Board of Cty. Comm. of Columbia Cty. v. Rosenblum

221

Argued and submitted November 9, 2022, reversed and remanded

February 15, 2023

For a Judicial Examination and Judgment of the Court

as to the Regularity, Legality, Validity and Effect of

the Columbia County Second Amendment Sanctuary

Ordinance

BOARD OF COUNTY COMMISSIONERS

OF COLUMBIA COUNTY,

a political subdivision of the State of Oregon,

Petitioner-Respondent,

v.

Ellen ROSENBLUM,

Attorney General for the State of Oregon,

Interested Party-Appellant,

and

Robert PILE,

Shana Cavanaugh, Brandee Dudzic,

and Joe Lewis,

Interested Parties-Respondents,

and

Raven Chris BRUMBLES;

Gun Owners of America, Inc.;

Gun Owners Foundation;

Oregon Firearms Federation;

Larry Erickson; Keith Forsythe;

and Ruth Nelson,

Intervenors-Respondents.

For a Judicial Examination and Judgment of the Court

as to the Regularity, Legality, Validity and Effect of

the Columbia County Second Amendment Sanctuary

Ordinance

BOARD OF COUNTY COMMISSIONERS

OF COLUMBIA COUNTY,

a political subdivision of the State of Oregon,

Petitioner-Appellant,

v.

222 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

Ellen ROSENBLUM,

Attorney General for the State of Oregon;

Robert Pile; Shana Cavanaugh;

Brandee Dudzic; and Joe Lewis,

Interested Parties-Respondents,

and

Raven Chris BRUMBLES;

Gun Owners of America, Inc.;

Gun Owners Foundation;

Oregon Firearms Federation;

Larry Erickson; Keith Forsythe;

and Ruth Nelson,

Intervenors-Respondents.

For a Judicial Examination and Judgment of the Court

as to the Regularity, Legality, Validity and Effect of

the Columbia County Second Amendment Sanctuary

Ordinance

BOARD OF COUNTY COMMISSIONERS

OF COLUMBIA COUNTY,

a political subdivision of the State of Oregon,

Petitioner-Respondent,

v.

Ellen ROSENBLUM,

Attorney General for the State of Oregon,

Interested Party-Respondent,

and

Robert PILE,

Shana Cavanaugh, Brandee Dudzic,

and Joe Lewis,

Interested Parties-Appellants,

and

Raven Chris BRUMBLES;

Gun Owners of America, Inc.;

Gun Owners Foundation;

Oregon Firearms Federation;

Larry Erickson; Keith Forsythe;

and Ruth Nelson,

Intervenors-Respondents.

Cite as 324 Or App 221 (2023) 223

Columbia County Circuit Court

21CV12796; A176726

526 P3d 798

The Attorney General for the State of Oregon, the Board of Commissioners of

Columbia County (the board), and several residents of Columbia County, appeal

a judgment dismissing a petition in a validation proceeding brought by the board

seeking a judicial determination as to whether an ordinance approved by the

board was preempted by state and federal law. The trial court dismissed the

case for want of justiciability. Held: The Court of Appeals concluded that the trial

court erred; the board’s petition presented a justiciable controversy. The court

also concluded that it was appropriate to reach the merits of the board’s petition,

and that the ordinance was preempted by ORS 166.170 and therefore void.

Reversed and remanded.

Ted E. Grove, Judge.

Steven C. Berman argued the cause for appellants-

respondents Robert Pile, Shana Cavanaugh, Brandee Dudzic

and Joe Lewis. Also on the briefs were Lydia Anderson-Dana

and Stoll Stoll Berne Lokting & Shlachter P.C. and Len

Kamdang, Mark Weiner, and Everytown Law, New York.

Matthew J. Kalmanson argued the cause for appellant-

respondent Board of County Commissioners of Columbia

County. Also on the briefs was Hart Wagner, LLP.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Patricia G. Rincon, Assistant Attorney

General, filed the briefs for appellant State of Oregon.

Tyler D. Smith argued the cause for respondents Raven

Chris Brumbles, Larry Erickson, Keith Forsythe, Gun

Owners Foundation, Gun Owners of America, Inc., Ruth

Nelson, and Oregon Firearms Federation. Also on the brief

was Tyler Smith & Associates, P.C.

P. Andrew McStay, Jr., and Davis Wright Tremaine LLP

filed the brief amicus curiae for Giffords Law Center to

Prevent Gun Violence.

Before Tookey, Presiding Judge, and Egan, Judge, and

Kamins, Judge.

TOOKEY, P. J.

Reversed and remanded.

Egan, J., concurring.

224 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

TOOKEY, P. J.

In this case concerning firearms, we determine that

we have jurisdiction to consider whether Columbia County’s

“Second Amendment Sanctuary Ordinance,” Ordinance No.

2021-1 (the Ordinance), is void because it is preempted by

ORS 166.170.1 Having made that determination, we con-

clude that the Ordinance is preempted by ORS 166.170, and

it is therefore void.

In this case, the Attorney General for the State of

Oregon, the Board of Commissioners of Columbia County

(the Board), and several residents of Columbia County (the

Residents), appeal a judgment dismissing a petition in a val-

idation proceeding brought by the Board pursuant to ORS

33.710.2 In the validation proceeding, the Board sought a

judicial determination as to whether the Ordinance was

preempted by state and federal law.

The Ordinance—titled “In the Matter of Declaring

a Second Amendment Sanctuary in Columbia County”—

finds that “all local, state, and federal acts, laws, orders,

rules or regulations regarding firearms, firearms acces-

sories, and ammunition are a violation of the Second

Amendment.” It requires that, with limited exception,

“[a]ll local, state and federal acts, laws, rules or regulations,

originating from jurisdictions outside of Columbia County,

1

ORS 166.170 provides:

“(1) Except as expressly authorized by state statute, the authority to reg-

ulate in any matter whatsoever the sale, acquisition, transfer, ownership,

possession, storage, transportation or use of firearms or any element relating

to firearms and components thereof, including ammunition, is vested solely

in the Legislative Assembly.

“(2) Except as expressly authorized by state statute, no county, city or

other municipal corporation or district may enact civil or criminal ordi-

nances, including but not limited to zoning ordinances, to regulate, restrict

or prohibit the sale, acquisition, transfer, ownership, possession, storage,

transportation or use of firearms or any element relating to firearms and

components thereof, including ammunition. Ordinances that are contrary to

this subsection are void.”

2

ORS 33.710 provides, in pertinent part, that the “governing body” of a

“municipal corporation” may “commence a proceeding in the circuit court * * * for

the purpose of having a judicial examination and judgment of the court as to the

regularity and legality of” any “ordinance, resolution or regulation enacted by

the governing body.”

Cite as 324 Or App 221 (2023) 225

which restrict or affect an individual person’s general right

to keep and bear arms, including firearms, firearm acces-

sories or ammunition * * * shall be treated as if they are

null, void and of no effect in Columbia County, Oregon.” And

it prohibits “agents, employees, and officials of Columbia

County” from “knowingly and willingly” participating “in

any way in the enforcement” of such acts, laws, rules, or

regulations.

After the Board filed the petition, in accordance

with the intervention procedure set forth in ORS 33.720, the

validation proceeding was joined by parties—the Attorney

General and the Residents—who argued that the Ordinance

was invalid because it was preempted by state and federal

laws.3 Additionally, pursuant to ORCP 33, a group of indi-

viduals and entities arguing that the Ordinance was not

preempted intervened (Intervenors).

