State Ex Rel. City of Powers v. Coos County Airport District

EDMONDS, J.,

concurring.

I agree with the majority’s holdings in this case. I write separately because I believe the majority’s reasoning about whether a declaratory judgment proceeding under ORS chapter 28 is an available remedy to challenge the formation of an airport district under ORS 198.785 is flawed. I will first discuss my disagreement with the majority’s reasoning, followed by what I believe to be the proper analysis.

ORS 198.785 provides, in relevant part:

“(1) If the county clerk refuses to accept and file a petition for formation [of an airport district] or for change of *244organization, or if the county board refuses to call a special election as provided by ORS 198.705 to 198.955, any citizen of the affected district or territory may apply within 10 days after such refusal to the circuit court of the principal county for a writ of mandamus to compel the county board or county clerk to do so. * * *
“(2) An action to determine the validity of a formation or change of organization proceeding may also be brought pursuant to ORS 33.710 and 33.720 or 34.010 to 34.100.”

Plaintiffs brought this action pursuant to ORS 30.510 and ORS 28.010, the declaratory judgment statutes. Actions brought under ORS 30.510 and ORS 28.010 are not among the enumerated actions in ORS 198.785 to determine ' the validity of the formation of an airport district. I agree with the majority that no action lies under ORS chapter 30 to challenge the formation of an airport district because an action under that statute must be prosecuted by the district attorney. The remaining question therefore is whether the legislature intended that such a challenge could be made pursuant to ORS chapter 28 despite the absence of any mention of that procedural remedy in ORS 198.785.

According to the majority, Strawberry Hill 4 Wheelers v. Benton Co. Bd. of Comm., 287 Or 591, 601 P2d 769 (1979), provides “the test to determine who may seek a writ of review.” 201 Or App at 241. As I understand the majority’s reasoning, the key to ascertaining the legislature’s intent regarding ORS 838.010 and ORS 198.785, when read together, is to determine whether the determination of a challenge to the formation of an airport district is quasi-judicial or legislative in nature. Because the current version of ORS 34.020 provides that the method for obtainingjudicial review of a quasi-judicial decision is exclusively through the writ of review procedure, it follows, according to the majority’s reasoning, that the legislature must not have intended a declaratory judgment proceeding under ORS chapter 28 to be available to challenge the formation of an airport district under ORS 198.785 if the decision being challenged is quasi-judicial in nature.1

*245Thus, the majority turns to the circumstances of the county’s decision to determine whether the hearings held by the Coos County Board of Commissioners were quasi-judicial in nature or were part of a legislative policy-making process. The majority concludes, in part, that the statutes governing the creation of an airport district “create a quasi-judicial process in that they require the application of preexisting criteria to concrete facts.” 201 Or App at 240. The final factor considered by the majority is whether the county’s decision is directed at a closely circumscribed factual situation or a relatively small number of persons. It observes correctly that an airport district that encompasses all of Coos County cannot be said to affect a relatively small number of persons. Id. Nonetheless, the majority concludes that the number of people affected and the size of the area covered are less important considerations than the other Strawberrry Hill factors, relying on 1000 Friends of Oregon v. Wasco Co. Court, 80 Or App 532, 536, 723 P2d 1034 (1986), rev’d on other grounds, 305 Or 76, 742 P2d 39 (1987), cert den, 486 US 2007 (1988). The majority concludes,

“Mindful of the purposes of the Strawberry Hill 4 Wheelers criteria, we conclude that the formation of the airport district was quasi-judicial.”

