Sims v. Besaw's Café

997 P.2d 201, 165 Or. App. 180, 2000 Ore. App. LEXIS 125, 81 Fair Empl. Prac. Cas. (BNA) 1411

• Court: Court of Appeals of Oregon
• Decided: January 26, 2000
• Docket: 9611-08970; CA A99868
• Status: Published

Opinions

ARMSTRONG, J.

The City of Portland adopted an ordinance that prohibits Portland employers from discriminating against employees and prospective employees on a number of bases, including on the basis of sexual orientation. The ordinance implements the prohibition by providing people who are harmed by that conduct with a cause of action to redress the harm. The trial court held that Portland lacked authority to give people a cause of action that they could litigate in state court. We disagree with that conclusion and reverse, in part, the court’s judgment.

Plaintiff filed an action for employment discrimination against defendant¹ in circuit court that alleged claims under the Portland ordinance, under a state statute, and under state tort law. Because plaintiff sought and defendant opposed a declaration that plaintiff could pursue a claim in state court under the Portland ordinance, the court allowed the City of Portland to intervene in the action to assert a claim for declaratory relief on the validity of its ordinance.² The court ultimately concluded that the city could not create a cause of action that plaintiff could litigate in state court. Based on that conclusion, the court dismissed the claims by plaintiff and the city under the Portland ordinance, and plaintiff stipulated to the dismissal of his state statutory claim.³ We conclude that the court erred in dismissing two of plaintiffs four claims and in dismissing the city’s claim for declaratory relief.

Portland’s charter gives the Portland City Council broad legislative authority. Defendant does not dispute that that authority includes the authority to prohibit employment discrimination by Portland employers. Indeed, defendant concedes that the city acted within its authority in enacting its anti-discrimination ordinance, except for its decision to include in the ordinance the provision that gives people “a cause of action in any court of competent jurisdiction” for harm that they suffer as a result of ordinance violations. Defendant raises a series of arguments against the validity of that provision. We address them in turn.⁴

Defendant first contends that the provision constitutes an impermissible delegation of the city’s “police power,”⁵ because it authorizes private people, as opposed to city officials, to bring proceedings to enforce the ordinance. Defendant confuses law making with law enforcement. The authority that the Portland charter gives the city council to enact laws pursuant to the “police power” cannot be delegated by the council to others to exercise.⁶ The same prohibition applies to the delegation of legislative power by the state legislature.⁷ However, the prohibition against the delegation of law-making power has no application to legislative decisions about who can enforce the policies that the legislative body has chosen to establish. Defendant cites no authority and offers no analysis, and we are unaware of any, that supports the proposition that Portland impermissibly delegated its “police power” by giving people who are harmed by violations of its anti-discrimination ordinance a cause of action to redress the harm.

Defendant next contends that Portland lacks authority to give people a cause of action that can be litigated in state court because the creation of such a cause of action would add to the jurisdiction of the state courts, and only the state legislature can do that. Defendant is correct that local governments lack authority to change state court jurisdiction. He is mistaken, however, in beheving that Portland’s creation of a cause of action that can be litigated in state court does that.

There have been instances in which Oregon cities have exceeded their authority by enacting ordinances that purported to give state courts authority to perform functions that they had not been authorized by state law to perform. In La Grande v. Municipal Court et al., 120 Or 109, 251 P 308 (1926), for example, the La Grande charter gave people convicted of municipal offenses the right to appeal their convictions from municipal court to the local state circuit court. The Supreme Court had previously held that the provision in original Article VII, section 9, of the Oregon Constitution, that gives circuit courts appellate jurisdiction over lower tribunals is not self-executing, which meant that additional law had to be adopted to give circuit courts authority to hear municipal appeals. See La Grande, 120 Or at 116 (quoting Kadderly v. Portland, 44 Or 118, 74 P 710 (1903)). All that La Grande held was that the additional law had to be state rather than municipal law. In other words, the court held that the city could not assign a function to the local state circuit court — serving as the appellate court for the La Grande municipal court — that the state had not authorized the state court to perform.

