City of Damascus v. State of Oregon

41

Submitted on the briefs April 10, considered and under advisement May 7;

Oregon Laws 2019, chapter 545, declared valid September 3, 2020

CITY OF DAMASCUS,

James B. De Young, Jeanne Robinson,

Mark Fitz, and William Wehr,

Petitioners,

v.

STATE OF OREGON,

by and through Kate Brown, Governor;

and Bev Clarno, Secretary of State,

Respondents.

(SC S066939)

472 P3d 741

After an attempt to disincorporate the City of Damascus under the voter-

initiated process requiring the approval of an absolute majority of the city’s elec-

tors, as provided in ORS 221.610 and ORS 221.621, failed, the 2015 Legislative

Assembly enacted House Bill (HB) 3085 (2015), which referred a disincorpora-

tion measure—Measure 93—to the city’s voters, to be voted on in an election

requiring only a majority of those voting. Measure 93 passed, and a member of

the city council challenged the election on the ground that the disincorporation

requirements set out in ORS 221.610 and ORS 221.621 had not been followed. His

challenge failed in the circuit court, but three years later, the Court of Appeals

reversed, holding that HB 3085 (2015) had not exempted the 2016 election from

ORS 221.610 and ORS 221.621 and that, because the election had not been held

in accordance with those statutes, it was invalid. De Young v. Brown, 297 Or App

35, 443 P3d 642 (2019). By that time the city had effectively disincorporated; local

governments that had filled the void left by the disincorporation asked the legis-

lature to fix the problem. The legislature thereafter enacted Senate Bill (SB) 226

(2019) (Oregon Laws 2019, chapter 545, sections 1 to 5), which purported to give

effect to the 2016 vote by the city’s residents to disincorporate. SB 226 provided

two alternative mechanisms by which the vote would be made effective and pro-

vided for direct and expedited review by the Oregon Supreme Court. Petitioners

challenged SB 226 on various constitutional and statutory grounds. Held: One

of the two alternative mechanisms provided in SB 226 for giving effect to the

2016 election is not unlawful under any of the theories that petitioners present;

that mechanism—set out in sections 2 and 3 of the statute—therefore, had the

intended effect of validating the 2016 election.

Oregon Laws 2019, chapter 545, is declared valid.

En Banc

On petition for review under Oregon Laws 2019, chapter

545, section 4.

42 City of Damascus v. State of Oregon

Edward H. Trompke, Jordan Ramis PC, Lake Oswego,

and Tyler D. Smith, Tyler Smith & Associates PC, Canby,

filed the briefs for petitioners City of Damascus, James B.

De Young, Jeanne Robinson, Mike Fitz, and William Wehr.

Philip Thoennes, Assistant Attorney General, Salem,

filed the brief for respondents. Also on the brief were Ellen

F. Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

BALMER, J.

Oregon Laws 2019, chapter 545, is declared valid.

Cite as 367 Or 41 (2020) 43

BALMER, J.

In Senate Bill (SB) 226 (2019), enacted as Oregon

Laws 2019, chapter 545, sections 1 to 5, the Oregon legis-

lature sought to retroactively cure defects in a 2016 local

election in which voters approved disincorporating the

City of Damascus (the city). Anticipating controversy as

to the validity and effectiveness of SB 226 in curing the

problem with the election, the legislature included a pro-

vision for direct and expedited review by this court upon

a timely petition filed by any person who is “interested in

or affected or aggrieved” by the statute. Petitioners here,

who include at least one person who is “interested in or

affected or aggrieved” within the meaning of the statute,

have challenged SB 226 on various statutory and constitu-

tional grounds in a timely filed petition. Having considered

petitioners’ arguments and the state’s responses, we now

conclude that SB 226 is valid and that it accomplishes what

the legislature intended, i.e., it gives effect to the 2016 vote

by the city’s residents to disincorporate.

I. BACKGROUND

We draw the following history from the parties’ stip-

ulated facts. The City of Damascus was incorporated in 2004,

after some area residents became convinced that incorpora-

tion would give them more control over land use decisions

that would have to be made after the area was included in

Portland Metro’s urban growth boundary. Shortly there-

after, in 2005, the city’s residents adopted a charter, which

gave the city home rule authority. By 2013, however, some

city residents had become dissatisfied with the city’s per-

formance in various respects and began a campaign to dis-

incorporate it. Ultimately, the question of disincorporation

was referred to the voters in accordance with the procedure

for disincorporation provided by state law, ORS 221.621.

Pursuant to that statute, electors filed an initiative petition

with the city seeking a vote on disincorporation, and the

issue appeared on the ballot in the next November election.1

1

ORS 221.621 provides:

“(1) This section establishes the procedure for determining whether

a city shall disincorporate. The question shall be decided by election. The

44 City of Damascus v. State of Oregon

The disincorporation proposal failed. Although it was approved

by a majority of those voting on the measure, it was not

approved by “a majority of the electors of the city” as required

by the applicable statute, ORS 221.610.2

In 2015, a group of residents sought the legislature’s

help in obtaining another vote on disincorporation, under

less stringent rules. The legislature obliged, enacting House

Bill (HB) 3085 (2015), which referred to residents another

disincorporation measure. Section 1(2) of HB 3085 provided

that, “notwithstanding ORS 221.610 and 222.621,” if the vote

was in favor of disincorporation, on a specified day “follow-

ing the date of the election held pursuant to section 2 of this

2015 Act,” the city would surrender its charter and cease to

exist (along with other acts necessary for disincorporation).

Section 2 provided, “This 2015 Act shall be submitted to the

people of the City of Damascus for their approval or rejec-

tion, by a majority of the voters voting on this 2015 Act, at a

special election held on the same date as the next primary

election.”3 HB 3085 was submitted to the people of Damascus

governing body of the city shall call an election when a petition is filed as

provided in this section.

“(2) The requirements for preparing, circulating and filing a petition and

calling an election under this section shall be as provided for an initiative

measure under ORS 250.265 to 250.346, except that notwithstanding ORS

250.325, the governing body of the city shall not consider adoption or rejec-

tion of the measure before submitting it to the electors.

“(3) Notwithstanding subsection (2) of this section, if ORS 250.255

makes ORS 250.265 to 250.346 inapplicable to a city, the requirements for

preparing, circulating and filing a petition under this section shall be as pro-

vided for an initiative petition under the city charter or an ordinance adopted

under the city charter.

“(4) The question of disincorporation shall be submitted to the electors

of the city at an election held on the first Tuesday after the first Monday in

November in any year but shall not be submitted more than once in two con-

secutive calendar years.”

2

ORS 221.610 provides:

“Any city not liable for any debt or other obligation, may surrender its

charter, disincorporate and cease to exist if a majority of the electors of the

city authorize the surrender and disincorporation as provided in ORS 221.621

and 221.650. The surrender and disincorporation shall become effective

60 days after the city has authorized surrender and disincorporation.”

3

HB 3085 thus attempted to exempt the contemplated disincorporation vote

from the stricter standards of ORS 221.610 and ORS 221.621. Notably, however, it

was enacted as a referral, not as a law. It was not signed by the Governor—a nec-

essary step for an enactment to become law (unless it is a referred measure—in

Cite as 367 Or 41 (2020) 45

as Measure 93 in the May 2016 election and was approved by

a majority of the voters who voted on the issue.

A resident who was a member of the city council

challenged the disincorporation vote, arguing that Measure

93 had been placed on the ballot in violation of the city

charter, ORS 221.610 and ORS 221.621, and the Oregon

Constitution. The Clackamas County Circuit court rejected

that challenge, and the plaintiff appealed. By the time the

appeal was heard, however, the city had performed all the

acts that finalized its disincorporation: It had paid all its

debts and transferred its remaining funds and real and per-

sonal property to Clackamas County, “surrendered” its char-

ter, and deposited its records in the office of the Clackamas

County Clerk. ORS 221.650. To further complicate mat-

ters, the neighboring city of Happy Valley by that time had

annexed various parcels of property that had been within

the city’s boundaries, at the request of the property own-

ers. When the plaintiff’s appeal finally was set to be heard,

the state suggested to the Court of Appeals that, because

those acts of disincorporation and annexation could not be

undone and any decision on the appeal therefore would have

no practical effect, the case should be dismissed as moot.

