A True Copy of the Original

I. INTRODUCTION. 1

II. RESPONSE TO ALL MOTIONS. 1

A. RESPONSE TO THE ARGUMENT THAT THE COURT LACKS JURISDICTION TO HEAR THIS CHALLENGE BECAUSE OF STATUTORY FRAMEWORK FOR PRE-ELECTION CHALLENGES TO INITIATIVES AND REFERRALS: 3

B. THERE IS NO REQUIREMENT THAT PLAINTIFF INVOKE

PLAINTIFFS NEED NOT RESORT TO WRIT OF REVIEW PROCEDURES;

THE CITY'S ACTION WAS NOT "QUASI-JUDICIAL" AND IS NOT SUBJECT TO WRIT OF REVIEW. 6

IV. PLAINTIFFS HAVE PLED SUFFICIENT ULTIMATE FACTS TO WITHSTAND A MOTION TO DISMISS. 7

A. § 43 BECAME EFFECTIVE ON OCTOBER 4, 1999, AND NO ELECTION PLACING THE QUESTION OF WHETHER THE WILLAMETTE SHALL BE USED AS A DRINKING WATER SOURCE PURSUANT TO THE CHARTER AMENDMENT HAS BEEN HELD. 8

B. IT IS PATENTLY RIDICULOUS TO DECLARE THAT AN ELECTION HELD PRIOR TO PASSAGE OF THE CHARTER AMENDMENT MANDATE THAT AN ELECTION BE HELD SATISFIES THE REQURIEMENT TO HOLD AN ELECTION AFTER THE PASSAGE OF THE CHARTER AMENDMENT. 8

 

C. MEASURE 3-59 IS BEING APPLIED IN A MANNER SO AS TO UNCONSTITUTIONAL DENY ELECTORS THE RIGHT TO VOTE ON THE QUESTION OF WHETHER THE WILLAMETTE SHALL BE USED AS A DRINKING WATER SOURCE. 9

 

V. CONCLUSION. 10

TABLE OF AUTHORITIES

Armatta v. Kitzhaber, 327 Or. 250, 959 P.2d 49 (1998) * * * 5

Beal v. City of Gresham, 166 OrApp 528, 2000 WL 370509 (April

12, 2000) 3

Brooks v. Dierker, 275 Or 619, 552 P2d 533 (1976) 6

Ellis v. Roberts, 302 Or 6, 725 P2d 886 (1986) 5

Fasano v. Washington County Comm., 264 Or 574, 507 P2d 23 (1973) 6

Lowe v. Keisling, 130 OrApp 1, 882 P2d 91 (1994) 4

Petersen v. Klamath Falls, 279 Or 249, 566 P2d 1193 (1977) 6

Sizemore v. Keisling, 164 OrApp 80, 990 P2d 351 (1999) 4

Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or

591, 601 P2d 769 (1979) 6

Western Amusement v. Springfield, 274 Or 37, 545 P2d 592 (1976) 6

Article II, § 2 1, 10

Article I, section 21 9

Article IV, §5(d) 1, 10

Article IV, § 1(5) 4

This is a suit for equitable and declaratory relief brought, inter alia, by an elector within the City Of Wilsonville ("Wilsonville" or "the City") to enforce § 43 of the Wilsonville City Charter. The charter provides:

The City of Wilsonville shall not use Willamette River water as a drinking water source for its citizens unless the question of so using the Willamette River water as a drinking water source has received the affirmative majority of the total number of legal votes cast on such measure and entitled to be counted thereon.

Plaintiffs seek a declaration that the above-quoted language requires that an election presenting the precise question contained therein must be held prior to the use of any treated water from the Willamette River being used as a residential drinking water source for the citizens of Wilsonville.

Furthermore, they seek a declaration that no election on the question of using the Willamette River water as a drinking water source has been held in compliance with section 43 of the City Charter.

Defendant refuses to conduct an election as requested and required. Plaintiffs therefore seek a determination that the defendants are violating the rights of elector Scott, and other electors, guaranteed to them by Article II, § 2 and Article IV, §5(d) of the Oregon Constitution, which guarantee them a right to an election upon the question of using the Willamette River as a drinking water source under Section 43 of the City Charter.

Defendant mischaracterizes the gravamen of plaintiffs' claims. Plaintiffs seek declaratory and equitable relief to enforce the City Charter; prevent unconstitutional interference with Scott's right to vote in violation of the Oregon Constitution and City Charter § 43; and to prevent Ballot Measure 3-59 (September 1999 ballot) from being applied in an unconstitutional manner so as to prevent a vote upon the question required by Charter § 43.

