In these cases the court sustained state laws mandating certain retirement and insurance benefits for police and firefighting personnel against claims that the laws unconstitutionally infringed on the cities' powers of self-government. 281 Or. 137, 576 P.2d 1204 (1978). The Cities of La Grande and Astoria filed an extensive petition for rehearing, and we set the case down for reargument. We reaffirm the constitutionality of the challenged statutes.
First. The dispute involves the meaning of the "home rule" amendments added to the Oregon Constitution in 1906, which we repeat here to avoid the inconvenience of referring back to the original opinion. Article XI, section 2, was amended to include the words emphasized here:
At the same time, article IV, which had earlier been amended to reserve to the people the statewide powers of initiative and referendum, was further amended to add what is now section 1(5):
Together, the 1906 amendments provide two grants of power and one limitation of power. Article XI, section 2, grants power to the voters of every city or town to enact and amend their municipal charter. It withdraws power from the Legislative Assembly to enact, amend, or repeal
It deserves to be reemphasized that the terms of the granted powers and of the accompanying limitation need not be and are not symmetrical. Much of the argument against these statutes has proceeded as though a constitutional grant of power to one level of government necessarily carries with it a corresponding withdrawal of power from the other. That this is not so has long been a truism with respect to the relationship between the powers of Congress and the states, and it is equally true of "home rule" within a state. It is entirely possible to grant certain powers to local governments to act on their own initiative without at the same time limiting the powers of the state legislature. Indeed, as a practical matter this is essential if local government is to have any authority to legislative on its own in matters in which the state could also act, for otherwise local powers would have to be narrowly confined in order to save room for potential state legislation.
The withdrawal of power from the legislature is found in the other clause of the 1906 amendments quoted above, that "[t]he Legislative Assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city or town." Or. Const. art. XI, § 2. Since the attack in the present cases is on state statutes, we deal with an issue whether the constitution denies the state the power to act, not an issue whether it authorizes local action. There is, of course, no question that La Grande and Astoria could adopt retirement or insurance programs for their employees. The only question is whether article XI, section 2, cut off the legislature's authority to enact statewide standards for such programs.
As we noted in the original opinion, the literal text of article XI, section 2, provides no basis for the cities' position, because their own relevant policies were not in fact stated in their city charters. 281 Or. at 150, 576 P.2d 1238. Petitioners do not purport to point to precise words in article XI, section 2, as denying the legislature's authority to enact these laws. However, the opinion also agreed with petitioners that the limitation expressed in article XI, section 2, should not be read to hinge on whether a city chooses to place a particular policy into its charter or into some other form of enactment pursuant to its charter: "It is not the label that matters but the role of the provision in local self-government." Ibid.
While declining to "exalt form over substance," however, we found sense in the draftsmen's choice of words that denied the legislature power to enact or supersede municipal charters rather than to supersede local enactments of any kind. If the latter were intended, "charter or act of incorporation" would hardly be the way to write it. But the special function of a charter or act of incorporation is that it is needed to organize the local political entity, to establish its governing organs, their selection,
Second. Lacking precise terms in article XI, section 2, that expressly withdraw the power of the legislature to enact these statutes, petitioners invoke the history of the provisions. Specifically, they argue that Justice Harris's opinion in Rose v. Port of Portland, 82 Or. 541, 162 P. 498 (1917), which we quoted in 281 Or. at 144-145, 576 P.2d 1204, confused the explanation given for "home rule" resolutions in 1901 and 1903 with what petitioners describe as the "altogether different" version actually adopted in 1906.
The version originally proposed by the Legislative Assembly in 1901 and 1903, but not submitted to the voters, was almost three times the length of the one ultimately adopted, mainly because the older version contained detailed procedures for the preparation and adoption of charters.
The argument fails to note to what this change referred. What was it that the earlier version proposed to make subject to general laws? It was the authority of a city "to frame a charter for its own government." And, further bearing out the understanding of the function of a charter discussed above, the amendment before its shortening stated that when adopted by the voters, the charter of a city "shall become the organic law thereof." It was precisely this "organic" or constitutive role that article XI, section 2, attributed to the charter. It was this power of each city "to frame a charter for its own government" that would have been subject to and controlled by state legislation under the first but not under the final version of the amendment. And it is these organic and constitutive powers of self-government that are safeguarded by our interpretation of the amendment.
On reargument the state maintains that article XI, section 2, was meant to prevent only special or individual laws dealing with municipal government, not laws applicable to all cities generally. In effect, the state takes the position adopted in Rose v. Port of Portland, supra, which we declined to revive in our original opinion. It is true that the individual enactment and amendment of city charters by the legislature were the practice against which article XI, section 2, and its contemporary explanations were chiefly directed.