The Court of Appeals rejected the state’s mootness argu-

ment and held, on the merits, that the Measure 93 election

had been invalid. De Young v. Brown, 297 Or App 355, 443

P3d 642 (2019), rev allowed, 366 Or 292 (2020).

The plaintiff’s initial statutory argument in

De Young focused on the fact that the 2016 disincorpora-

tion election had not complied with the requirements for dis-

incorporation set out in ORS 221.610 and ORS 221.621, to

which the state responded that HB 3085 had exempted the

election from those requirements by enacting an alterna-

tive mechanism for disincorporation, with different require-

ments, including a referral by the state legislature, a vote

on the referred measure in the next primary (May) election,

and a “yes” vote by a majority of the voters voting on the

referred measure. The Court of Appeals rejected the state’s

which case the measure becomes law when it is approved by the people in an

election held in accordance with the applicable law). See Or Const, Art IV, § 1(3)(c)

(bills ordering a referendum and bills on which a referendum is ordered not sub-

ject to veto by governor).

46 City of Damascus v. State of Oregon

positions, however, explaining that HB 3085 had not, in fact,

exempted the disincorporation election from the require-

ments in ORS 221.610 and ORS 221.621:

“[A]t the time of the Measure 93 election, ORS 221.610

and ORS 221.621 provided the only means by which a city

could disincorporate and [ ] the legislature did not effec-

tively exempt the election from complying with their terms.

Moreover, defendants do not dispute that, if the Measure

93 election was required to comply with those terms, it

failed to do so[.]”

Id. at 370 (emphasis added). The court further explained:

“The only provision, legislative or otherwise, for a special

election at which a simple majority would prevail is that

found in the substantive text of HB 3085, text that defen-

dants acknowledge cannot have been given effect until

after the election it purported to authorize. To our knowl-

edge, the legislature did not, at the time it passed HB 3085,

also issue an order dictating the manner in which its provi-

sions would be submitted to a vote.”

Id. at 369. Having thus invalidated the election on statutory

grounds, the court declined to consider the plaintiff’s other

arguments. Id. at 358.

The Court of Appeals decision in De Young threw

the local governments that had filled the void left by the

city’s disincorporation into a state of confusion. Clackamas

County, which had absorbed most of the city’s employees

into its own workforce along with the city’s funds, lobbied

for a legislative fix. Attorneys for Clackamas County and

other affected governments (Happy Valley and Portland

Metro) worked closely with legislators to draft a bill that

would validate and make effective the outcome of the 2016

disincorporation election. The resulting bill, SB 226, which

is the subject of our present review, was enacted by the leg-

islature and then signed by the Governor on July 15, 2019.

It became effective immediately thereafter.

SB 226 consists of four sections and provides two

alternative mechanisms for ratifying the results of the

2016 disincorporation election. Section 1 provides the

first alternative. It declares that “notwithstanding ORS

221.610, 221.621, and 221.650, a city shall be deemed to be

Cite as 367 Or 41 (2020) 47

disincorporated and shall cease to exist * * * upon a determi-

nation by the Secretary of State” that (among other things)

a disincorporation election was held in the city between

January 1 and July 1, 2016, in which the majority of those

voting had voted in favor of disincorporation.

Sections 2 and 3 of SB 226, taken together, provide

another means of ratifying the 2016 election. Section 2 pro-

vides an alternative procedure for disincorporating a city to

the one provided in ORS 221.610 and ORS 221.621—a legis-

lative referral of the disincorporation question to the city’s

residents, with disincorporation occurring upon a vote of a

majority of those voting on the question in the first “primary”

(May) election following the referral.4 That was the procedure

set out in HB 3085 and followed in the 2016 disincorporation

election. Section 3 provides that “Section 2 of this 2019 Act

applies to Acts enacted or referred, and elections held, before

the effective date of this 2019 Act.” (Emphasis added.) In other

words, section 3 makes the new statutory procedure for dis-

incorporating a city set out in section 2 retroactive, meaning

that it would apply to the 2016 disincorporation election that

the Court of Appeals had invalidated in De Young.

Finally, section 4(1) of SB 226 states the intent of

the legislature in passing the law:

“It is the intent of the Legislative Assembly by enacting

sections 1 to 3 of this 2019 Act to cure any defect in the

procedures, and to ratify the results of any vote on the

question of the disincorporation of a city in which the disin-

corporation was approved by a majority of the voters of the

city voting on the question at an election held on the date

of a primary election held throughout this state before the

effective date of this 2019 Act.”

4

Specifically, section 2 provides, in part:

“(1) Notwithstanding ORS 221.610, 221.621 and 221.650:

“(a) The Legislative Assembly may refer an Act to the people of a city on

the question of whether to disincorporate the city.

“(b) If the Legislative Assembly refers an Act under this section:

“(A) The election on the measure shall be held on the date of the next

primary election held throughout this state that occurs after the enactment

of the referred Act; and

“(B) The measure shall be approved if a majority of the voters voting on

the question in the election votes in favor of disincorporation.”

48 City of Damascus v. State of Oregon

Section 4 also provides for expedited review by this court

of the validity of sections 1 through 3 upon a petition for

review filed within 30 days following enactment, by a per-

son “interested or affected or aggrieved” by those sections,

and it sets out detailed instructions for such review. Among

other things, section 4(5) instructs the court to first deter-

mine whether section 1 of SB 226 is valid and to proceed to

determine the validity of sections 2 and 3 if, and only if, it

determines that section 1 is not valid.

Petitioners, at least one of whom meets the statute’s

standing requirement, timely filed a petition for review.5

Petitioners argue that SB 226 violates various provisions

of the Oregon Constitution: home rule (Article IV, section

1(5); Article XI, section 2), separation of powers (Article III,

section 1), and an “implied or inherent” constitutional pro-

hibition on retroactively applicable election rules. They also

argue that SB 226 violates certain Oregon statutes and the

Equal Protection and Due Process clauses of the Fourteenth

Amendment to the United States Constitution.

II. ANALYSIS

Of the numerous constitutional and statutory

flaws in SB 226 that petitioners assert, only some require

extended discussion, and we focus on those. As noted, sec-

tion 4(5) of SB 226 directs this court to determine the valid-

ity of section 1 before considering sections 2 and 3, and to

consider the latter sections only if we first determine that

section 1 is invalid. We consider in greater detail below

whether we must or should follow that legislative directive;

however, that directive is not relevant to most of petitioners’

arguments, which apply equally to section 1 and to sections

2 and 3 (combined), and for that reason we consider those

arguments first.

A. Wrongful Delegation

Petitioners contend that there was a fundamen-

tal problem in the 2016 disincorporation election that pre-

cludes any ratification of its results by SB 226. In particular,

5

The state acknowledges (and we agree) that, as a taxpayer and elector of

the city that SB 226 purported to disincorporate, petitioner James B. De Young

is “interested in or affected or aggrieved” within the meaning of section 4(3)(a).

Cite as 367 Or 41 (2020) 49

petitioners assert that, in referring Measure 93 to the voters

of Damascus, the legislature purported to delegate to those

voters a decision that the legislature had no authority to

make—the decision to repeal the city’s charter. To support

that assertion, petitioners point to Article XI, section 2, of

the Oregon Constitution, which grants the legal voters of

every city and town the power to enact and amend their

own municipal charters and directs that the Legislative

Assembly “shall not enact, amend, or repeal any charter

or act of incorporation for any municipality, city or town.”

(Emphases added.) Petitioners argue that, because the legis-

lature lacked authority, under Article XI, section 2, to repeal

the city’s charter, its attempted delegation of the issue to

the city’s voters in Measure 93 could not have been effec-

tive. Furthermore, petitioners argue, the city’s voters did

not themselves have authority to repeal the charter, because

Article XI, section 2, provides the legal voters of a city

with power to only “enact and amend” their own municipal

charter—not power to repeal it. Thus, petitioners conclude,

given that the voters of Damascus had neither power of

their own nor delegated power from the legislature to repeal

their city charter, the outcome of the Measure 93 election

on that issue was a nullity, which could not be cured by the

enactment of SB 226.

