at 175

n 3. In their first assignment of error, plaintiffs argue that

the trial court erred in rejecting their facial challenge to

ORS 222.127. In their third assignment of error, plaintiffs

argue that the trial court erred in rejecting their as-applied

challenge to ORS 222.127 and in striking the 11 declara-

tions from the summary judgment record.

5

As previously noted, LOC was a plaintiff-intervenor but is not a party

on appeal. The trial court therefore had to resolve LOC’s claims, whereas we

do not.

180 City of Corvallis v. State of Oregon

As the state correctly notes, plaintiffs’ assignments

of error do not comport with ORAP 5.45(3). See AS 2014-11

5W LLC v. Caplan Landlord, LLC, 273 Or App 751, 769,

359 P3d 1225 (2015) (“Under ORAP 5.45, each assignment

of error should identify one—and only one—ruling that is

being challenged.” (Internal quotation marks omitted.)).6

Nonetheless, it is clear from the opening brief which rulings

plaintiffs are challenging, and it is evident from the answer-

ing brief that the state defendants’ ability to respond has

not been compromised. We therefore proceed to the merits.

See Village at North Pointe Condo. Assn. v. Bloedel Constr.,

278 Or App 354, 359-61, 374 P3d 978, adh’d to as modified

on recons, 281 Or App 322, 336, 383 P3d 409 (2016).

In doing so, we understand the first assignment of

error to challenge two rulings, as related to plaintiffs’ facial

challenge to ORS 222.127: the grant of the state defendants’

motion for summary judgment and the denial of plaintiffs’

motions for summary judgment. We understand the third

assignment of error to challenge three rulings, as related

to plaintiffs’ as-applied challenge to ORS 222.127: the grant

of the state defendants’ motion for summary judgment,

the grant of the state defendants’ motion to strike, and the

denial of plaintiffs’ motions for summary judgment.

A. Facial Challenge to ORS 222.127

A statute is facially unconstitutional if it “is inca-

pable of constitutional application in any circumstance.”

Jensen v. Whitlow, 334 Or 412, 421, 51 P3d 599 (2002); see

also State v. Christian, 354 Or 22, 40, 307 P3d 429 (2013)

(“Our analysis of defendant’s facial challenge is limited to

whether the ordinance is capable of constitutional applica-

tion in any circumstance.”); Northrup v. Hoyt, 31 Or 524,

529, 49 P 754 (1897) (if a statute may constitutionally oper-

ate upon certain persons or cases, it is not unconstitutional

6

As we intermittently remind parties, legal conclusions and points of legal

analysis are not “rulings” to be divided into multiple assignments of error. E.g.,

Rutter v. Neuman, 188 Or App 128, 132, 71 P3d 76 (2003). Conversely, challenges

to multiple rulings should not be combined into a single assignment of error. E.g.,

Landauer v. Landauer, 221 Or App 19, 23-24, 188 P3d 406 (2008) (“The group-

ing of a trial court’s rulings under a single assignment of error hinders evalua-

tion of each individual ruling on its merits and is a practice that should not be

followed.”).

Cite as 304 Or App 171 (2020) 181

simply because there may be persons or cases to whom it

constitutionally cannot apply). The state contends—and the

trial court agreed—that ORS 222.127 is not facially uncon-

stitutional, because, at a minimum, it is capable of constitu-

tional application as to cities whose charters do not conflict

with ORS 222.127.

As discussed in more detail later, the Supreme

Court and we have repeatedly held that charter language

requiring a vote of the city’s electorate on annexations does

not conflict with state statutes requiring annexation in

particular circumstances, so long as the city’s charter con-

tains language allowing for state-mandated annexations.

See Pieper v. Health Division, 288 Or 551, 553, 557-58, 606

P2d 1145 (1980) (holding that state health division’s order

requiring Corvallis to annex territory in accordance with

a state statute did not conflict with Corvallis charter pro-

vision requiring electorate to vote on annexations, because

the charter provision allows for annexations “mandated by

state law”); Mid-County, 310 Or at 163-64 (rejecting consti-

tutional challenge to state statute on which local bound-

ary commissions relied to order certain annexations to two

cities, where both cities’ charters contained language that

effectively allowed the state legislature to alter their bor-

ders without city approval); Hunter v. Portland Metro. Area

Local Boundary Com., 160 Or App 508, 510-12, 981 P2d 1276

(1999) (relying on Mid-County to conclude that there was no

conflict between a state statute and a city charter, where the

city charter expressly permitted annexation without voter

approval if “mandated by state law”).

