Sims v. Besaw's Café

LINDER, J.,

concurring.

I write separately because, although I agree with the lead opinion’s ultimate validation of the city’s ordinance, its analysis sweeps too broadly in concluding generally that “cities can enlarge the common-law duties and liabilities of private parties.” 165 Or App at 193. As I understand the lead opinion, a city’s authority to alter private rights and responsibilities is unlimited except insofar as the legislature affirmatively has enacted preemptive state laws. In my view, the issue need not and should not be decided in terms so general or so abstract. The precise question before us is whether this ordinance is within the city’s power to enact. Pursuant to a more narrow — or at least more specific — analysis, I would conclude that it is.

The starting point is to examine the challenged ordinance and the city’s interest in it. To be sure, no one disputes that the general nondiscrimination policy embodied in the ordinance is one that the city may pursue. Indeed, defendants carefully “reiterate” in their brief that they do not assert that the city acted outside its authority in enacting a nondiscrimination policy; their objection is to the creation of a private cause of action to further that policy. But the issue cannot be analyzed in a contextual vacuum. The ordinance’s provisions and the purposes underlying them are the predicate for a meaningful examination of the city’s authority.

*198The particular provisions challenged in this case were enacted in 1991 as part of an comprehensive set of ordinances directed to combating discrimination in employment, housing, and public accommodation. By design, the provisions parallel and complement the nondiscrimination provisions of ORS chapter 659. For example, prohibited employment acts are those made unlawful under ORS 659.030 and ORS 659.425; prohibited acts in selling, renting, or leasing real property are those made unlawful under ORS 659.033 and ORS 659.430; and prohibited acts in places of public accommodation include those made unlawfiil under ORS 659.037 and ORS 659.425. See Portland City Code (PCC) 23.01.050 to 23.01.070. The city’s code explicitly provides for enforcement of the nondiscrimination provisions through the complaint procedures established in ORS chapter 659 and administered by the Commissioner of the Bureau of Labor and Industries.1 See PCC 23.01.080. Of particular significance here, the ordinance further provides: “Any person claiming to be aggrieved by an unlawful discriminatory act under the provisions of this code shall have a cause of action in any court of competent jurisdiction for damages and such other remedies as maybe appropriate.” PCC 23.01.080(E).

The essential difference between the city’s ordinances and state law lies in the fact that the ordinances’ prohibitions extend expressly to discrimination on grounds that include sexual orientation and source of income.2 See generally Title 23, chapter 1 of the PCC. The Portland City Council included those categories of discrimination after months of research, background work by city staff and community leaders, and extensive public hearings examining discrimination on those grounds in employment, housing, and public accommodations. The public hearings culminated in the council’s finding that such discrimination exists and is detrimental to *199the city’s general welfare and the full participation of its citizens in city life. The council’s finding, which it codified, is worth quoting in full:

“The City Council finds that discrimination on the basis of sexual orientation and source of income exists in the City of Portland and that state law does not clearly prohibit such discrimination. It is the intent of the Council, in the exercise of its powers for the protection of the public health, safety, and general welfare and for the maintenance of peace and good government, that every individual shall have an equal opportunity to participate folly in the life of the City and that discriminatory barriers to equal participation in employment, housing, and public accommodation be removed.”

PCC 23.01.020. See also PCC 23.01.010 (recognizing that all prohibited discrimination threatens the “health, safety and general welfare of the citizens of Portland and menaces the institutions and foundation of our community’).

The city’s nondiscrimination provisions are far from novel, at least in their fundamental terms. They reflect a now-familiar and commonplace policy of equal access and nondiscrimination in areas basic to the most minimal quality of life in our communities: employment, housing, and public accommodation. In that regard, it is not surprising that defendants do not dispute the legitimacy of the city’s regulatory goal or the city’s general authority to legislate to that end. The days of doubting that so-called “civil rights laws” reflect compelling public interests are long past. Nor is there doubt that those policies are of equal or greater concern to municipalities than they may be to states or to the nation as a whole. See, e.g., District of Columbia v. John R. Thompson Co., 346 US 100, 73 S Ct 1007, 97 L Ed 1480 (1953) (upholding District of Columbia ordinance prohibiting restaurants from discriminating based on race as valid exercise of police power and within district’s authority as a municipality exercising home rule). As the Kansas Supreme Court pointedly observed:

“We would be hard pressed to say at this point in time and history that legislation designed to eliminate the poison of discrimination from our midst is not a proper exercise *200of the police power. Recent experience has gone far to demonstrate, particularly in urban communities, that discrimination against minorities has a direct and detrimental impact on the orderly processes of government, the peace and tranquility of a community, and the health, safety and general well-being of its residents.
“Problems arising from racial and other forms of discrimination are especially common in population centers; the cancer of injustice toward members of minority groups is peculiarly virulent on the local scene; discrimination is essentially a people problem, and must eventually be dealt with and solved by people in the localities where they live.”