201 Or App at 241.

A proper inquiry regarding legislative intent focuses on what the legislature intended at the time of the particular enactment and discounts later events. Holcomb v. Sunderland, 321 Or 99, 105, 894 P2d 457 (1995). ORS 198.785(2), pertaining to special districts generally was enacted by the legislature in 1971. Or Laws 1971, ch 727, § 22. Thereafter, the legislature enacted Oregon Laws 1975, chapter 281 relating to the formation of airport districts. Section 5 of that act provided, “An airport district formed under sections 1 to 14 of this Act shall be considered a district for all purposes in ORS chapter 198.” Or Laws 1975, chapter 281 was codified as former ORS chapter 494. It was renumbered as ORS chapter 838 in 1989. As the majority concedes, Strawberry Hill 4 Wheelers, decided in 1979, and 1000 Friends of Oregon, decided in 1986, could not have informed *246the legislature’s intention in 1975 when it created airport districts and made them subject to the provisions of ORS 198.785(2).

Nonetheless, the majority asserts that “the distinction between quasi-judical and legislative acts * * * has been applied to the judicial review of governmental actions in Oregon for nearly a century.” 201 Or App at 237-38 n 10. However, that assertion begs the question. Historically, the debate in the courts has focused on the scope of review of a county’s decisions: “Whether or how far a court may reexamine those components of a county’s decision * * * that represent policy choices and might therefore be described as ‘legislative’ in character.” Strawberry Hill 4 Wheelers, 287 Or at 602. But when the legislature enacts a statute that expressly incorporates the writ of review procedure, the legislature has preempted the need for a court to undertake an analysis about whether a county undertook a legislative or an adjudicative determination. By the enactment of a statute providing for such a remedy, the legislature has already made that decision for the courts. That is the case here where the legislature had designated the writ of review procedure as a means by which the county’s decision can be reviewed. The only remaining question is whether the legislature intended the writ of review procedure to be the exclusive procedure along with the procedure embodied in ORS 33.710 and ORS 33.720.

That question is solely a question of legislative intent, and the principles of Strawberry Hill 4 Wheelers do not assist us in resolving it. Rather, by following the recognized template for ascertaining legislative intent when interpreting a statute, the proper analysis begins with an examination of the text and context of the statute itself. First, ORS 198.785 defines particular procedures for particular classes of plaintiffs. Subsection (1) of the statute provides that “any citizen of the affected district or territory’ may apply for a writ of mandamus in the event that the county clerk refuses to file a petition for the formation of an airport district or in the event that the county board refuses to call a special election. Subsection (2) provides separate remedies for government entities and for citizens.

*247There is no “exclusivity” language in ORS 198.785 expressly making the writ of review procedure the sole procedure for a citizen’s challenge to the formation of an airport district. Moreover, as the majority must acknowledge, based on its reliance on Oregonians for Sound Economic Policy v. SAIF, 187 Or App 621, 630, 69 P3d 742, rev den, 336 Or 60 (2003), when the legislature intends to communicate an intention that a particular statutory remedy is exclusive, it knows how to do that by expressly using language to that effect. For instance, as we noted in Oregonians for Sound Economic Policy, the Administrative Procedures Act expressly provides that ‘|jJudicial review of final orders of agencies shall be solely as provided’ in that Act. ORS 183.480(2).” Id. Indeed, in Oregonians for Sound Economic Policy, we refused to write into the Public Records Law, ORS chapter 192, an exclusivity provision, declining to infer such an intention in absence of express language. 187 Or App at 631. Thus, the absence of any “exclusivity” language in ORS 198.785 supports the conclusion that the legislature did not intend for the enumerated remedies to be exclusive. See also ORS 174.010.

On the other hand, the structure of ORS 198.785 argues for a competing conclusion. In a first-level text and context analysis, we may consider any rules of construction that bear directly on how to read the text. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993). In Scott v. Ford, 52 Or 288, 296, 97 P 99 (1908), the court identified just such a rule: “whenever a statute limits a thing to be done in a particular form, it necessarily includes in itself a negative, viz., that the thing shall not be done otherwise.” That rule continues to be well recognized in Oregon jurisprudence. See Smith v. Clackamas County, 252 Or 230, 233, 448 P2d 512 (1969), overruled on other grounds by Whipple v. Howser, 291 Or 475, 487, 632 P2d 782 (1981) (holding that “the inclusion of a specific matter tends to imply a legislative intent to exclude related matters not mentioned”).2 For instance, we applied that rule in Rectenwald v. *248Snider, 134 Or App 250, 254, 894 P2d 1242, rev den, 322 Or 360 (1995) (holding that, under a first-level PGE analysis, the use of seat belt evidence in personal injury cases arising out of a motor vehicle accident was limited to the actions and exceptions specified in the statute).

