Miller v. Water Wonderland Improvement District

918 P.2d 849, 141 Or. App. 403

• Court: Court of Appeals of Oregon
• Decided: August 6, 1996
• Docket: 94-CV-0387-AB, CA A88388
• Status: Published

Opinions

EDMONDS, J.

Plaintiff appeals a summary judgment dismissing his complaint that sought a declaration that he had the right to inspect the records of defendant Water Wonderland Improvement District (WWID) pursuant to the Public Records Law, ORS 192.410. ORCP 47. Plaintiff also appeals the denial of his cross-motion for summary judgment, the trial court’s dismissal of defendant Seaborn pursuant to ORCP 21 A(8) and the trial court’s award of costs to WWID. Based on the argument that plaintiff made to the trial court and to us, we affirm.

Plaintiff is a member of WWID, which is a nonprofit corporation organized under ORS chapter 554. In August 1994, plaintiff attempted to inspect the records of WWID at its office in furtherance of his protest of WWID’s assessment of a $40 charge against each lot within the district. The assessment appeared on the tax rolls pursuant to ORS 544.130. Plaintiff also sought to examine the records because he was concerned about whether the directors of WWID had been elected in accordance with ORS 554.070.

Plaintiff alleges that he was denied access to records of WWID by Walter Seaborn (Seaborn), who was the president of the board of directors of WWID. After being refused access to WWID’s records, plaintiff petitioned the Deschutes County District Attorney pursuant to ORS 192.470 for an order requiring WWID to make its records available to plaintiff for inspection and copying. The District Attorney declined to issue such an order.

Plaintiff then filed this action against WWID and Seaborn seeking a declaration “that the records required by plaintiff are public records under Oregon law subject to inspection, examination and copying by plaintiff,” an order requiring WWID to make its records available, and an award of attorney fees and costs.¹ See ORS 192.460; 192.490. Sea-born filed a motion to dismiss pursuant to ORCP 21 A(8), arguing that he was not a proper party under the public records statutes. The trial court granted the motion.

WWID also filed a motion for summary judgment, arguing that it was not a “public body” as defined in ORS 192.410(3) and thus was not subject to the Public Records Law requirement that it permit public inspection and copying of its records. Plaintiff then filed a cross motion for summary judgment arguing that WWID is a “special district” as mentioned in ORS 192.410(3) and as defined in ORS chapter 198 and is therefore subject to public inspection of its records. The trial court granted WWID’s motion for summary judgment, and plaintiff appeals.

ORS 192.420 provides:

“Every person has a right to inspect any public record of a public body in this state, except as otherwise expressly provided by ORS 192.501 to 192.505.”

ORS 192.410(3) defines “public body”:

“ ‘Public body’ includes every state officer, agency, department, division, bureau, board and commission; every county and city governing body, school district, special district, municipal corporation, and any board, department, commission, council, or agency thereof; and any other public agency of this state.” (Emphasis supplied.)

ORS chapter 192 does not define a “special district.”

On appeal, plaintiff makes only one substantive argument in support of his contention that the trial court erred in granting summary judgment to WWID. According to plaintiff, WWID is not entitled to summary judgment because it is a “special district” within the meaning of ORS 192.410(3). Plaintiff reasons that “[t]hrough the language of ORS 198.110(2), ORS 198.180(3) and ORS 198.210(1), defendant WWID is added to those districts in ORS 198.010 * * *.”² In the analysis that follows, we address only that argument and deem it unpersuasive. We address no other arguments, statutory or otherwise, that plaintiff could have made in support of his contention that the trial court erred in granting summary judgment to WWID.³

ORS 198.330(2) provides:

“As used in ORS 198.335 in addition to the meaning given the term by ORS 198.010, ‘district’ means any one of the following:

“(2) A corporation for irrigation, drainage, water supply or flood control organized under ORS chapter 554.”

ORS 198.335 governs the dissolution of inactive districts and provides in part:

“As used in ORS 198.335 to 198.365, unless the context requires otherwise:

“(2) ‘Special district’ has the meaning given ‘district’ by ORS 198.210 and 198.330.”

Also, ORS 198.180(3), which relates to the compensation and expenses of board members of a district, provides in part:

“As used in ORS 198.190, unless the context requires otherwise, ‘district’ has the meaning given that term by ORS 198.010 (2) to (5) and (7) to (23). In addition, ‘district’ means any one of the following:

“* * * :]: *

“(3) A corporation for irrigation, drainage, water supply or flood control organized under ORS chapter 554.”