Hutchinson Hum. Rel. Com’n v. Midland Cr. Man., Inc., 213 Kan 308, 312, 517 P2d 158, 162 (1973). See also City of Atlanta v. McKinney, 265 Ga 161, 454 SE2d 517 (1995) (upholding ordinance prohibiting discrimination based on sexual orientation as a proper exercise of municipality’s police power).3

The dispute, correctly, is not whether nondiscrimination policies are important to the general welfare — they plainly are. Nor is the dispute whether such policy objectives are of compelling interest and importance at municipal levels — they plainly are that too. The only objection is to the remedy devised — that of a private cause of action for damages. The issue, then, is not whether municipalities have general authority to adjust rights and responsibilities as between private citizens. The precise issue is whether a city may do so to further substantive policies that a municipality is otherwise fully entitled to advance.

So framed, then, the question must be: what is the source of a limitation on the city’s authority in that regard? Municipalities do not have plenary legislative authority, and they therefore “cannot enact charters or legislation of any *201kind merely because it is not expressly forbidden.” La Grande v. Municipal Court et al., 120 Or 109,114, 251 P 308 (1926). Rather, they are limited to enacting laws directed to their local interests and exercising “those powers incident and germane to the municipal government.” State ex rel. v. Port of Tillamook, 62 Or 332, 341,124 P 637 (1912). Thus, it is well-settled that municipalities cannot exercise authority extra-murally — that is, by extending their governmental reach beyond their jurisdictional boundaries. See id. at 342 (port could not annex territory outside port district without consent of residents of land to be annexed). Nor may they exercise control over other government officials or agencies. As we recently observed:

“Although the perimeters of city and county home rule authority may defy easy delineation, certain qualifications of that authority may be stated with some confidence. In particular, it is well established that, whatever else local government authority may entail, it does not include governing the conduct of state and federal officials.”

State v. Logsdon, 165 Or App 28, 32, 995 P2d 1178 (2000) (citations omitted).

On the other hand, municipalities are not deprived of authority to legislate in a particular area merely because their interest is not exclusively or uniquely local. As the Supreme Court explained in LaGrande /Astoria v. PERB, 281 Or 137,148-49, 576 P2d 1204, on reh’g 284 Or 173,176, 586 P2d 765 (1978), municipalities and the state legislature in many instances pursue substantive objectives on the same subject matter that are well within the respective authority of both levels of government. Their legislative interests may — and frequently will — overlap. In that circumstance, the inquiry is whether both policies may coexist, or whether one must give way, and, if so, which one. Id.

If municipalities lack authority to create private causes of action for damages or other remedies, then it must be because such causes of action either do not reflect a municipal interest or conflict with a desirable policy of statewide *202uniformity. Local legislation attempting to adopt, for example, unique policies of property, contract, or domestic relations law might invite problems at the state level by purporting to determine rights for persons who do not reside locally or who do not remain there. Courts in other jurisdictions have resisted the notion that municipalities should be able to have separate substantive law in such areas for essentially that reason. See, e.g., City of Bloomington v. Chuckney, 165 Ind App 177, 331 NE2d 780, 783 (1975) (“a city should not be able to enact its own separate law of contracts or domestic relations since these areas are unsuited to less than statewide legislation”); see also McKinney, 265 Ga at 164, 454 SE2d at 520 (similar observation made in context of state constitutional provision expressly forbidding municipalities from enacting special laws relating to rights or status of private persons).