Petitioners appear to be confusing the continued

existence of a city with the continued existence of its char-

ter, and disincorporation with the charter’s repeal. But the

two circumstances are distinct. In fact, while Article XI,

section 2, authorizes the voters of a city to enact a charter,

it does not require them to do so (“The legal voters of every

city and town are hereby granted power to enact and amend

their municipal charter”). Neither is there any requirement

that a city’s charter be “repealed” for the city to disincorpo-

rate. Instead, a city “surrender[s]” its charter after a vote to

disincorporate, ORS 221.650—assuming that it has a char-

ter to surrender. Thus, the Measure 93 vote on whether to

disincorporate the City of Damascus did not conflict with

the authorities pertaining to municipal charters that are

conveyed or withheld in Article XI, section 2. And the voters

of the city clearly had authority to decide whether to disin-

corporate the city, as is evidenced by ORS 221.610 and ORS

50 City of Damascus v. State of Oregon

221.621, the statutory provisions setting out requirements

for elections on the issue, the validity of which petitioners do

not question. There was no need for a delegation of author-

ity from the legislature to the city’s voters to make that

decision.

B. Implied Prohibition on Retroactive Amendments to

Elections Laws

Petitioners contend that the Oregon Constitution

contains an implied or inherent prohibition against retroac-

tive changes to election rules that change the outcome of an

election and that SB 226 violates that prohibition because it

“purports to change the outcome of the election on Measure

93 some three years after the election was held, by substan-

tively changing the kind of majority needed.” Petitioners

suggest that this court can and should find that such a rule

inheres in the Oregon Constitution because it is “widely

held” that changing the rules governing a past election so

as to change the result would be lawless.

As an initial matter, we reject petitioner’s charac-

terization of the effect of SB 226 as changing the applicable

rules for the election after the fact. The Measure 93 election

was held under the rules set out in Measure 93 itself—it

was held during a primary election, with the understanding

that the measure would pass and disincorporation result if

it received the votes of the majority of those who actually

voted. While the Court of Appeals decided years later that

those election rules were not effective because the legisla-

ture had failed to exempt the measure from the different

election rules set out in ORS 221.610 and ORS 221.621, the

measure received a majority under the election rules that

Measure 93 provided.

It is for that reason that we decline to engage with

petitioners’ framing of the issue, i.e., as asking whether we

will in this case recognize and uphold a rule against retro-

spective changes in election rules that change an election’s

outcome. Instead, we consider whether there is an actual or

implied rule against what SB 226 explicitly seeks to accom-

plish, which is to retroactively cure a defect in the Measure

93 election.

Cite as 367 Or 41 (2020) 51

The general rule, outside the context of criminal

law, is that “a legislature may pass a retroactive law which

could validate any act which it could in the first instance

have authorized, subject to the restriction that it could not

impair the obligation of a contract or a vested right.” Smith

v. Cameron et al., 123 Or 501, 507, 262 P 946 (1928). See

also Carey v. Lincoln Loan Co., 342 Or 530, 539, 157 P3d

775 (2007) (“[D]efects in laws can be cured by subsequent

legislative action, as long as the subsequent action does not

impair vested rights or the obligations of contract.”). Thus, in

Nottage v. City of Portland, 35 Or 539, 58 P 883 (1899), this

court held that a procedural defect in a petition for a street

assessment—a failure to include the names of one-half of the

affected property owners in the petition, as required by the

city charter—had been cured by a legislative amendment

to the city charter enacted after the assessment had been

made. In Cameron, on the other hand, the court concluded

that a judgment against the state in an eminent domain

action, which had resulted from a constitutional defect in

the eminent domain statute, could not be “cured” through

a retroactive amendment to the eminent domain statute,

because the landowner in whose favor the judgment had

been entered had obtained a vested right in the judgment.

123 Or at 506-07.

Notably, in at least one Oregon case, that general

rule has been applied in the context of a defective election.

In State v. James et al., 189 Or 268, 219 P2d 756 (1950),

relators challenged the City of Springfield’s formation of a

park and recreation district and a bond election for funds

for the district, arguing that the city had lacked author-

ity to form the district and that the bond election had not

followed applicable procedures. The adverse parties argued

that any defect in the formation of the district and the

bond election had been cured by subsequent legislation—a

statute that purported to retroactively “validate[ ], ratif[y],

authorize[ ], approve[ ] and confirm[ ] the organization of any

park and recreation district organized pursuant to [a spec-

ified statute] * * * [and] all proceedings theretofore taken in

the authorization and issuance of bonds by any park and rec-

reation district.” Id. at 272. This court agreed, holding that

the general rule stated in Nottage and other cases applied:

52 City of Damascus v. State of Oregon

“If the thing wanting or which failed to be done, and which

constitutes the defect in the proceedings, is something the

necessity for which the legislature might have dispensed

with by a prior statute, then it is not beyond the power of the

legislature to dispense with it by a subsequent statute.” Id. at

273-74.

The same rule has been applied in other jurisdic-

tions in a variety of cases involving elections, including elec-

tions to incorporate municipalities. See, e.g., Town of Fox v.

Town of Kendall, 97 Ill 72 (1880) (vote upon the question of

township support of paupers—submitted to voters before the

law provided for submission of such question to voters—was

defective, but defect in election could be cured by subsequent

curative act to the effect that such elections should be treated

as legal and binding); State ex rel Johnson v. Union Free High

School Dist. of Polk and St. Croix Counties, 179 Wis 631, 191

NW 972 (1923) (where legislature had authority to provide

for formation of school districts in any manner, it could enact

legislation retroactively validating defective election to form

school district); Sullivan v. Volusia County Canvassing Bd.,

679 So 2d 1206 (Fla 1996) (state legislature had power to

ratify election process that incorporated city and dissolved

fire and municipal services district, despite alleged notice

and ballot irregularities); City of Muscatine v. Waters, 251

NW2d 544 (1977) (Iowa 1977) (state legislature cured notice

defect in municipal annexation election by retroactive

legislation).

It appears, then, that there is no implied or inher-

ent principle or law that precludes retroactive legislation

to cure a defect in an earlier election, with the caveat that

the “cure” must not disturb any vested interest and must

be limited to actions that the legislature had authority to

take in the first instance. Here, petitioners have not shown

that the legislature lacked authority to provide the alterna-

tive procedures for a dissolution election that it attempted

to provide in HB 3085, so they have no room to challenge

SB 226’s validation of the 2016 disincorporation election

held under those procedures on that ground. And petition-

ers do not provide an argument that any vested interest

will be affected if the election is deemed to be valid, other

Cite as 367 Or 41 (2020) 53

than asserting that the De Young decision by the Court of

Appeals became final in 2019. Accordingly, we reject plain-

tiffs’ argument that giving SB 226 its intended retroactive

effect would offend some implied or inherent constitutional

principle.

C. Equal Protection and Due Process under the United

States Constitution

Petitioners note that, under Bush v. Gore, 531 US

98, 121 S Ct 525, 148 L Ed 2d 388 (2000), the Due Process

and Equal Protection Clauses of the Fourteenth Amendment

are violated when, in an election on a matter in which all

electors have been granted an equal vote, the state makes

arbitrary changes that might increase the value of the votes

of some electors vis-à-vis that of others. Petitioners contend

that, in enacting SB 226, the legislature did what was pro-

hibited in Bush, because it “retroactively changed the value

of the votes against [Measure 93], diminishing their value

and increasing the value of those voting in favor.” Petitioners

argue that because SB 226 authorized disincorporation upon

the vote of a majority of those voting—rather than a major-

ity of electors, as required by ORS 221.610—it had the effect

of diminishing the value of “no” votes relative to the value of

“yes” votes. ORS 221.610, petitioners assert, was intended to

and did have the effect of treating electors who did not vote

as if they had voted “no,” and SB 226 improperly eliminated

that aspect of the disincorporation vote.