The trial court dismissed the Board’s petition for

want of justiciability. It concluded that no justiciable con-

troversy existed in the case because the Board did not “seek

to defend the ordinance from a challenge or resolve some

conflict,” but was seeking “what amounts to an advisory

opinion designed to invalidate [its] own newly passed ordi-

nance.” The trial court further concluded that the “lack of

controversy” was “not cured by the appearance of interve-

nors.” As the trial court saw it, under ORS 33.710(4), the

Board did “not have authority to seek, and the court [did]

3

ORS 33.720 provides, in relevant part:

“(2) Jurisdiction of the municipal corporation shall be obtained by the

publication of notice directed to the municipal corporation; and jurisdiction

of the electors of the municipal corporation shall be obtained by publication

of notice directed to all electors, freeholders, taxpayers and other interested

persons, without naming such electors, freeholders, taxpayers and other

interested persons individually. The notice shall be served on all parties in

interest by publication thereof for at least once a week for three successive

weeks in a newspaper of general circulation published in the county where

the proceeding is pending, or if no such newspaper is published therein,

then in a contiguous county. Jurisdiction shall be complete within 10 days

after the date of completing publication of the notice as provided in this

section.

“(3) Any person interested may at any time before the expiration of the

10 days appear and contest the validity of such proceeding, or of any of the

acts or things therein enumerated. * * *.”

226 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

not have authority to grant, review of an ordinance without

a justiciable controversy.” 4

On appeal, the Attorney General, the Board, and

the Residents, contend that it was error for the trial court

to dismiss the case for want of justiciability. Additionally,

on appeal, the Attorney General and the Residents con-

tend that we should reach the merits of the issue raised in

the validation proceeding—i.e., whether the Ordinance is

unlawful because it is preempted by state and federal law.

Intervenors, for their part, contend that the trial court did

not err in dismissing the case for want of justiciability and

that, even if it did, we should not reach the merits of the

dispute.5

We conclude that the trial court erred when it dis-

missed the petition for want of justiciability. Additionally,

we conclude that it is appropriate for us to reach the merits

of the Board’s petition. On the merits, we conclude that the

Ordinance is preempted by ORS 166.170 and therefore void.

Consequently, we reverse and remand.

I. BACKGROUND

A. The Ordinance

In 2018 and 2020, respectively, voters in Columbia

County approved Initiative Measure 5-270, titled the

“Second Amendment Preservation Ordinance” (SAPO), and

Initiative Measure 5-278, titled the “Second Amendment

Sanctuary Ordinance” (SASO). In March 2021, the Board

combined the SAPO and the SASO into a single ordinance—

the Ordinance—by, among other things, amending the

4

ORS 33.710(4) provides:

“Nothing in this section allows a governing body to have a judicial examina-

tion and judgment of the court without a justiciable controversy.”

5

Intervenors also argue that the petition was not validly filed, and the trial

court’s judgment was not properly appealed, because the Board purportedly did

not follow Oregon’s public meetings laws, ORS 192.610 to 192.680. By the time

Intervenors raised that argument, the time period for raising a challenge on that

basis had expired, and Intervenors did not follow the appropriate procedure to

do so. See ORS 192.680(5), (6) (providing 60 days to challenge a decision made

in violation of the public meetings law and providing exclusive remedy). We also

note that the argument that the petition was not validly filed because it was filed

in violation of Oregon’s public meetings laws was not raised below and is, thus,

unpreserved.

Cite as 324 Or App 221 (2023) 227

SASO to include provisions from the SAPO. Columbia

County Ordinance No. 2021-1.

As amended by the Ordinance, the SASO, which is

incorporated into the Ordinance, is divided into six sections.

The first section, “Findings,” provides, in relevant part,

that “all local, state, and federal acts, laws, orders, rules or

regulations regarding firearms, firearms accessories, and

ammunition are a violation of the Second Amendment.”

Section 2, “Prohibitions,” states:

“While within Columbia County, this Ordinance pre-

serves the right of any person to keep and bear arms as

originally understood; in self-defense and preservation,

and in defense of one’s community and country, and to

freely manufacture, transfer, sell and buy firearms, fire-

arm accessories and ammunition, which are designed pri-

marily for the same purposes and protects ancillary rights

that are closely related to the right to keep and bear arms

protected by the Second Amendment; including the right

to manufacture, transfer, buy and sell firearms, firearm

accessories and ammunition[.]”

Section 2 also broadly prohibits agents, employees,

and officials of Columbia County from “knowingly and will-

ingly” participating “in any way in the enforcement of any

Extraterritorial Act,” which the fourth section, “Protections/

Extraterritorial Acts,” defines to include “all local, state and

federal acts, laws, rules or regulations, originating from

jurisdictions outside of Columbia County, which restrict or

affect an individual person’s general right to keep and bear

arms, including firearms, firearm accessories or ammuni-

tion.” Section 2 also prohibits agents, employees, and offi-

cials of Columbia County from “authoriz[ing] or appropri-

at[ing] governmental funds, resources, employees, agencies,

contractors, buildings, detention centers or offices for the

purpose of enforcing any element of such acts, laws, orders,

mandates, rules or regulations, that infringe on the right by

People to keep and bear arms.”

Section 3, “Duty of Sheriff,” provides that the

Sheriff of Columbia County shall have the “duty” to “deter-

mine as a matter of internal policy and county concern per

ORS 203.035, whether any federal, state or local regulation

228 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

affecting firearms, firearms accessories and ammunition,

that is enforceable within his/her jurisdiction, violates the

Second, Ninth, or Tenth Amendments to the Constitution of

these United States, or Article 1, sections 27 and 33 of the

Constitution of the State of Oregon, as articulated herein.”6

Section 4, in addition to defining Extraterritorial

Acts as noted above, declares that such Extraterritorial Acts

“shall be treated as if they are null, void and of no effect in

Columbia County, Oregon” and provides various exceptions.7

Section 5, “Enforcement of Violation,” provides a

maximum $2,000 fine for individuals and maximum $4,000

fine for corporations that violate the Ordinance.

Finally, Section 6, “Private Cause of Action,” creates

a private right of action against “any person” who “know-

ingly violates” the Ordinance while acting “under color of

any state or federal law”; provides that such person “shall be

liable to the injured party in an action at law, suit in equity,

or other proper proceeding for redress”; and purports to

strip “sovereign” and “governmental” immunity as affirma-

tive defenses for agents and employees of Columbia County

for cases brought against them under the Ordinance.

B. The Validation Proceeding

The day after passing the Ordinance, the Board

filed the petition in the Columbia County Circuit Court

6

Section 3 of the Ordinance is discussed in Judge Egan’s concurrence. 324

Or App at 245-47 (Egan, J., concurring).

7

The exceptions in Section 4 provide:

“1) The protections provided Columbia County by Section 2 of this Ordinance

do not apply to person[s] who have been convicted of felony crimes.

“2) This Ordinance is not intended to prohibit or effect in any way the prose-

cution of any crime for which the use, or possession of, a firearm is an aggra-

vating factor or enhancement to an otherwise independent crime.

“3) This Ordinance does not permit or otherwise allow the possession of fire-

arms in State or Federal buildings.

“4) This Ordinance does not prohibit individuals in Columbia County from

voluntarily participating in permitting, licensing, registration or other pro-

cessing of applications concealed handgun licenses or other firearm, firearm

accessory, or ammunition licensing or registration processes that may be

required by other legal jurisdictions outside Columbia County or by any other

municipality inside Columbia County.