In an effort to extend this principle from laws concerning city charters to a local option to escape state substantive laws, the cities argue that early charters contained many authorizations for the city to pursue specified social objectives and social policies. But again, there is no disagreement that the cities could after 1906 and can today authorize their governments to pursue such policies. See, e.g., State ex rel. Haley v. City of Troutdale, 281 Or. 203, 576 P.2d 1238 (1978).
Moreover, petitioners continue this line of argument by pointing to the analogy of county "home rule" under article VI, section 10, and positing that "matters of county concern," like "municipal legislation" under article IV, section 1(5), extends to "substantive" as well as "structural and procedural" matters. This points up the apparent misunderstanding we wish once more to lay to rest. Petitioners crash through an open door. Of course, local charters are enacted to pursue substantive objectives, not just for their own sake. As the opinion points out, it is precisely because municipalities and the legislature often enact laws "in pursuit of substantive objectives, each well within its respective authority," that the problem of conflict can arise. 281 Or. at 148, 576 P.2d at 1211.
We tried again in note 30 to "forestall possible misunderstanding" by stressing that these cases are concerned with the constitutional limitation on state legislation stated in article XI, section 2, not with the authority of local communities and voters to act on their own initiative. The limitation stated in article XI, section 2, is only that "[t]he Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town." The opinion holds that this limitation refers to legislative interference with the political arrangements 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 limits on the state legislature; it does not concern what may be done under local authority granted by charter, statute, or "municipal legislation" under article IV, section 1(5), as petitioners appear to fear.
The constitution shows, however, that beyond the limitation on enacting, amending, or repealing charters the legislature did not lose the power to enact purely local laws. Article IV, section 23, lists the specific kinds of special or local laws that are forbidden.
Third. The petitioners and the dissent argue that the distinction between legislation invading a municipality's "charter of government" or "organic law" and legislation for general social goals will not free the state and the cities, and ultimately this court, from making difficult legal decisions.
Petitioners propose that this weighing of "local" against "statewide" interests could be made on a record of evidence taken in trial courts, including statistics, expert testimony, and the like. The suggestion demonstrates the flaw of "balancing" rather than resolving it. This approach would make the constitutionality of a statute depend, not on what kind of laws article XI, section 2, means to withdraw from the legislature, but on the capacity of litigants in a particular case to "prove" the value of the statute to the state as compared with the value of the competing policy to the city. But such a trial record might look different in a case from La Grande from the record in a case from Astoria, and settle nothing for Eugene, or Portland, though the statute is enacted for the whole state. A law that was sustained on one record in 1978 could be attacked again on different "proof" of the competing interests offered by different parties in 1979. And the ultimate dispute is over policy, even when the facts are undisputed. Nothing in article XI, section 2, supports such an approach to a trial of competing interests before the court.
Alternatively, petitioners propose that the legislature be required to state "findings" and "reasons" for imposing a statewide policy which could be contested in a trial on judicial review. The proposal misconceives the position of the Legislative Assembly in the constitutional scheme. The legislature is a body of politically accountable,
Finally, the petition for rehearing debates only the general tenor of the opinion in this case. It does not address the question actually at issue, the validity of the retirement and insurance requirements enacted in the 1971 statute. We reaffirm the constitutional validity of the statute.
TONGUE, Justice, dissenting.
My reasons for dissent may be summarized as follows:
1. The majority would ignore the fact that all parties, including the State of Oregon, the cities of Oregon, and the unions representing Oregon policemen and firemen have rejected the distinction adopted by the majority for application of the Home Rule amendments between cases involving the "structure and procedures" of city government (in which cities would retain some limited measure of exclusive home rule power), and cases involving matters of "substantive policy," (in which, under the newly adopted rule of "legislative supremacy," the legislature can supersede provisions of city charters or ordinances).
2. The attempt by the majority to find "identifiable criteria derived from constitutional command" to support that distinction between "procedures" and "substance" by reference to the word "charter" in the Home Rule amendments is demonstrably without merit.
3. That same distinction is also inconsistent with the legislative history of the Home Rule amendments, as conceded by all parties to the case.
4. The newly adopted "procedure — substance" distinction will create more problems than it will solve and will not enable this court to decide Home Rule cases by the application of "identifiable criteria, derived from constitutional command," as claimed by the majority.
5. The majority opinion will strip Oregon cities of most exclusive "home rule" powers, including the power to determine the compensation to be paid to their own employees, and will subject cities to control by the state legislature in all matters involving "substantive policy," including liability for payment of financial burdens resulting from social programs mandated by the state legislature.