Here, it can be inferred based on the above rule of construction that the legislature intended the writ of review procedure to be the exclusive procedure for citizens to challenge the formation of the airport districts because the statute mentions no other available procedure for citizens who wish to challenge the formation of an airport district. But the fact that the legislature failed to provide expressly that the writ of review procedure was the exclusive procedure for citizens to challenge the formation of airport districts makes the statute susceptible to more than one reasonable interpretation and does not preclude doubt about what the legislature intended. To complete our task, we are required therefore to examine the statute’s underlying legislative history.

My research of the legislative history includes a review of the legislative minutes from the 1971 session as well as minutes from the 1969-70 Interim Committee on Government Affairs and the 1967-68 Interim Committee on Local Government. I have found no specific history that indicates that the legislature intended the writ of review procedure to be the exclusive procedure for citizens to challenge the formation of special districts. However, what does appear generally from the legislative history is that the 1971 legislature had in mind to provide uniformity of procedures with regard to review of decisions concerning special districts: See, e.g., Or Laws 1971, ch 727, § 22. That history is instructive.

ORS 198.785 was part of a bill that was initially introduced as House Bill (HB) 1022 at the request of the Interim Committee on Government Affairs. For several sessions before 1971, the legislature and its interim committees tried -unsuccessfully to create uniformity in the procedures for the formation, change of boundaries, and dissolution *249of special districts. See, e.g., SB 42 (1969). Indeed, Representative Clayton Nyberg told the 1971 Local Government Committee of the Senate that the bill containing what would become ORS 198.785 had a 12-year history of defeat. Tape Recording, Senate Committee on Local Government, HB 1022, May 17, 1971, Tape 4, Side 2. As enacted, HB 1022 repealed a number of statutes that provided for varying ways to achieve review of district actions. See Oregon Laws 1971, ch 727, § 203. The same enactment that repealed other available procedures for review of special district decisions also provided for the incorporation of the writ of review procedure in ORS 198.785. Thus, it can be easily inferred from the legislative history that the creation of the writ of review remedy in ORS 198.785(2) was part of the legislature’s overall intention to provide uniformity in the review procedures for most special districts. When the legislature created airport districts in former ORS chapter 494 in 1975 and said that, for all purposes, an airport district would be considered a special district, it is likely that it also intended that challenges to the formation of airport districts be made in the same manner as challenges to other special districts. Such an intention carries out the legislature’s intention generally regarding uniformity of remedies for those who seek judicial review of decisions of special districts. I therefore concur with the majority that a declaratory judgment proceeding was not available to plaintiffs to challenge the formation of the district in this case, but based on reasoning different from that of the majority.

Linder and Wollheim, JJ., join in this concurrence.

ORS 34.020 provides, in pertinent part, that “any party to any process or proceeding before or by any inferior court, officer, or tribunal may have the decision or determination thereof reviewed for errors, as provided in ORS 34.010 to 34.100, and not otherwise.” (Emphasis added.)

See also Owens v. MVD, 319 Or 259, 266, 875 P2d 463 (1994) (holding that the legislature’s authorization of particular challenges to the proper administration of a Breathalyzer test implies a legislative intent to exclude other kinds of challenges); Pendell v. Dept. of Rev., 315 Or 608, 611, 847 P2d 846 (1993) (where the *248legislature express provisions for interest only under certain circumstances, that suggests that the legislature’s failure to grant interest in other situations was intentional).