It is not clear whether the constitutional challenges

in Mid-County and Hunter were viewed as facial or as-applied

challenges, to the extent that they required consideration

of the plaintiffs’ specific charter provisions. Here, the trial

court construed Corvallis’s and Philomath’s charters as

part of resolving plaintiffs’ facial challenge to ORS 222.127,

but plaintiffs and the state defendants address it as part of

the as-applied challenge. The latter approach has intuitive

appeal, in that the analysis is specific to these plaintiffs, as

is typically the case for an as-applied challenge. Because it

does not affect our disposition, we address plaintiffs’ charter

182 City of Corvallis v. State of Oregon

language as part of the as-applied analysis, consistently

with how the parties present it. Our construction of plain-

tiffs’ charters is relevant to the facial challenge, however,

in that it demonstrates at least two instances in which city

charters do not conflict with ORS 222.127.7

B. As-Applied Challenge to ORS 222.127

Having concluded that ORS 222.127 is not uncon-

stitutional on its face, so long as it may constitutionally be

applied at least to cities whose charter provisions do not

conflict with it, we next consider plaintiffs’ claim that ORS

222.127 is unconstitutional as applied to them. We first

address the state defendants’ argument that, because the

executive branch has not taken enforcement action against

them, plaintiffs cannot assert an as-applied challenge.

We next address plaintiffs’ assertion that, in construing

Corvallis’s and Philomath’s charters, we should consider

11 declarations that the trial court struck from the sum-

mary judgment record. Lastly, we construe Corvallis’s and

Philomath’s charter provisions to determine whether the

“[u]nless mandated by state law” language defeats plain-

tiffs’ as-applied challenge.

1. Lack of enforcement action

A prerequisite to challenging the constitution-

ality of a law as applied is that the law has been applied.

That is, as relevant here, the law must have been enforced

against the complainant. City of Eugene v. Lincoln, 183 Or

App 36, 41, 50 P3d 1253 (2002) (“A facial challenge asserts

that lawmakers violated the constitution when they enacted

the ordinance; an as-applied challenge asserts that execu-

tive officials, including police and prosecutors, violated the

constitution when they enforced the ordinance.”). The state

defendants successfully argued to the trial court that that

prerequisite was not met in this case.

7

Notably, it is apparent from the statutory language that the legislature

meant ORS 222.127 to apply to all cities, including those whose charters conflict

with the statute. See ORS 222.127(2) (“Notwithstanding a contrary provision of

the city charter or a city ordinance, * * *.”). That does not change our analysis. If

plaintiffs’ charters do not conflict, it is possible for the statute to be constitution-

ally applied, at least as to them.

Cite as 304 Or App 171 (2020) 183

Plaintiffs argue that the letter that they received

from DLCD in April 2016 constituted executive enforcement

action. The trial court correctly rejected that argument. The

letter is a statutorily required notice from DLCD regarding

recently enacted land use laws that may affect local govern-

ments. See ORS 197.646(2)(a). It does not require anything,

nor does it impose any penalty for noncompliance. Moreover,

the final subsection of ORS 197.646 expressly provides that

a local government’s failure to take necessary action in

response to new land use requirements “is a basis for ini-

tiation of enforcement action pursuant to ORS 197.319 to

197.335.” ORS 197.646(3) (emphasis added). A notice regard-

ing the existence of new land use requirements does not

itself initiate an enforcement action.

Alternatively, plaintiffs rely on the annexation

petitions that they received after the enactment of ORS

222.127. The trial court also correctly rejected that argu-

ment. Plaintiffs cite no persuasive authority for the prop-

osition that a landowner’s mere filing of an annexation

petition with a city, under circumstances that require

the city to decide whether to comply with a state stat-

ute or disregard it, satisfies the prerequisite for bringing

an as-applied challenge against the state. It cannot be

enough for an as-applied challenge for a party to be con-

sidering not following a state law, because, until the law

is actually applied in an enforcement action, it remains

to be seen how it will be applied to that party, and the

crux of an as-applied challenged is the individual appli-

cation. Notably, the petitioning landowners could have

sought an enforcement order from Land Conservation and

Development Commission (LCDC), but no such order is in

the record. See OAR 660-045-0030 (permitting a person

to petition LCDC for an enforcement order against a local

government).