I. The previous majority opinion.
In considering the opinion by the majority which "reaffirm(s)" the constitutionality of the challenged statutes it is first important to bear in mind that the majority would not only reaffirm the result reached by its previous majority opinion, but would also reaffirm the new rule of "legislative supremacy" as stated in that opinion, including the basis for that rule in the newly recognized distinction between matters of "the structure or procedures" of "government" and matters of "substantive policy."
The importance of recognizing the broad sweep and the needless "overkill" of the previous majority opinion is emphasized by the fact that at the argument on rehearing the attorney representing the cities conceded, in response to a question, that these statutes involving policemen and firemen might be valid even under the test as previously established and recognized by unanimous opinions of this court for a period of over 40 years.
II. Reasons for requesting reargument and concessions made on reargument.
The new rule of "legislative supremacy" as adopted by the previous majority opinion, including, in particular, the distinction between matters of the "structure and procedures" of local government and matters of "substantive policy," was attacked by a petition of the cities for a rehearing. That petition undertook, for the first time, to set forth the legislative history of the Home Rule amendments and to demonstrate that the distinction which was the basis for the majority opinion was inconsistent with that legislative history.
This court then called for reargument of the case, based upon a letter to the parties requesting argument on two specific questions.
Of even greater significance is the fact that the majority opinion would completely ignore important, if not vital, concessions made by all parties at the time of the oral argument. Thus, not only did the cities contend, as in their petition for rehearing, that the distinction between matters of the "structure and procedures" of local government and matters of "substantive policy" was inconsistent with the legislative history of the Home Rule amendments, but both the attorney representing the State of Oregon and the attorney representing the policemen and firemen unions specifically conceded this point in response to questions on oral argument. None of these parties supported the adoption of that distinction, which is the basis for the majority opinion.
In addition, the attorney for the state conceded, in response to a question, that in cases involving matters of the "procedures of local government" the application by this court of the exception permitting "legislative supremacy" even in such cases upon the showing of a "need to safeguard the interests of persons or entities" would require this court to make "political decisions" to the same extent as now required under the "predominant interest" test of Heinig.
No one reading the majority opinion would be informed of these important facts.
III. Language of the Home Rule amendments.
The majority opinion (at 767) is critical of the cities for their failure "to point to precise words in article XI, section 2, as denying the legislature's authority to enact these laws." The majority then purports to find "precise words" in Art. XI, § 2, providing "identifiable criteria, derived from constitutional command" to support its contention that the Home Rule amendments, although granting certain powers to the voters of cities, did not limit the power of the legislature except with reference to provisions of charters relating to "organic and constitutive powers of self-government," i.e., "structure and procedure" of local government, as distinct from provisions of charters and ordinances relating to matters of "substantive policy." In other words, the majority now purports to find in the reference in Art. XI, § 2, to "charter" a basis in "precise words" to support the distinction made by the previous majority opinion between matters of "structure and procedure" and matters of "substantive policy." No such contention was made by the majority in its previous opinion, nor by any party at any time.
With all due respect, it is submitted that this new analysis is fatally defective for the following reasons:
(a) The majority assumes that because a charter is the "constitution" of a city, the reference in Art. XI, § 2 to "any charter" must be taken as meaning only those provisions of a city charter relating to its "organic and constitutive powers of self-government."
The opinion concedes (at 769) as does the original majority opinion (281 Or. at 150, 576 P.2d 1204), that an ordinance adopted validly under the provisions of a charter has the same status as a charter insofar as the limitation of Art. XI, § 2, is concerned. The opinion also concedes that just as a constitution may include provisions relating to substantive policy a charter may also include such provisions, but assumes that the reference in Art. XI, § 2, to "charter" excludes any such provisions.
This assumption is not only without foundation in any language of Art. XI, § 2, but is contrary to historical experience. The Constitution of the United States includes its Bill of Rights, which surely relates to matters of "substantive policy." Who is to say that the provisions relating to due process, self-incrimination, search and seizure are of less importance than provisions enumerating the powers of Congress? Similarly, the very first article of the Constitution of Oregon is a "bill of rights."
(b) According to the majority opinion (p. 767, 768) a charter is a "grant of power," and the "special function" of a charter, among other things, is "to establish its governing organs, their selection, their powers, and their limits." One of the most common and essential powers conferred upon the "governing organ" of a city is the power to set the compensation for all city employees.
It follows that for the majority to hold that the legislature may adopt a statute which purports to limit this commonly recognized and essential power of the "governing organ" of a city is to hold that the legislature may amend the provisions of the charter of a city which grant such powers to its "governing organ." Thus, upon recognizing that one of the primary functions of the charter of a city is to set forth the powers of its "governing organ," the majority must also recognize that because Art. XI, § 2, provides that the legislature cannot amend any city charter, that prohibition extends to the provisions of a charter conferring powers upon its "governing organ," including the power to set the compensation for all city employees.
