Opinion
Civil No. 03-1257-HA.
August 4, 2004
Linda K. Williams, Portland, Oregon, Attorney for plaintiff Horton.
Daniel W. Meek, Portland, Oregon, Attorney for plaintiffs Newell and Barnes.
Agnes Sowle, John S. Thomas, Office of Multnomah County Attorneys, Portland, Oregon, Attorneys for defendants.
Charles F. Hinkle, Stoel Rives, Portland, Oregon, Attorney for intervenor Woloshin.
Richard D. Wasserman, Appellate Division, Timothy Wood, Appellate Division, Stephen K. Bushong, Trial Division, Oregon Department of Justice, Salem, Oregon, Attorneys for intervenor State of Oregon.
OPINION AND ORDER
Before the court are: plaintiffs' Motion for Modification of Preliminary Injunction (Doc. #52); plaintiffs' Motion for Order to Show Cause (Doc. #66); defendants' Motions for Summary Judgment (Docs. #65, 69); and Intervenor Woloshin's Motion to Dismiss (Doc. #77).
For the following reasons, plaintiffs' Motion for Modification of Preliminary Injunction is denied as moot; plaintiffs' Motion for Order to Show Cause is granted; defendants' Motions for Summary Judgment are granted; and Intervenor Woloshin's Motion to Dismiss is denied as moot.
BACKGROUND
In its October 17, 2003, Opinion and Order, this court held that O.R.S. § 280.070(4) was unconstitutional, both as applied to Multnomah County Ballot Measure 26-52 and as promulgated. On December 15, 2003, the United States Court of Appeals for the Ninth Circuit vacated as moot a portion of the court's preliminary injunction, but noted explicitly that the permanent injunction prohibiting the State from enforcing O.R.S. § 280.070(4) remained in effect.
On January 13, 2004, this court heard oral argument in Caruso v. Yamhill County, CV 03-1731-HA, which involved facts and legal issues nearly identical to the present case. Extending the reasoning set forth in the present case, the court issued an Opinion and Order on January 14, 2004, holding that O.R.S. § 280.070(4) was unconstitutional, both as applied to Yamhill County Ballot Measure 36-55 and as promulgated.
STANDARDS
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. Assuming that there has been sufficient time for discovery, summary judgment should be entered against a "party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.
The court must view the evidence in the light most favorable to the nonmoving party. Bell v. Cameron Meadows Land Co., 669 F.2d 1278, 1284 (9th Cir. 1982). All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inference drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 886 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Ins. Co. of N. Am., 638 F.2d 136, 140 (9th Cir. 1981).
The issue of material fact required by Rule 56 need not be resolved conclusively in favor of the party asserting its existence. Id. At this stage of the litigation, the judge does not weigh conflicting evidence or make credibility determinations. These determinations are the province of the factfinder at trial. Id.; see also Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 410 (9th Cir. 1996) (on a motion for summary judgment, the court is not to weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial).
Deference to the non-moving party does have some limit. The non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). The "mere existence of a scintilla of evidence in support of the plaintiff's position would be insufficient." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
A. Defendants' Motions for Summary Judgment
Asserting that this action is no longer justiciable, defendants and Intervenor State of Oregon move for summary judgment on all claims. This court may entertain only justiciable questions that involve an actual "case or controversy." U.S. Const. art. III, § 2, cl. 1; Seven Words LLC v. Network Solutions, 260 F.3d 1089, 1095 (9th Cir. 2001).
A plaintiff must have standing in order to bring a justiciable case or controversy before the court. Standing exists if a plaintiff can prove the existence of an injury in fact, caused by the government, that can be redressed by a decision in the plaintiff's favor. United States v. City of Tacoma, Wash., 332 F.3d 574, 578 (9th Cir. 2003) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Plaintiffs may assert claims involving future injury only if plaintiffs are "realistically threatened by a repetition of [their] experience. . . ." City of Los Angeles v. Lyons, 461 U.S. 95, 97-98 (1983). There must be a "real or immediate threat that the plaintiff will be wronged again. . . ." Lyons, 461 U.S. at 111.
