author: DeVORE, J.

text:
    LINN COUNTY, Douglas County, and Yamhill County, each a local government of the State of Oregon, Plaintiffs-Respondents, and Jefferson County, et al., Plaintiffs, v. Kate BROWN, in her official capacity as Governor of the State of Oregon; and Val Hoyle, in her official capacity as Commissioner of the Oregon Bureau of Labor and Industries, Defendants-Appellants.
    A165655
    Court of Appeals of Oregon.
    Argued and submitted September 20, 2018. May 1, 2019
    Keith L. Kutler, Assistant Attorney General, argued the cause for appellants. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Sharon A. Rudnick, Eugene, argued the cause for respondents. Also on the brief were William F. Gary, Susan Marmaduke, and Harrang Long Gary Rudnick P.C.
    Steven C. Berman and Stoll Stoll Berne Lokting & Shlachter, PC, filed the brief amicus curiae for Family Forward Oregon.
    Before Powers, Presiding Judge, and Egan, Chief Judge, and DeVore, Judge.

      DeVore, J., vice Garrett, J. pro tempore.

   DeVORE, J.

In a declaratory judgment action, three counties challenge their obligation to provide their employees paid sick leave as required of many Oregon employers by ORS 653.601 to 653.661. The counties contend that they are excused from the obligation under Article XI, section 15, of the Oregon Constitution, which provides that a local government is not required to comply with a state law that requires a local government to "establish a new program or provide an increased level of service for an existing program" when the state fails to provide adequate funding. The trial court agreed, granted the counties' motion for summary judgment, and entered a judgment that made rulings declaring the paid sick leave law to be an unfunded program. The governor and labor commissioner appeal from that judgment, arguing that the trial court erred in its broad interpretation of Article XI, section 15. We agree, concluding that the paid sick leave law is not an unfunded program of services to others within the meaning of Article XI, section 15. Consequently, the trial court erred in granting the counties' motion and entering a declaratory judgment for the counties. We reverse and remand.

I. BACKGROUND

A. Trial Court Proceedings

Initially, plaintiffs, then nine Oregon counties, filed a complaint in which they alleged that the paid sick leave law compelled them to spend money on a new program or to spend more money for an existing program without any or enough state reimbursement, in violation of Article XI, section 15. They sought a declaratory judgment to that effect and injunctive relief pursuant to ORS 28.020 and ORS 28.080. Defendants, the governor and labor commissioner, responded that the constitutional measure did not apply, adding that, even if the measure applied, all nine counties did not spend more than one-hundredth of one percent of a county's annual budget, which Article XI, subsection 15(3), set as a threshold of applicability.

The parties filed cross-motions for summary judgment. In its initial ruling, the trial court granted plaintiffs' motion and denied defendants' motion. On reconsideration, the court granted plaintiffs' motion in part and denied it in part. The court held that the state's sick leave law was an unfunded program within the meaning of Article XI, section 15, but also determined that plaintiffs had not yet established that the counties met the measure's cost threshold. Thereafter, the parties stipulated that six of the nine counties failed to meet the cost threshold and that their claims should be dismissed in a limited judgment. The parties agreed, however, that Linn, Douglas, and Yamhill counties met the cost threshold. For those three counties, the trial court entered a general judgment declaring that Article XI, section 15, excused them from compliance with the paid sick leave law.

B. The Paid Sick Leave Law

To frame the issue, we describe the statutory and constitutional provisions at issue before recounting the parties' arguments and the trial court's opinion. Enacted by Oregon Laws 2015, chapter 537, the paid sick leave law requires employers of 10 or more employees to implement a sick time policy that allows an employee to earn and use up to 40 hours of paid sick time per year. ORS 653.606(1)(a) ; ORS 653.601(2) (defining "employer"). The law is equally applicable to private and public employers, specifically including cities, counties, various districts, and other public entities. ORS 653.601(2). Employers may adopt policies limiting employees' accrual of sick leave to 80 hours and permitting use of no more than 40 hours per year. ORS 653.606 (3)(a), (b). Sick leave may be used for an employee's "mental or physical illness, injury or health condition, need for medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or need for preventative medical care," or for care of a family member with those needs. ORS 653.616(1), (2). An employer may, but is not required to, direct an employee to provide verification from a health care provider of the need for sick time or certification of the need for family leave, when the employee uses sick leave for more than three consecutive days, ORS 653.626(1)(a), but the employer must pay reasonable costs, if any incurred for providing the verification or certification, ORS 653.626(2). The sick leave law does not affect any employer policy or standard that provides for a greater use of paid or unpaid sick time. ORS 653.636. And, the sick leave law does not apply to employees subject to collective bargaining agreements or consumer-employed home-care workers whose sick time policy is established by the Home Care Commission. ORS 653.646(1), (2). The parties agree that the legislature did not appropriate funds to local governments or private employers to implement paid sick leave.