The previous majority opinion viewed a state statute requiring payment of pensions to policemen and firemen as one "addressed primarily to substantive social, economic or other regulatory objectives of the state," rather than as a statute "addressed" to the "structure or procedures" of city government. (281 Or. at 156, 576 P.2d 1204, 1215). The direct effect of such a statute, however, is to "amend" the charter provisions of cities which grant to their "governing organs" the power to control the compensation paid to all city employees, including "fringe benefits" of pensions and insurance. This, according to the new rationale by the majority, would be contrary to the express prohibition of Art. XI, § 2. Thus, as stated by the majority opinion (at 768):
(c) The terms of Art. XI, § 2, expressly provide that the power of voters of cities to adopt charters (and, by implication, ordinances, as conceded by the majority opinion) is subject to the constitution and criminal laws of the State of Oregon. This express reference to criminal laws demonstrates that the limitation imposed by Art. XI, § 2, upon the power of the legislature was not confined to charter provisions and ordinances relating to matters of "structure and procedures" of local government, but extended to charter provisions and ordinances relating to matters of "substantive policy."
This is clear because there is little, if any, possibility of conflict between a charter provision or ordinance relating to the "structure or procedures" of city government and a state criminal law. On the contrary, it is when a city charter or ordinance involves a matter of substantive policy, such as "local option" (as discussed below), that there may well arise a possibility of conflict with a state criminal law.
The construction as now adopted by the majority might be otherwise plausible if the Home Rule Amendments had provided that the state, by "general" law, could supersede any charter provision or ordinance relating to a matter of substantive policy. As discussed below, however, that term was deliberately rejected and was replaced by the term "criminal law," which has primary, if not exclusive, application to charter provisions or ordinances relating to matters of "substantive policy."
(1) That by reason of Art. IV, § 1(5), the legislature could not override a charter provision or ordinance adopted by initiative or referendum, even though relating to a matter of "substantive policy," because it would fall within the term "local * * * and municipal legislation of every character," but could nevertheless set aside any charter provision or ordinance not adopted by initiative or referendum on the same subject. Obviously such a result would make no sense.
(2) That by reason of Art. IV, § 1(5) voters of cities would have exclusive power by initiative and referendum to enact charter provisions or ordinances relating only to matters involving the "structure or procedures" of city government (in the sense that such a provision would not be subject to legislative veto), but would not have such exclusive power to enact a charter provision or ordinance relating to a matter of "substantive policy," which could be "vetoed" by the legislature. Such a result would make no more sense because Art. IV specifically extends to "all local * * * and municipal legislation of every character."
For these reasons, the attempt by the majority to find in the word "charter" a "precise" word providing "identifiable criteria derived from constitutional command" to support its distinction between matters involving "structure and procedure" and those involving matters of "substantive policy" is demonstrably without merit. How much more realistic it would be to focus instead upon the words "local * * * and municipal legislation of every character," as stated in Art. IV, § 1(5), as the words which state the intended scope of the exclusive Home Rule powers granted by these two amendments. As next discussed, this conclusion is reenforced by consideration of the legislative history of the Home Rule amendments, which demonstrates that the sponsors of those amendments claimed no more than that they conferred Home Rule powers as to all "local" matters, although they claimed "complete home rule" as to all local matters.
IV. The legislative history.
As previously stated, all three parties, including the cities, the State of Oregon and the unions, agreed at the time of oral reargument that the distinction in the previous majority opinion between matters involving the "structure and procedures" of city government and matters involving "substantive policy" is inconsistent with the legislative history of the Home Rule amendments.
First, and of primary importance, is the "historical fact" that the original draft of Art. XI, § 2 (SJR 3, as adopted by the legislature in 1901 and 1903), would have provided that all city charters "shall be subject to and controlled by general laws," whereas the amendment, as finally adopted, provided that the power to enact city charters is subject only to the constitution and criminal laws of the state. This change was made after circulation of the original proposal by a letter dated September 6, 1905, requesting "suggestions and criticisms" of its "language." This, in my opinion, is convincing evidence of an intent by the sponsors of the initiative measure, as submitted to the voters in 1906, to reject the proposal by the legislature that city charters adopted under the Home Rule amendments would still be subject to "general laws" of the state.