The state responds that Bush is irrelevant because

it is about uniformity of procedures for tabulating votes,

and petitioners’ challenge here has nothing to do with the

tabulation of votes. We agree. We also agree with the state

that petitioners are wrong when they characterize SB 226

as changing the value of some votes cast in the Measure 93

election after the fact. The provision in SB 226 for disincor-

poration by a simple majority of those voting exactly mirrors

what was provided in Measure 93 itself, so the electors who

voted, or chose not to vote, in the 2016 disincorporation elec-

tion can be presumed to have understood what their votes

(or nonvotes) were worth at the time. In short, the notion of

a post-election change of rules that underpins petitioners’

54 City of Damascus v. State of Oregon

equal protection and due process argument is not consistent

with the facts.6

D. Home Rule

We turn to petitioners’ arguments regarding the

home rule provisions in the Oregon Constitution, which

raise important questions about the interplay between the

legislature’s plenary authority to enact substantive legisla-

tion and the constitutional home rule authority of local gov-

ernments to establish and modify their political structures

as they see fit. Two of the three arguments petitioners make

apply in the same way to section 1 and to sections 2 and 3

(combined) of SB 226, and we consider those first. Before

analyzing petitioners’ arguments, we set out the constitu-

tional home rule provisions and the relevant case law.

The first home rule provision, Article XI, section 2,

grants the voters of every city and town the authority to

enact and amend their own municipal charter, and bars the

legislature from enacting, amending, or repealing any city

charter.7 The second, Article IV, section 1(5), provides:

“The initiative and referendum powers reserved to the

people by subsections (2) and (3) of this section are further

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. The

manner of exercising those powers shall be provided by

general laws, but cities may provide the manner of exercis-

ing those powers as to their municipal legislation. In a city,

6

Petitioners also argue that SB 226 cannot retroactively validate the

Measure 93 election because Measure 93 violated ORS 171.134, a statute that

requires that any “measure summary” prepared by the legislature score at a

certain level on a readability test. Even assuming that Measure 93’s summary

violated ORS 171.134, neither ORS 174.134 nor any other source of law suggests

that Measure 93 or SB 226 might be invalid for that reason. Petitioners also

argue that SB 226 violates ORS 171.127 because the bill failed to “bear the name”

of the entities that requested it at the time the bill was filed, as required by that

statute. Again, however, even accepting petitioners’ factual premise, petitioners

point to no source of law that would invalidate such a statute after it was enacted.

7

Article XI, section 2, provides, in part:

“The Legislative Assembly shall not enact, amend or repeal any charter

or act of incorporation for any municipality, city or town. The legal voters

of every city and town are hereby granted power to enact and amend their

municipal charter, subject to the Constitution and criminal laws of the state

of Oregon.”

Cite as 367 Or 41 (2020) 55

not more than 15 percent of the qualified voters may be

required to propose legislation by initiative, and not more

than 10 percent of the qualified voters may be required to

order a referendum on legislation.”

Much has been written about the meaning and

effect of those two provisions, which were proposed by ini-

tiative and adopted by the people in 1906. The controlling

interpretation of the provisions is the one that this court

announced in La Grande/Astoria v. PERB, 281 Or 137, 576

P2d 1204 (1978) (La Grande I), and reaffirmed on rehear-

ing, La Grande/Astoria v. PERB, 284 Or 173, 586 P2d 765

(1978) (La Grande II). In La Grande I, the court recounted

the history of the adoption of the provisions as initiative

measures. That history showed that the primary concern of

those who advocated for the measures was that the voters

of municipalities be permitted to determine the structure

and organization of their own municipal governments, but

that they did not intend to oust the state legislature from

making substantive law affecting cities and towns. 281 Or

at 142-45. Based on that history and the subsequent case

law, this court held in La Grande I that the prohibition in

Article XI, section 2, on the Legislative Assembly “enact[ing],

amend[ing,] or repeal[ing] any charter or act of incorpora-

tion” bars the legislature from legislating only with respect

to the “structure and organization” of local government.

Id. at 150. The sole exception to such interference with the

form of local government, the court added, would be a state

law touching on local structures and procedures that “served

a predominant social interest extending beyond the local

municipality,” for example, a law “designed to safeguard the

interest of private persons in the procedures of local govern-

ment.” Id. at 146.

The court also explained, however, that the grants

of authority to the voters of every municipality to enact

and amend their own municipal charters and to exercise

the initiative powers “as to all local, special and municipal

legislation” did not impose limits on the legislature with

respect to making substantive law that affects municipal-

ities. Id. at 145. And because the municipal government

and the state legislature will at times quite lawfully pur-

sue substantive objectives regarding the same subjects,

56 City of Damascus v. State of Oregon

the court in La Grande I opined, there will be occasions

when state and local substantive laws overlap or conflict.

In such cases, the court added, the state and local law must

be allowed to operate concurrently, if possible, but if that is

not possible, the state law will displace the local law. Id. at

147-49.

La Grande I summarized those conclusions in a rule

that has been applied in home rule challenges ever since:

“When a statute is addressed to a concern of the state

with the structure and procedures of local agencies, the

statute impinges on the powers reserved by the [1906]

amendments to the citizens of local communities. Such a

state concern must be justified by a need to safeguard the

interests of persons or entities affected by the procedures of

local government.

“Conversely, a general law addressed primarily to sub-

stantive social, economic, or other regulatory objectives of

the state 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 local commu-

nity’s freedom to choose its own political form. In that case,

such a state law must yield in those particulars necessary

to preserve that freedom of local organization.”

281 Or at 156. La Grande II confirmed the quoted rule in all

of its particulars. 284 Or at 177-86.

Having set out that basic analytical framework for

considering challenges under the home rule provisions of

the Oregon Constitution, we turn to petitioners’ home rule-

based arguments.

Is SB 226 a legislative attempt to “amend” section

1.

27 of the city’s charter in violation of the city’s home

rule authority?

Petitioners’ initial home rule argument focuses on

the specific prohibition in Article XI, section 2, on the leg-

islature “amend[ing] * * * any charter for * * * any munic-

ipality, city or town.” They argue that SB 226 attempts to

“amend” the city’s charter by excepting a specific disincor-

poration election, i.e., the 2016 vote on Measure 93, from sec-

tion 27 of the charter, which provides: “City elections must

Cite as 367 Or 41 (2020) 57

conform to state law except as this charter or ordinances

provide otherwise.”8

Petitioners first contend that the Damascus City

Council has interpreted “state law” in section 27 of the

charter as referring to state law as it existed on the date

of the adoption of the charter, and they insist that, under

Fifth Avenue Corp. v. Washington Co., 282 Or 591, 581

P2d 50 (1978), this court must defer to that interpretation.

Petitioners then note that, when the city adopted its charter

in 2005, state law, including ORS 221.610 and ORS 221.650,

provided only one election procedure for disincorporating a

city—an affirmative vote by a majority of the electors of the

city, in a November election, on a disincorporation measure

placed on the ballot in accordance under the initiative pro-

cess set out in ORS 250.265. Petitioners argue that, because

section 27 of the city charter incorporates state law as it

existed in 2005, any disincorporation election must fol-

low that procedure. They contend that SB 226 purports to

amend section 27 by imposing different election rules (an

affirmative vote by the majority of those voting, in a May

election, on a disincorporation measure referred to the peo-

ple by the legislature) for the vote on Measure 93.

An initial problem with petitioners’ theory arises

out of their bid for deference in respect to the meaning of

section 27 of the city charter. It is true that, in Fifth Avenue

Corp. we held that the interpretation of a county’s charter

by the county’s governing body should be given deference.

We explained there that the county board of commission-

ers “composed as it is of popularly elected local officials

directly accountable to their constituency * * *, in the first

instance, should have the power and right to interpret local

enactments.” 282 Or at 599. But whether the interpreta-

tion of section 27 of the charter that petitioners offer here

is entitled to deference under that rule is highly debatable.

The interpretation of section 27 that petitioners offer was

adopted not in 2005, when the charter was enacted, or 2016,

8

With respect to petitioners’ various home rule arguments based on the

city’s charter, we note that the charter contains no specific provision regard-

ing disincorporation or disincorporation elections. We express no opinion as to

whether the result here would be different if a city’s charter included a provision

establishing the city’s own procedure for disincorporation.

58 City of Damascus v. State of Oregon

when the Measure 93 vote occurred, but in 2019 and in

anticipation of the present litigation, by a group of persons

who have assumed the title of Damascus City Council with-

out the benefit of being elected to that body. Whether or not

the group has a legitimate basis for claiming that title, it

cannot claim to be composed of “popularly elected local offi-

cials directly accountable” to the people of Damascus.