Normally, that would conclude our analysis of

plaintiffs’ as-applied challenge to ORS 222.127. For the rea-

sons discussed earlier, however, 304 Or App at 181-82, the

facial challenge and the as-applied challenge are closely

intertwined in this case, so it is necessary to proceed to an

analysis of plaintiffs’ charters.

184 City of Corvallis v. State of Oregon

2. Stricken declarations

Because it is relevant to what we will consider in

construing Corvallis’s and Philomath’s charters, we next

address whether the trial court erred in striking the 11 dec-

larations from the summary judgment record. In support

of their own interpretation of their charters, plaintiffs sub-

mitted 11 declarations: nine declarations from current or

former Corvallis residents who voted on the 1976 charter

amendment, a declaration from a current Philomath resi-

dent who voted on the 1987 charter amendment, and a dec-

laration from the former deputy city counsel who proposed

the “[u]nless mandated by state law” language included in

Corvallis’s 1976 charter amendment. The trial court struck

all 11 declarations as irrelevant and otherwise inadmissible

under the Oregon Evidence Code.

Even if we assume that the trial court’s exclusion of

the declarations was erroneous, any error was harmless. We

may reverse a judgment only when an error “substantially

affect[ed] the rights of a party,” i.e., was not harmless. ORS

19.415(2); see also OEC 103(1) (“Error may not be predicated

upon a ruling which admits or excludes evidence unless a

substantial right of the party is affected[.]”). Here, plain-

tiffs offered the 11 declarations as legislative history, which,

under the applicable construction rules, is the only way that

we could consider them. See State v. Gaines, 346 Or 160,

171-72, 206 P3d 1042 (2009) (describing the three-step con-

struction process of analyzing text, context, and any useful

legislative history). But even assuming that we could con-

sider the 11 declarations as legislative history of the char-

ter amendments—a contested issue on which we express no

opinion8 —we would not consider them.

8

The state argued, and the trial court agreed, that declarations of a handful

of individual voters and a former deputy city attorney provided 40 years after the

fact do not qualify as legislative history. See State v. Allison, 143 Or App 241, 251,

923 P2d 1224, rev den, 324 Or 487 (1996) (stating that the legislative history of a

voter-initiated charter amendment “includes statements contained in the voters’

pamphlet” and “other contemporaneous sources such as newspaper stories, maga-

zine articles and other reports from which it is likely the voters would have derived

information about the initiative” (internal quotation marks omitted)); see also

Salem-Keizer Assn. v. Salem-Keizer Sch. Dist. 24J, 186 Or App 19, 27, 61 P3d 970

(2003) (explaining that courts “are all the more loath” to determine the intentions

of a group by reference to isolated statements by individuals when those state-

ments are generated after the fact, rather than contemporaneously). Plaintiffs dis-

agree and argue that we can consider the declarations as legislative history.

Cite as 304 Or App 171 (2020) 185

That is, even assuming that the declarations qualify

as “legislative history” that we may consider under Gaines,

we are only required to consider “useful” legislative history,

and “the extent of the court’s consideration of that history,

and the evaluative weight that the court gives it, is for the

court to determine.” Id. at 172. Applying that standard here,

we would not give any evaluative weight to the 11 decla-

rations stricken by the trial court, and their consideration

would not affect our disposition. Any error in striking the

declarations therefore was harmless.

3. Plaintiffs’ charters

That brings us to the content of plaintiffs’ charters.

Charter amendments are the product of local legislation

and are “to be interpreted by the same means as other leg-

islation.” DeFazio v. WPPSS, 296 Or 550, 569, 679 P2d 1316

(1984). That is, we consider the text, context, and any useful

legislative history offered by the parties. Gaines, 346 Or at

171-72. In this instance, we do not find any legislative his-

tory provided by the parties to be useful, so we limit our dis-

cussion to text and context, recognizing that text is always

“primary” in the analysis. Id. The relevant text is brief.