C. The Unfunded Programs Measure

The unfunded programs measure, section 15 of Article XI of the Oregon Constitution, was originally adopted by Oregon voters in 1996 as Ballot Measure 30 after a legislative referral in the preceding year. House Joint Resolution (HJR) 2, para. 1 (sec. 15) (1995); Oregon Laws 1997, ix (Vote on Statewide Measures, Nov. 5, 1996, Measure 30 (HJR 2)). Because the original measure included a sunset provision, HJR 2, para. 1 (section 15a), the measure was resubmitted and readopted by voters in 2000 as Ballot Measure 84.

Oregon Laws 2001, x (Vote on Statewide Measures, Nov. 7, 2001, Measure 84 (Senate Joint Resolution (SJR) 39 (2001)). Article XI, section 15, provides:

"(1) Except as provided in subsection (7) of this section, when the Legislative Assembly or any state agency requires any local government to establish a new program or provide an increased level of service for an existing program , the State of Oregon shall appropriate and allocate to the local government moneys sufficient to pay the ongoing, usual and reasonable costs of performing the mandated service or activity.
"(2) As used in this section:
"(a) 'Enterprise activity' means a program under which a local government sells products or services in competition with a nongovernment entity.
"(b) 'Local government' means a city, county, municipal corporation or municipal utility operated by a board or commission.
"(c) 'Program ' means a program or project imposed by enactment of the Legislative Assembly or by rule or order of a state agency under which a local government must provide administrative, financial, social, health or other specified services to persons, government agencies or to the public generally .
"(d) 'Usual and reasonable costs' means those costs incurred by the affected local governments for a specific program using generally accepted methods of service delivery and administrative practice.
"(3) A local government is not required to comply with any state law or administrative rule or order enacted or adopted after January 1, 1997, that requires the expenditure of money by the local government for a new program or increased level of service for an existing program until the state appropriates and allocates to the local government reimbursement for any costs incurred to carry out the law, rule or order and unless the Legislative Assembly provides, by appropriation, reimbursement in each succeeding year for such costs. However, a local government may refuse to comply with a state law or administrative rule or order under this subsection only if the amount appropriated and allocated to the local government by the Legislative Assembly for a program in a fiscal year:
"(a) Is less than 95 percent of the usual and reasonable costs incurred by the local government in conducting the program at the same level of service in the preceding fiscal year; or
"(b) Requires the local government to spend for the program, in addition to the amount appropriated and allocated by the Legislative Assembly, an amount that exceeds one-hundredth of one percent of the annual budget adopted by the governing body of the local government for that fiscal year.
"* * * * *
"(7) This section shall not apply to:
"(a) Any law that is approved by three-fifths of the membership of each house of the Legislative Assembly.
"* * * * *
"(8) When a local government is not required under subsection (3) of this section to comply with a state law or administrative rule or order relating to an enterprise activity, if a nongovernment entity competes with the local government by selling products or services that are similar to the products and services sold under the enterprise activity, the nongovernment entity is not required to comply with the state law or administrative rule or order relating to that enterprise activity."

(Emphases added.) In light of those provisions, the question in the trial court and on appeal is whether the paid sick leave law constitutes a "program" that requires "a local government" to "provide * * * services to persons, government agencies, or the public generally." Or. Const, Art XI, §§ 15 (1), (2)(c).