Lines v. City of Milwaukie, 15 Or App 280, 515 P2d 938 (1973), rev den (1974), applied the same principle. It involved a city charter that gave the circuit court appellate jurisdiction over the decisions of a city civil service commission. We held that the city lacked authority to add to the jurisdiction of the state courts and that the grant by the city to the circuit court of appellate jurisdiction over the city’s civil service commission decisions had done that. See also Wong Sing v. Independence, 47 Or 231, 234, 83 P 387 (1905) (applied same principle).

Here, in contrast, the Portland ordinance does not purport to confer any jurisdiction on state courts or to assign any function to them. It provides only that people harmed by violations of it “shall have a cause of action in any court of competent jurisdiction.” Whether the state circuit court is a court that has jurisdiction to adjudicate such a claim is an issue that we must address, but that is a different issue from the one presented in La Grande and Lines on whether cities can directly assign to state courts functions that they have not been authorized by state law to perform.⁸

As to the jurisdictional issue, we conclude that the state circuit court has jurisdiction to adjudicate a claim under the Portland ordinance. Except to the extent that it has been modified by statute, original Article VII, section 9, of the Oregon Constitution, is the source of circuit court jurisdiction. See Or Const, Art VII (Amended), § 2. It provides:

“All judicial power, authority, and jurisdiction not vested by this Constitution, or by laws consistent therewith, exclusively in some other Court shall belong to the Circuit Courts, and they shall have appellate jurisdiction, and supervisory control over the County Courts, and all other inferior Courts, Officers, and tribunals.”

No statute of which we are aware has changed that grant of jurisdiction in a way that is relevant to this case.

The judicial power identified in that provision includes the power to adjudicate civil, or private-law, disputes without regard to the source of the law. As long as a circuit court has personal jurisdiction over the parties, the parties can litigate claims based on the law of this and other states, of the United States, and of foreign countries.⁹ There are court-created principles that bear on the manner and extent to which an Oregon circuit court will adjudicate a private dispute based on foreign law, but the court has jurisdiction to do it.

Aldrich v. Anchor Coal Co., 24 Or 32, 32 P 756 (1893), illustrates the principle. Aldrich involved a claim by a contractor against a stockholder of a California corporation for a debt allegedly owed by the corporation to the contractor. The contractor based its claim on a California statute that made stockholders of California corporations individually liable for their proportionate share of corporate liabilities. It was not a claim that was cognizable under Oregon law, and the trial court dismissed it on that basis. The Supreme Court reversed, holding that the court had authority to adjudicate the claim:

“The [California] statute indeed creates a new right and liability not existing at common law, but [it] does not prescribe a peculiar remedy for its enforcement; it only declares that it may be enforced by action, leaving the creditor to select such common-law remedies as may be in use in the jurisdiction where the suit is brought to enforce such liability. * * * Where a liability * * * is created by statute, without making the procedure for its enforcement, as it were, a part of the liability, we cannot see why it should not be enforced in any court having jurisdiction of the subject matter and the parties.”

Aldrich, 24 Or at 38.¹⁰

Oregon municipal law also is a source of law that an Oregon circuit court can apply in adjudicating a private dispute. In other words, it is within the judicial power of the circuit court to adjudicate a private dispute that arises under Oregon municipal law. Consequently, the circuit court is a “court of competent jurisdiction” to adjudicate a claim under the Portland ordinance.

The dissent does not dispute that the circuit court has jurisdiction to adjudicate a claim under the Portland ordinance. In its view, however, Portland exceeded its authority by creating a cause of action that could be litigated in circuit court, because the creation of the cause of action imposes an obligation on the court to adjudicate claims that it would not otherwise be required to adjudicate. The dissent is correct that Oregon municipalities infringe on state sovereignty, and thereby act beyond their authority, by requiring or authorizing state officials to perform functions that they have not been authorized by state law to perform. The dissent is wrong, however, in its belief that Portland’s creation of the cause of action at issue in this case runs afoul of that principle.

The dissent principally relies on two Oregon cases as support for its position. One of them is La Grande v. Municipal Court, which we have discussed above. The other is City of Eugene v. Roberts, 305 Or 641, 756 P2d 630 (1988). That case involved an effort by the City of Eugene to place an advisory question on a state election ballot. The court concluded that the proposed question was not one that state statutes authorized the relevant state and county election officials to place on the ballot. The city argued, however, that its status as a home rule city gave it the authority to require county officials to place the question on the ballot. The court rejected that argument, reasoning that the city’s home rule power did not give it the power “to conscript the services of county and state officials in the conduct of city business.” Id. at 650. In other words, the city could not require the election officials to do something that state law did not authorize them to do.