“5) Actions in compliance with a judgment or order of a District or Circuit

court, based upon any Extraterritorial Act, are exempt from this Ordinance.”

Cite as 324 Or App 221 (2023) 229

seeking a declaration as to the legality of the Ordinance

under ORS 33.710. Specifically, the Board’s petition sought

a declaration as to whether the Ordinance is (1) preempted

by Oregon’s firearms law preemption statute, ORS 166.170,

(2) “conflicts with or [is] incompatible with Federal firearms

laws,” and (3) “conflicts with or is incompatible with” various

state firearms laws.

In accordance with the procedure set forth in ORS

33.720(2), the Board provided notice of the proceedings by

publishing a “notice and summons” once a week for three

successive weeks in a newspaper of general circulation in

Columbia County. And, in accordance with the procedure

set forth in ORS 33.720(3), the proceeding was joined by

interested parties, the Attorney General and the Residents,

who each opposed the Ordinance, taking the view that it

was unlawful. Later, pursuant to ORCP 33, Intervenors—

including Gun Owners of America, Inc., Gun Owners

Foundation, Oregon Firearms Federation, and the chief peti-

tioner of both the SASO and SAPO—moved to intervene,

seeking to defend the Ordinance, so that the court would

have “the benefit of having parties and legal representation

on both sides of the various legal issues.” The trial court

granted that motion and set a briefing schedule.

The Attorney General, the Residents, and

Intervenors, all briefed the issues of justiciability and

preemption. After that briefing, the trial court dismissed

the petition, concluding that there was no justiciable con-

troversy, and, under ORS 33.710(4)—which provides that

“[n]othing in this section allows a governing body to have

a judicial examination and judgment of the court without

a justiciable controversy”—the Board did “not have author-

ity to seek, and the court does not have authority to grant,

review of an ordinance without a justiciable controversy.” In

its letter opinion, the trial court reasoned that there was

no justiciable controversy, because the Board did not “seek

to defend the ordinance from a challenge or resolve some

conflict,” but, instead, sought “what amounts to an advisory

opinion designed to invalidate [its] own newly passed ordi-

nance.” It further concluded that the “lack of controversy is

not cured by the appearance of intervenors.”

230 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

The trial court then entered a judgment dismissing

the petition.

C. The Present Appeal

As noted, the Attorney General, the Residents, and

the Board, all appeal the judgment dismissing the petition,

arguing that the trial court erred in determining that there

was no justiciable controversy. But, on appeal, they present

differing views as to how we should analyze whether a vali-

dation proceeding is justiciable.

In the Attorney General’s view, for a validation

proceeding to be justiciable, ORS 33.710(4) requires the

existence of a justiciable controversy that is “coextensive”

with the “constitutional justiciability requirement recog-

nized in Oregon case law.” The Attorney General argues

that that requirement was met here, because there was “an

actual and substantial controversy between parties having

adverse legal interests,” and, therefore, the trial court erred.

The Board, on the other hand, relying on Couey v. Atkins,

357 Or 460, 355 P3d 866 (2015), contends that there “are

no justiciability limitations on the exercise of judicial power

in public actions or cases involving matters of public inter-

est,” such as this one. As the Board sees it, the trial court

had jurisdiction, because the Board followed the statutory

procedure authorized by the legislature in ORS 33.710 and

ORS 33.720, and ORS 33.710(4) did not impose any justi-

ciability requirements beyond compliance with the stat-

utory scheme itself. Finally, the Residents, for their part,

contend that the justiciability requirement in ORS 33.710(4)

“serves as a prohibition on validation proceedings for mat-

ters not listed in [ORS 33.710(2)], or for advisory opinions

on matters for which the governing body does not intend to

take action,” and neither of those circumstances is present

here.

Intervenors respond, among other points, that the

Board’s interpretation of ORS 33.710 reads the justiciability

requirement out of ORS 33.710(4) rendering it surplusage,

that ORS 33.710(4) prohibits advisory opinions, and that

what the Board sought in this case amounts to an advisory

opinion.

Cite as 324 Or App 221 (2023) 231

Additionally, the Attorney General and the Residents

argue that, should we determine that this case is justiciable,

we should reach the merits of the Board’s petition and con-

clude that the Ordinance is preempted.8 Intervenors argue

that we should not reach the merits, but that if we do, we

should conclude that the Ordinance is lawful. The Board

takes no position on whether we should rule on the merits,

nor does it take a position on the merits themselves.

II. ANALYSIS

A. Justiciability

The legally pertinent facts are undisputed, and

the issue of justiciability is a question of law. Thunderbird

Mobile Club v. City of Wilsonville, 234 Or App 457, 465, 228

P3d 650, rev den, 348 Or 524 (2010) (where facts were undis-

puted, reviewing justiciability determination for legal error);

SAIF v. Siegrist, 297 Or App 284, 291-92, 441 P3d 655, adh’d

to as modified on recons, 299 Or App 93, 455 P3d 47 (2019)

(“By definition, statutes are law, and, as such, their inter-

pretation always is a question of law.”).

1. The Statutory Scheme Governing Validation Proceedings

Prior to turning to justiciability under Oregon law,

and whether this case is justiciable, we consider the stat-

utory scheme governing validation proceedings, and what

the legislature intended when enacting it with regard to

justiciability. In that examination of legislative intent, we

consider the text of the statute in its context, along with rel-

evant legislative history, and, if necessary, relevant canons

of statutory construction. Doe v. Medford School Dist. 549C,

232 Or App 38, 46, 221 P3d 787 (2009).

A “validation proceeding” is a special statutory

proceeding created by the Legislative Assembly under ORS

33.710 and ORS 33.720, in which “certain local governmen-

tal entities can seek judicial examination of the legality of

* * * some of the actions that they take.” State ex rel City of

Powers v. Coos County Airport, 201 Or App 222, 229, 119

8

Additionally, Giffords Law Center to Prevent Gun Violence has filed an

amicus brief arguing that we should reach the merits of the appeal. It argues that

we should do so because, in its view, the Ordinance “frustrates life-saving Oregon

gun laws,” “chills law enforcement,” and “misleads law-abiding residents.”

232 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

P3d 225 (2005), rev den, 341 Or 197 (2006). As relevant here,

ORS 33.710(2) authorizes a “governing body”—including the

board of commissioners of a county—to

“commence a proceeding in the circuit court of the county in

which the municipal corporation or the greater part thereof

is located, for the purpose of having a judicial examination

and judgment of the court as to the regularity and legality

of:

“* * * * *

“(e) Any decision of the governing body that raises

novel or important legal issues that would be efficiently

and effectively resolved by a proceeding before the decision

becomes effective, when the decision will:

“(A) Require a significant expenditure of public funds;

“(B) Significantly affect the lives or businesses of a

significant number of persons within the boundaries of the

governing body; or

“(C) Indirectly impose a significant financial burden

on the cost of conducting business within the boundaries of

the governing body.

“(f) The authority of the governing body to enact any

ordinance, resolution or regulation[; or]

“(g) Any ordinance, resolution or regulation enacted

by the governing body, including the constitutionality of

the ordinance, resolution or regulation.”

The purpose of validation proceedings under ORS

33.710 is “to allow the governing body of the municipality to

know if its proposed ordinance or course of action is lawful,

before it * * * takes actions that will significantly affect cit-

izens.” Exhibit E, House Committee on Judiciary, HB 2581,

Apr 2, 2003 (comments of Jim Torrey, Mayor of the City

of Eugene, Oregon). Validation proceedings are “intended

to promote efficiency of local governments and to prevent

avoidable harms from controversies over the legality of an

ordinance or other governmental action.” Id.

