American Energy, Inc. v. City of Sisters

280 P.3d 985, 250 Or. App. 243, 2012 WL 1950443, 2012 Ore. App. LEXIS 697
CourtCourt of Appeals of Oregon
DecidedMay 31, 2012
Docket10CV0232AB; A146039
StatusPublished
Cited by2 cases

This text of 280 P.3d 985 (American Energy, Inc. v. City of Sisters) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Energy, Inc. v. City of Sisters, 280 P.3d 985, 250 Or. App. 243, 2012 WL 1950443, 2012 Ore. App. LEXIS 697 (Or. Ct. App. 2012).

Opinion

ORTEGA, P. J.

The issue in this case is whether a city ordinance that is subsequently referred to the people by a citizen referendum is “enacted” when it is adopted by the city council, or when it is approved by the people. Plaintiffs brought this action seeking to enjoin defendant City of Sisters from implementing an ordinance imposing a fuel tax on the ground that the ordinance is void and unenforceable because, according to plaintiffs, it was enacted during a statewide moratorium on the establishment of local fuel taxes. The trial court held that, because the ordinance was enacted when it was adopted by the city council, not when it was approved by the people, the ordinance was not enacted during the moratorium. We agree with the trial court and affirm.

The material facts are undisputed. On August 13, 2009, the Sisters City Council adopted Ordinance No. 388, imposing a business license tax on motor vehicle fuel dealers. Later, a city resident filed a referendum petition and successfully referred the ordinance to voters pursuant to Article IV, section 1, of the Oregon Constitution.1 Shortly thereafter, but before the vote on the referred ordinance, the legislature enacted the Oregon Jobs and Transportation Act (OJTA), which, among other things, placed a moratorium on the establishment of local fuel taxes.2 The OJTA provides, in pertinent part:

[246]*246“SECTION 25. (1) A city, county or other local government may not enact any charter provision, ordinance, resolution or other provision taxing fuel for motor vehicles.
“(2) A city, county or other local government may not amend any charter provision, ordinance, resolution or other provision taxing fuel for motor vehicles.
“SECTION 26. Section 25 of this 2009 Act is repealed on January 2, 2014.
“SECTION 69. Section 25(1) of this 2009 Act does not apply to ordinances imposing a tax on fuel for motor vehicles enacted on or before the effective date of this 2009 Act.”

The OJTA became effective on September 28, 2009. Or Laws 2009, ch 865.

On March 9, 2010, at a special election, the Sisters voters approved Ordinance No. 388. Thus, the City Council adopted Ordinance No. 388 before the moratorium created by the OJTA took effect, but the voters approved the ordinance after the moratorium took effect.

Plaintiffs brought this action for declaratory and injunctive relief in circuit court, seeking a declaration that Ordinance No. 388 is void and unenforceable because it was enacted during the moratorium — that is, when the people approved the ordinance on March 9, 2010. Both parties moved for summary judgment. Plaintiffs argued that, for the purposes of an ordinance subjected to a citizen referendum, the enactment date is the date when the people approve the ordinance, and not when the legislative body originally adopts it. Defendant argued that a city ordinance is enacted when the city council approves it and that the only effect of a subsequent citizen referendum is to delay the effective date of the ordinance. The trial court agreed with defendant, denied plaintiffs’ motion for summary judgment, granted defendant’s cross-motion, and entered judgment for defendant. Plaintiffs appeal, and the parties reiterate the positions they took before the trial court.

On appeal from cross-motions for summary judgment, if both the granting of one motion and the denial of the other are assigned as error, then both rulings are subject to review. Bergeron v. Aero Sales, Inc., 205 Or App 257, 261, 134 [247]*247P3d 964 (2006). When there are no issues of material fact, we review the trial court’s summary judgment ruling on both motions to determine whether either party is entitled to judgment as a matter of law. Id. Here, the material facts are undisputed, and the decisive question is one of statutory construction — that is, what is the meaning of the word “enact” as used in section 25 of the O JTA? More specifically, when there is a subsequent citizen referendum, is the ordinance “enacted” when it is adopted by the city council or when the people approve the ordinance by a vote? We resolve that question by examining the text of the statute in context, along with any relevant legislative history, to discern the legislature’s intent. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). In the absence of a statutory definition, we give statutory terms their “plain, natural, and ordinary meaning.” PGE v. Bureau of Labor and, Industries, 317 Or 606, 611, 859 P2d 1143 (1993).

Before we delve into the interpretation of the OJTA, we pause briefly to provide a short overview of the citizen referendum process lying at the center of this dispute. Article IV, section 1, of the Oregon Constitution provides:

“(3)(a) The people reserve to themselves the referendum power, which is to approve or reject at an election any Act, or part thereof, of the Legislative Assembly that does not become effective earlier than 90 days after the end of the session at which the Act is passed.
“(5) The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district

There are two types of referenda: the citizen referendum and the legislative referendum. The citizen referendum allows the people, after they gather the required number of signatures, to approve or reject legislation that was previously passed by a legislative body.3 The legislative referendum is [248]*248the process by which the legislature is required to refer certain measures to the voters for their approval.4

With those principles in mind, we turn to the meaning of section 25 of the OJTA. Recall that subsection (1) provides that “[a] city, county or other local government may not enact any charter provision, ordinance, resolution or other provision taxing fuel for motor vehicles” (emphasis added), presenting us with the issue of when Ordinance No. 388 was “enact[ed].” Because the OJTA does not define the term “enact,” we begin with the term’s plain and ordinary meaning. “Enact” is defined as “to establish by legal and authoritative act: make into a law; esp : to perform the last act of legislation upon (a bill) that gives the validity of law[.]” Webster’s Third New Int’l Dictionary 745 (unabridged ed 2002). That definition alone, unfortunately, begs the question before us — that is, whether the legislature considered the “last act of legislation upon (a bill) that gives the validity of law” to be the city council’s act of adopting the ordinance or the people’s act of approving the ordinance by a subsequent referendum vote.

The statute’s context — which we always consider when examining the text — includes, among other things, other provisions of the same statute. Hale v. Klemp, 220 Or App 27, 32, 184 P3d 1185 (2008). Here, section 27, which will supersede section 25 in 2014 when the moratorium created by section 25 ends,5 provides:

“A city, county or other local government may enact or amend any charter provision, ordinance, resolution or other provision taxing fuel for motor vehicles

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Bluebook (online)
280 P.3d 985, 250 Or. App. 243, 2012 WL 1950443, 2012 Ore. App. LEXIS 697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-energy-inc-v-city-of-sisters-orctapp-2012.