As previously described, Corvallis’s charter pro-

vides that, “[u]nless mandated by State law, annexation,

delayed or otherwise, to the City of Corvallis may only be

approved by a prior majority vote among the electorate.”

Corvallis Charter of 2006, ch 10, § 53 (emphasis added).

Similarly, Philomath’s charter provides, that, “[u]nless man-

dated by state law, annexations to the city of Philomath may

only be approved by a prior majority vote among the elec-

torate.” Philomath Charter of 1987, ch 11, § 11.1 (emphasis

added).

The state defendants argue that ORS 222.127 does

not conflict with plaintiffs’ charter provisions, because those

provisions allow for annexation without a citizen vote if man-

dated by state law. The trial court agreed. Relying on Pieper

and Mid-County, the trial court concluded that “Section 53

of the Corvallis Charter and Section 11.1 of the Philomath

[Charter] do not conflict with [ORS 222.127] because both

specifically allow for annexation without a citizen vote if it

is mandated by statute.”

186 City of Corvallis v. State of Oregon

Pieper involved the same provision of Corvallis’s

charter that is at issue in this case. 288 Or at 553. In Pieper,

the state health division ordered Corvallis to adopt an ordi-

nance annexing certain territory to the city, pursuant to ORS

222.855, which provides for territory to be annexed “without

any vote” if the state health division finds that conditions

in the territory pose a danger to public health that can be

removed or alleviated by provision of sanitary, water, or like

facilities ordinarily provided by incorporated cities. Id. at 553,

556. Corvallis challenged the order, citing ORS 222.915, which

provides that the health-danger annexation statutes “do not

apply to proceedings to annex territory to any city if the char-

ter or ordinances of the city conflict with or are inconsistent

with” them. Corvallis argued that the statutory scheme con-

flicted with its charter, because its charter required a vote of

the electorate on all annexations. Id. at 553.

We affirmed, as did the Supreme Court. Id. at 558.

The court rejected Corvallis’s argument that an annex-

ation without the vote of the people would conflict with the

intent of its charter, explaining that it arose from a false

premise—“the express desire of Corvallis residents to vote

on all annexations”—that was contrary to the express char-

ter language, which “specifically provides that annexations

‘mandated by state law’ need not be approved by such a

vote.” Id. at 555 (emphasis in original). Given the express

language of the charter, the “only remaining question” was

“whether this annexation is one ‘mandated by state law.’ ”

Id. The court concluded that it was. Id. at 557. Because the

annexation was “mandated by state law,” it did not require

a vote of the Corvallis electorate, and there was no conflict

between the statute and the charter. Id.

Similarly, in Mid-County, local boundary commis-

sions relied on ORS 199.534 to order the cities of Portland

and Gresham to annex certain territory, and the cities

sought to have the statute declared unconstitutional under

the home-rule provisions of the Oregon Constitution. 310

Or at 155-56. The Supreme Court left “room to argue” in a

future case that the “borders of a municipal corporation are

an integral part of the corporate charter which cannot be

altered by the legislature,” but it concluded that Portland

and Gresham could not benefit from such an argument in

Cite as 304 Or App 171 (2020) 187

Mid-County, given their charter language. Id. at 163. The

Portland charter allowed annexation “in any manner per-

mitted by statute,” and the Gresham charter allowed the

city’s boundaries to be modified by voters, the city coun-

cil, or “any other agency with legal power to modify them.”

Id. at 164. Given that language, regardless of whether the

legislature could amend a city’s borders “against the munic-

ipality’s will,”9 the court read Portland’s and Gresham’s

charters “as permitting legislative alteration of their bor-

ders,” and it rejected the cities’ constitutional challenge.

Id. at 163; see also Hunter, 160 Or App at 510-12 (relying

on Mid-County to conclude that West Linn charter did not

conflict with state law, where charter provision included

“[u]nless mandated by state law” language).

Plaintiffs argue that this case is distinguishable

from Pieper and Mid-County, because, in their view, those

cases involved state-mandated annexation, whereas this

case involves a state-mandated process for annexation. Like

the trial court, we are unpersuaded by the distinction that

plaintiffs attempt to draw.