The court considered Wilson v. City of Medford, 107 Or 624,215 P184 (1923), to provide direct support for its City of Eugene decision:

“There, an ordinance of the City of Medford purported to require the county recorder to record certain items on the county lien docket. This court said:

“ * * Stated in broad terms and without attempting to attain technical exactness, the city can as part of its prescribed procedure require the recording in the office of the county recorder of any paper which it would, by force of state law, be the duty of that officer to record if presented by any individual; but cities cannot, in the exercise of the initiative and under the guise of municipal legislation[,] expand the duties of state or county officers beyond the limits fixed by state laws * * *.’

“Id. at 643. (Citations omitted.) We find this analysis to be equally applicable here.”

City of Eugene, 305 Or at 650 (citing additional cases, including La Grande v. Municipal Court).

In each of the cited cases, cities sought to require or authorize state officials to perform functions that they had not been authorized by state law to perform. Here, in contrast, the challenged Portland ordinance does not add to the circuit court’s authority to adjudicate claims. One of the basic functions of the circuit court is to resolve disputes over harm caused to people as a result of failure by others to conform their behavior to the requirements of law. Therefore, independently of the Portland ordinance, the circuit court has authority to adjudicate a claim by an employee of a Portland employer for harm caused by discriminatory treatment by the employer on the basis of sexual orientation. Leaving aside for these purposes the effect of ORS 659.030,¹¹ that claim might fail because employment discrimination on that basis is not unlawful. Nevertheless, the claim is one that the circuit court has authority to hear. The effect of the Portland ordinance is to change the law that bears on such a claim, making it one on which the employee can prevail, but it does not add to the function or duties of the circuit court for the court to adjudicate the claim.

That contrasts with the situation presented in La Grande, Lines, City of Eugene, and Wilson. In each of those cases, cities had to change state law in order to permit the state officials to do what the cities wanted them to do. The cases held that the cities simply did not have the power to do that.

La Grande, Lines, City of Eugene, and Wilson essentially establish a principle that is the other side of that established in State ex rel. Haley v. City of Troutdale, 281 Or 203, 210-11, 576 P2d 1238 (1978), on the relationship between state and municipal law. Haley held that the policy choices made by the state legislature on civil matters are not presumed to preempt those made by cities. In contrast, the cited cases establish that the policy choices made by the state legislature regarding the authority of state officials do preempt the ability of cities to make different choices about the officials’ authority. In City of Eugene, state election officials did not have authority to conduct votes on advisory measures. State law had to be changed to give them that authority. Municipal law could not do that. In La Grande and Lines, circuit courts did not have authority to hear appeals from municipal courts or commissions. State law had to be changed to give them that authority, and, again, municipal law could not do that. Here, in contrast, circuit courts do have authority to adjudicate claims under Portland’s ordinance. No state law has to be changed or enacted to give them that authority.¹²

The dissent also claims support for its position from McQuillin’s treatise on municipal law. See 165 Or App at 216-17 (citing Eugene McQuillin, 6 The Law of Municipal Corporations § 22.01, 388 (3d ed 1998)). The dissent quotes the following statement by McQuillin, which the dissent identifies as stating the first of two rules that bear on the authority of cities to affect private law:

“ ‘The well-established general rule is that a municipal corporation cannot create by ordinance a right of action between third persons or enlarge the common law or statutory duty or liability of citizens among themselves.’ ”

Id. at 215-16 (emphasis added).¹³ The dissent treats the statement as if it dealt only with the authority of cities to create causes of action and not their authority to affect existing ones. But the statement addresses both issues and asserts that the “well-established general rule” is that cities lack authority to do either of those things. Oregon Supreme Court cases establish, however, that, contrary to McQuillin’s view, Oregon cities can “enlarge the common law * * * duty or liability of citizens among themselves.”