The majority would, in effect, reinstate the provision making such charters subject to general laws of the state as to all matters involving "substantive policy." According to the majority, this would include the power of the state by general laws to supersede powers granted in a city charter to determine the compensation payable to
Without relating in detail the legislative history of the Home Rule amendments, particular attention is also called to the following additional facts:
(a) The statement in the original proposal by the legislature for a Home Rule amendment (SJR 3) that the charter of a city "shall become the organic law thereof," so heavily relied upon by the majority (at 769), as well as provisions that the legislature shall provide by general laws for the incorporation of cities, were all deleted in Art. XI, § 2, as finally drafted by the sponsors of the initiative measure and as adopted by the voters.
(b) The fact that Art. IV, § 1(5), was added, so as to provide specifically that voters of cities shall have initiative and referendum powers as to "all local * * * and municipal legislation of every character * * *."
(c) The statement in the pamphlet supporting the adoption, by initiative, of the Home Rule amendments in 1906 that their adoption would "give complete home rule" to the voters of cities as to "all purely local business."
(d) The fact that this court in Hall v. Dunn, 52 Or. 475, 486, 97 P. 811 (1908), recognized that intervention by the legislature in the controversy over "local option," clearly a "substantive" matter, "also induced the granting of (Home Rule) power to the legal voters of every city."
(e) The fact that in 1908 in a Voter's Pamphlet argument in opposition to another constitutional amendment (which was not adopted) it was stated that:
(f) The fact that Art. XI, § 2, was further amended in 1910 to confer upon cities power to control the sale of liquor, subject to provisions of the "local option" law, after a campaign in which Voter's Pamphlet arguments in favor of the amendment argued that it was "necessary to round out" the Home Rule powers of cities and that cities already had "absolute self-government on all other questions, subject to the criminal laws of the state." In adopting that amendment the people rejected Voter's Pamphlet arguments that "our cities must not be permitted to set up separate principalities in absolute independence of our state laws * * *." As contended by the cities, the adoption by the voters of that amendment "strongly suggests" that when the voters "took what was recognized as a criminal law matter" (and one involving substantive policy) and "put it over on the city side," they thought that the cities already had "exclusive control over certain civil (and substantive) matters and were granting cities exclusive control over one criminal (and substantive) matter."
Based upon these "historical facts," all parties agreed on oral argument, that neither W.S. U'Ren nor any of the advocates or opponents of the Home Rule amendments ever "dreamed," much less "intended" (to paraphrase Rose and the original majority opinion), that 70 years later a majority of this court would hold that the Home Rule amendments would be applied differently as to matters involving
This same conclusion is also supported by the numerous decisions by this court both before and after Rose, as cited by the State of Oregon in its brief. These decisions recognized that under the Home Rule amendments cities were granted autonomy as to all "local" or "municipal" matters, as stated in Art. IV, § 1(5), in accord with the professed intentions of the proponents of those amendments.
It is no answer to these contentions to say, as stated by the majority (at 770 and 771) that the cities may still "pursue specified social objectives and social policies." Under the proposed opinion any such "pursuit" might well be illusory because the legislature could at any time choose to preempt the subject, even if it involved a matter of "purely local" concern. Of more importance, however, this case does not involve the "pursuit" by a city of a "social policy," but the question whether the essential power conferred by a city charter upon its governing body to determine the compensation to be paid to its employees may be superseded by a general state statute.
V. Problems arising from the "procedure-substance" distinction.
The second question upon which arguments of counsel were requested on rehearing was "what, if any, other reasons there may be in support of or opposition to" the distinction in the original majority opinion between matters of "structure or procedure" and matters of "substantive policy," including "what, if any, problems may result from the application of that distinction in future cases."
Neither counsel for the State of Oregon nor counsel for the unions made any attempt to support the "procedure-substance" distinction. As previously stated, both rejected and disowned that distinction.
Counsel for the cities, on the other hand, characterized the "procedure-substance" distinction as a rule which will involve the courts of Oregon in a "tussel with a tar baby" and suggested examples of problems that will arise in future cases from the adoption of such a rule, including the following:
(a) In the important area of land use planning, serious problems could arise in the application of state statutes in a metropolitan area involving two cities, such as Eugene and Springfield, both of which have charter or ordinance provisions on that subject. Such local charter or ordinance provisions may well include procedures for land use planning. Under the "procedure-substance" distinction such charter or ordinance provisions, because they involve "procedures," could not be superseded by state law unless held to come within the exception as stated by the previous majority opinion under which such provisions may be superseded by state statute if such a statute is "justified by a need to safeguard the interests of persons or entities." The application of such a test, however, would require
(b) The open meeting law is also an example of a statute which arguably, if not probably, involves a matter of "procedure," at least if and when applied to overrule the provisions of a city charter or ordinance which permit "nonopen" meetings, such as "executive sessions" of a city council. Under the proposed opinion state law would not prevail unless "justified by a need to safeguard the interests of persons or entities" — a pure policy determination. Under the Heinig test, however, it would be much more simple to hold that the state has a "predominant interest" in openness in government at all levels, including cities.
