Kane v. City of Beaverton

122 P.3d 137

202 Or. App. 431

Henry KANE, Petitioner below, and Mariam Jane Corby and Scott Monson, Petitioners, v. CITY OF BEAVERTON, Respondent.

2005-018; A129166.

COURT OF APPEALS OF OREGON.

Submitted on Record and Briefs August 9, 2005.

Decided November 2, 2005.

Mariam Jane Corby and Scott Monson filed the brief pro se.

Alan A. Rappleyea, Hillsboro, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and LINDER and WOLLHEIM, Judges.

EDMONDS, P.J.

Petitioners¹ seek review of a Land Use Board of Appeals order affirming the City of Beaverton's decision to annex certain "island" territory pursuant to ORS 222.750. Petitioners advance a number of assignments of error, most of which were not adequately preserved below. We reject all of petitioners' assignments of error and affirm. We write only to address petitioners' argument that ORS 222.750 violates their constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Over a period of years, the City of Beaverton annexed streets and highway rights-of-way near the interchange of Highway 26 and Highway 217. As a result, the city's boundaries surround or nearly surround large areas of urbanized and unurbanized land within Washington County. In November 2004, the city initiated proceedings to annex some of this surrounded, or "island," territory pursuant to ORS 222.750. That statute allows a city to annex territory that is surrounded by the corporate boundaries of the city, or by the city and a body of water, without the consent of residents or property owners within the territory.²

After initiating annexation proceedings, the city provided notice to property owners within the subject territory and conducted a public hearing. No election for the affected landowners was held. Ultimately, the city adopted Ordinance 4334 on January 3, 2005, which annexed the subject territory. Petitioners, who allege that they own property in the subject territory, appealed to LUBA. LUBA affirmed the city's decision, and this petition for judicial review followed.

On review, petitioners contend—among other things—that LUBA erred in rejecting their argument that ORS 222.750 violates their rights under the Equal Protection Clause of the Fourteenth Amendment.³ We review LUBA's determination on that issue for errors of law. ORS 197.850(9)(b); Corp. of Presiding Bishop v. City of West Linn, 192 Or.App. 567, 577, 86 P.3d 1140 (2004), aff'd, 338 Or. 453, 111 P.3d 1123 (2005).

The Fourteenth Amendment provides, in part:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Under Fourteenth Amendment equal protection jurisprudence, a statute that differentiates on the basis of a "suspect" classification or a classification that infringes upon a fundamental right is subject to heightened scrutiny. Conversely, a statute that does not differentiate based on a suspect class or a classification that infringes upon a fundamental right is subject to "rational-basis" review. Heller v. Doe, 509 U.S. 312, 319-20, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); McGinley and McGinley, 172 Or.App. 717, 722, 19 P.3d 954, rev. den., 332 Or. 305, 27 P.3d 1045 (2001). Under that less demanding standard, a statute must be upheld as long as it is tied to a legitimate governmental purpose, regardless of whether that purpose is set out in the statute or legislative history, or was even considered by the legislature. Heller, 509 U.S. at 320, 113 S.Ct. 2637.

At the core of petitioners' equal protection argument is the premise that ORS 222.750 unconstitutionally deprives residents and property owners in "island" territories of the fundamental right to vote on annexations. According to petitioners, that fundamental right cannot be infringed upon in the absence of a "compelling state interest." Petitioners' argument stumbles from the outset, however, because there is no fundamental right to vote on municipal annexations.

In Mid-County Future Alternatives v. City of Portland, 310 Or. 152, 166, 795 P.2d 541 (1990), the Oregon Supreme Court rejected the argument that, "as a matter of constitutional law," residents or property owners must "be allowed to vote on any annexation to which they might be subjected." The court stated flatly, "There is no federal constitutional right to vote on municipal annexations." Id. It then proceeded to explicitly disavow prior case law suggesting otherwise. Id. Accordingly, we hold that the "no vote" characteristic of ORS 222.750 does not implicate a fundamental right for purposes of the Equal Protection Clause of the Fourteenth Amendment. See id.; see also Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79, 28 S.Ct. 40, 52 L.Ed. 151 (1907) ("The State * * * at its pleasure, may * * * expand or contract the territorial area, unite the whole or a part of it with another municipality * * * with or without the consent of the citizens, or even against their protest.") (Emphasis added.)⁴