While ORS 33.710 sets out the matters on which a

“governing body” can commence a validation proceeding,

ORS 33.720 sets forth procedures requiring notice to and

Cite as 324 Or App 221 (2023) 233

allowing intervention by interested parties. As relevant

here, ORS 33.720 provides:

“(2) Jurisdiction of the municipal corporation shall

be obtained by the publication of notice directed to the

municipal corporation; and jurisdiction of the electors of

the municipal corporation shall be obtained by publication

of notice directed to all electors, freeholders, taxpayers

and other interested persons, without naming such elec-

tors, freeholders, taxpayers and other interested persons

individually. The notice shall be served on all parties in

interest by publication thereof for at least once a week for

three successive weeks in a newspaper of general circula-

tion published in the county where the proceeding is pend-

ing, or if no such newspaper is published therein, then in a

contiguous county. Jurisdiction shall be complete within 10

days after the date of completing publication of the notice

as provided in this section.

“(3) Any person interested may at any time before the

expiration of the 10 days appear and contest the validity

of such proceeding, or of any of the acts or things therein

enumerated. Such proceeding shall be tried forthwith and

judgment rendered as expeditiously as possible declaring

the matter so contested to be either valid or invalid.”

In 2003, the legislature enacted House Bill (HB)

2581, which “enlarge[d] the scope of issues to which a gov-

erning body may seek to have a court determine the reg-

ularity, legality and constitutionality” under ORS 33.710.

Staff Measure Summary, Senate Committee on Judiciary,

HB 2581B, June 6, 2003; see Brownstone Homes Condo.

Assn. v. Brownstone Forest Hts., 358 Or 223, 236, 363 P3d

467 (2015) (legislative history includes staff measure sum-

mary). In addition to enlarging the scope of issues upon

which a governing body could bring a validation proceeding,

HB 2581 also added subsection (4) of ORS 33.710, which, as

noted above, provides that nothing in ORS 33.710 “allows

a governing body to have a judicial examination and judg-

ment of the court without a justiciable controversy.” Or Laws

2003, ch 548, § 1.

Regarding the addition of subsection (4) to ORS

33.710, Bill Joseph, Committee Counsel to the Senate

Committee on Judiciary, explained that it “simply states

234 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

that the section being amended[, ORS 33.710,] does not by

itself create a justiciable controversy where there is not

one.” Audio Recording, Senate Committee on Judiciary, HB

2581A, June 6, 2003, at 00:17:14 (Testimony of Bill Joseph,

Committee Counsel); see also Staff Measure Summary,

Senate Committee on Judiciary, HB 2581B, June 6, 2003

(amendment adding ORS 33.710(4) “[c]larifies that the mea-

sure does not create a justiciable controversy where one does

not exist under the circumstances of the particular case

at issue”). Joseph also described to the Senate Committee

on Judiciary an example of when a validation proceed-

ing would be justiciable consistent with the dictates of

ORS 33.710(4):

“Assume that a city decided to build a wastewater treat-

ment facility and filed a petition with the court saying [we]

want to make sure we have authority to do this. Somebody

comes forward and they argue to the court no [the city does

not] have authority to do this. There is now a justiciable

controversy. There is a question of law in front of the court.

There are two parties in this case.”

Audio Recording, Testimony of Bill Joseph, Committee

Counsel, HB 2581A, Senate Committee on Judiciary, HB

2581A, June 6, 2003, at 00:19:06 (Testimony of Bill Joseph,

Committee Counsel).9

That view of what a justiciable controversy is

in the context of a validation proceeding was shared by

Representative Robert Ackerman, a cosponsor of HB 5281.

Representative Ackerman explained to the House Committee

on Judiciary what, in his view, was required for a validation

proceeding to be justiciable:

“In general terms, the municipality which seeks valida-

tion of its acts will file a claim in circuit court and provide

notice by publication as set forth in ORS 33.720. * * *

“In the event a defendant with proper standing makes

an appearance in the case, the court will have a contro-

versy upon which it can make a ruling.”

9

Joseph also observed that, in his view, in some circumstances, a case could

be justiciable with only one party, such as a quiet title action. Audio Recording,

Senate Committee on Judiciary, HB 2581A, June 6, 2003, at 00:17:40 (Testimony

of Bill Joseph, Committee Counsel).

Cite as 324 Or App 221 (2023) 235

Testimony, House Committee on Judiciary, HB 2581, Apr 2,

2003, Ex D (statement of Rep Robert Ackerman). Thus,

in Representative Ackerman’s view, the provisions of ORS

33.720 “implement[ ]” the provisions of ORS 33.710. Id.

But in enacting HB 2581, Representative Ackerman

and others were not of the view that every case in which

a municipal corporation filed a petition under ORS 33.710

would result in a justiciable validation proceeding. For

example, Representative Ackerman explained to legislators

that a validation proceeding would be justiciable only where

an interested party appeared challenging the governmental

action as provided in ORS 33.720(3). Id. (“Since the courts

require actual parties to appear in the proceeding and pres-

ent a true controversy, the validation proceedings will not

be effective unless a defendant with appropriate standing

appears in the litigation.”); see also Audio Recording, Senate

Committee on Judiciary, May 21, 2003, HB 2581A, at

00:51:00 (“Yes, if nobody comes to the party, there’s no party,

okay, * * * and the [validation] process—in that case—would

not be successful.”). Similarly, in response to questions con-

cerning the preclusive effect of validation proceedings, Staff

Attorney for the Office of the Legislative Counsel, Hannah

Mills, explained:

“The way this currently is written it does not create a jus-

ticiable controversy. A municipality cannot go and just spe-

cifically ask for the legality of a regulation or an ordinance.

For that to happen, there has to be an adverse party and

the adverse party has to have a problem with the specific

provision of the act and [if raising a constitutional concern]

cite to a specific constitutional issue.”

Audio Recording, House Committee on Judiciary, HB 2581,

Apr 13, 2003, 00:03:25 (Comments of Hannah Mills).

2. Justiciability Under Oregon Law

With that understanding of validation proceedings,

we turn to justiciability under Oregon law.

Traditionally understood, justiciability includes a

“constellation of related issues, including standing, ripeness,

and mootness.” Yancy v. Shatzer, 337 Or 345, 349, 97 P3d

1161 (2004), abrogated on other grounds by Couey v. Atkins,

236 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

357 Or 460, 355 P3d 866 (2015). It is a “vague standard,” but

it entails several definite considerations:

“A controversy is justiciable, as opposed to abstract, where

there is an actual and substantial controversy between

parties having adverse legal interests. The controversy

must involve present facts as opposed to a dispute which is

based on future events of a hypothetical issue. A justicia-

ble controversy results in specific relief through a binding

decree as opposed to an advisory opinion which is binding

on no one.”

Brown v. Oregon State Bar, 293 Or 446, 449, 648 P2d 1289

(1982) (internal citation omitted). Although it was not always

consistent, the Supreme Court previously had held that,

under the Oregon Constitution, the “judicial power does not

include the authority to adjudicate cases in which there is no

existing controversy.” Yancy, 337 Or at 347; see also Couey,

357 Or at 510 (noting that, “over the course of the last 100

years, [Oregon] cases have veered back and forth between

regarding justiciability as a constitutional imperative and

treating it as a prudential consideration”).

