Miller v. Water Wonderland Improvement District

ARMSTRONG, J.,

dissenting.

The majority concludes that Water Wonderland Improvement District is not a public body subject to the public records inspection law in ORS chapter 192 because it is not listed among the districts in ORS 198.010 to which all of ORS chapter 198 applies. The majority’s analysis is flawed because nothing suggests that the list of districts in ORS 198.010 is intended to identify the special districts that ORS 192.410(3) makes subject to the public records law.

When the legislature included the term “special districts” among the list of governmental entities in ORS 192.410(3) to which the public records inspection law applies, it presumably intended for the term to cover a particular type of entity. I do not doubt that the term was intended to cover *410all of the districts listed in ORS 198.010. It is equally clear to me, however, that the list of districts in ORS 198.010 is not coextensive with the list of special districts that are subject to the public records inspection law. That is true for several reasons.

First, by definition, ORS 198.010 identifies only the districts that are subject to all of the provisions of ORS chapter 198. ORS 198.010 provides that, “[a]s used in [chapter 198], except as otherwise specifically provided, ‘district’ means any one” of the entities listed in that section. By its terms, the section does not purport to identify the special districts that are made subject to the public records inspection law by ORS 192.410(3). See, e.g., Enertrol Power Monitoring Corp. v. State of Oregon, 314 Or 78, 84, 836 P2d 123 (1992) (definition of a term in one statute generally does not control the meaning of that term in another).

ORS chapter 198 simply collects together a group of statutory provisions that are intended to apply to certain enumerated districts. That an entity is not one to which all of the provisions in ORS chapter 198 apply and, hence, that it is not one of those listed in ORS 198.010, establishes nothing about whether it is a special district under ORS 192.410(3).

Second, that conclusion is bolstered by the fact that ORS chapter 255, which is entitled “Special District Elections,” has a list of entities that are subject to its provisions that is different from the list of entities in ORS 198.010 that is subject to ORS chapter 198. For example, ORS 255.012 lists translator districts, county road districts, county service districts and the Port of Portland among the entities that are subject to ORS chapter 255, yet those entities are not listed in ORS 198.010. Compare ORS 198.010 with ORS 255.012. I can discern no principled reason to choose the list of entities in ORS 198.010 over the list of entities in ORS 255.012 in order to resolve whether a particular entity is a special district under ORS 192.410(3). That one cannot make such a choice simply confirms that neither list is intended to identify the special districts to which the public records law applies.1

*411Third, the treatment of the Port of Portland confirms that understanding. The Port of Portland is not listed in ORS 198.010 as a district to which chapter 198 applies, even though other port districts are. Compare ORS 198.010(20) with ORS 778.010. Under the majority’s analysis, the Port is not a special district to which the public records inspection law applies, because it is omitted from the list of districts in ORS 198.010.

To the contrary, I have no doubt that the Port is a special district under ORS 192.410(3), notwithstanding its omission from ORS 198.010. The omission of the Port from 198.010 means only that the legislature did not think it necessary to make the Port subject to all of the provisions of ORS chapter 198. For example, ORS chapter 198 has provisions that deal with the dissolution of inactive districts. See ORS 198.330 - 198.365. Given that the Port was created by a special legislative act, see ORS 778.010, and that there is little reason to expect it to become inactive, it is not surprising that the legislature did not choose to make the provisions on dissolution of inactive districts applicable to the Port.2

Finally, there are districts that are not listed in either ORS 198.010 or ORS 255.012 that appear to have characteristics that are similar to those of some of the districts that are listed in those provisions. For example, soil and water conservation districts established under ORS chapter 568 are not listed under ORS 198.010 or 255.012, but drainage districts established under ORS chapter 547 are. There are differences between the two types of entities that explain why one type is listed in ORS 198.010 and the other is not, but those differences do not appear relevant to whether one district would be considered to be a special district under ORS 192.410(3) and the other would not. In summary, the determination whether Water Wonderland is a *412special district under ORS 192.410(3) cannot be resolved by examining ORS 198.010.

The majority also claims support for its decision from Comeaux v. Water Wonderland Improvement Dist., 315 Or 562, 847 P2d 841 (1993). Comeaux adds nothing relevant to the analysis. Comeaux involved whether Water Wonderland is a “governmental unit” for purposes of Article XI, section llb(2)(B), of the Oregon Constitution. The Supreme Court held that it is not, based principally on the fact that it does not have “legal voters” or “electors.” Id. at 570-71. The court went on to note that Water Wonderland is not subject to chapter 255, the chapter on special district elections, but that is not surprising.3 Because chapter 554 corporations such as Water Wonderland do not have electors, there is no reason to make them subject to the election provisions of chapter 255.

That a governmental entity does or does not have electors conceivably could bear on whether it is a special district under ORS 192.410(3), but the resolution of whether an entity is such a district does not turn on whether it is subject to ORS chapter 255. If it did, several of the districts listed in ORS 198.010 would not be considered to be special districts under ORS 192.410(3), because they, too, are excluded from coverage under ORS chapter 255. Compare ORS 198.010 with ORS 255.012.