ORS 222.127(2) provides that, if specified criteria

are met, “the legislative body of the city shall annex the ter-

ritory without submitting the proposal to the electors of the

city.” (Emphasis added.) An annexation under that statute is

no less mandatory than an annexation under ORS 222.855,

the statute at issue in Pieper. An annexation under ORS

222.855 is mandatory if the state health division issues an

order determining that the specified criteria are met, while

an annexation under ORS 222.127 is mandatory if the legis-

lative body of the city determines that the specified criteria

are met.10 Although who determines whether the conditions

90

The state has indicated that, in its view, the legislature likely can amend

a city’s borders against the municipality’s will. Not surprisingly, plaintiffs dis-

agree. However, we need not reach that issue or those arguments given our dis-

position. That is, we need not answer the question left open in Mid-County.

10

Under ORS 222.127(2), the legislative body of the city “shall annex the

territory” if (a) it is included within an urban growth boundary adopted by the

city or Metro; (b) is or, upon annexation, will be subject to the acknowledged

comprehensive plan of the city; (c) at least one lot or parcel within the territory

is contiguous to the city limits or is separated from them only by a public right of

way or a body of water; and (d) the proposal conforms to all other requirements of

the city’s ordinances.

188 City of Corvallis v. State of Oregon

are met is different, that does not change the fact that both

types of annexations are mandatory, so long as the condi-

tions are met. It is also notable that, even though the state

health division makes the predicate finding with respect to

a health-hazard annexation, the legislative body of the city

still must issue an ordinance effectuating the annexation.

See ORS 222.900(1) (requiring the city to adopt an ordi-

nance, meeting specified criteria, “upon receipt of the certi-

fied copy of the finding as provided in ORS 222.880 (2) or (3)

and certification of approval of plans under ORS 222.898”).

Plaintiffs next argue that the trial court’s construc-

tion of “unless mandated by state law” violates the rule

against prospective delegation. See Advocates for Effective

Regulation v. City of Eugene, 160 Or App 292, 311-12, 981

P2d 368 (1999) (holding that that rule applies to munici-

pal charters). The rule against prospective delegation, as

relevant to municipal charters, comes from three consti-

tutional provisions: (1) Article I, section 21, which provides

that no law shall pass, “the taking effect of which shall be

made to depend on any authority, except as provided in

this Constitution”; (2) Article XI, section 2, which empow-

ers municipal voters to “enact and amend their municipal

charter[s]”; and Article IV, section 1, which provides, as rel-

evant here, that the initiative and referendum powers are

“reserved to the qualified voters of each municipality and

district as to all local, special and municipal legislation of

every character in or for their municipality or district.” Id.

There was no prospective delegation here. As was

the case in Pieper and Hunter, the plain language of plain-

tiffs’ charter provisions demonstrates a complete legislative

policy to generally require voter approval of annexation

proposals except where state law mandates the annexation.

Plaintiffs’ charter provisions do not incorporate the sub-

stance of state law. Cf. Advocates for Effective Regulation,

160 Or App at 313 (holding that city charter provision

incorporating the definition of “hazardous substances” from

future federal regulations was an improper delegation of

legislative authority). There is no reason that a city cannot

adopt a charter provision that favors the uniformity of state

law when state law exists. See Mid-County, 310 Or at 163

n 11, 164 (describing city charter as giving “consent and

Cite as 304 Or App 171 (2020) 189

approval” to legislative alteration of borders, and recogniz-

ing that “[t]he initial power to decree an annexation still lies

where it has always been—with the legislature”).

We also reject plaintiffs’ argument that the trial

court’s construction of ORS 222.127 would allow “the excep-

tion to swallow the rule.” See 1000 Friends of Oregon v.

LCDC (Tillamook Co.), 303 Or 430, 441, 737 P2d 607 (1987)

(determining that it was not the legislature’s intent, when

enacting a statute, to “allow[ ] the exception to swallow

the rule”). Given that plaintiffs’ voters expressly excepted

state-law-mandated annexations from the vote requirement

when they added that requirement to plaintiffs’ charters in

1976 and 1995, plaintiffs are not in a position to argue that

their voters’ intent is being disregarded when the excep-

tion is applied. Plaintiffs contend that their voters intended

“[u]nless mandated by state law” to refer only to health-

hazard annexations, but that narrow reading cannot be

squared with the charters’ plain language.11

Finally, Corvallis and Philomath protest that they

are being compelled to annex territory against their will.