On September 20, 1999, the City conducted a special election. Among the measures presented to voters were measures 3-58 and 3-59. Both received a majority of the votes cast and were adopted as the special election results by resolution 1601, dated October 4, 1999.

Ballot Measure 3-58 asked the following question: "Shall Wilsonville City Charter be amended to require voter approval for use of Willamette River as Drinking Water Source?" The measure amended the City Charter by adding the following Section, § 43, to the Charter:

The City of Wilsonville shall not use Willamette River water as a drinking water source for its citizens unless the question of so using the Willamette River water as a drinking water source has received the affirmative majority of the total number of legal votes cast on such measure and entitled to be counted thereon.

Ballot measure 3-59 asked the following question: "Shall Wilsonville issue $25 million in revenue bonds to treat and use the Willamette River as a long term water source?" The ballot title included the following summary:

Measure 3-59 authorizes the City of Wilsonville to issue revenue bonds pursuant to the Uniform Revenue Bond Act in a principal amount sufficient to produce net proceeds of up to $25 million for construction of Phase I Willamette River water treatment plant inclusive of intake, filtration, transmission and related water system facilities. Treated Willamette River water would be used as the City's long-term water supply. Existing City wells would be used for emergency and peak-season back up. Bonded debt would be backed by revenues generated by the City's water utility and by water systems development charges.

The City, through its City Attorney, asserts that § 43 of the charter language does not require a particular form of question to the voters, and that an election held prior to the effective date of § 43 somehow precludes the vote required by § 43 for all time. The City has declared that it will not conduct an election on the question required by the City Charter § 43.

THE LIMITED AVAILABILITY OF PRE-ELECTION CHALLENGES HAS ABSOLUTELY NOTHING TO DO WITH THIS COURT'S JURISDICTION TO HEAR SUBSTANTIVE POST-ELECTION CHALLENGES.

Measure 3-58 was a voter initiative placed on the ballot by the citizen initiative process. Measure 3-59 was a referral from the City Council. Pages 3 through 6, and 11 through 19, of Defendant's Memorandum provide a discussion of potential pre-election challenges to the ballot titles of each of these measures. None of this is relevant to issue at hand of post-election challenge. "[C]onstitutional challenges to the substance of initiated measures--may not be brought until after a measure has been enacted." Beal v. City of Gresham, 166 OrApp 528, __P2d__, 2000 WL 370509 at 2 (April 12, 2000).

The availability of (limited) pre-election substantive or procedural challenges to ballot measures has absolutely nothing to do with this Court's jurisdiction to hear post-election Constitutional challenges. Since the pre-election challenge statutes are not determinative of post-election rights to Constitutional and other substantive challenges, the argument that declaratory relief if precluded by these more "special" or "specific" (Defendant's Memorandum, §I.A at p 3) statutes is a tautology that fails completely. Defendant apparently cannot find a specific post-election challenge statute which deprives this Court of jurisdiction under ORS 28.010, so evidently, it relies upon mischaracterization of the nature of pre-election challenges.

Defendant's entire discussion is muddled and moot. Particularly egregious in defendant's discussion of the law is its cavalier treatment of ORS 250.296(3). Defendant quotes this subsection out of context for the (clearly wrong) proposition that all initiative challenges must be under that statute. In fact, ORS 250.296 is quite clearly entitled "Procedure for elector dissatisfied with title of city measure." (Emphasis supplied). Plaintiffs are not concerned with the ballot title of any measure. They are concerned with being denied their right to vote. Whether or not they liked the ballot titles, or challenged any, they can certainly bring post-election Constitutional challenges to the way that measure 3-59 is being applied unconstitutionally.

Beal v. City of Gresham, supra, provides a helpful discussion which dispels the confusion that defendant suffers (or seeks to create). First of all, "constitutional challenges to the substance of initiated measures--may not be brought until after a measure has been enacted." Beal, supra, at slip op 2, quoting, Lowe v. Keisling, 130 OrApp 1, 15-16, 882 P2d 91 (1994), rev dismissed 320 Or. 570, 889 P.2d 916 (1995). "Before then, any decision would be purely advisory." Id. This disposes of the defendant's "lack of jurisdiction" arguments.

Beal is rather close on the facts to the present situation. In that case, the City of Gresham flatly refused to enforce a voter-initiated City Charter amendment requiring voter approval of certain City decisions. In Beal, the plaintiff sought equitable and declaratory relief that a voter-initiated change to the Gresham City Charter required voter approval before the City Council could allow construction of a limited access highway with city limits. The City had passed such a resolution without submitting the question to the voters. The City then argued that the voter-initiative amending the City Charter was not a proper amendment under the terms of Oregon Constitution, Article IV, § 1(5). The Court held that Gresham could indeed raise the defense long after passage of the amendment by the voters, as there was no requirement for a preelection challenge and no particular limitation upon a post-election constitutional challenge.