In Marsh v. McLaughlin et ux, 210 Or 84, 309 P2d 188 (1957), the court held that a property owner could not be liable at common law for injuries sustained as a result of the owner’s failure to maintain the sidewalk on the owner’s property. The court then looked to the Salem city charter to determine whether it imposed liability on property owners for that conduct and concluded that it did not. That the court looked to the charter is telling, because the court treated the issue as one in which the city could impose liability on the property owner, which liability would be enforced in a civil action in state circuit court notwithstanding that the injured party could not prevail in such an action at common law. The court had applied the same principle four years earlier in Olson v. Chuck et al., 199 Or 90, 259 P2d 128 (1953), in which it held that an injured pedestrian could recover against a property owner for injuries sustained as a result of the owner’s failure to maintain a sidewalk, based on a Portland code provision that imposed that liability on the owner. Hence, Marsh and Olson establish that Oregon cities can enlarge the common-law duties and liabilities of private parties.¹⁴

The dissent does not attempt to explain why Oregon’s rejection of one half of McQuillin’s general rule should cause us to treat the other half of it as nevertheless valid in Oregon. In fact, both halves of the rule are based on a widely held assumption that cities lack authority to affect private law. That assumption does not withstand examination, as Professor Schwartz demonstrated in his comprehensive 1973 article on the authority of home rule cities to affect private law.¹⁵ Most critically, however, the Supreme Court’s implicit rejection of that assumption through its decisions in Marsh and Olson means that McQuillin’s statement loses all force as support for the dissent’s distinction between the authority of cities to create new causes of action and their authority to alter liability under existing ones. See 165 Or App at 214-20.¹⁶

Defendant’s final contention is that Portland’s creation of a private cause of action conflicts with state statutes that give the Multnomah County Circuit Court jurisdiction over, and the Portland city attorney authority to bring, proceedings to prosecute violations of Portland’s ordinances.¹⁷ Defendant reasons that those statutes represent the sole source of authority for Portland to enforce its ordinances in state court. Consequently, Portland exceeded that authority by creating a private cause of action that litigants could pursue in state court for violations of the anti-discrimination ordinance. Two federal judges have used similar reasoning to dismiss claims brought in federal court under the Portland ordinance.¹⁸ Defendant misconceives the role of the relevant statutes.

The courts of one sovereign generally do not execute the penal laws of another.¹⁹ That means that governmental officials who prosecute offenses must do so in the courts of the sovereign that they serve. We do not need to decide the extent to which that principle applies to the state and municipal governments in Oregon. It is sufficient to recognize that it could operate to deny Oregon municipalities the ability to use the state circuit court as the forum for municipal officials to prosecute municipal offenses.

We believe that the legislature recognized that principle when it enacted the statutes that permit Portland to use the Multnomah County Circuit Court to prosecute municipal violations.²⁰ Whether those statutes expanded circuit court jurisdiction to encompass those proceedings or simply served to confirm its jurisdiction over them, the legislature’s decision to enact those statutes does not imply a decision to subtract from the court’s existing jurisdiction over private-law disputes, which, as we have explained above, includes jurisdiction over disputes that are based on municipal law. Hence, Portland’s decision to create a private cause of action for violations of its anti-discrimination ordinance does not conflict with the statutes that permit Portland to use the circuit court to prosecute municipal violations, that is, to use it for public law enforcement.²¹

In summary, Portland did not exceed its authority by prohibiting discrimination by Portland employers on the basis of sexual orientation and by giving people who are harmed by the prohibited conduct a claim for relief for that harm in any court that has jurisdiction to hear such a claim. State circuit courts are courts that have jurisdiction to hear such a claim. The trial court erred in concluding that they do not.

Plaintiffs third claim for relief sought to recover damages for defendant’s alleged violation of Portland’s anti-discrimination ordinance on the ground that the violation constituted a “statutory tort.” The city also sought a declaration that its ordinance could provide the basis for such a claim. On appeal, plaintiff and the city also argue that the claim could be understood to allege a claim for wrongful discharge. We understand plaintiff and the city to assert the claim as an alternative claim that could be pursued if it were determined that the city lacked authority to create a cause of action for violation of the ordinance. Because we have concluded that the city had authority to create a cause of action that could be litigated in state court, we do not reach plaintiffs and the city’s alternative claim.