Even setting the deference issue aside, petitioners’

argument remains problematic. Petitioners assume that SB

226 “amends” the city’s charter in violation of Article XI,

section 2, because it is inconsistent with one of the charter’s

provisions (as that provision is interpreted by petitioners).

But, given the construction of Article XI, section 2, in the

La Grande cases, that assumption is too simplistic. First,

plaintiffs’ argument assumes that the “state law” in sec-

tion 27 to which local elections “must conform” is state law

as it existed when the charter was adopted in 2005, rather

than “state law” as it has changed over time. Yet nothing

in section 27 suggests that the reference to “state law” was

intended to be limited in that unusual way. If plaintiffs’

dubious premise is incorrect, then “state law” in section 27

may include HB 3085 and SB 226, defeating plaintiffs’ argu-

ment at the outset.

Second, even if we accept petitioners’ reading of

section 27 and their argument that SB 226 conflicts with

that charter provision, their position ignores difficult ques-

tions about whether a statute that sets out requirements

for a municipal disincorporation election is directed at the

“structure and organization” of municipalities (as opposed

to substantive policy)9 and, if so, whether it is “justified

by a need to safeguard the interests of persons or entities

affected by the procedures of local government.” La Grande I,

281 Or at 156. By framing the issue solely in terms of the

text of Article XI, section 2—whether SB 226 “amend[s]”

9

As suggested in La Grande I, 281 Or at 150, the mere fact that SB 226 is

inconsistent with a provision in a city charter does not resolve this question:

“The 1906 amendments were not designed to exalt form over substance,

on the one hand leaving all local modes of government at the mercy of the

legislature unless written into the local charter and on the other hand immu-

nizing from state law any local policy on any subject if only it is placed in the

charter.”

Cite as 367 Or 41 (2020) 59

the city charter—petitioners seek to avoid those questions,

which are critical to this court’s longstanding interpreta-

tion of that provision. But ultimately these issues must be

addressed—and we do so below in our discussion of petition-

ers’ third home rule argument.

Does SB 226 violate the city’s home rule authority by

2.

providing the “manner of exercising” initiative and

referendum powers as to “municipal” legislation?

Petitioners’ second home rule argument focuses on

the wording of Article IV, section 1(5), and, again, fails to

consider the basic principles of the constitutional home rule

provisions as interpreted in the La Grande cases. Petitioners

begin by noting that Article IV, section 1(5), reserves the ini-

tiative and referendum powers “as to all local, special and

municipal legislation” to the voters of the municipality, and

that provision further instructs that “cities may provide the

manner of exercising [the initiative and referendum] pow-

ers as to their municipal legislation.” Petitioners then assert

that two sections of the city’s charter—section 27, described

above, 367 Or at 56-57, and section 6(a), pertaining to local

processes for initiative and referendum10 —in fact direct “the

manner of exercising” the initiative and referendum pow-

ers as to “municipal” matters that Article IV, section 1(5),

reserves to the voters of Damascus. From those premises,

petitioners contend that, insofar as SB 226 purports to rat-

ify an election held in a manner that is inconsistent with

sections 6(a) and 27 of the city’s charter regarding the man-

ner of exercising the initiative and referendum powers as to

municipal matters, it violates Article IV, section 1(5).11

10

Section 6(a) of the city charter provides:

“Any change to the general laws of the State of Oregon regarding the pro-

cesses for the use of the initiative, referendum and recall by city voters shall

not be valid, unless such change has been proposed by initiative petition and

approved by a majority of the voters in a general election.”

11

Petitioners’ theory as to why SB 226 conflicts with or creates an excep-

tion to section 27 of the city’s charter depends on the proposition that section 27

incorporates state law with respect to disincorporation procedures as it existed

at the time of the city charter’s adoption, but not as subsequently amended. As

discussed above, 367 Or at 57-58, that proposition is debatable.

Petitioners’ theory as to why SB 226 conflicts with or creates an exception

to section 6(a) of the city charter depends on their understanding of the hold-

ing in De Young, viz., that a disincorporation vote can be triggered only by an

60 City of Damascus v. State of Oregon

Petitioners’ argument is misplaced. The simple

answer is that neither SB 226 nor Measure 93 has the pur-

pose or the effect of displacing the city charter’s provisions

that direct, in the words of Article IV, section 1(5), the “man-

ner of exercising” the initiative and referendum powers as

to “their municipal legislation” (emphasis added)—that is, as

to the city’s regulatory authority over police, health, zoning,

and the myriad other aspects of its own local governance.

The city’s ability to establish and modify as it deems appro-

priate the role of local initiatives and referenda in making

or changing such city ordinances, charter provisions, or

other aspects of the city’s “municipal legislation” is unaf-

fected by SB 226 and Measure 93. Those legislative actions

thus do not interfere with the city’s control of the “manner

of exercising” the initiative powers that are reserved to the

people of Damascus with respect to the city’s own “munici-

pal legislation.”

SB 226 and Measure 93 are not “municipal legisla-

tion,” and they do not interfere with the “manner in which”

the city may exercise initiative and referendum powers over

its “municipal legislation.” Rather, those measures are both

legislative acts that provide a mechanism for triggering

and carrying out a disincorporation election under state, not

municipal, law, that supplements the procedure provided by

state law before their passage. Petitioners never suggest that

the long-standing state statutes regarding the procedures

for the disincorporation of local governments—such as ORS

221.610, ORS 221.621, and ORS 221.650—are beyond the

authority of the legislative assembly or that they violate the

constitutional home rule provisions. Indeed, much of peti-

tioners’ case is based on their view that those statutes should

be followed. But if those statutes are a valid exercise of state

authority and not an interference with home rule powers,

it is difficult to understand how petitioners can maintain

initiative petition. That understanding of De Young is incorrect: Although the

Court of Appeals in De Young questioned whether “the legislature that enacted

ORS 221.610 and ORS 221.621 intended to leave open other paths [beside an

initiative petition] to disincorporation—such as pursuant to legislative referral,”

it ultimately concluded that it need not decide the issue because the legislature

had failed to take the necessary steps to exempt the Measure 93 election that it

contemplated from complying with ORS 221.610 and ORS 221.621. 297 Or App

at 369-70.

Cite as 367 Or 41 (2020) 61

that changes in those procedures, such as those contained

in Measure 93 and SB 226, are beyond the authority of the

legislative assembly. We reject petitioners’ argument that

SB 226 is invalid because it conflicts with Article IV, section

1(5)’s reservation of the “manner of exercising [the initiative

and referendum powers] as to [the city’s] municipal legisla-

tion.” It does not.

3. Application of La Grande I

a. The parties’ arguments and home rule principles

Petitioners’ remaining argument with respect to the

legislature’s enactment of an alternative process for holding

a disincorporation election and its ratification of the results

of that election in SB 226 correctly focuses on the central

home rule principles set out in La Grande I: whether those

enactments interfere with the “structure and procedures”

of local government, or instead advance substantive policy

interests of the state. As interpreted in La Grande I, 281 Or

137, Article XI, section 2, does not curtail the legislature’s

power to pursue the state’s substantive policy interests

and, in fact, permits such policy interests to prevail over

any inconsistent substantive policy set out in a municipal

charter.

Petitioners argue that, insofar as SB 226 attempts

to ratify the results of the vote on Measure 93, it addresses

a specific municipal election—the disincorporation of a spe-

cific local government—and the procedural mechanisms by

which such a disincorporation can be achieved. Petitioners

maintain that the election, the subject of the election, and

procedures for the election are all clearly matters of “the

structure and procedures of [a] local agenc[y]” within the

meaning of the La Grande I rule. For convenience, we again

set out the paragraphs in that case where this court sum-

marized the central home rule principles:

“When a statute is addressed to a concern of the state with

the structure and procedures of local agencies, the stat-

ute impinges on the powers reserved by the [home rule]

amendments to the citizens of local communities. Such a

state concern must be justified by a need to safeguard the

interests of persons or entities affected by the procedures

of local government.