We were careful in Sizemore v. Keisling, 164 OrApp 80, 88, 990 P2d 351 (1999), to distinguish between a plaintiff's untimely pre-enactment challenge and the separate question whether a party could file a post-enactment challenge to an initiated law or amendment. As we noted in Sizemore, ORS 250.044(1)(b) provides for post-enactment challenges of initiated state statutes and amendments if they are commenced "on or after the date that the Secretary of State certifies that the challenged measure has been adopted by the electors and within 180 days after the effective date of the measure [.]" More to the point, ORS 250.044(4) provides that the limitations in ORS 250.044 "d[o] not apply to civil or criminal proceedings in which the constitutionality of a state statute or provision of the Oregon Constitution is challenged in a responsive pleading." Although ORS 250.044 applies to state rather than local initiated measures, the policy expressed in ORS 250.044 and the absence of any affirmative prohibition in the cases convince us that the city may raise * * * the claim that Section 36B was not municipal legislation within the meaning of Article IV, section 1(5). Cf. Armatta v. Kitzhaber, 327 Or. 250, 959 P.2d 49 (1998) (considering a post-enactment separate-amendment challenge to an initiated constitutional amendment) * * *.

Id. (Emphasis supplied). This suit was filed well within 180 days of October 4, 1999.

Beal is similarly helpful in clearing up defendant's complete misunderstanding of Ellis v. Roberts, 302 OR 6, 725 P2d 886 (1986) evidenced at p 10, lines 17-22 of its Memorandum. The discussion need not be repeated here, and a copy of Beal is appended for the convenience of the Court.

ORS 246.910 is by its terms a "catch-all" remedy for enforcement of election laws.

"The remedy * * * is cumulative and does not exclude any other remedy * * *under any election law." It is clearly not exclusive, nor does it require exhaustion of its non-exclusive remedy. It has no particular time limit. Plaintiffs might have styled the City's conduct in their Complaint as a failure to comply with the City Charter as some kind of "election law" violation--but plaintiffs are certainly not required to do so. They can avail themselves of other remedies for Constitutional violation, and have chosen to do so.

PLAINTIFFS NEED NOT RESORT TO WRIT OF REVIEW PROCEDURES.

 

 

The announcement of election results and filing City Charter Amendments is not a "quasi-judicial" proceeding. It is clearly a ministerial statutory function. ORS 221.710. There are no identifiable "parties," there is no "record" of a "proceeding" and the City Council was not engaged in judicial or quasi-judicial "factfinding." Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or 591, 602-3, 601 P2d 769 (1979), announced that a county road vacation decision could be challenged by Writ of Review procedures. The Court there reasoned that since quasi-judicial safeguards were necessary when factual determinations impacted the rights of small numbers of identifiable "parties," then such a process should be subject to Writ of Review. The Court did not (and has never held) that City action may be challenged only by the Writ of Review procedure. Beal v. City of Gresham, supra.

Generally, to characterize a process as an adjudication presupposes that the process is bound to result in a decision and that the decision is bound to apply preexisting criteria to concrete facts. The latter test alone proves too much; there are many laws that authorize the pursuit of one or more objectives stated in general terms without turning the choice of action into an adjudication. Thus a further consideration has been whether the action, even when the governing criteria leave much room for policy discretion, is directed at a closely circumscribed factual situation or a relatively small number of persons. The coincidence both of this factor and of preexisting criteria of judgment has led the court to conclude that some land use laws and similar laws imply quasijudicial procedures for certain local government decisions, as in Fasano v. Washington County Comm., 264 Or 574, 507 P2d 23 (1973) and Petersen v. Klamath Falls, 279 Or 249, 566 P2d 1193 (1977), thereby bringing them also within review by writ of review. Cf Brooks v. Dierker, 275 Or 619, 552 P2d 533 (1976).

Such determinations imply no constitutional or other generalizations about such decisions being either legislative or adjudicative for all purposes. See, e.g., Western Amusement v. Springfield, 274 Or 37, 42, 545 P2d 592 (1976). The separate reasons for implying procedural safeguards modeled on adjudications must be kept in sight. One reason is to help assure that the decision is correct as to facts, another is to help assure fair attention to individuals particularly affected. When the preexisting criteria governing a factual situation are quite exact and designed to leave little room for unguided policy choice, and the decision depends on disputed facts, inferences, or predictions, quasi-judicial procedures can allow those most concerned to participate in establishing the pertinent factual premises even when the decision concerns many people in a wide area.

Strawberry 4 Wheelers, 287 Or, supra, at 602- 603.