Reversed and remanded to reinstate plaintiffs second claim for relief and to declare that PCC § 23.01.080E is valid as against the objections raised by defendant and that plaintiff can pursue a claim under PCC § 23.01.080E against defendant in circuit court; otherwise affirmed.

1 Plaintiff sued two defendants: Richard Beasley dba Besaw’s Café and Besaw’s Café, Inc. Only the former is a party to the appeal, so we refer to him as defendant.

2 See ORS 28.110 (gives municipalities the right to become parties and be heard in declaratory judgment proceedings in which the validity of their charters, ordinances, or franchises is at issue).

3 Plaintiff based his first claim on a state statute, ORS 659.030, and his second claim on the Portland ordinance. He based his third claim on the proposition that the court should treat a violation of the Portland ordinance and the state statute as a “statutory tort.” Finally, he sought in his fourth claim a declaration that he could bring his first three claims. The trial court apparently viewed its decision on Portland’s authority to create a cause of action, and plaintiffs decision to withdraw his claim under the state statute, as controlling whether plaintiff could state a claim for a statutory tort and, in turn, whether he was entitled to a declaration that he could bring any of his claims. Hence, it dismissed plaintiffs statutory tort claim and his claim for declaratory relief when it dismissed plaintiffs other two claims. Even if the court were correct about Portland’s authority to create a cause of action, the court nevertheless erred in dismissing plaintiffs and the city’s claims for declaratory relief. That is because the proper disposition of the declaratory relief claims was not to dismiss them but to declare the parties’ rights. See, e.g., Burks v. Lane County, 72 Or App 257,260,695 P2d 1373 (1985); Harrison v. Port of Cascade Locks, 27 Or App 377,379 n 1, 556 P2d 160 (1976), rev den 277 Or 1 (1977).

4 The concurrence goes beyond the arguments raised by defendant to explore the general authority of Oregon cities to enact legislation. Contrary to the concern expressed by the concurrence, our decision does not imply that cities are free to modify private law in whatever manner they choose, so long as their charters give them that authority. The authority that cities can exercise is limited by the applicable state and federal law that bears on that authority. On that issue, we note that, before the people amended the Oregon Constitution to give themselves the power to enact municipal charters for their cities, the legislature performed that task. See generally LaGrande /Astoria v. PERB, 281 Or 137,140-45, 576 P2d 1204, adhered to on reh’g 284 Or 173, 586 P2d 765 (1978). In doing that, the legislature could adopt a charter for a city that gave the city government legislative power that was limited only by the limits imposed by the state and federal constitutions. Nothing suggests that the shift from the legislature to local citizens as the body responsible for enacting city charters served to limit the legislative power that a charter could give a city government to exercise. In addition to any other constitutional limits, there are limits imposed by state preemption on the exercise of legislative power by cities, which we discuss in relation to defendant’s challenge to Portland’s anti-discrimination ordinance and under which the policy choices made by the state legislature or voters prevail over local policy choices on substantive matters. See, e.g., id. at 156. If the relevant charter gives the city the power to enact the legislation at issue, the question of the city’s authority to enact the legislation will then turn on the limits imposed by state and federal law on that authority. See id. at 142. Both we and the concurrence agree that there is no limit of which we are aware in either source that denies to Portland the authority to adopt legislation to regulate the conduct of Portland employers toward their employees and to give people harmed by that conduct a claim for that harm.

The dissent contends that our decision gives cities the authority to override “the will of the legislature or the people” regarding the effect to be given municipal law in state court. 165 Or App at 211. There is no basis for that assertion. As we explained above, it is well established that state substantive law preempts municipal law if the state law is intended to have that effect. See, e.g., LaGrande I Astoria, 281 Or at 156. Consequently, the legislature and the people, through the initiative, have the power to deny to cities the authority to modify private law or to affect the law that is used by state courts to adjudicate private disputes. See, e.g., de Parrie v. State of Oregon, 133 Or App 613, 618-19, 893 P2d 541, rev den 321 Or 560 (1995) (state statute can preempt municipal authority to enact substantive law on a subject even though the state statute does not, itself, establish substantive policy on the subject). Nothing that we have said raises any question about the preemptive effect of state statutory or constitutional law or is inconsistent with our recent treatment of that issue in State v. Logsdon, 165 Or App 28,995 P2d 1178 (2000).