But in Couey, the Supreme Court clarified that

“such justiciability doctrines as mootness and standing are

not implicit in Article VII (Amended), section 1—at least

not in public action cases or those involving matters of pub-

lic importance.” 357 Or at 521. Thus, in Couey, the court

concluded that the legislature acted within its authority in

enacting ORS 14.175—which allows review of cases that,

although moot, are capable of repetition yet evading review—

because the “the legislature’s authority to enact legislation

is plenary, subject only to limitations that arise either from

the Oregon Constitution or from a source of supreme federal

law,” and neither of those sources of authority limited the

legislature’s authority to enact ORS 14.175 and authorize

the courts to hear otherwise moot cases. Id. at 521 (internal

quotation marks omitted).10

10

We note that, in Couey, the court cautioned that, even in the absence of

constitutionally prescribed justiciability considerations, “there remain other lim-

itations on the ‘judicial power’ that may be exercised under the state constitution”—

such as those dictated by separation of powers principles—and the “judicial

power” is not an “empty vessel to be filled as it pleases the legislature.” Id. at

520-21.

Cite as 324 Or App 221 (2023) 237

The legislature may also impose statutory justi-

ciability requirements. See Beck v. City of Portland, 202 Or

App 360, 363, 122 P3d 131 (2005) (noting that, “the legisla-

ture may impose statutory justiciability requirements,” for

example, “statutory standing requirements, as it has done in

numerous statutes”). And where the legislature has imposed

such requirements, the courts lack jurisdiction to consider

a case where those requirements are not met. Hill v. City of

Portland, 296 Or App 470, 479, 439 P3d 564 (2019) (“The cir-

cuit court properly dismissed the petition and quashed the

writ for lack of jurisdiction, because a statutory justiciabil-

ity requirement of ORS 34.040—that ‘a substantial interest

of [the] plaintiff has been injured’—was not met.” (Quoting

ORS 34.040; brackets in Hill.)).

3. The Validation Proceeding Is Justiciable

Considering the statutory scheme governing vali-

dation proceedings and constitutional justiciability require-

ments under Oregon law as clarified in Couey, we conclude

that the trial court erred in dismissing this case for want

of justiciability. In our view, there is no constitutional jus-

ticiability barrier to the consideration of the validation pro-

ceeding in this case. Further, the statutory requirements for

such a proceeding under ORS 33.710 (concerning the filing

of a petition) and ORS 33.720 (concerning notice and inter-

vention) were satisfied.

Here, as the legislative history regarding ORS

33.710 and ORS 33.720 makes clear, the process that the leg-

islature intended for a validation proceeding to be justicia-

ble under the statutory scheme was followed—namely, the

Board filed its petition pursuant to ORS 33.710, notice was

provided under ORS 33.720(2), and the Attorney General

and the Residents joined as interested parties pursuant to

ORS 33.720(3) raising a facial challenge to the Ordinance.

That series of events was reflective of the justiciable

controversy in this case: there was an actual and substan-

tial controversy concerning the legality of an ordinance that

had been enacted by the County; the controversy involved

present facts as opposed hypothetical future issues—i.e.,

whether the Ordinance was preempted by state law; and

a judicial proceeding would result in a binding decree as

238 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

to whether the Ordinance was void. We think that justi-

ciable controversy would satisfy the justiciability require-

ments historically understood as arising under the Oregon

Constitution.

In reaching our conclusion that the validation pro-

ceeding here is justiciable, we need not consider whether

ORS 33.710(4) imposes justiciability requirements that

operate independently of justiciability considerations under

the Oregon Constitution; that is because under any plau-

sible conception of what a “justiciable controversy” entails,

as that term is used in ORS 33.710(4), those justiciability

requirements are no more restrictive than the justiciable

controversy requirements historically understood to be

imposed by the Oregon Constitution, and, as noted above,

we conclude those requirements are satisfied in this case.

Nor do we need to decide whether a validation proceeding

would be justiciable in the absence of the facts present in

this case; that is, for example, in the absence of parties join-

ing who have a stake in the outcome of a proceeding.

In reaching its conclusion that this case was not

justiciable, the trial court noted its view that the board

was not “seek[ing] to defend the ordinance from a chal-

lenge or resolve some conflict,” but instead seeking “what

amounts to an advisory opinion designed to invalidate [its]

own newly passed ordinance,” and reasoned that “lack of

controversy is not cured by the appearance of intervenors.”

In our view, whatever the Board’s motivation for filing the

validation proceeding in accordance with ORS 33.710, the

validation proceeding concerned the legality of extant law

and was properly joined by parties who had a stake in the

outcome—i.e., residents of Columbia County itself and the

Attorney General (i.e., “the chief law officer for the state,”

ORS 180.210)—and who sought to challenge the legality of

that law in accordance with ORS 33.720. Further, as noted,

the validation proceeding would result in a binding decree.

No justiciability barrier exists to reaching the merits of a

validation proceeding in that circumstance.

Thus, we conclude that the trial court erred in

dismissing the validation proceeding for want of justicia-

bility; there was no constitutional justiciability barrier to

Cite as 324 Or App 221 (2023) 239

the consideration of the validation proceeding in this case

and the statutory requirements for such a proceeding under

ORS 33.710 and ORS 33.720 were met.

B. The Ordinance is Preempted

Having concluded that the trial court erred in dis-

missing the validation proceeding for want of justiciability,

we also conclude that it is appropriate for us to reach the

merits of the dispute and that the Ordinance is preempted

by ORS 166.170 and is void.

As to whether we should reach the merits, we

observe that this case presents a facial challenge to the

legality of the Ordinance, which is a purely legal question,

the merits of the case were fully briefed below, and there

are no factual issues regarding the merits that prevent us

from reaching them. See Cascadia Wildlands v. Dept. of

State Lands, 293 Or App 127, 129, 427 P3d 1091 (2018), aff’d,

365 Or 750, 452 P3d 938 (2019) (after determining parties

had standing, reaching merits although trial court did not,

where the record was “fully developed—viz., the merits of

the parties’ dispute were briefed and argued at an eviden-

tiary hearing on the petition; the parties raise only issues

of law on the merits on appeal; and” the standard of review

meant that, “in practical effect,” review was for legal error);

Farnsworth v. Meadowland Ranches, Inc., 321 Or App 814,

820, 519 P3d 153 (2022) (“[A] motion rests on purely legal

contentions when the facts are not merely undisputed but

immaterial, such as a facial challenge to the constitution-

ality of a statute.” (Internal quotation marks omitted.)). We

also note that the merits of this case would surely arise on

remand if we do not address them. Snyder v. Amsberry, 306

Or App 439, 441, 474 P3d 417 (2020) (addressing legal issue

“likely to arise on remand”). Consequently, in this case, we

believe it appropriate to reach the merits of the parties’ dis-

pute over the legality of the Ordinance.

Whether “and the extent to which[ ] a state statute

has preemptive effect is a question of legislative intent.” Doe,

232 Or App at 46. We ascertain the intentions of the legis-

lature by examining the text of the statute in its context,

along with any relevant legislative history, and, if neces-

sary, relevant canons of statutory construction. Id.

240 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

ORS 166.170 provides:

“(1) Except as expressly authorized by state statute,

the authority to regulate in any matter whatsoever the

sale, acquisition, transfer, ownership, possession, storage,

transportation or use of firearms or any element relating to

firearms and components thereof, including ammunition,

is vested solely in the Legislative Assembly.