The difficulty with that argument is that plaintiffs are

only being compelled to do precisely what their voters pro-

vided for when they enacted the charter provisions at issue:

comply with state law regarding mandated annexations.

Cf. Pieper, 288 Or at 555 (Corvallis’s argument that annex-

ation without the vote of the people would conflict with the

intent of its charter was fallacious because it rested on the

false premise that Corvallis residents expressly desired to

vote on all annexations, when in fact the charter specifically

provided that annexations “mandated by state law” did not

require voter approval). If plaintiffs’ voters are dissatisfied

with the existing charter provisions, then amendment is

11

Like the trial court, we also reject plaintiffs’ argument that the “state law”

language in their charters should be construed to refer only to the state law that

existed at the time of the charter amendments, i.e., 1976 for Corvallis and 1995

for Philomath. See Seale et al v. McKinnon, 215 Or 562, 572, 336 P2d 340 (1959)

(explaining that a statutory provision that references another law with specific-

ity should be construed to adopt the law as it existed at the time of the legislative

enactment, while a statutory provision that refers to another body of law gener-

ally should be construed as incorporating both the law that existed at the time of

enactment and any subsequent changes to the law).

190 City of Corvallis v. State of Oregon

always possible, or, as the state notes, plaintiffs could seek

to have their charter provisions invalidated.12

For all of those reasons, plaintiffs have not identi-

fied any grounds for reversal with respect to their constitu-

tional challenge to ORS 222.127 as applied to them.

IV. CONCLUSION AND DISPOSITION

Accordingly, we affirm the trial court’s grant of the

state defendants’ motion for summary judgment, grant of

the state defendants’ motion to strike, and denial of plain-

tiffs’ cross-motions for summary judgment.

The judgment is defective in one regard, however,

which is that it does not contain a declaration of the par-

ties’ rights. “If there is a justiciable controversy, the plaintiff

is entitled to a declaration of its rights, even if that decla-

ration is directly contrary to what it believes its rights to

be.” Beldt v. Leise, 185 Or App 572, 576, 60 P3d 1119 (2003).

When a trial court dismisses a declaratory judgment claim

after deciding it on the merits, it is our practice to vacate

and remand for correction of the judgment, even if we are

affirming on the merits. Kramer v. City of Lake Oswego,

285 Or App 181, 215-16, 395 P3d 592 (2017), aff’d in part

and rev’d in part, 365 Or 422, 446 P3d 1, adh’d to as modi-

fied on recons, 365 Or 691, 455 P3d 922 (2019); see also Doe

v. Medford School Dist. 549C, 232 Or App 38, 46, 221 P3d

787 (2009) (“When the dismissal of a declaratory judgment

action was clearly based on a determination of the merits of

the claim * * *, our practice has been to review that deter-

mination as a matter of law and then remand for the issu-

ance of a judgment that declares the rights of the parties in

accordance with our review of the merits.”).

Here, the trial court granted judgment to defen-

dants, rather than dismissing plaintiffs’ claims, but the

same principle applies. The correct disposition of a declar-

atory judgment claim is to enter a judgment declaring the

12

On appeal, plaintiffs suggest that, if their charter provisions allow for

application of ORS 222.127, then those provisions are unconstitutional, while the

state disagrees that the charter provisions are unconstitutional but notes that

plaintiffs “may seek to invalidate those provisions,” which they have not done in

this case. We need not get into the specifics of an issue that is not before us.

Cite as 304 Or App 171 (2020) 191

parties’ rights. De Lanoy v. Taylor, 300 Or App 517, 520, 452

P3d 1036 (2019) (when a “party asks for a declaration, it is

incumbent on the court to declare the respective rights of

the parties”). Plaintiffs are entitled to a declaration, even

if it is not the declaration they want. Beldt, 185 Or App at

576. Accordingly, we vacate and remand for the trial court

to enter a judgment that declares the rights of the parties.

Any declarations should be consistent with this opinion but

need not be limited to the issues addressed in this opinion.13

Vacated and remanded for entry of a judgment that

declares the rights of the parties.

13

In other words, the trial court may make declarations consistent with its

own letter opinion of February 2017, as appropriate, even if they go beyond the

scope of this opinion, so long as they do not conflict with this opinion.