At bottom, there is no reason to conclude that the legislature had any specific list of districts in mind when it used the term “special district” in ORS 192.410(3) to identify a type of governmental entity to which the public records inspection law applies. Hence, the majority is wrong to conclude that the failure to list chapter 554 corporations in ORS 198.010 or ORS 255.012 bears on whether those corporations are special districts under ORS 192.410(3).4

*413Plaintiff argues that Water Wonderland is a special district under ORS 192.410(3) because it is subject to some of the provisions in ORS chapter 198 that apply to districts, including some that specifically refer to special districts. See ORS 198.180; 198.210; 198.330; 198.335. He reasons that, if Water Wonderland is treated as a special district for some purposes, then it should be treated as such a district for purposes of ORS 192.410(3), particularly when the term “special district” is not otherwise defined for that purpose.

Plaintiffs argument has some appeal, but it suffers from the same flaw as does the approach used by the majority, in that it resolves whether chapter 554 corporations are special districts under ORS 192.410(3) based on whether certain other statutes treat them as special districts, when the other statutes serve purposes wholly unrelated to identifying what are special districts for purposes of ORS 192.410(3). Instead of looking to other statutes, it is appropriate simply to analyze what the words “special district” mean in the context of Oregon law.

A district is a public corporation that performs governmental functions or services within a specific geographic area. See, e.g., Or Const Art IV, § 1(5) (by implication); ORS 778.010 (by implication). A special district is one that performs selected governmental functions or services, such as water or fire service, as authorized by the statutes under which it is created. See, e.g., ORS ch 264 (domestic water supply district); ORS ch 478 (rural fire protection district). It is distinguished in that respect from a municipal corporation, such as a city, which usually has no specific limitation on the functions or services that it can perform within its boundaries. See, e.g., Or Const, Art IV, § 1(5); id. Art XI, § 2; ORS 221.410; La Grande I Astoria v. PERB, 281 Or 137, 140-55, 576 P2d 1204, affd on rehearing 284 Or 173, 586 P2d 765 (1978).

Chapter 554 corporations such as Water Wonderland are public corporations that are authorized to provide irrigation, drainage, domestic water supply and flood control services within a specific geographic area. See ORS 545.020; 545.050.5 Those services are services traditionally provided *414by governmental entities, at least in Oregon. See, e.g., ORS 545.025 (irrigation district); ORS 547.005 (drainage district); ORS 264.110 (domestic water supply district). Because Water Wonderland is a public corporation that provides selected governmental services within a specific geographic area, it satisfies all of the relevant criteria for a special district under Oregon law. In the absence of a reason to believe that “special district” has a peculiar meaning under the public records law, it follows that Water Wonderland is a special district under ORS 192.410(3) and that its records are subject to public inspection. The trial court erred in concluding otherwise.6 Consequently, I respectfully dissent from the decision to affirm the trial court’s judgment.7

That is not surprising. The purpose of ORS chapters 198 and 255 is to make certain statutes applicable to certain districts, because the legislature believed it appropriate to do so. Nothing suggests that one of the purposes that the legislature *411sought to achieve in making those provisions applicable to those districts was to identify the special districts to which the public records inspection law applies.

Interestingly, it is unclear why the legislature made as much of ORS chapter 198 applicable to the Port as it did. For example, ORS 198.425 makes the Port subject to the provisions in ORS chapter 198 by which elected officials are recalled, yet, as far as I am aware, there are no Port officials who are elected to their office by electors, so there is no apparent reason for the provisions to apply to the Port.

One must be careful about the use of the term “special district elections.” The heading for chapter 255 is “Special District Elections,” but that heading has no legal significance. ORS 174.540. The heading may accurately identify the import of the chapter, but one cannot simply equate the term “special district” in ORS 192.410(3) with the districts that are made subject to ORS chapter 255.

See also ORS 199.420(11) (identifies chapter 554 corporations as districts that are subject to local government boundary commissions).

A chapter 554 corporation can be organized as a for-profit corporation or as a nonprofit corporation. ORS 554.040(2)(a), (7); ORS 554.050. If organized as a *414nonprofit corporation, the corporation is considered to be a public corporation. ORS 554.050(6). Water Wonderland is a nonprofit corporation and, hence, a public corporation.

The majority notes that the analysis on which I rely to conclude that Water Wonderland is a special district under ORS 192.410(3) is different from the analysis on which plaintiff relied below and on appeal. Our task is to construe ORS 192.410(3) to determine whether it applies to chapter 554 public corporations. Our construction of the statute cannot be controlled by the arguments made by the parties. See generally PacifiCorp v. City of Ashland, 89 Or App 366, 370-71, 749 P2d 1189, rev den 305 Or 594 (1988). Here, the majority does more than reject plaintiffs arguments about the statute. It implicitly endorses defendants’ and the trial court’s erroneous construction of it, which is why I feel obliged to construe it correctly.

Plaintiff also objects on appeal to the dismissal of a Water Wonderland official as a defendant in the case, contending that the official is a proper party in an action under ORS 192.490 to compel access to Water Wonderland’s records. Plaintiff is wrong. Actions to compel access to public records can be brought only against the governmental entity that holds the records. See ORS 192.490(1). Plaintiffs remaining assignment of error does not require discussion.