62 City of Damascus v. State of Oregon

“Conversely, a general law addressed primarily to sub-

stantive social, economic, or other regulatory objectives of

the state 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 local commu-

nity’s freedom to choose its own political form. In that case,

such a state law must yield in those particulars necessary

to preserve that freedom of local organization.”

281 Or at 156.

Petitioners argue that only the first paragraph

above is at issue here: whether SB 226 “impinges on the

powers reserved by the [home rule] amendments to the cit-

izens of local communities” and thus violates those amend-

ments, unless the legislature’s intervention was “justified

by a need to safeguard the interests of persons or entities

affected by the procedures of local government.” La Grande I,

281 Or at 156. The stated exception is inapplicable, petition-

ers argue, because the legislature had no basis for think-

ing that the interests of persons or entities who would be

affected by the election procedures provided in the city’s

charter would need to be safeguarded, and respondents do

not disagree. Therefore, petitioners conclude, SB 226, which

seeks to except the disincorporation vote on Measure 93

from both the election provision (section 27) and initiative

and referendum provision (section 6(a)) of the city’s charter,

must give way to the home rule rights that the constitution

reserves to local voters, and to the charter that those voters

adopted.

Petitioners continue that SB 226 is not a “general

law addressed primarily to substantive social, economic,

or other regulatory objectives of the state,” which, under

the second paragraph of the rule in La Grande I, would in

most circumstances prevail over contrary policies of local

governments. Instead, they assert, section 1 of SB 226 is

a special or local, not “general,” law because it applies only

to one six-month window of past actions, into which only

the 2016 City of Damascus disincorporation election and its

aftermath would fit. And they argue that sections 2 and 3,

together, also are special or local laws, and not a “general”

law, because section 3, providing for retroactive application

of the seemingly broadly worded section 2, would affect only

Cite as 367 Or 41 (2020) 63

one past disincorporation election—the 2016 election to dis-

incorporate the city.

The state responds that SB 226 is a “general law”

addressed to substantive social, economic, or other regu-

latory objectives of the state and that it is not addressed

to the “structures and procedures” of local governments.

It first argues that, in determining whether SB 226 is a

general law, it does not matter that it affects only one elec-

tion in one city—because a general law is simply one that

“operates equally and uniformly upon all persons, places,

or things brought within the relation and circumstances

for which it provided.” Farrell v. Port of Columbia, 50 Or

169, 173, 91 P 546 (1907). SB 226 fits that description, in

the state’s view, because it does not specify that it applies

only to the Measure 93 election or the City of Damascus, but

rather sets out certain requirements that, by the statute’s

terms, apply to any election in any place within the specified

parameters.

The state also argues that SB 226 is addressed to a

substantive social, economic, or other regulatory objective of

the state, to wit, an interest “in establishing and governing

the processes by which voters can disincorporate a city, as

evidenced by the procedures outlined in ORS chapter 221

itself.” As to the latter point, the state asserts that, given

that the legislature already has enacted a statute that gov-

erns the process of disincorporation—which petitioners, as

noted, do not challenge as violating constitutional home rule

principles—and given that petitioners “do not contend that

the legislature lacks authority to amend, expand, or abolish

those statutory procedures,” there is little room for arguing

that this particular statute is different and therefore unau-

thorized under the rule of La Grande I. Furthermore, the

state asserts, this is a case in which the charter at issue

seems to explicitly recognize the state’s interest in the elec-

tions through which disincorporation is achieved: Section

27 of the charter states that the city’s elections “must con-

form to state law,” except when the city’s charter and ordi-

nance provide otherwise. Finally, the state argues, while SB

226 might be “procedural” in the sense that it concerns the

legislature’s use of its authority to set the terms of its own

64 City of Damascus v. State of Oregon

referenda, it is not “addressed to a concern of the state with

the structure and procedures of local agencies.”

Based on the La Grande I rule’s reference to “a

general law addressed primarily to substantive social, eco-

nomic, or other regulatory objectives of the state,” 281 Or at

156, both parties focus in part on the issue whether SB 226

is a “general,” as opposed to a special or local, law. But that

issue is not a significant one. In La Grande II, this court went

to considerable lengths to disabuse the petitioners there of

the notion that the constitutional home rule provisions pre-

cluded the legislature from making local or special laws of

any sort. Referring to its earlier decision in La Grande I, the

court observed:

“The limitation stated in [A]rticle XI, section 2, is only

that ‘[t]he Legislative Assembly shall not enact, amend or

repeal any charter or act of incorporation for any munici-

pality, city or town.’ The opinion holds that this limitation

refers to legislative interference with the political arrange-

ments made in local charters and ‘charter-like’ provisions

but does not invalidate general social, economic, or other

regulatory statutes merely because they contradict local

policies. This holding concerns only the constitutional lim-

its on the state legislature; it does not concern what may

be done under local authority granted by charter, statute,

or ‘municipal legislature’ under [A]rticle IV, section 1(5), as

petitioners appear to fear.

“The constitution shows, however, that beyond the lim-

itation on enacting, amending, or repealing charters[,]

the legislature did not lose the power to enact purely local

laws.”

La Grande II, 284 Or at 183-84 (emphasis added).

What that means, in the end, is that the critical

distinction is not between special or local laws and general

laws, but, rather, between laws that address the “structures

and procedures” of local government and those that address

“substantive social, economic, or other regulatory objectives

of the state.” That difference determines whether a statute

enacted by the legislature violates the home rule provisions

of the Oregon Constitution.

Cite as 367 Or 41 (2020) 65

b.    The legislature’s instruction to the court regard-

ing how to determine the validity of SB 226

Because petitioners’ arguments that we have con-

sidered thus far have been directed at the asserted inva-

lidity of SB 226 as a whole, we have not been required to

differentiate between the two alternative paths that the

legislature included in SB 226 to validate the Measure 93

disincorporation election. Petitioners’ arguments regard-

ing the home rule authority under La Grande I, however,

raise that possibility. To summarize our earlier discussion,

SB 226, section 4(5), instructs this court first to determine

whether section 1 of the law is valid in curing any defect and

ratifying the result of a disincorporation election that comes

within the terms of that section. The City of Damascus dis-

incorporation vote pursuant to Measure 93 is such an elec-

tion. Section 4(5) goes on to provide that if, and only if, the

court determines that section 1 is not valid should the court

proceed to determine the validity of sections 2 and 3 as an

alternative path to curing any procedural defects and rati-

fying the results of a qualifying disincorporation election.

Section 1 would accomplish the legislature’s stated

goals by providing that “notwithstanding ORS 221.610,

221.621, and 221.650 a city shall be deemed to be disincor-

porated and shall cease to exist” if the Secretary of State

determines (among other things) that a disincorporation

election was held in the city between January 1 and July 1,

2016, in which the majority of those voting voted in favor of

disincorporation. In effect, section 1 is directed to disincor-

poration elections that occurred in a single six-month time

period, and, although SB 226 did not explicitly refer to the

Measure 93 disincorporation election, it appears that that

election was the only election to which section 1 applies.

Sections 2 and 3 take a different approach to the legisla-

ture’s goals. Section 2 adds to Oregon law an alternative

disincorporation procedure to that provided in ORS 221.610

and ORS 221.621: a legislative referral of the disincorpora-

tion question to the city’s residents, with disincorporation

occurring upon a vote of the majority of those voting. Section

3 makes that procedure retroactive to disincorporation elec-

tions that occurred before the passage of SB 226, if they

66 City of Damascus v. State of Oregon

meet the law’s requirements. In contrast to section 1, which

applies to a single six-month time period in 2016, section 2

makes the additional disincorporation path an ongoing pro-

vision of Oregon law.12

It is obvious from the precis above that section 1

and sections 2 and 3 raise in slightly different ways the

home rule question, i.e., whether they unconstitutionally

interfere with “structures and procedures of local agencies”

or are instead permissible laws addressed “primarily to sub-

stantive social, economic, or other regulatory objectives of

the state.” La Grande I, 281 Or at 156. Petitioners, of course,

assert that both section 1 and sections 2 and 3 are invalid, as

they must if they are to prevail. They argue that both paths

strike at the heart of the “structure and procedures” of the

City of Damascus by, in effect, using a state law (albeit one

seeking to ratify a local election that took place pursuant to

earlier legislative action) to eliminate the city itself, includ-

ing its “structure and procedures.” For its part, the state

argues that both sections are valid exercises of state regula-

tory authority over procedures for disincorporation elections

and that they are valid for the same reason that the pre-

SB 226 statutes regarding such elections are valid.