(c) The Australian ballot is another example of a possible conflict between state laws and provisions of city charters or ordinances on a "procedural" matter as to which, under the proposed opinion, state law could only be held controlling upon a finding of a "need to safeguard the interests of persons or entities" — a test which is obviously not based upon any "identifiable criteria" to be found in the words of Art. XI, § 2, or Art. IV, § 1(5).
In addition, the entire "procedure-substance" dichotomy requires an exercise in semantics that will lead to more problems and litigation than it will solve and prevent. For many years the courts have been criticized by legal scholars for their tendency to decide cases by the adoption and application of "categories" which may become little more than "labels," i.e., for the application as an exercise in "mechanical jurisprudence."
Indeed, this court has rejected the distinction between "procedure" and "substance" as a test for application in determining whether a state statute is to be applied retroactively. Thus it was held in Joseph v. Lowery, 261 Or. 545, 549, 495 P.2d 273, 275 (1972), that
Finally, under the heading of "problems" created by the majority opinion, as well as by the previous majority opinion, it is important to again bear in mind the financial impact upon the cities of a rule of "legislative
Indeed, according to the cities, the financial burden imposed by these statutes may well cause some small cities "to choose between a volunteer fire department or a paid one."
Under the Heinig test this court could properly consider the financial impact of state statutes upon a city as at least one factor in deciding whether the interest of the city "predominates" over that of the state. Under the majority's rule of "legislative supremacy," however, no consideration may be given to that fact. Instead the questions to be decided by this court would be whether the statute is "addressed primarily to substantive social, economic, or other regulatory objectives of the state" or, if the statute involves a matter of the "structure or procedures," of local government, whether there is a "need to safeguard the interests of persons or entities."
With all due respect, it is submitted that to adopt such rules as the basis for decision of Home Rule cases is to adopt rules stated in "rubbery adjectival language" that will only cause more problems than they will solve.
VI. The futile search for "identifiable criteria derived from constitutional command."
The primary criticism of the "predominant interest" test of Heinig by the previous majority opinion was that it required this court to decide cases based upon "the court's own political judgment" (281 Or. at 154, 576 P.2d 1204), whereas in such cases "the court's decision must be derived from a constitutional standard * * *." (281 Or. at 147, 576 P.2d at 1210) The majority purports (at 767, 768) to find in the word "charter" in Art. XI, § 2, a basis to support its distinction between matters of "procedure" and "substance" as a distinction based upon what are described (at 771) as "identifiable criteria, derived from constitutional command to the legislature to let local voters choose their own modes of government."
For the reasons previously stated, it is submitted, with all due respect, that the word "charter" in Art. XI, § 2, provides no such "identifiable criteria"; that the "procedure-substance" dichotomy, which provides the basis for the proposed opinion, is "invisible" in the terms of the Home Rule amendments and that the application of that dichotomy, together with the exceptions which must also be applied under it, would continue to involve this court in the making of "policy" determinations, without the benefit of "identifiable criteria" based upon any "constitutional command." Thus, in my view, the quest by the majority for a solution under which this court can decide "Home Rule" cases by the application of "identifiable criteria derived from constitutional command" has been vain and illusory.
I would be the first to agree that, whenever reasonably possible, this court should not decide cases by the exercise of its "political judgment" and that if such "identifiable criteria" can be properly found in the words of the Home Rule amendments, they should be controlling in cases such as this. Unfortunately, it is one of the "facts of life" that constitutions do not always provide such "identifiable criteria."
A close analogy arises in cases involving the question of "separation of powers." The constitution provides no "identifiable criteria" to be applied in cases such as the recent one in which the legislature sought to require that appointments by the governor
Similarly, the people of Oregon, in whom all sovereignty resides, can "parcel out" that sovereignty as they choose between the state and the cities. By adoption of the Home Rule amendments they have made a grant of power to the cities, including a grant of power to enact and amend charters including, by implication, ordinances pursuant to such charters (as the majority opinion would agree), and a grant to the voters of cities to do so by the exercise of initiative and referendum powers "as to all local * * and municipal legislation of every character."
It follows, in my judgment, that even though no more "identifiable criteria" can be found in these terms than the words "local" and "municipal" legislation, the people of Oregon have imposed the duty upon this court to act as a "constitutional referee" to decide, by the application of these words, all disputes in cases in which the state legislature and a city claim exclusive power of legislation, just as this court must decide disputes between the legislature and the governor over claims of exclusive power, and without the guidance of any more "identifiable criteria."
