Mt & M Gaming, Inc. v. City of Portland

360 P.3d 611, 274 Or. App. 100, 2015 Ore. App. LEXIS 1181
CourtCourt of Appeals of Oregon
DecidedSeptember 30, 2015
Docket121114443; A154206
StatusPublished
Cited by2 cases

This text of 360 P.3d 611 (Mt & M Gaming, Inc. v. City of Portland) 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
Mt & M Gaming, Inc. v. City of Portland, 360 P.3d 611, 274 Or. App. 100, 2015 Ore. App. LEXIS 1181 (Or. Ct. App. 2015).

Opinion

EGAN, J.

In this declaratory judgment action, the trial court granted summary judgment to the City of Portland after concluding that MT & M Gaming, Inc. (MT & M), a Washington corporation with no operations in Oregon, lacked standing under the Uniform Declaratory Judgments Act, ORS 28.010 to 28.160. On appeal, we write only to address MT & M’s argument that it has standing because it lost customers as a result of permits issued by the city to businesses in Portland, which MT & M contends are operating in violation of Oregon law. The city responds that the trial court correctly concluded that MT & M lacks standing because it failed to show that it has a legal interest in the application of Oregon law. We agree with the city that MT & M lacks standing. Accordingly, we affirm.

Whether a plaintiff has standing under the Uniform Declaratory Judgments Act is a legal question, which we review for legal error. Thunderbird, Mobile Club v. City of Wilsonville, 234 Or App 457, 465, 228 P3d 650, rev den, 348 Or 524 (2010).

The relevant facts are undisputed. MT & M is a Washington corporation that owns and operates a casino that hosts poker games “a few miles north of the Portland metropolitan area.” In recent years, the city has issued permits to businesses in Portland that charge a membership fee and offer poker games and other games of chance to members. Alleging that such businesses have drawn patrons and revenue away from its casino, MT & M commenced a declaratory judgment action against the city seeking a declaration stating, among other things, that, if a business charges a membership fee to participate in games of chance, such games are not “social games,” and therefore are not excluded from the definition of gambling by ORS 167.117(21).1 Moreover, [102]*102MT & M asked the court to declare that businesses commit the crime of unlawful gambling, ORS 167.127,2 and violate various city ordinances, if they charge membership fees in exchange for the right to participate in games of chance.

MT & M and the city each filed motions for summary judgment. The trial court denied MT & M’s motion and granted the city’s motion, concluding that MT & M lacked standing because it “neither alleged nor made any showing that it is in the legal ‘system’ it challenges, nor even that it seeks to be and has been prevented from participating in that legal ‘system.’”

On appeal, plaintiff renews its arguments from below, contending that its alleged loss of business is sufficient to give it standing. We disagree.

“ ‘Standing’ is a term of art that is used to describe when a party possesses a status or qualification necessary for the assertion, enforcement, or adjudication of legal rights or duties.” Morgan v. Sisters School District #6, 353 Or 189, 194, 301 P3d 419 (2013). Whether a plaintiff has standing depends on the particular requirements of the statute under which he or she is seeking relief. Local No. 290 v. Dept. of Environ. Quality, 323 Or 559, 566, 919 P2d 1168 (1996).

Here, plaintiff seeks relief under the Uniform Declaratory Judgments Act. ORS 28.020 provides that, under that act,

“[a]ny person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under any such instrument, constitution, statute, municipal charter, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.”

[103]*103Consequently, “to seek relief under the Uniform Declaratory Judgments Act, a plaintiff must establish that his or her ‘rights, status, or other legal relations’ are ‘affected by’ the relevant instrument.” Morgan, 353 Or at 194. Three considerations are relevant to that inquiry: To have standing (1) there must exist “some injury or other impact upon a legally recognized interest beyond an abstract interest in the correct application or the validity of a law”; (2) “the injury must be real or probable, not hypothetical or speculative”; and (3) “the court’s decision must have a practical effect on the rights that the plaintiff is seeking to vindicate.” Id. at 195-97.

Additionally, the use of the present tense phrase “are affected” in ORS 28.020 implies that, to be justiciable under the Uniform Declaratory Judgments Act, “the controversy must involve a dispute based on present facts rather than on contingent or hypothetical events.” US West Communications v. City of Eugene, 336 Or 181, 191, 81 P3d 702 (2003).

Thus, the initial question is whether MT & M’s “legally recognized interests” are affected by the state and local laws that it asks the court to construe. Morgan, 353 Or at 195. We begin with MT & M’s contention that the “measure-able reduction in its patronage and revenue from its customers who reside in Portland” is a sufficient interest to grant it standing under ORS 28.020. Citing Assoc. Reforestation v. State Workers’ Comp. Bd, 59 Or App 348, 650 P2d 1068 (1982) (Reforestation); League of Oregon Cities v. State of Oregon, 334 Or 645, 56 P3d 892 (2002); and Thunderbird, 234 Or App 457, MT & M argues that Oregon courts have held that economic interests are sufficient to provide standing under the Uniform Declaratory Judgments Act and that MT & M’s economic interests are equivalent to those of the plaintiffs in those cases. The city responds that MT & M is unlike the plaintiffs in each of those cases because, as an outsider to the Oregon legal system, MT & M’s economic interests are untethered to the laws that it asks the court to construe. We agree with the city. As each of the cases relied on by MT & M demonstrate, when economic harm is alleged, it is the relationship between the plaintiffs economic interest and the law that is the subject of the declaratory action that [104]*104is determinative of the issue of standing under the Uniform Declaratory Judgments Act. MT & M has failed to show a connection between its economic interests and the law that it challenges.

In Reforestation, a trade association representing the interests of reforestation companies brought a declaratory judgment action against a tree-planting cooperative, seeking a declaration that the cooperative was subject to workers’ compensation law, ORS chapter 656. Reforestation, 59 Or App at 350. Several of the association’s member companies offered evidence that the cooperative, which had not purchased workers’ compensation insurance, had obtained contracts while underbidding the member companies by an amount less than or equal to the cost of the insurance. Id. at 351.

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Related

MT & M Gaming, Inc. v. City of Portland
383 P.3d 800 (Oregon Supreme Court, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
360 P.3d 611, 274 Or. App. 100, 2015 Ore. App. LEXIS 1181, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mt-m-gaming-inc-v-city-of-portland-orctapp-2015.