5 Among other things, the Portland charter gives the city council the power to “exercise within the City of Portland all the powers commonly known as the police power.” Consequently, it is appropriate to use that term to describe one facet of the city’s law-making authority. We note, however, that the term can be misleading as a general description of governmental law-making authority. See, e.g., Dennehy v. Dept. of Rev., 305 Or 595,604 n 3, 756 P2d 13 (1988).

6 See, e.g., Brinkley v. Motor Vehicles Division, 47 Or App 25,27,613 P2d 1071 (1980).

7 See, e.g., Hillman v. North. Wasco Co. PUD, 213 Or 264,276-81,323 P2d 664 (1958), overruled on other grounds by Maulding v. Clackamas County, 278 Or 359, 365,563 P2d 731 (1977).

8 In defendant’s view, the creation of a cause of action that can be litigated in state court adds to the jurisdiction of the state court. If that were true, then it would mean that state courts would change their own jurisdiction whenever they recognized a new cause of action or eliminated an existing one. Such a change in the law normally is not considered to change a court’s jurisdiction, unless the affected court’s jurisdiction is limited in some way, such that recognition of a new cause of action would expand its jurisdiction beyond that authorized by the granting authority.

9 Actions involving disputes with which the state has no connection other than jurisdiction over the parties are referred to as transitory actions. The state judicial power extends to the adjudication of transitory actions.

10 The effort by the dissent to distinguish Aldrich from this case reveals a fundamental flaw in the dissent’s analysis. See 165 Or App at 212-14. The liability that the Aldrich statute imposed on stockholders to pay corporate obligations was not a liability that the common law would recognize, so there was no common-law remedy available to the plaintiff for that liability. However, the statute that imposed the liability did not specify a remedy for it, so the court could supply a remedy from among the normal common-law remedies that were available to it for such a liability by, for example, awarding damages.

We can assume, for these purposes, that the common law imposes no liability for the discriminatory conduct that the Portland ordinance proscribes. Because the common law imposes no liability for that conduct, it necessarily provides no remedy for it. The Portland ordinance imposes liability for the conduct. However, as in Aldrich, it leaves it to the courts to supply remedies for that liability from among the appropriate remedies that are available to them, again, for example, by awarding damages. In the dissent’s view, the Portland ordinance is invalid because it gives people a remedy for conduct for which the common law would not impose liability even though the ordinance does not specify what remedies flow from the liability. If that were a correct understanding of the relevant principles, then Aldrich, itself, was wrongly decided, because it, too, gave people a remedy in circumstances in which the common law would not give them one. At bottom, the dissent is founded on a fundamental failure to distinguish between legislation that imposes liability in circumstances in which the common law would not and legislation that provides “peculiar” remedies for the liabilities that it imposes. The legislation at issue in Aldrich and this case is legislation of the former type. It did not, and does not, run afoul of any principle of which we are aware. See also Aldrich, 24 Or at 38 (peculiar remedy that prevents adjudication of cause of action is one that forum is “incapable of administering”).

11 ORS 659.030 prohibits certain employment practices, the violation of which can give rise to a claim that can be litigated in state court. See, e.g., Tanner v. OHSU, 157 Or App 502, 971 P2d 435 (1998). The claim by plaintiff that the court dismissed by stipulation was a claim based on ORS 659.030. See 165 Or App at 183-84 and note 3.

12 Of course, the issue framed in this case can be examined outside the context of court authority to adjudicate claims. Assume, for example, that the state employed building inspectors and charged them with inspecting new buildings to confirm that they were built according to the applicable building codes. Assume further that a city adopted a building code that required double-wall construction, while the state building code required only single-wall construction. Haley held that a city building-code requirement of that kind was not preempted by the state building code as a matter of then-existing state law. Haley, 281 Or at 205-11. If the state building inspector required conformance with the city’s double-wall standard, then she would be enforcing the city’s substantive law, but she would be performing the job that she had been assigned by the state to perform. In contrast, if the city adopted an ordinance that required state building inspectors to conduct inspections that they were not required by state law to perform, for example, inspecting commercial buildings when they were employed by the state to inspect only residential buildings, then the ordinance could not be enforced. See, e.g., Wilson, 107 Or at 648-50 (city could require state official to do job specified by state law but nothing more). All that the Portland anti-discrimination ordinance does is change the substantive law that state courts use to perform the adjudicative role that they have been assigned by state law to perform. It does not run afoul of any limit of which we are aware that is imposed on the enactment of municipal law.