Under the "predominant interest" test of Heinig, such cases would be decided by a "balancing" of the interests of the city against those of the state. There was nothing novel in the adoption of that approach. Indeed, the "balancing" test has been adopted by the courts in many types of cases in which there are no "identifiable criteria" based upon "words" in a constitution and such a test is no more improper than the test of "fairness," as adopted by courts for application in other cases involving an absence of such "identifiable criteria." (See original dissent, 281 Or. at 179, 576 P.2d 1204). Indeed, the majority states (at 770) that it reaffirms" the Heinig test for application in cases involving matters of "structure and procedures" of local government.
Finally, the majority (at 772) is critical of the petition for rehearing in that it "debates only the general tenor of the opinion in this case," rather than "the question actually at issue, the validity of the retirement and insurance" statutes. The concern of the cities, however, as expressed both in their petition for rehearing and on oral argument, goes to more than "the general tenor" of the previous majority opinion. It goes to the adoption of a rule of "legislative supremacy," based upon the distinction between matters of "substance" and "procedures," because of the many problems that would result for cities by the adoption of such a rule, for reasons previously stated, and because such a rule would strip cities of much of their present "local autonomy."
Indeed, as previously stated, counsel for the cities conceded that the result in this case might be the same under the "predominant interest" test of Heinig. Upon the application of that test, however, the rationale would be that the interest of the state in police and fire protection is so great as to "predominate." Such a decision would have support in respectable authority, as pointed out in my original dissent (281 Or. at 189, 576 P.2d 1204). Such a decision would not, however, as does the majority opinion in this case, provide a basis under which the legislature may, if it so chooses, enact a statute requiring cities to provide insurance policies and pension benefits to all city employees, and in amounts as provided by such a state statute.
There may be no magic in the words "predominant interest." Some other descriptive words might be more appropriate in deciding disputes as to what are proper matters of "local * * * and municipal legislation." In my opinion, however, the
In contrast, the rule as adopted by the majority, based upon a distinction between matters of "procedure" and "substance," has been disclaimed by all of the parties to this case, including the attorney for the cities of Oregon, the attorney representing the employees of the cities and the attorney representing the State of Oregon. It is a rule without precedent and a rule that will create more problems than it will solve.
As noted in my previous dissenting opinion, most modern students in municipal affairs have urged the desirability of constitutional grants to cities of broad "home rule" powers.
It may be that history alone will judge the wisdom of that decision, unless the voters of Oregon do as the voters of some other states have done in response to such decisions, and adopt a new Home Rule amendment with an even clearer grant of exclusive Home Rule powers as to all matters of local and municipal concern.
For all of these reasons I dissent.
HOWELL, J., joins in this dissent.
BRYSON, Justice, dissenting.
I join in the dissent of Justice Tongue. I further dissent for the reasons stated in my original dissenting opinion, 281 Or. at 194, 576 P.2d 1234 (1978). I wish to emphasize my constitutional objection. The Oregon Constitution, Art. XI, sec. 11, provides in part:
Subsection (2) means that if the state wanted to levy a tax on real property to fund state programs, it would have to return to the year in which it last levied a property tax and could collect only that amount plus six percent. Alternatively, it could ask the voters to approve a new tax base for the state. The first method would presumably produce minimal funds because it has been years since the state levied a tax on real property,
But the legislature conceived an ingenious way around the constitutional limitation. They decided to specifically mandate this pension and insurance program and have the local governments pay the state for the sums they have expended plus the administrative expenses incurred by the Department of General Services. Accordingly, they adopted the following statutes:
Certainly, the state legislature has previously created local programs which, if carried out by the local governmental subdivision, would result in additional costs and an increase in the tax levy to pay therefor. An example of this would be the creating of a new circuit court position with its attendant expenses of courtroom space and services. However, under such circumstances the county commissioners budget for the expenses and they do not remit to the state Department of General Services. The legislature has never, from my limited examination of statutes, told a city or county to put the cost of a state-mandated program in the
At the time Article XI, section 11, of the Oregon Constitution was adopted, and at the time the legislation in question was passed, local governments funded, and still principally fund, their operations through real property taxes. At a time when even the local real property tax is under attack by the citizenry for other reasons, it is unrealistic to argue that local governments could, or legally should, assess and levy on real property for additional taxes to pay the State Department of General Services for the state-mandated program.
In a great many instances, and particularly in cities the size of Astoria and LaGrande, the expenses of these legislative mandates will be funded by a local tax on real property. The state is, therefore, in effect levying real property taxes for its own purposes through the local governments. In allowing the present legislation to stand, the majority is allowing the state to levy real property taxes without a vote of the taxpayers, and this the state is constitutionally forbidden to do.