But the issue here is not whether municipalities can adjust private rights and liabilities generally or with regard to private contracts, property rights, or other substantive areas that may reach beyond local boundaries. The narrow question is whether municipal legislative authority extends to creating a private cause of action as a remedy for discrimination prohibited by ordinance. On that precise issue, courts in other jurisdictions appear divided. A few have endorsed McQuillin’s view4 and have invalidated a damages remedy authorized by local ordinance. See, e.g., Yellow Freight Systems v. Mayor’s Com’n, 79l SW2d 382 (Mo 1990); Marshall v. Kansas City, 355 SW2d 877 (Mo 1962) (dictum). Other authorities point in the opposite direction. See, e.g., Trans World Airlines v. City of Philadelphia, 44 PaCmwlth 341,403 A2d 1057 (1979) (sustaining compensatory damage award related to employer’s discrimination against pregnancy-related disability in violation of local ordinance); Hutchinson Hum. Rel. Com’n, 213 Kan at 316-17, 517 P2d at 165 (invalidating damage award only because not provided for by ordinance; no suggestion that damage award could not have been authorized by ordinance). At least one jurisdiction has concluded that, in the absence of a preemptive state provision, *203creation of a private action for damages is well within municipal authority to further nondiscrimination policies. See, e.g., Bracker v. Cohen, 204 AD2d 115, 612 NYS2d 113 (1994) (upholding compensatory and punitive damage award).

We can resort, however, to Oregon precedent for more guidance. As the majority observes, prior Oregon cases have approved of damage actions when those actions were provided for only by local ordinance and not by common law or any other legal source. If I find fault with the lead opinion on that score, then it is because it too quickly glosses over that line of cases in favor of a broader principle that the cases do not support (i.e., that municipalities have general authority to enlarge private rights and obligations).

Both Marsh v. McLaughlin et ux, 210 Or 84,309 P2d 188 (1957), and Olson v. Chuck et al., 199 Or 90, 259 P2d 128 (1953), involved local ordinances that required landowners to repair sidewalks abutting their property. In both cases, pedestrians were injured by hazards in sidewalks and sued the abutting landowners for damages. In both cases, the defendants demurred to the complaints. In Olson, the court concluded that plaintiff had a cause of action. In Marsh, the court reached the opposite conclusion.

The court in Marsh distinguished Olson and observed that, because a landowner had no common-law duty to repair the area in front of his property, the court had to “look to some legislative enactment of the state or city as the basis for liability.” 210 Or at 89, 91-92 (emphasis added). There was no state law creating liability. In Olson, private liability had been created expressly by the City of Salem’s ordinance, so the pedestrian in Olson had a cause of action against the landowner. In contrast, in Marsh, the City of Portland had imposed a duty of maintenance on the landowner but had not provided for a cause of action for an injured pedestrian. Consequently, the pedestrian’s private action in Marsh failed. Id. at 91-92.

Marsh and Olson were not negligence or negligence per se actions in which the court, in adjudicating a common-law action, looked to municipal legislation to define the scope of the private citizen’s common-law duty of care. They rested *204squarely and only on the premise that the injured pedestrians had a cause of action against the abutting landowners only if that cause of action was created by express municipal declaration. The cases are of limited precedential force in this context because neither involved a direct challenge to a municipality’s authority to include such a provision in its sidewalk ordinance. But they nevertheless are of value, for three reasons. First, they demonstrate that, in Oregon, ordinances creating private causes of action are not novel or unprecedented. Second, although neither Marsh nor Olson directly examined municipal authority to create the causes of action at issue in those cases, both cases at least implicitly accept that there is such authority. Third, given their divergent outcomes, Marsh and Olson tacitly acknowledge that statewide uniformity of private rights and liabilities is not, at least in all contexts, an overriding goal or principle.

Although the lead opinion does not discuss it, there is at least one prior Oregon case in which a city’s creation of otherwise nonexistent private liability was directly challenged as beyond its municipal authority. The challenge failed. In Covey Garage v. Portland, 157 Or 117, 70 P2d 566 (1937), the city passed an ordinance regulating car rentals. The ordinance required the businesses to be licensed by the city; to post a surety bond or liability insurance policy of $1,000; and to agree that the bond or insurance would indemnify persons injured by the negligence of anyone renting cars from the licensed rental agent. Id. at 120-21. Further and significantly, the ordinance provided that anyone injured, or the heirs of anyone killed, by a driver’s negligence would be authorized to bring an action against the licensee, the surety, or the insurer for damages.5 The plaintiff, a rental and repair business, brought an action seeking to invalidate the ordinance on the grounds that vehicle regulation was preempted by state law and that the ordinance’s provisions were otherwise beyond the city’s regulatory power.