“(2) Except as expressly authorized by state statute,

no county, city or other municipal corporation or district

may enact civil or criminal ordinances, including but not

limited to zoning ordinances, to regulate, restrict or pro-

hibit the sale, acquisition, transfer, ownership, possession,

storage, transportation or use of firearms or any element

relating to firearms and components thereof, including

ammunition. Ordinances that are contrary to this subsec-

tion are void.”

We have interpreted “regulate,” as used in ORS

166.170(1), to mean “ ‘to govern or direct according to rule

* * *; usu: to bring under the control of law or constituted

authority: make regulations for or concerning <~the indus-

tries of a country>.’ ” Doe, 232 Or App at 53 (quoting Webster’s

Third New Int’l Dictionary 1913 (unabridged ed 1993); omis-

sion and emphasis in Webster’s). Further, we have explained

that “matter,” in ORS 166.170(1), “refers not to the nature of

the regulation itself, but to the subjects to which the regula-

tion applies.” Id. at 55 n 4 (emphases added).

There is no doubt that, when enacting ORS 166.170,

“the legislature intended to enact a broad preemption stat-

ute.” Id. at 45. Its purpose was to avoid “a patchwork quilt

of local government laws inconsistently regulating the use

of firearms.” Id. at 57-58 (emphasis in original). That is, the

intent of the legislature in enacting ORS 166.170 was to

ensure that firearms were regulated “in a uniform manner

throughout the state.” Tape Recording, House Committee on

Judiciary, HB 2784, Apr 3, 1995, Tape 15, Side A (statement

of Committee Chair Rep Del Parks).

As described above, the Ordinance in this case is

quite broad. It finds that “all local, state, and federal acts,

laws, orders, rules or regulations regarding firearms, fire-

arms accessories, and ammunition are a violation of the

Second Amendment”; declares that “[w]hile within Columbia

Cite as 324 Or App 221 (2023) 241

County,” any person may “freely manufacture, transfer, sell

and buy firearms, firearm accessories and ammunition”;

declares, with limited exception, that all “local, state and

federal acts, laws, rules or regulations, originating from

jurisdictions outside of Columbia County, which restrict or

affect an individual person’s general right to keep and bear

arms, including firearms, firearm accessories or ammuni-

tion” are to be treated “as if they are null, void and of no

effect in Columbia County, Oregon”; prohibits employees and

officials in Columbia County from participating “in any way

in” enforcement of “all local, state and federal acts, laws,

rules or regulations, originating from jurisdictions outside

of Columbia County, which restrict or affect an individual

person’s general right to keep and bear arms, including

firearms, firearm accessories or ammunition”; and creates

a private right of action against “any person” who “know-

ingly violates” the Ordinance while acting “under color of

any state or federal law.”

We conclude that the Ordinance is preempted by

ORS 166.170 and void. The Ordinance, with limited excep-

tion, purports to nullify all firearm regulations enacted by

the Legislative Assembly. In doing so, it “bring[s] under the

control of law” (i.e., regulates) how firearms and firearms

accessories (the subjects of the Ordinance) will be treated in

Columbia County. If allowed to stand, it would, effectively,

create a “patchwork quilt” of firearms laws in Oregon, where

firearms regulations that applied in some counties would

not apply in Columbia County, which is what ORS 166.170

was enacted to avoid. That is, it would create an uneven

landscape of firearms laws throughout Oregon, with differ-

ences in regulation and enforcement throughout the state,

and it would have the potential to lead to uncertainty for

firearms owners concerning the legality of their conduct as

they travel from county to county.

Because we conclude that the Ordinance is pre-

empted by ORS 166.170, we do not consider whether it is

also preempted because it cannot operate concurrently with

various state or federal laws. AT&T Communications v. City

of Eugene, 177 Or App 379, 395, 35 P3d 1029 (2001), rev den,

334 Or 491 (2002) (“[L]ocal government authority may

be preempted in either of two ways: It may be preempted

242 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

expressly, or it may be preempted implicitly, by virtue of the

fact that it cannot operate concurrently with state or federal

law.”); see also Mont. Shooting Sports Ass’n v. Holder, 727 F3d

975, 978 (9th Cir 2013) (invalidating Montana statute pro-

viding that “ ‘a firearm or ammunition manufactured * * * in

Montana and that remains within the borders of Montana

is not subject to federal law or federal regulation, includ-

ing registration, under the authority of congress to regulate

interstate commerce,’ ” because that statute conflicted with

federal firearm licensing laws).11

11

We highlight that both the state and federal governments have passed

numerous enactments regulating firearms and firearm accessories. See, e.g.,

ORS 166.645 (prohibiting hunting in cemeteries); ORS 166.663 (prohibiting

casting artificial light from a motor vehicle while in the possession or immedi-

ate physical presence of a firearm); ORS 166.255(1)(b) (prohibiting possession

of firearm or ammunition by any person convicted of qualifying misdemeanor

where victim was a family or household member); ORS 166.272 (prohibiting pos-

session a machine gun, short-barreled rifle, short-barreled shotgun, or firearms

silencer); ORS 166.470(1)(a) (prohibiting sale, delivery, or transfer of firearms to

person under 18 years of age); ORS 166.470(1)(e) (prohibiting sale, delivery, or

transfer of firearms to person committed to the Oregon Health Authority under

ORS 426.130); ORS 166.470(1)(g) (prohibiting sale, delivery, or transfer of fire-

arms to person convicted of misdemeanor involving violence within previous four

years); 26 USC §§ 5801-5872 (regulating and taxing certain activities relating

to manufacture, sale, delivery, receipt, possession, and transport of firearms);

19 USC § 922(a)(1)(A) (prohibiting persons, other than licensed importers, man-

ufacturers, or dealers, from engaging in business of importing, manufacturing,

or dealing in firearms in interstate or foreign commerce); 19 USC § 922(a)(1)(B)

(prohibiting persons, other than licensed importers, manufacturers, or dealers,

from engaging in business of importing or manufacturing ammunition in inter-

state or foreign commerce); 19 USC § 922(a)(3) (prohibiting persons, other than

licensed importers, manufacturers, or dealers, from receiving in the state where

such person resides a firearm purchased or otherwise obtained from outside that

state); 19 USC § 922(a)(6) (prohibiting certain use of false or fictitious oral or writ-

ten statements or false, fictitious, or misrepresented identification in connection

with acquisition or attempted acquisition of a firearm or ammunition); 19 USC

§ 922(a)(7), (8) (prohibiting manufacture, import, sale, or delivery of armor-piercing

ammunition, unless otherwise authorized by law); 19 USC § 922(b)(1) (prohibit-

ing licensee’s sale or delivery of any shotgun or rifle to individual known or rea-

sonably believed to be under 18 years of age); 19 USC § 922(d)(2), (g)(2) (prohibit-

ing firearm sales to or possession by a fugitive from justice); 19 USC § 922(d)(3),

(g)(3) (prohibiting firearm sales to or possession by any person who is an unlaw-

ful user of or addicted to any controlled substance, as defined in 21 USC § 802);

19 USC § 922(d)(6), (g)(6) (prohibiting firearm sales to or possession by any per-

son discharged from the Armed Forces under dishonorable conditions); 19 USC

§ 922(d)(7), (g)(7) (prohibiting firearm sales to or possession by any person who,

having been a citizen of the United States, has renounced his citizenship);

19 USC § 922(d)(9), (g)(9) (prohibiting firearm sales to or possession by any person

convicted of a misdemeanor crime of domestic violence); 19 USC § 922(p)(1) (pro-

hibiting transfer or possession firearms not detectable by walk-through metal

detectors).