D. Trial Court's Opinion

In reaching its decision, the trial court expressed some ambivalence about the measure's definition of "program," which includes the word "program" as part of the definition. The court declared that it "must disregard the use of the term program in defining program since it is of no help." Although the court agreed with the counties' proffered dictionary definitions of "program" and "services," the court noted that "dictionary definitions differ and lack the specificity that would resolve the question." Rather, the court deemed the other parts of the definition of "program," what it called the "criteria for [a] program," to be "clear and unambiguous," such that the term "program" should apply to the paid sick leave law.

The trial court found support in several places. The court was persuaded that the legislative history of two competing referral resolutions in 1995 indicated that persons favoring and opposing the resolutions "clearly believed" that employee benefits could or would fall within them. Finally, the court noted an attorney general's opinion that was rendered after the voters' initial adoption of the constitutional measure in 1996 but before their re-adoption of the measure in 2000. That opinion, while recognizing room for doubt, advised that a proposal for increased benefits in the Public Employee Retirement System could be subject to the unfunded program measure. 49 Op. Atty. Gen. 152 (1999).

Putting it all together, the trial court concluded that the paid sick leave law is a "program" that requires the three plaintiff counties, as employers, to provide "services" to persons, agencies, or the public in general, without required funding, contrary to Article XI, section 15.

E. Arguments

On appeal, defendants assign as error the trial court's decisions to grant plaintiffs' motion for summary judgment and to enter a judgment with plaintiffs' requested declaratory rulings. Defendants argue that the paid sick leave law is not a "program" for providing government services to others. In defendants' view, paid sick leave is merely a component of employee compensation within local government or any public or private organization. Defendants argue that the terms "program" and "service" must be considered in the context of the unfunded program measure. When so considered, the terms "program" and "services" refer "to various kinds of services that local governments perform." Defendants add that their view is supported in the measure's referral history. They argue that the voters' pamphlets in 1996 and 2000 reveal nothing to suggest something like the paid sick leave would be considered an unfunded program, while the legislature's choice to refer a narrower measure, rather than a broader measure, to the voters suggests that a "program" means a governmental program of services to individuals or to the public in general.

Plaintiffs argue that Article XI, section 15, is not restricted to just unfunded government programs imposed on local governments. Plaintiffs argue that the constitutional measure applies not to government programs in the traditional sense, but to all "laws of general application" to everyone, including local governments. Like defendants, plaintiffs refer to the measure's history in competing referral resolutions in the legislature. Plaintiffs point to witness exhibits showing some surveyed public entities had listed employee matters such as workplace safety or arbitration in collective bargaining as "unfunded mandates." In further support of their argument, plaintiffs point to subsection 15(8), which provides that, when a local government's "enterprise activity" is relieved of a requirement by the unfunded programs measure, then any private entity that competes by selling products or services is likewise relieved of compliance with such a state requirement. Plaintiffs infer that subsection 15(8) would be unnecessary if Article XI, section 15, did not apply to all laws in general.

II. DISCUSSION

A. Approach

We review to determine if the trial court correctly concluded that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. ORCP 47 C. We view the evidence, including all reasonable inferences, in the light most favorable to the nonmoving party. Jones v. General Motors Corp. , 325 Or. 404, 408, 939 P.2d 608 (1997). Where, as here, parties file cross-motions for summary judgment, "the summary-judgment record 'consists of documents submitted in support of and in opposition to both motions.' " WSB Investments, LLC v. Pronghorn Devel. Co., LLC , 269 Or. App. 342, 355, 344 P.3d 548 (2015) (quoting Citibank South Dakota v. Santoro, 210 Or. App. 344, 347, 150 P.3d 429 (2006), rev. den., 342 Or. 473, 155 P.3d 51 (2007) ). In this case, the parties do not assert that there are issues of material fact, and the question presented is an issue of law. That question requires us to interpret a constitutional amendment that was twice adopted by the voters after an initial legislative decision in a choosing between two referral resolutions. "We interpret referred constitutional amendments within the same basic framework as we interpret statutes[.]" State v. Sagdal , 356 Or. 639, 642, 343 P.3d 226 (2015). That requires looking at the text, context, and legislative history of the amendment to determine the voters' intent. Id. at 642-43, 343 P.3d 226. " 'The best evidence of the voters' intent is the text and context of the provision itself[.]' " Id. at 642, 343 P.3d 226 (quoting State v. Harrell/Wilson , 353 Or. 247, 255, 297 P.3d 461 (2013) (bracket in Sagdal )). Context for a referred constitutional amendment includes preexisting constitutional provisions, case law, and statutory overlay. State v. Vallin, 364 Or. 295, 304, 434 P.3d 413, adh'd to on recons. , 364 Or. 573, 437 P.3d 231 (2019) ; Sagdal , 356 Or. at 642, 343 P.3d 226.