*205The court held that the city’s ordinance was not preempted by state law because it was a complementary enactment that sought to achieve the same goals by “different methods.” Id. at 125. With regard to the plaintiffs challenge to the liability provisions, the court observed that the purpose of creating liability was “to coerce [the renter] into renting his cars only to those who will drive with care.” Id. at 128. The court considered it “a matter of common knowledge that a consciousness of financial responsibility for negligence tends to promote care, and, conversely, that a consciousness of financial irresponsibility tends to promote indifference.” Id. at 130 (quoting with approval Hodge Drive-It-Yourself Company v. Cincinnati, 123 Ohio St 284, 175 NE 196, 199 (1931), aff'd 284 US 335, 52 S Ct 144, 76 L Ed 323 (1932)). After detailing the city’s general welfare interests in regulating to avoid irresponsible drivers, the court upheld the ordinance’s liability provisions as a reasonable exercise of the city’s police power, one that the city could impose on licensees even though at common law they had no liability for the negligence of their bailees (i.e., renters). Covey Garage, 157 Or at 140-41.

The analysis that the court followed in Covey Garage is the analysis that should be followed here: the first step is to assess the legitimacy of the municipality’s regulatory goal; if it is legitimate, then the next question is whether the means chosen to serve the interest reasonably does so; finally, the local legislation must not conflict with preemptive state policy. In this case, the city’s nondiscrimination ordinance readily satisfies each of those inquiries. The substantive policy of eliminating discrimination in housing, employment, and public accommodations reflects concededly valid — and, indeed, compelling — municipal concerns. In providing a private right of action to redress damages caused by prohibited discrimination, the ordinance undeniably furthers its objectives and does so effectively. As the court observed in Covey Garage, financial liability is one of the most effective tools to achieve compliance with social obligations.

The city’s ordinance can be invalid, then, only if the creation of a private right of action conflicts with state regulatory policy in the same substantive area. Plainly, it does not, and defendants do not argue otherwise. As was true in *206Covey Garage, and as is often true of municipal and state legislation, the substantive goals of the nondiscrimination policies embodied in ORS chapter 659 and in the city’s ordinances are the same. The fact that the city’s ordinances extend broader protection than state law is not objectionable, given the protective purpose of the policy. See State ex rel Haley v. City of Troutdale, 281 Or 203, 576 P2d 1238 (1978).6

In sum, I depart from the lead opinion’s holding that cities have general or abstract authority to enlarge the common-law duties and liabilities of private persons. But I agree that, in creating a private cause of action as part of its nondiscrimination policy, the City of Portland has acted within its municipal authority in this instance. In all other respects, I agree with the lead opinion’s essential analysis of the other issues that this case presents.

Deits, C. J., and Haselton and Kistler, JJ., join in this concurrence.

The city has not purported to force this role on the Commissioner or the agency. Rather, apparently through some form of intergovernmental agreement (see ORS 190.010), the Commissioner and the city have agreed to this cooperative mechanism of enforcement.

The city’s code also establishes uniform protection for all prohibited grounds of discrimination. Under ORS chapter 659, some categories of discrimination (e.g., age and familial status) are protected for some purposes and not others.

Indeed, municipalities tend to be the proving grounds — in terms of both need and public acceptance — for nondiscrimination policies that later are adopted at state and national levels. Public accommodations ordinances requiring equal access for racial minorities, for example, were enacted at local and state levels before federal legislation came into existence. Compare John R. Thompson Co., 346 US 100 (1872 and 1873 ordinances) with The Civil Rights Act of 1964, 42 USC § 2000a et seq. The same is true of fair housing laws. Compare Chicago Real Estate Board v. City of Chicago, 36 Ill 2d 530, 224 NE2d 793 (1967) with the Fair Housing Act of 1968,42 USC § 3601 et seq. (1970).

I refer here to the “general rule” offered in Eugene McQuillin, 6 The Law of Municipal Corporations § 22.01,38813d ed 1998) quoted in the lead opinion. 165 Or App at 192.

Specifically, the ordinance permitted the injured person (or heirs of the deceased) to bring the action “on his own relation in the name of the city.” Covey Garage, 157 Or at 121. The fact that the action was nominally in the city’s name, but with the injured person as the party benefitted by the action, played no part in the court’s analysis of municipal authority.

Indeed, with respect to discrimination based on sexual orientation, ORS 659.165 prohibits ordinances that “single out” those individuals for discriminatory-treatment, or that provide preferential treatment for that group. See deParrie v. City of Portland, 138 Or App 105, 906 P2d 844 (1995), rev den 323 Or 114 (1996) (examining meaning of statute). Implicit in that prohibition is a recognition that local governments in Oregon properly may enact nondiscrimination policies of their own.