Cite as 324 Or App 221 (2023) 243

III. CONCLUSION

We conclude that the Board’s petition is justiciable,

and we exercise our discretion to reach the merits of the

petition. Having considered the merits of the Board’s peti-

tion, we conclude that the Ordinance is preempted by ORS

166.170 and void.12 We reverse the judgment of dismissal

and remand for further proceedings consistent with this

opinion.

Reversed and remanded.

EGAN, J., concurring.

I fully agree with and endorse the majority’s dis-

position and reasoning in this case. I write separately to

draw attention to the disturbing implications at the heart

of Intervenor’s arguments and the Ordinance itself because,

as George Orwell wrote in 1946, “if thought corrupts lan-

guage, language can also corrupt thought. A bad usage can

spread by tradition and imitation even among people who

should and do know better.”

During the course of argument, Intervenor’s counsel

referred to alleged United Nations (UN) and “international

firearms laws.” Those references allude to the conspiracy

theory that the UN has or will impose mandates upon the

federal government that will require state and local govern-

ments to do the bidding of the UN, specifically to disarm

the American public in violation of the Second Amendment

to the United States Constitution and Article I, section 27,

of the Oregon Constitution. In other words, Intervenors

came before this court and referenced UN mandates, which,

as explained below, is a well-documented trope meant to

invoke white supremacist, antisemitic fear of a takeover of

our country by outsiders and minorities who are manipu-

lated by an elite class of supervillains.

Although we need not reach any legal conclusion on the matter, we do not

understand how the Ordinance, its private cause of action for those that violate

the Ordinance while acting under color of any state or federal law, and its impo-

sition of penalties for violation of the Ordinance, could operate concurrently with

all such laws.

12

In their briefing on appeal, Intervenors did not meaningfully address the

issue of severability. Given ORS 166.170, and the subject matter of the Ordinance,

we conclude that the Ordinance is preempted in its entirety.

244 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

One purported “solution” to this entirely fictitious

problem—a solution which has been advocated for by a

group called the Constitutional Sheriffs and Peace Officers

Association (CSPOA)—is for county sheriffs to be given the

power to determine which firearms laws are constitutional.

In keeping with that “solution,” Section 3 of the Ordinance

provides:

“It shall be the duty of the Sheriff of Columbia County to

determine * * * whether any federal, state or local regula-

tion affecting firearms, firearms accessories and ammu-

nition, that is enforceable within his/her jurisdiction,

violates the Second, Ninth, or Tenth Amendments to the

Constitution of these United States, or Article 1, sections

27 and 33 of the Constitution of the State of Oregon, as

articulated herein.”

As explained below, both counsel’s argument con-

cerning UN mandates and the Ordinance’s solution have

their origins in the ideology of white supremacist national-

ism which runs contrary to the tenets of our constitutional

republic.

The Purpose of this Concurrence

As noted, I agree with the majority’s disposition

and reasoning in this case; the majority opinion grapples

with justiciability and preemption in a manner appropriate

for an appellate court.

On occasion, however, individual members of the

court must call out illegitimate quasi-legal arguments and

theories for what they are—viz., antisemitic and racist

tropes. Otherwise, those quasi-legal arguments and theories

gain an air of legal legitimacy from which future litigants

may seek to advance unconstitutional causes. The duty of a

judge to call out such quasi-legal arguments and theories for

what they are is particularly acute when counsel for a party

comes before this court and asks us to adopt such a trope in

upholding a facially invalid ordinance.

I must be clear that the flawed quasi-legal argu-

ment offered by Intervenors—viz., the UN wants to dis-

arm Americans—and the proposed solution—viz., impos-

ing a duty on county sheriffs to determine which laws are

Cite as 324 Or App 221 (2023) 245

constitutional—have their origins in the insidious effort to

oppress, in violation of fundamental notions of due process

and equal protection under the rule of law.1 And in doing so,

the Ordinance undermines, not elevates, the rights guaran-

teed by the United States Constitution.

The Ordinance is Contrary to the Tenets of Our

Constitutional Republic

As noted, the plain language of Section 3 of the

Ordinance mandates that a singular county sheriff have the

duty to determine the constitutionality of any state or fed-

eral law concerning firearms. According to the Intervenors,

that provision would prevent the imposition of UN mandates

in Columbia County, Oregon.

Section 3 of the Ordinance raises the question: What

is the role of sheriffs and what is the role of courts under

our system of government? That question brings to bear just

one of the many foundational problems with the Ordinance:

Deciding whether a law is unenforceable because it is uncon-

stitutional is not the function of a county sheriff. See ORS

206.010 (setting forth the duties of Oregon sheriffs). Instead,

under our system of government, it is unquestionably the

province and duty of the courts. US Const, Art III, § 1 (“The

judicial Power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Congress

may from time to time ordain and establish.”); Or Const, Art

VII (Amended), § 1 (“The judicial power of the state shall be

vested in one supreme court and in such other courts as may

from time to time be created by law.”); see also Marbury v.

Madison, 5 US 137, 177, 2 L Ed 60 (1803) (“It is emphatically

the province and duty of the judicial department to say what

the law is.”).

There is no dispute that courts, not sheriffs, decide

whether a law violates the First Amendment to the United

States Constitution or Article I, section 8, of the Oregon

1

This journalistic function of a concurrence was best characterized by Judge

James in State v. Bledsoe, 311 Or App 183, 197, 487 P3d 862, rev den, 368 Or 637

(2021) (James, J., concurring):

“Judicial opinions serve many functions, and one of those is journalistic. Our

opinions are dispatches from the edge—moments, recounted for posterity, of

how Oregon’s laws * * * and the lives of its citizens, intersect.”

246 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

Constitution; no dispute that courts, not sheriffs, decide

whether, for example, a county policy concerning search and

seizure runs afoul of the Fourth Amendment to the United

States Constitution or Article I, section 9, of the Oregon

Constitution; and no dispute that courts, not sheriffs, decide

when governmental conduct has violated the Due Process

Clause or the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution. Similarly,

there can be no dispute that courts, not sheriffs, decide

when a “federal, state or local regulation affecting firearms,

firearms accessories and ammunition,” violates the Second

Amendment to the United States Constitution or Article I,

sections 27 and 33 of the Oregon Constitution.

Those observations about the roles of courts and

sheriffs in our system of government in no way denigrate

the courageous work of those who serve as sheriffs and dep-

uty sheriffs in Oregon. It is sheriffs and deputy sheriffs, not

judges, who perform the often-dangerous task of enforcing

criminal laws, solving crimes, and protecting our court-

rooms. That work is essential to ensuring our communities

are safe for Oregonians and democracy. And that system of

checks and balances—that division of labor—is an essential

and an enduring feature of our republic, which is violated by

Section 3 of the Ordinance.

The Ordinance raises another question: Can laws

enacted by a county supersede those enacted by the legis-

lative branches of the state and federal governments? The

answer to that question is also no.

Pursuant to the Supremacy Clause of the United

States Constitution, Columbia County, Oregon, cannot

enact an Ordinance that contravenes federal law. AT&T

Communications v. City of Eugene, 177 Or App 379, 401, 35

P3d 1029 (2001), rev den, 334 Or 491 (2002) (“The Supremacy

Clause of the United States Constitution, Article VI, clause 2,

invalidates state or local laws interfering with, and being

contrary to, federal law.” (Internal quotation marks omit-

ted.)); see also Altria Group, Inc. v. Good, 555 US 70, 76,

129 S Ct 538, 172 L Ed 2d 398 (2008) (explaining that state

laws that conflict with federal laws are “without effect”).