13 Not surprisingly, most of the cases that McQuillin cites as support for that rule do not, in fact, support it. For example, McQuillin cites Yellow Freight Systems v. Mayor’s Com’n, 791 SW2d 382 (Mo 1990), as support for its contention that cities lack authority to create a private cause of action. McQuillin, at 338 n 1. However, the court based its holding in Yellow Freight Systems on a Missouri constitutional provision that governed the authority of Missouri municipal courts. It held that the provision prevented the city from using a commission, that is, an executive rather than a judicial forum, to award relief to people who were affected by violations of the city’s civil rights ordinance. Yellow Freight Systems, 791 SW2d at 384-85. The court pointedly did not address whether the city could create a private cause of action that could be enforced in state court. See id. at 385-86.

The bulk of the other cases cited by McQuillin suffer from similar flaws. See, e.g., Delaney v. Superior Fast Freight, 14 Cal App 4th 590,18 Cal Rptr 2d 33 (1993) (state preemption made it unnecessary to decide if city could create cause of action for employment discrimination). The authority of cities to enact ordinances is derived from the grant of that authority in each state. Those grants differ dramatically. See Gary T. Schwartz, The Logic of Home Rule and the Private Law Exception, 20 UCLA L Rev 671, 681-97 (1973). Consequently, as Professor Schwartz noted in his comprehensive analysis of the authority of home rule cities to enact ordinances that affect private law, McQuillin and the cases that it cites are of no use in determining whether a city in a particular state has the authority to create a cause of action or to otherwise affect private law. See id. at 696-710 & nn 160,163.

14 See also Lange v. Minton, 303 Or 484,738 P2d 576 (1987); Harris v. Sanders, 142 Or App 126, 919 P2d 512, rev den 324 Or 322 (1996); note 16 below. In the dissent’s view, Marsh and Olson stand for the proposition that cities have authority to enact ordinances that establish negligence per se and that thereby affect the standard of care that is applied by courts within an existing common-law cause of action. In a normal negligence action, a jury or court, as factfinder, determines whether the defendant’s conduct was negligent. In other words, it determines where on the continuum of conduct the point is reached that constitutes negligent conduct. A statute or ordinance that is treated by a court as establishing negligence per se operates to fix as a legal matter the point on the same continuum where negligent conduct is reached, thereby removing that factual issue from the factfinder. Such a statute or ordinance would not change common-law duties or liabilities; it would simply remove a factual issue from the factfinder about whether or not the particular conduct met the recognized duty to act reasonably. Marsh and Olson involve ordinances that have a very different effect. Under the common law, a landowner could not be liable for failing to maintain a sidewalk to guard against the hazards presented in those cases. As a matter of law, there was no duty to maintain the sidewalk to remove the hazards and no liability could attach for failing to perform that duty. Consequently, there was no continuum of conduct for a factfinder to consider to determine whether or not the particular conduct fulfilled the recognized duty to act. Marsh and Olson established the principle that municipal ordinances could impose a duty on landowners to maintain sidewalks and that breach of that duty could result in liability in a state court action to those harmed by the breach. That is precisely what McQuillin says municipal ordinances cannot do.