Finally, ORS 198.210 provides in part:

“As used in ORS 198.220, in addition to the meaning given the term by ORS 198.010, ‘district’ means any one of the following:

“(1) A corporation for irrigation, drainage, water supply or flood control organized under ORS chapter 554.”

ORS 198.210 requires that any member of a governing body or any officer or employee of a district who is charged with possession and control of district funds and properties must maintain a bond or irrevocable letter of credit.

WWID concedes that ORS chapter 554 corporations are governed by some ORS chapter 198 provisions for limited purposes and that as a “public corporation,” it is subject to certain portions of ORS chapter 192.⁴ However, it argues that the selective inclusion of ORS chapter 554 corporations in the other provisions of ORS chapter 198 and the omission of such corporations from the organizations enumerated in ORS 198.010 defeats plaintiffs argument.

We agree with WWID. Plaintiffs argument presents a question of statutory interpretation. In construing the legislature’s intent, we look first to the text and context of the statutes. The first level of inquiry includes rules of construction on how to read the text. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). If the meaning of the statute is clear from the text and the context of the language of the statute, our inquiry goes no further. Here, the legislature has included ORS chapter 554 corporations within the scope of ORS chapter 198 only for specific purposes. Plaintiffs construction of the statute asks us to do what is forbidden by law: to include ORS chapter 554 corporations within the language of ORS 198.010 even though its language is clear. We are not authorized to insert into a statutory scheme what the legislature has omitted. ORS 174.010. Based on the argument made by plaintiffs, we conclude that the trial court was correct when it granted summary judgment to WWID.⁵ In the light of our ruling, plaintiffs remaining assignments of error do not require discussion.

Affirmed.

1 ORS chapter 554 contains specific provisions granting an individual the right to examine the records of an ORS chapter 554 corporation. See ORS 554.090 and ORS 554.120. Plaintiff did not argue below or on appeal that he is entitled to examine the records of WWID pursuant to these provisions.

2 ORS 198.010 enumerates 24 different entities designated as a district. Although chapter 554 corporations are not included, the statute does include the following entities related to the control and management of water:

“As used in this chapter, except as otherwise specifically provided, ‘district’ means any one of the following:

“(15) An irrigation district organized under ORS chapter 545.

“(16) A drainage district organized under ORS chapter 547.

“(17) A water improvement district organized under ORS chapter 552.

“(18) A water control district organized under ORS chapter 553.”

3 All of plaintiffs supporting arguments focus on the above assertion. The dissent concedes sub silentio that the analysis on which it relies was not raised by plaintiff below or on appeal. See 141 Or App at 414 n 6. Nonetheless, it opines that “our construction of the statute cannot be controlled by the arguments made by the parties.” Id. That assertion evidences a curious and erroneous interpretation of ORAP 5.45(2).

Moreover, the dissent’s reliance on Pacificorp. v. City of Ashland, 89 Or App 366, 749 P2d 1189, rev den 305 Or 594 (1988), is similarly misplaced. In that case, we held that the plaintiff made the arguments to the trial court and on appeal that permitted us to decide the question before us. Also, the dissent’s proposal has the effect of depriving us of the benefit of briefing and oral argument by the parties and the analysis of the trial court. Finally, it is unfair to WWID to analyze the meaning of a statute in a manner that has not been litigated below or on appeal.

4 WWID concedes that it is a “public corporation.” For instance, ORS 192.005 through ORS 192.170 governs the custody and maintenance of public records. ORS 192.005 provides in part:

“As used in ORS 192.005 to 192.170, unless the context requires otherwise:

“(4) ‘Political Subdivision’ means a city, county, district or any other municipal or public corporation in this state.” (Emphasis supplied.)

Similarly, ORS 192.610 to ORS 192.690 govern public meetings. ORS 192.610 provides in part:

“As used in ORS 192.610 to 192.690:

“(4) ‘Public body’ means the state, any regional council, county, city or district, or any municipal or public corporation, or any board, department, commission, council, bureau, committee or subcommittee or advisory group or any other agency thereof.” (Emphasis supplied.)

5 Moreover, the Supreme Court has specifically recognized that the legislature has distinguished between an ORS chapter 554 corporation and a special district. In Comeaux v. Water Wonderland Improvement Dist., 315 Or 562,568,847 P2d 841 (1993), a case involving the same defendant, the Supreme Court stated:

“A 554 corporation cannot do things that governments commonly can — or must — do. For example, 554 corporations are not subject to special district election laws (ORS 255.012), local budget laws (ORS 294.316(2)), public contract and purchasing laws (ORS 279.011(6)), or municipal audit laws (ORS 297.405(6)).” (Emphasis supplied.)