"[C]aution must be used before ending the analysis at the first level, viz. , without considering the history of the constitutional provision at issue." Sagdal , 356 Or. at 642, 343 P.3d 226 (internal quotation marks omitted). That history includes "sources of information that were available to the voters at the time the measure was adopted and that disclose the public's understanding of the measure, such as the ballot title, arguments included in the voters' pamphlet, and contemporaneous news reports and editorials." Id . at 642-43, 343 P.3d 226 (internal quotation marks omitted). However, we must approach cautiously reliance on advocates' statements during a measure's enactment, "because of the partisan character of such material." Id . at 643, 343 P.3d 226. Moreover, as a legislative referral, we recognize that the constitutional amendment was "drafted by the legislature, acting in its capacity as the collective representative of the people." State v. Lane , 357 Or. 619, 634, 355 P.3d 914 (2015). In this case, it warrants mention that

"[t]hose proposed amendments are then subject to the hearings and deliberations that are part of that process and, if approved by the legislature, referred by the Secretary of State to the voters. That legislative deliberation is part of the constitutionally mandated adoption process. It is conducted in public, and its records are available to the public. Although the measure that the legislature refers becomes effective only if ultimately approved by the voters, the voters have the opportunity to give their approval only after the legislature drafts a measure and, after deliberation, deems it worthy of submission to them. Under the circumstances, the legislature's deliberations seem no less worthy of consideration than the deliberations of a legislative committee in referring a bill to the floor of the House or the Senate."

Id . ; see also Ecumenical Ministries v. Oregon State Lottery Comm. , 318 Or. 551, 559, 871 P.2d 106 (1994) (considering enactment history if helpful). We are mindful that the "weight that the courts will accord a particular bit of enactment history will depend on the circumstances-including the clarity with which the legislature's or the people's intentions have been expressed in the text of an enactment and the nature of the history itself." Lane , 357 Or. at 634, 355 P.3d 914.

Accordingly, we consider, in turn, the text of the provision at issue, the context of those terms in the measure, the meaning of relevant terms in a larger statutory or constitutional context, voters' pamphlets, and the measure's referral history in the legislature. Next, we discuss the enterprise provision, and the confusion surrounding "unfunded mandates." After considering those things, we conclude that Article XI, section 15, does not apply to the statutes on paid sick leave.

B. Text and Context

The meaning of Article XI, section 15, is evident in its text and context. Subsection (1) provides that, when the state "requires any local government to establish a new program or provide an increased level of service for an existing program," the state must provide a local government "moneys sufficient to pay the ongoing, usual and reasonable costs of performing the mandated service or activity." Subsection (3) provides that, when the state fails to provide sufficient moneys, a "local government is not required to comply with any state law * * * that requires the expenditure of money by the local government for a new program or increased level of service for an existing program." Paragraph (3)(b) sets the financial threshold for noncompliance, which three plaintiffs meet.

Article XI, section 15, defines "program." As quoted before, subsection (2) defines a "program" as

"a program or project imposed by enactment of [the state] * * * under which a local government must provide administrative, financial, social, health or other specified services to persons, government agencies or to the public generally."

Because the definition of "program" uses the same word as a part of its definition, it leaves the word to be given meaning by the immediate context of related elements and by the larger context of other provisions or statutes. The immediate context describes what sort of a "program" is subject to Article XI, section 15. A "program" must have four elements (i.e. , "criteria" in the trial court's terminology). First, it must be a "program" imposed by an enactment of the state. Second, the program must be imposed on local government. Third, the enactment must be a new program provided by local government or a requirement of increased services for an existing program. And, fourth, the enactment must require local government to provide services to individuals, agencies, or the public at large.

