Oregon Advisory Opinions January 12, 1979: OAG 79-9 (January 12, 1979)

OAG 79-9.

As said by the Oregon Supreme Court in School Dist. No. 12 v. Wasco County, 270 Or 622, 627, 529 P2d 386 (1974):

"It is well established that the legislature has the plenary power to enact laws for all purposes of civil government; any prohibition upon the legislature is the exception rather than the rule and must be expressly provided for in the state or the federal constitution. . . ."

It is thus clear that, since manifestly no federal constitutional provision is applicable, the legislature, except as otherwise may be provided in the Oregon Constitution, may specify election dates for cities, counties and other governmental districts.

The power of the legislature to exert such a power over cities requires an interpretation of the so-called "home rule" amendments to the Oregon Constitution, adopted by the voters in 1906 and appearing in art XI, sec 2 and art IV, sec 1(5). These provisions were most recently examined by the Oregon Supreme Court in LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204,

284 Or 173, _________ P2d _________ (1978). We quote the court's own description of them:

". . . The pertinent part of article XI, section 2, provides:

" 'The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon, . . .'

The LaGrande/Astoria decision points out that the only actual restraint imposed on the legislature by the "home rule" amendments of 1906 is the provision in the second sentence of art XI, sec 2 that:

Prior to the LaGrande/Astoria case, the leading decision on the "home rule" question was State ex rel Heinig v. City of Milwaukie, 231 Or 473, 373 P2d 680 (1962), which, as the court remarked in LaGrande/Astoria (281 Or at 146), expressed "a view of the state and its cities as competing sovereignties that seemed to extend to all conflicts of state and local policy." In Heinig, it had been held that there were areas of predominantly local concern where state law could not prevail - at least, as later explained in Boyle v. City of Bend, 234 Or 91, fn at 98, 380 P2d 625 (1963), where there was a conflicting local enactment. In LaGrande/Astoria, the court said that art XI, sec 2 did not extend that far and "that the Heinig formula should [not] be extended beyond the context of laws for city government in which it was formulated. . . ." (281 Or at 147).

The doctrine of LaGrande/Astoria is that "when a local enactment is found incompatible with a state law in an area of substantive policy, the state law will replace the local rule." (281 Or at 149).

"Substantive policy" was contrasted with mode of government:

"It is therefore pertinent to the prohibition expressed in article XI, section 2, to determine whether the challenged law is addressed primarily to a concern of the state with the modes of local government or to substantive social, economic, or other regulatory objectives." (281 Or at 149).

But then let us suppose that the date of a city election is part of that city's mode of government. A state law setting a different date still prevails if it meets a test formulated by the court:

"When a statute is addressed to a concern of the state with the structure and procedures of local agencies, the statute impinges on the powers reserved by the [1906] amendments to the citizens of local communities. Such a state concern must be justified by a need to safeguard the interests of persons or entities affected by the procedures of local government." (281 Or at 156).

In our opinion, the benefits to be derived from establishing uniform election dates for cities meets this test. The benefits sought are two-fold: state-wide efficiency in administration of the election laws, an obvious "safeguard" of persons

and entities, and an informed electorate whose awareness of an impending election and the issues to be voted on is heightened.

Prior to LaGrande/Astoria, the court decided under the Heinig doctrine that the state could require that a city tax measure be stated on the ballot in terms of dollars and cents rather than mills. In language here pertinent, it said:

We conclude that specified election dates can be required for all city elections. We are aware that art II, sec 14a provides that elections for city officers shall be at the same time as state elections (although later in the section, there is a general reference to the time of holding city elections - arguably all city elections). It could be contended that because the constitution thus requires uniform dates for certain city elections, the legislature is impliedly powerless to specify dates for other city elections. We reject any such argument.

Article II, sec 14a was added to the Oregon Constitution in 1917, a time when there was great disagreement as to the meaning of the 1906 "home rule" amendments. In our view, under the LaGrande/Astoria test, it is unnecessary. As such, it creates no limitation on the powers of the legislature. School Dist. No. 17 v. Powell, 203 Or 168, 279 P2d 492 (1955); 33 Op Atty Gen 638 (1968).

We further conclude that the legislature may specify election dates for counties. Regarding counties generally, the state exercises virtually total control. State ex rel Public Welfare Commission v. Malheur County Court, 185 Or 392, 203 P2d 307 (1949). As for a county having a charter adopted under art VI, sec 10, not only is there no restriction on the power of the legislature similar to that of the second sentence of art XI, sec 2 in the case of cities, and thus no immunity from legislative will under the logic of LaGrande/Astoria, but art VI, sec 10 seems specifically to require that county officers carry out all responsibilities specified by statute:

As for other governmental districts, it could be contended that such a district is a "municipality" within the meaning of the second sentence of art XI, sec 2, thus requiring application of the reasoning of LaGrande/Astoria to cases of conflict between state law and ordinances of such entities. The Oregon Supreme Court, however, has said that "municipality" as used in art XI, sec 2 is merely a synonym for "city or town," and thus a mere redundancy. See discussion in School Dist. No. 17 v. Powell, supra, 203 Or at 181-183. We accordingly conclude that specified election dates may be required by the legis

lature for such other governmental districts.