15 See Gary T. Schwartz, The Logic of Home Rule and the Private Law Exception, 20 UCLA L Rev 671, 672-777(1973).

16 The dissent treats McQuillin’s rule as if it were based on the principle that cities lack authority to impose obligations on state agencies and officials, rather than on the principle that cities lack authority to affect private law. As explained above, McQuillin’s rule is based on the latter principle, not the former. See Schwartz, 20 UCLA L Rev at 696-710 & nn 160,163. There is no doubt that Oregon cities lack authority to impose obligations on the state, but that does not mean, as the dissent would have it, that the Oregon cases that have applied that principle support the application of the McQuillin rule in Oregon. For example, the dissent claims that the McQuillin rule against creating causes of action or affecting common-law liability “finds expression in La Grande v. Municipal Court.” 165 Or App at 217. However, La Grande had nothing to do with creating or affecting private remedies that could be litigated in state court. It dealt with the authority of a city to add to the jurisdiction of the local state circuit court by making it the appellate court for the city’s municipal court. Giving people a cause of action that they can litigate in court does not add to the jurisdiction or authority of the state courts or impose obligations on them that they do not already have.

Furthermore, the distinction that the dissent draws between municipal authority to affect existing causes of action and its authority to create new ones makes no sense. In the dissent’s view, a city can enact an ordinance that affects a negligence claim but not one that creates a claim for employment discrimination. However, negligence is simply the label that we attach to the circumstances in which you can be liable for harm caused by your inadvertent conduct. Wrongful discharge, battery, intentional infliction of emotional distress, and similar terms are simply the labels that we attach to the circumstances in which you can be liable for your intentional conduct. If the common law establishes that you are not liable for harm caused by your inattention to the condition of your sidewalk, but a municipal ordinance makes you liable for that harm, then the ordinance has imposed liability for conduct that the courts would not recognize as tortious and, hence, actionable. See Marsh, 210 Or at 88-91; Olson, 199 Or at 105-13; Harris v. Sanders, 142 Or App 126, 919 P2d 512, rev den 324 Or 322 (1996). Similarly, if the common law would not impose liability for the harm caused by your decision to discharge an employee on the basis of sexual orientation, but a municipal ordinance makes you liable for that harm, then that ordinance, too, imposes liability for conduct that the courts would not recognize as tortious or actionable. The two ordinances are functionally indistinguishable for these purposes, yet the dissent concludes that a city has authority to enact one but not the other.

17 The statute that gives the Multnomah County Circuit Court jurisdiction over such proceedings is ORS 3.136(1). It provides:

“The circuit court for a county within the boundaries of which there is situated the largest part of a city having a population of more than 300,000 shall have all judicial jurisdiction, authority, powers, functions and duties of the municipal court of each such city and the judges thereof with respect to all violations of the charter and ordinances of each such city.”

At the time that this case began, that statute gave the Multnomah County District Court rather than the circuit court that jurisdiction. The abolition of the district court on January 15,1998, caused the jurisdiction to shift from the district court to the circuit court. See notes preceding ORS 1.001. The statute that addresses the authority of city attorneys to prosecute municipal violations is ORS 221.315(1), which provides, as relevant:

“Prosecution of violations of the charter or ordinances of a city in circuit court or justice court shall be by the city attorney in the name of such city. An agreement may be made between any city and, on behalf of the state, the presiding judge for the judicial district in which all or part of such city is located, that such violations be prosecuted for such city in the circuit court by the district attorney in the name of the State of Oregon.”

To the extent that ORS 3.136 is understood to make the Multnomah County Circuit Court the municipal court for Portland for the prosecution of Portland municipal violations, ORS 221.315(1) may not have any bearing on such prosecutions, because the latter statute applies only to the prosecution of municipal offenses in circuit court. We need not resolve that issue to decide this case.

18 See Brown v. Starbucks Corp., No. 96-269-MA (D Or 1996); Sexsmith v. Marriott International, Inc., 896 F Supp 1040, 1041 (D Or 1995); Seidel v. Albertson’s, Inc., No. 94-1275-FR, 1995 WL 82268 (D Or 22,1995).

19 See generally Huntington v.Attrill, 146 US 657,666-69,13 S Ct 224,36 LEd 1123 (1892); Restatement (Second) of Conflict of Laws § 89 (1971); Robert A. Leñar et al., American Conflicts Law §§ 46, 111 (4th ed 1986).

20 ORS 3.132, ORS 221.315(1), and ORS 221.337, in turn, permit other Oregon cities to use the circuit court for the same purpose.

21 The foregoing discussion refutes the dissent’s contention, 165 Or App at 210 n 4, that our decision renders superfluous the statutes that give circuit courts jurisdiction over proceedings to prosecute municipal violations.