If we were to follow the legislature’s instruction in

SB 226, section 4(5), we would first consider whether sec-

tion 1 is invalid and, only if we so found, would we consider

whether sections 2 and 3 are valid. We respectfully decline

to do so, for several reasons. First, virtually all the state’s

briefing and most of petitioners’ briefing on the home rule

issues does not distinguish between the different paths

established by section 1 and sections 2 and 3. The parties

make essentially the same arguments for and against the

validity of those statutory provisions and do not develop

12

No one disputes that the impetus for SB 226 was the legislature’s intent

to ratify the 2016 City of Damascus disincorporation election. Sections 2 and 3

do more than that by amending Oregon law to provide an additional disincorpo-

ration process to that set out in ORS 221.610 and ORS 221.621. But that is not

unusual in lawmaking. As this court stated in South Beach Marina, Inc. v. Dept.

of Rev., 301 Or 524, 531, 724 P2d 788 (1986), “Statutes ordinarily are drafted

in order to address some known or identifiable problem, but the chosen solution

may not always be narrowly confined to the precise problem. The legislature may

and often does choose broader language that applies to a wider range of circum-

stances than the precise problem that triggered legislative attention.”

Cite as 367 Or 41 (2020) 67

specific arguments as to why one might be valid and the

other invalid. Second, for reasons that we outline below, we

consider the validity of the section 1 path to be a close consti-

tutional question, while we can conclude with complete con-

fidence that sections 2 and 3 provide a valid constitutional

path to achieving the legislature’s stated intent of “curing

any defect in the procedures” and “ratifying the results”

of any disincorporation vote that meets the requirements

of SB 226, including the vote at issue here. This court has

often chosen to avoid interpreting a statute in a way that

would render it unconstitutional if a different, but also plau-

sible, interpretation would be constitutional—the so-called

“avoidance canon.” See State v. Duggan, 290 Or 369, 373,

622 P2d 316 (1981) (rejecting interpretation that “may well”

be unconstitutional). The legislature’s instruction that we

decide the validity of section 1 and, only if we conclude that

it is invalid, decide the validity of sections 2 and 3, raises

several constitutional issues related to the avoidance canon

and the principles underlying it, and we turn briefly to them.

The avoidance canon, in part, is a rule of judicial

restraint, in that it allows the court to avoid holding all or

part of a statute unconstitutional and “thus minimize the

possibility of conflict between the branches.” Jack L. Landau,

Oregon Statutory Construction, 97 Or L Rev 583, 718 (2019)

(discussing avoidance canon). Moreover, when there are two

plausible constructions of a statute, one constitutional and

the other unconstitutional, we assume that the legislature

intended the constitutional meaning, so will adopt that con-

struction. State v. Kitzman, 323 Or 589, 602, 920 P2d 134

(1996) (so holding).

This principle is similar in some respects to our

longstanding practice of not addressing alternative argu-

ments offered by parties in a case, if one argument is dispos-

itive. See, e.g., State v. Henderson, 366 Or 1, 5 n 1, 455 P3d

503 (2019) (“Because we agree with the state on its primary

argument * * *, we do not reach the merits of its alternative

argument.”). That practice allows the court to avoid render-

ing decisions that might be considered advisory in nature,

because the parties’ dispute has been effectively resolved

by the primary holding, as in Henderson, and to reduce the

68 City of Damascus v. State of Oregon

tendency of appellate judges to include unnecessary dicta in

their opinions.13

Here, in addition to the issue of avoiding ruling on

the constitutional validity of section 1—which we would be

required to do if we followed the legislature’s instruction—

there is the additional potential constitutional issue of

whether the legislature’s instruction itself violates the sep-

aration of powers provision of the Oregon Constitution,

Article III, section 1, because it unduly interferes with or

burdens our exercise of the judicial function.14 This court

sometimes has held that legislative directives to the court

improperly interfere with the judicial function, see, e.g.,

In re Ballot Title, 247 Or 488, 431 P2d 1 (1967) (declining

legislative directive to review ballot title in absence of case

brought by a party or other judicial process; such a review

would be “advisory”), although we also have upheld general

statutes requiring the courts to follow certain procedures

when we conclude that they do not unduly burden or inter-

fere with that function. See, e.g., State ex rel Emerald PUD

v. Joseph, 292 Or 357, 362, 640 P2d 1011 (1982) (holding

statute requiring Court of Appeals to decide certain cases

within three months of filing not facially unconstitutional).

The legislature’s instruction in SB 226 is unusual.

It does not simply confer original jurisdiction on this court

to decide a particular, justiciable case—a directive that we

routinely honor. Nor does it tell us what result we should

reach in deciding the case, which we likely would view as

a clear interference with the judicial function. Rather, it

directs us to decide the issues in a specific case in a particu-

lar order, which seems to fall somewhere between the prior

two examples. Moreover, the principles mentioned above—

the avoidance canon, our usual approach when alternative

13

We express no opinion here regarding the circumstances in which advisory

opinions may or may not be unconstitutional or the weight to be given to dicta

in judicial opinions. Our point is that there are prudential and jurisprudential

reasons to avoid unnecessarily deciding legal issues that may be presented in a

case, if the case can be appropriately resolved on more limited grounds.

14

Article III, section 1, provides, in part:

“The powers of the Government shall be divided into three separate

branches, the Legislative, the Executive, including the administrative, and

the Judicial; and no person charged with official duties under one of these

branches, shall exercise any of the functions of another * * *.”

Cite as 367 Or 41 (2020) 69

arguments are raised in support of the same result, and the

potential constitutional separation of powers issue—are not

easily applied to the SB 226 instruction. Nevertheless, we

have serious concerns. We are reticent about unnecessarily

holding part of a statute unconstitutional or offering what

might be considered an advisory opinion on the constitution-

ality of part of a statute. We also are not inclined to issue a

definitive ruling on the constitutional separation of powers

question whether it is proper for the legislature to decide the

order in which we may consider alternative arguments in

a specific case.15 For those prudential reasons, we respect-

fully decline to follow the legislature’s instruction in SB 226,

section 4(5). We instead will decide this case in a way that

avoids reaching those two potentially close constitutional

questions.

We first explain briefly why we consider the valid-

ity of the section 1 approach to ratifying the results of the

Measure 93 election to present the closer constitutional

question, as that conclusion is the reason we instead focus

on sections 2 and 3. Section 1 provides that a city whose

disincorporation election meets the requirements set out in

SB 226—including having occurred between January 1 and

July 1, 2016—“shall be deemed disincorporated.” The only

effect that that section has, or will ever have, appears to

be to ratify the disincorporation of the City of Damascus;

the section has no ongoing role in future disincorporation

elections. As discussed above, petitioners’ argument that

SB 226 unconstitutionally impairs the city’s home rule power

by dismantling its “structure and procedures” is plausible as

applied to section 1. But the state’s response, as applied to

section 1, also is plausible: In SB 226, according to the state,

the legislature exercised its historic practice of regulating

the procedures for the disincorporation of local govern-

ments, as it has for many decades, including through stat-

utes such as ORS 221.610 and ORS 221.621. In Measure 93,

it provided an alternative path for a disincorporation elec-

tion; that path was followed and disincorporation chosen;

15

The parties’ briefing accepts the legislative directive about the sequence in

which we are to decide the validity of different provisions in SB 226, and neither

party raises or briefs any separation of powers concerns in relation to that issue.

That is an additional reason that we choose not to address the issue.