Nor can Columbia County, Oregon, enact an Ordinance that

Cite as 324 Or App 221 (2023) 247

contravenes Oregon law. La Grande/Astoria v. PERB, 281

Or 137, 142, 576 P2d 1204, aff’d on reh’g, 284 Or 173, 586

P2d 765 (1978) (“[T]he validity of local action depends * * *

on whether it contravenes state or federal law.”). Yet, the

Ordinance does just that by declaring federal and state

enactments are to be treated as if they are “null, void and

of no effect in Columbia County, Oregon” and giving the

sheriff of Columbia County, rather than the courts, final say

concerning the constitutionality of enactments concerning

firearms.

Put plainly, the Ordinance is repugnant to the sep-

aration of powers under the United States Constitution and

the Oregon Constitution, and is repugnant to the framers’

constitutional design. It debases—not protects—the rights

guaranteed thereunder.

The Antisemitic and Racist Origins of the Ordinance

The conclusion that the Ordinance is patently vio-

lative of the state and federal constitutions raises another

question—what is the motive behind the Ordinance?

The sponsors of Initiative Measure 5-270 and

Initiative Measure 5-278, which became the Ordinance, failed

to offer up a substantive statement in support of, or an expla-

nation for, their proposals that would have explained their

purpose in sponsoring those measures.2 But in recent years,

“Second Amendment Sanctuary Ordinances” have been pro-

posed around the United States and adopted in hundreds

2

See Official Columbia County Voters’ Pamphlet, General Election, Nov 6,

2018 (no statement in support of the proposed ordinance); Official Columbia

County Voters’ Pamphlet, General Election, Nov 3, 2020.

In the 2020 Voters’ Pamphlet, the only statement in support of Initiative

Measure 5-278 came from Oregon Firearms Federation OFF. In its hyperbolic

rhetoric, OFF stated:

“Even as Portland politics continues to condone chaos on our streets, efforts

continue to make sure you are helpless to protect yourself and your family.

* * * Year after year, politicians in Salem and extremists in Portland work

overtime to enact new laws and rules to restrict your 2nd Amendment rights

or make self-defense firearms useless, if available at all. * * * [T]he same peo-

ple who are looting and destroying property are demanding that police be

neutered.”

This statement offered no meaningful explanation of Initiative Measure

5-278.

248 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

of counties3 as part of a nationwide effort promoted by

the CSPOA.4 Such ordinances have notably consistent

language.5

CSPOA claims to eschew racist ideology, but in fact

its leaders embrace racist and white nationalist ideologies.

The growing “constitutional sheriffs” movement intends

to increase the risk of conflict between local law enforce-

ment and federal authorities. The movement is animated

by the deeply flawed and ahistorical view that county sher-

iffs hold ultimate law-enforcement authority in each indi-

vidual county outranking federal and state authority. This

deeply flawed and legally incorrect analysis holds that the

superiority of county authority is deeply rooted in Anglo-

American law. The anti-democratic ideas and quasi-legal

theories propounded by the CSPOA and embedded in Second

Amendment Sanctuary Ordinances have their origins in

the writings of William Potter Gale, who founded the posse

comitatus movement in the 1960s. They also have their ori-

gins in the writings of the Aryan Nation, an antisemitic,

white supremist group.

The premise of such writings is the antisemitic

and racist conspiracy theory that Jews are at the heart of

America’s problems, that people of color are unwitting pawns

to be manipulated by one side or the other, and that zealots

must prepare for a final battle in the last days. The propo-

nents of these ideas claim that a cabal of elites or globalists

(code words for Jews) in the UN, or the fictional New World

Order or Zionist Occupational Government, manipulate our

federal government and, by extension, state governments.

3

A conservative estimate of the number of Second Amendment Sanctuary

Ordinances and Resolutions adopted by local governments in the United States is

860. And by some estimates, approximately 1,900 counties are covered by Second

Amendment sanctuary legislation because of legislation passed at either the

state or county level.

4

See Statement of Positions: The Right to Keep and Bear Arms (RTKBA)

The Second Amendment, CSPOA, https://cspoa.org/sop/ (accessed Jan 5,

2023); Resolution of the Constitutional Sheriffs and Peace Officers Association,

Jan 24, 2014, CSPOA, https://cspoa.org/wp-content/uploads/cspoa-resolution-

Final-20140128.pdf (accessed Jan 5, 2023).

5

See footnote 3. With over 860 Second Amendment Sanctuary Ordinances

and Resolutions from all over the United States, every section of the Ordinance

is simply a reflection of the multitude of sections and subsections of other ordi-

nances or resolutions in effect somewhere around the country.

Cite as 324 Or App 221 (2023) 249

These ideas are, of course, nothing new, unique, or intelli-

gent: They are, instead, just a rehashing of the ancient trope

of a secret Jewish government; they are the retelling of a lie

that led to the murder of over six million Jews within living

memory.

That same racist and antisemitic dogma was

reflected in the language of militiamen who carried assault

rifles as counterforces to political protest while African

Americans in Ferguson, Missouri, were arrested for mere

suspicion of carrying guns; reflected the treatment of white

people with guns as contrasted against the disparate state

sanctioned killing of minorities with guns; and used by the

Oath Keepers and Proud Boys to attempt to create a false

narrative of badge verses badge conflicts at the Oregon

State Capitol on December 21, 2020, and again at the United

States Capitol on January 6, 2021. The dogma can also be

identified by the shape of the language and arguments used

to support Second Amendment Sanctuary Ordinances that

claim to protect an absolute right to guns, and the authority

of county sheriffs to enforce that absolute right.

Intervenor’s reference at oral argument about UN

mandates in support of an absolute right to firearms threat-

ens to give legal foundation to a world view that embraces

religious, racial, and ethnic hatred.6 The arguments pro-

pounding unfettered access to guns, ammunitions, and imple-

ments of destruction give rise to waging of war on govern-

ment because the proponents believe that our government

is infected by those they hate. This hate is unquestionably

embedded in the trope that the UN or some other nefarious

entity is manipulating government behind the scenes and

that the courts are simply tools of those manipulations. As

a judge, sworn to uphold the Oregon Constitution and the

United States Constitution, I cannot stand by without iden-

tifying the origins of that argument, and the origins of the

Ordinance.

The history of white supremacist ideology in this

country is older than the United States Constitution; it

6

Attorneys, particularly during legal argument, must be cautious with their

language. As Desmond Tutu observed, “Language is very powerful. Language

does not just describe reality. Language creates the reality it describes.”

250 Board of Cty. Comm. of Columbia Cty. v. Rosenblum

dates to the moment enslaved Africans were brought ashore

in North America in 1619. The long arc of American democ-

racy has mitigated some of its largest evils by ending chat-

tel slavery, granting women’s suffrage, ending de jure racial

and gender discrimination, and more recently ending pro-

hibitions against same-sex marriage and supporting efforts

to eradicate discrimination against LGBTQ+ individuals.

However, as Mr. Orwell reminded us nearly 80 years ago,

“[o]ne cannot change this all in a moment, but one can at

least change one’s own habits, and from time to time one

can even, if one jeers loudly enough, send some worn-out and

useless phrase—some * * * lump of verbal refuse—into the

dustbin, where it belongs.”

Thus, to the dustbin goes the argument of UN man-

dates and constitutional sheriffs.