For the above reasons, I dissent from the majority opinion and would affirm the circuit court judges and the Court of Appeals, which held the aforementioned legislative programs unconstitutional.
SJR 3, 22nd Or Legis Ass'y, OL 1903 at 346-347. The bracketed words do not appear in the 1901 version of the resolution.
The dissent also quotes statements about "home rule" made by proponents and opponents of the further amendment that was adopted in 1910 in order to let city voters decide on prohibition or regulation of the liquor traffic under the state's local option law rather than being bound by the vote in the county. These statements were made by private groups locked in bitter combat over prohibition and were made to win votes for or against the 1910 amendment on that issue.
The editorial went on to describe the abuses that were common under the system of charter enactment and amendment by legislators, including political trickery, "franchise grabbing," and "plutocratic influences." The Oregonian, May 28, 1906, at 6, col. 2.
Apart from political abuse, relief from the voluminous work of special legislation mentioned in the editorial required a means of letting local communities take actions on their own initiative. The 1903 Regular Session of the Legislative Assembly produced 838 pages of special laws compared to 338 pages of general laws. The 23rd Legislative Assembly in 1905 enacted 1135 pages of special laws and 424 pages of general laws in a session which ran only from January 9 to February 17, 1905, the year before the "home rule" amendments were adopted.
In other words, the proponents of the amendments had no notion that the amendments were to withdraw the constitutional authority of the legislature to make local laws other than the authority to enact, amend, or repeal charters. They relied on the political process of the referendum to maintain local popular control over such laws.
(1) As to matters involving the "structure and procedures of local [government] agencies, cities would retain local autonomy, subject, however, to an important exception in any case in which a "state concern" is "justified by a need to safeguard the interests of persons or entities affected by the procedures of local government." (281 Or. at 156, 576 P.2d at 1215)
(2) As to matters involving "substantive social, economic or other regulatory objectives of the state," a state statute will prevail over any local law whenever it appears that the legislature "clearly intended [it] to do so," subject to an exception in the event that a state statute is "irreconcilable with the local community's freedom to choose its own political form." (281 Or. at 156, 576 P.2d at 1215)
"1. Whether the distinction made by the majority opinion between matters involving `the structure and procedures of local agencies' and matters involving `substantive social, economic or other regulatory objectives of the state' is a distinction which is consistent or inconsistent with the terms and legislative history of the home rule amendments considering, among other things, SJR No. 3 of 1901 and 1903, the letter of September 6, 1905, by the sponsors of the amendments, the changes then made in the provisions in the proposed amendments, any arguments by sponsors or opponents of those amendments, the contemporaneous history of the Oregon `local option' law; (see Hall v. Dunn, 52 Or. 475, 486, 97 P. 811 (1908)); and the subsequent amendment of Art. XI, § 2, in 1910, including arguments by sponsors and opponents of that amendment.
"2. What, if any, other reasons there may be in support of or opposition to the making of that same distinction, including what, if any, problems may result from the application of that distinction in future cases such as cases involving charter provisions or ordinances adopted by cities relating to land use planning. See for example ORS 197.175 and 227.020 et seq., and Fifth Avenue Corp. v. Washington County, 282 Or. 591, 581 P.2d 50 (1978), decided June 20, 1978." (Emphasis added)
The state, in its review of the previous decisions by this court, also recognized that:
"* * * The rule that the state cannot effectively legislate as to matters purely municipal somehow survived the Rose formulation." citing In re Application of Boalt, 123 Or. 1, 17, 260 P. 1004 (1927), and City of Portland v. Welch, 154 Or. 286, 296, 59 P.2d 228, 232 (1936), which expressly stated that this principle "has never been repudiated by this court." Both of these cases were decided long before State ex rel. Heinig v. City of Milwaukie, 231 Or. 473, 373 P.2d 680 (1967), which stated the "predominant interest" test.
See also, Mott, Strengthening Home Rule, 39 Nat'l Municipal Review 172 (1950); Richland, Courts Nullify Home Rule, 44 Nat'l Municipal Review 565 (1955); Sharp, Home Rule in Alaska: A Clash Between the Constitution and the Court, 3 UCLA-Alaska L.Rev. 1, 51 (1973); and Vanlandingham, Municipal Home Rule in the United States, 10 Wm. and Mary L.Rev. 269, 281, 293 (1968).
"The people of California found it necessary to amend the state constitution eight times before they convinced the courts that they meant what they said when they gave the cities authority with `respect to municipal affairs.' * * *."