If events subsequent to the initiation of an action reduce or eliminate the chances of plaintiffs' injury, plaintiffs may maintain the action only if they are reasonably likely to be injured by the same conduct and will otherwise be unable to obtain court review. "The `capable of repetition, yet evading review' exception to mootness applies only when (1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again." Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000).
Plaintiffs' applied challenge to the title of Ballot Measure 26-52 is no longer justiciable because the election has occurred. Likewise, there is no justiciable case or controversy involving plaintiffs' facial challenge to O.R.S. § 280.070(4). In Caruso v. Yamhill County, CV 03-17321-HA, this court permanently enjoined the state from enforcing O.R.S. § 280.070(4) for all ballot measures that by themselves cannot cause an increase in property taxes of more than three percent. Defendants remain bound by that injunction, and plaintiffs have no reasonable expectation that they will be subjected to further constitutional violations. Because plaintiffs' claims are now moot, defendants' Motions for Summary Judgment are granted.
B. Plaintiffs' Motion for Order to Show Cause
Plaintiffs move for an order directing defendants to show cause why they should not be held in contempt for violating the court's October 17, 2003, permanent injunction. In the Opinion and Order granting the injunction, the court ruled as follows:
The court finds that by requiring the inclusion of the three percent warning in the titles of ballot measures that have no possibility of "causing" an increase in property taxes of more than three percent, O.R.S. § 280.070(4) is overly broad. Because plaintiffs have succeeded on their facial challenge, defendants are permanently enjoined from enforcing that provision.
October 17, 2003, Opinion and Order at 14. Although the Ninth Circuit subsequently vacated the court's preliminary injunction concerning plaintiffs' applied challenge to O.R.S. § 280.070(4), the Ninth Circuit noted that its order "shall not be construed as vacating any portion of the district court's October 17, 2003 order addressing the permanent injunction." Horton v. Multnomah County, No 03-35836, 03-35837, 03-35841 (9th Cir. December 15, 2003). Notwithstanding the clear guidance given to the State of Oregon by this court and the Ninth Circuit, the State subsequently enforced O.R.S. § 280.070(4) with regard to Yamhill County Ballot Measure 36-55, which was scheduled to appear on the March 9, 2004, ballot.
The State's contention that it was not bound by the court's injunction is unavailing, and the authority cited by the state, Bates v. Johnson, 901 F.2d 1424 (7th Cir. 1990), is inapposite. Bates involved an oral statement issued by a district court judge from the bench without the benefit of a written order. Id. at 1427 ("Oral statements are not injunctions. A judge who proclaims `I enjoin you' and does not follow up with an injunction has done nothing."). Here, the court issued a written Opinion and Order permanently enjoining the state from enforcing O.R.S. § 280.070(4). If the State believed it was not bound by the court's ruling until after the entry of a final judgment, the State should have sought entry of a final judgment rather than ignore the court's order.
Plaintiffs' Motion for an Order to Show Cause is granted. The State of Oregon is ordered to show cause within 21 days why it should not be held in contempt. Plaintiffs may respond within 14 days of the State's submission, and a reply brief by the State may be filed 14 days thereafter.
C. Intervenors' Motion to Dismiss
Intervenor Woloshin moves to voluntarily dismiss herself from the action. Although Woloshin asserts that she is not subject to an award of attorney fees, that issue is not presently before the court. As explained above, defendants' Motions for Summary Judgment are granted. Accordingly, Woloshin's Motion to Dismiss is denied as moot.
CONCLUSION
For the foregoing reasons, plaintiffs' Motion for Modification of Preliminary Injunction (Doc. #52) is denied as moot; plaintiffs' Motion for Order to Show Cause (Doc. #66) is granted; defendants' Motions for Summary Judgment (Docs. #65, 69) are granted; and Intervenor Woloshin's Motion to Dismiss (Doc. #77) is denied as moot.
The State of Oregon is ordered to show cause within 21 days why it should not be held in contempt. Plaintiffs may respond within 14 days of the State's submission, and a reply brief by the State may be filed 14 days thereafter.
IT IS SO ORDERED.