Although the precise nature of their argument is unclear, petitioners also appear to contend that, regardless of whether there is a fundamental right to vote on annexation, once the state has granted that right to some property owners, that right cannot be denied to other property owners. Specifically, petitioners contend that the right to vote is granted to residents and property owners in non-"island" territories by ORS 222.111(5). That statute provides:

"The legislative body of the city shall submit, except when not required under ORS 222.120, 222.170 and 222.840 to 222.915 to do so, the proposal for annexation to the electors of the territory proposed for annexation and, except when permitted under ORS 222.120 or 222.840 to 222.915 to dispense with submitting the proposal for annexation to the electors of the city, the legislative body of the city shall submit such proposal to the electors of the city. The proposal for annexation may be voted upon at a general election or at a special election to be held for that purpose."

(Emphasis added.)

We rejected an argument similar to that of petitioners in Sherwood School Dist. 88J v. Washington Cty. Ed., 167 Or.App. 372, 6 P.3d 518, rev. den., 331 Or. 361, 19 P.3d 354 (2000), in the context of the right to vote on local school boundary changes. In that case, the plaintiffs conceded that they did not have a fundamental constitutional right to vote on local school boundary changes. "They insist[ed], however, that, once the state permits anyone to vote on school district boundary changes, it cannot deny the right to anyone else in the absence of a compelling justification." Id. at 391, 6 P.3d 518. The plaintiffs relied, as do petitioners in this case, on Kramer v. Union Free School Disrict No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), and Hussey v. City of Portland, 64 F.3d 1260 (9th Cir.1995). Sherwood School Dist. 88J, 167 Or.App. at 391, 6 P.3d 518.

Ultimately, we concluded that the plaintiffs read Kramer and Hussey too broadly. Id. In Kramer, a New York statute provided that, in certain school districts, school board members were to be elected only by those people in the district who owned property or had children enrolled in the district. In other districts, all qualified voters were entitled to vote on board membership. In still other districts, school board members were appointed. A resident in the first category of districts who neither owned property nor had children enrolled in the district challenged the statute that imposed those qualifications on the right to vote. As we read Kramer, "the Court held that, once it is determined that an election will be held, the decision as to who may vote in that election is subject to strict scrutiny." Sherwood School Dist. 88J, 167 Or.App. at 391, 6 P.3d 518 (emphasis in original). The Court, we noted, "drew a distinction between deciding who may vote in an election and deciding whether an election will be held at all." Id.

In Hussey, the issue was annexation. The plaintiffs in that case challenged the constitutionality of a City of Portland ordinance that offered a subsidy to residents who signed irrevocable consents to annexation. The Court of Appeals for the Ninth Circuit agreed with the city's position that there is no constitutional right to vote on annexation, but held that, "once the citizens are granted the right to vote on a matter, the exercise of that vote becomes protected by the Constitution even though the state was not obliged to allow any vote at all." Hussey, 64 F.3d at 1263. We observed:

"As in Kramer, the focus of the [c]ourt's opinion was on the exercise of the right to vote in an election. The [c]ourt held that, once the local government authorized an election, it could not condition the right to vote in that election without a compelling justification. The [c]ourt did not come close to suggesting that, once a local government confers the right to vote on a matter, the local government cannot in the future decide that the matter should be decided by another means."

Sherwood School Dist. 88J, 167 Or.App. at 392, 6 P.3d 518 (emphasis in original).

We then proceeded to distinguish the circumstances in Sherwood School Dist. 88J from the holdings in Kramer and Hussey:

"In both [Kramer and Hussey], in other words, there was an election, and the government entities unlawfully imposed qualifications on who could vote in that election. That is not what happened in this case, in which the legislature has determined that a particular issue—the location of a school boundary—in a particular geographic area simply will not be decided by an election at all. As we have noted, the legislature possesses the constitutional right to determine local school boundaries with...