70 City of Damascus v. State of Oregon

a court later found a procedural flaw in the measure; and

SB 226 is a legitimate means of curing that flaw and rat-

ifying the results of the election. However, we decline to

reach the question of the constitutional validity of section 1,

because we conclude that the validity of sections 2 and 3

to accomplish the intent of the legislature is clearly estab-

lished in our home rule cases.

c. Sections 2 and 3 of SB 226

Sections 2 and 3 provide an alternative mechanism

to section 1 by which the voters of a city can decide to disin-

corporate the city. To review, ORS 221.610 and ORS 221.621

have long provided that the electors of a city may seek a

disincorporation election through an initiative petition and

that the city shall be disincorporated if a majority of the

city’s electors vote in favor at the first general (November)

election after the filing of the initiative petition. Section 2

of SB 226 adds to Oregon law a procedure whereby the leg-

islature may refer the question of disincorporation to the

city’s residents, with disincorporation occurring upon a vote

of a majority of those voting on the question in the first “pri-

mary” (May) election following the referral. Section 3 makes

section 2 applicable “to Acts enacted or referred, and elec-

tions held, before the effective date of this 2019 Act,” mean-

ing that any vote to disincorporate in a past election would

be effective, if held under equivalent procedures and stan-

dards to those provided in section 2.

Sections 2 and 3 do not directly effect the disincor-

poration of the City of Damascus or any other city. Rather,

section 2 establishes as part of Oregon law a different stat-

utory procedure for holding a vote on disincorporation in

addition to that which already exists, and section 3 pro-

vides that that alternative procedure applies retroactively.

Petitioners argue that the two sections are addressed to the

“procedures” of local government and therefore impinge on

powers reserved to the local government, but that argument

ignores the state’s persuasive response that it has a substan-

tive interest in regulating the procedures for the disincorpo-

ration of local governments. The state’s argument is even

more persuasive when considering that, when SB 226 was

enacted, the state had long been regulating the procedures

Cite as 367 Or 41 (2020) 71

for the disincorporation of local governments under ORS

221.610 and ORS 221.621 (or predecessors of those statutes).

Petitioners have never argued that those two statutes vio-

late the home rule provisions in the Oregon Constitution.

In fact, they appear to view them as legitimately controlling

local disincorporation elections. Ultimately, then, we are

persuaded that sections 2 and 3 of SB 226 are addressed to

a substantive regulatory interest of the state.

Having established that point, the question arises

whether those sections are nevertheless invalid under the

La Grande I rule, because they are “irreconcilable with the

community’s freedom to choose its own political form.” 281

Or at 156. Petitioners argue that SB 226, including sections

2 and 3, does just that because it imposes a political form—

disincorporation—on a single, specific geographic area

based on the preferences of the legislature or of certain local

governments (Clackamas County and the City of Happy

Valley) that pushed the legislature for a “fix” of the city’s

disincorporation dilemma triggered by the Court of Appeals

decision in De Young. But while that argument might rea-

sonably be leveled at section 1 of SB 226, it does not apply to

sections 2 and 3, which establish and make part of Oregon

law an alternative statutory mechanism for triggering a

disincorporation vote by the people of a municipality and

allow that mechanism to apply retroactively, for the reasons

we have explained above.

We conclude that sections 2 and 3 do not violate the

home rule provisions of the Oregon Constitution.

E. Petitioners’ Separation of Powers Challenge to Sections 2

and 3 of SB 226

Because we do not reach the question of the validity

of section 1 as a means of ratifying the 2016 disincorpora-

tion election, we need not consider how that section fares

under petitioners’ argument that it violates separation of

powers principles incorporated in Article III, section 1, of the

Oregon Constitution. We confine our analysis to sections 2

and 3 of SB 226. Petitioners contend that those sections vio-

late Article III, section 1, because they constitute an act by

the legislative branch that purports to reverse a decision by

72 City of Damascus v. State of Oregon

the judicial branch (specifically, the Court of Appeals deci-

sion in De Young), thereby reviving a matter that already

had been decided by the judicial branch. That argument is

unavailing.

In McFadden v. Dryvit Systems, Inc., 338 Or 528, 112

P3d 1191 (2005), this court considered whether Article III,

section 1, had been violated when the legislature amended

the statute of limitations for product liability actions to

include a discovery rule and then expressly provided that

the change would apply retroactively to “revive” causes of

action that had been time barred under the prior statute,

should such cases be refiled. The defendant had argued

that the statute represented a legislative usurpation of the

judicial function of deciding cases because it purported to

affect the rights of litigants whose rights already had been

decided by the judicial branch. Id. at 536. The court noted

that the question presented was not whether the legisla-

ture had purported to overturn cases that the courts had

decided (it had not), but rather whether it purported to over-

turn the principle of res judicata—a judicial principle—as

it ordinarily would apply to newly filed cases on the same

claims. Id. at 537. The court answered the question by quot-

ing from Huntington v. Sulmonetti, 276 Or 967, 972, 557 P2d

641 (1976):

“The legislature is not setting aside the court’s original

determination, which is final as to the law then existing.

It is merely deciding that prior claimants should have

another opportunity to file and litigate their claims under a

new and different set of standards. If the legislature would

originally have had authority to enact the statutes relating

to the filing of claims as such statutes were subsequently

amended (and it is plain it would have had), it had the

authority to make the amendment retroactive and to per-

mit claimant to refile despite the intervening litigation.”

McFadden, 338 Or at 537-38 (quoting Sulmonetti, 276 Or

at 972). The court in McFadden contrasted such legislative

acts that grant new rights of appeal and make those rights

retroactive—a legislative function—with legislation that

purports to construe previous legislative enactments—a

judicial function, giving them a meaning that contradicts a

judicial decision in the matter. The latter kind of legislation

Cite as 367 Or 41 (2020) 73

would violate Article III, section 1, but the former would not.

335 Or at 538-40.

Although the underlying issue in McFadden is dif-

ferent from the issue here, that case nevertheless provides

important insight into how to analyze claims that a retro-

actively applicable change of law violates constitutional sep-

aration of powers principles by overturning prior judicial

decisions. Under McFadden, a statute that simply deems

valid claims that a court has already determined to be

invalid is an unconstitutional exercise of a judicial function

by the legislature. But sections 2 and 3 of SB 226 do not

do that. That is, they do not simply set aside the Court of

Appeals’ determination in De Young, 297 Or App 530, that

the quest for disincorporation under the Measure 93 elec-

tion, as referred to the legislature by HB 3085 (2015), had

failed because HB 3085 had not exempted the election from

the requirements in ORS 221.610 and ORS 221.621. Rather,

sections 2 and 3 reflect the exercise of traditional legislative

functions: They provide a statutory alternative to the proce-

dures for disincorporation elections set out in ORS 221.610

and ORS 221.621, and they make that alternative retroac-

tively applicable. Sections 2 and 3 of SB 226 do not violate

Article III, section 1, of the Oregon Constitution.16

III. CONCLUSION

Having considered petitioners’ various challenges

to SB 226 (2019) and the results of the disincorporation elec-

tion for the City of Damascus that it purported to ratify, we

hold that sections 2 and 3 of SB 226 are not unlawful under

any of the theories that petitioners have presented to this

16

Petitioners direct a final statutory argument specifically against sections

2 and 3 of SB 226, asserting that the use of the term “Act” in those sections means

that they cannot serve to ratify the vote on Measure 93 because the enactment

that led to that referral was a “bill,” not an “Act.” They argue that a “bill” enacted

by the legislature is not an “Act” unless and until it is signed by the governor,

and, because HB 3085 (2015) was never signed by the governor, Measure 93 was

not an “Act” and thus does not come within the terms of SB 226. Petitioners

are mistaken. Article IV, section 1(3)(c), of the Oregon Constitution provides

that “[a] referendum on an Act may be ordered by the Legislative Assembly by

law” and that such referenda “are not subject to veto by the Governor” (emphasis

added)—and thus do not require the governor’s signature. Under the word usage

of Article IV, section 1(3)(c), Measure 93 was an “Act” and sections 2 and 3 of

SB 226 properly referred to it as such.

74 City of Damascus v. State of Oregon

court. Those sections accomplish the stated purpose of SB

226, which is “to cure any defect in the procedures, and to rat-

ify the results of any vote on the question of the disincorporation

of a city in which the disincorporation was approved by a major-

ity of the voters of the city voting on the question at an election

held on the date of a primary election held throughout this state

before the effective date of this 2019 Act.” SB 226, section 4(1).

Because sections 2 and 3 of SB 226 are valid and achieve

the legislature’s intent, it is unnecessary to decide whether

section 1 is valid, and we decline to do so.

Oregon Laws 2019, chapter 545, is declared valid.