In this case the City Council is acting under general statutory mandate to declare election results, it is not making a factfinding which will affect the rights of a particular "small number of persons," but engaged in promulgating generally applicable legislative action impacting all citizens. There is no "judgment" of facts, but instead a general statutory mandate to declare results. The mere fact that a land use decision might have been quasi-judicial as applied to particular landowners who sought to be notified and heard has nothing whatsoever to do with the exercise of regular municipal functions.

The gravamen of plaintiffs Complaint is simple. They claim that the Charter

language:

The City of Wilsonville shall not use Willamette River water as a drinking water source for its citizens unless the question of so using the Willamette River water as a drinking water source has received the affirmative majority of the total number of legal votes cast on such measure and entitled to be counted thereon

requires that the "the question of so using the Willamette River water as a drinking water source [be] placed before voters"; and that no election placing that question before the voters has been held.

The Court can take judicial notice of the fact the question of "whether the Willamette River shall be used as a drinking water source for Wilsonville residents" has never been placed upon an election ballot for the approval or disapproval of electors.

Ballot Measure 3-58 became effective and amended the City Charter on October 4, 1999. After that time, the mandate to hold an election prior to using the Willamette River as a residential drinking water source became effective. It is obvious that no election pursuant to the amended charter mandate to hold an election on such a question has been held. The City Council refuses to consider holding such an election. The question for the Court is simple: does the charter amendment of October 4, 1999, require an election to be held pursuant to that amendment placing the question of whether the Willamette River shall be used as a residential drinking water source before the voters?

To claim that an election held prior to the effective date of the Charter amendment, on a different topic (funding a treatment plant without any ballot title mention of use of the water for drinking water) violates the prohibition against ex post facto and retroactive laws.

The amended City Charter requires that voters specifically approve the use of the Willamette River as a drinking water source for the City of Wilsonville in an election upon the specific ballot question of "using the Willamette River as a drinking water source."

Nothing in the ballot title or public information regarding BM 3-59 raised the specific question of using the water treated by the facility constructed with the bonds approved as a local drinking water source. Presumably, Willamette River water treated at the facility built with the approved bonds could be used for municipal non-drinking water purposes without another election. Under the present amended City Charter, treated Willamette River water could be sold to some other entity for drinking water purposes, but it cannot be used by the City of Wilsonville for drinking water for its municipal customers unless and until the vote on that specific question results in a majority of voters approving that action as required by the amended City Charter.

The City Charter Amendment expanded the legislative function of citizens to require their approval before the City could use Willamette River as a source of drinking water for its citizens. By claiming that BM 3-59 had some secret and retroactive effect, the Defendant's actions violate prohibitions on retroactive lawmaking. Article I, section 21, addresses the lawmaking function at the time of enactment, not the process of adjudication by courts. That provision bears a greater textual and structural similarity to other provisions of the state constitution that also prohibit the enactment of certain types of laws, such as, for example, Article I, sections 8, 9, and 20, of the Oregon Constitution, which prohibit, respectively, the enactment of certain laws regarding free expression, searches and seizures, and the granting of privileges and immunities. Thus Article I, § 21 limits the City from declaring that events which predate the enactment of Charter Amendment § 43 on October 4, 1999, can retroactively have the effect of satisfying that amendment, which did not exist at the time and no voter or citizen could possibly know that he or she would be "deemed" to be voting to satisfy a potential or inchoate charter amendment.

The City Charter now confers a right to vote upon duly qualified electors on a particular question--use of the Willamette River as a drinking water source. By refusing to place the question upon the ballot Defendant violates the rights of elector Scott, and other electors, who cannot be disenfranchised because of Article II, § 2 and Article IV, §5(d) of the Oregon Constitution. These Constitutional provisions guarantee the electors a right to an election upon the question of using the Willamette River as a drinking water source when such election is required under Section 43 of the City Charter.

For the foregoing reasons, and based upon the case authority cited above, the Motions //

//

/

to Dismiss should be denied. If the Court should conclude that the Constitutional claims have not been adequately pled, the plaintiffs should be allowed to replead.

Dated: May 1, 2000 Respectfully Submitted,

__________________________

LINDA K. WILLIAMS

OSB No. 78425

10266 S.W. Lancaster Road

Portland, OR 97219

(503) 293-0399 fax 245-2772

For Plaintiffs WCSWC and Scott

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing RESPONSE TO MOTIONS TO DISMISS by mailing, first class postage prepaid, a true and correct copy thereof addressed to:

Michael E. Kohlhoff

City Attorney

City of Wilsonville

3000 SW Town Center Loop E

Wilsonville, Oregon 97070

Dated: May 1, 2000 ______________________

Linda Williams