We note that "[d]ictionary definitions lack context and often fail to capture the nuanced connotations conveyed by the normal use of a term in a particular context." State v. Gonzalez-Valenzuela , 358 Or. 451, 461, 365 P.3d 116 (2015). That is certainly true when taking the term "program" out of the context of a provision on state and local government relations. Nevertheless, one general definition of "program" is "a plan of procedure : a schedule or system under which action may be taken toward a desired goal." Webster's New Third Int'l Dictionary 1812 (1993). Such a generic definition is not wholly inappropriate; that definition is true of the "programs" by means of which local governments take action toward the goal of providing services.

The immediate context of "program" within Article XI, section 15, reinforces that understanding of the nature of the word. Subsection (1) refers to the "usual and reasonable costs of performing the mandated service or activity."

Paragraph (2)(c) defines "program" as something local governments do "to provide administrative, financial, social, health or other specified services * * *." And paragraph (2)(d) defines usual and reasonable costs using the term "service delivery ," which contemplates delivering services. Those terms suggest that a "program" involves actively doing something to perform, provide, or deliver services to others.

When the definition of "program" is seen in that context of Article XI, section 15, we can make preliminary observations about the meaning and purpose of the measure. Article XI, section 15, is written with specific reference to the protection of "local governments," not all employers. Its bane is a state law that imposes on local governments unfunded "programs," not necessarily all laws that simply have a financial impact on everyone. As used in context here, "programs" are the means by which local governments actively provide services to individuals, agencies, or the public generally. That is, "programs" provide services to others . Therefore, "programs" would not appear to mean matters of internal administration or management within a local government itself.

From its text and context, we draw a different conclusion than plaintiffs about Article XI, section 15. By its own terms, Article XI, section 15, is not addressed to all ordinary laws of general application, such as ones involving employee relations in businesses at large. Rather, Article XI, section 15, addresses state enactments that require unfunded government programs to actively perform, provide, or deliver services to others. Because the measure exists to regulate the relations between state and local government by controlling unfunded public services, "program" in Article XI, section 15, is necessarily understood to mean a governmental program.

C. Preexisting Framework

We recognize that the measure's terms can also draw meaning from the context provided by, among other things, preexisting constitutional provisions and the statutory framework existing when the measure is adopted. Sagdal , 356 Or. at 642-43, 343 P.3d 226. Reference to "program" in other constitutional and statutory provisions provides helpful context, and, consistently, that context indicates that "program" is used in the sense of government programs.

The implication that "program" means government programs is strongest in a provision of Oregon statutes that is the financial heart of local governments. That is the Local Budget Law, ORS 294.305 to 294.565. Its use of the term "program" is likely the same as the issue in this case, because Article XI, section 15, and the Local Budget Law both concern finances in local government. Specifically, ORS 294.311(33) provides:

" 'Program' means a group of related activities aimed at accomplishing a major service or function for which the municipality is responsible ."

(Emphasis added.) In that definition, a "municipality" is a term that expressly includes any county, city, school district, public utility or public corporation. See ORS 294.311(26) (defining "municipal corporation"). In that context, a "service or function for which [local government] is responsible" necessarily means the traditional governmental programs for services such as police, fire suppression, road maintenance, public education, water, sewer, electricity, or even telecommunications. See, e.g., GTE Northwest Inc. v. PUC , 179 Or. App. 46, 39 P.3d 201, rev. den. , 334 Or. 492, 52 P.3d 1057 (2002) (county was authorized to provide telecommunication services to its residents and those outside its geographical borders); see generally Or. Const, Art. XI, § 2 (city home rule); Or. Const., Art. VI, § 10 (county home rule); ORS 203.035 (statutory county "home rule").

That meaning of "program," as a government program, is also reflected in another statute, although the context is state government. State agencies are required by ORS 291.373(2) to report to the legislature "any substantive change made in a program administered by the state agency." In relevant part, ORS 291.373(1)(b) provides that " 'Program' means an activity or a series of related activities that a state agency performs to fulfill its constitutional or statutory duties ." (Emphases added.) As in the Local Budget Law, a "program" means doing those activities which the agency exists to perform as a public agency. Again, "program" means government program.

The same meaning is apparent in miscellaneous provisions of the Oregon Constitution. For example, the legislature is required by Article XV, section 4b(3)(d), to appropriate moneys from the parks and natural resources fund, among other things, to "[s]upport local delivery of programs or projects, including watershed education activities, that protect or restore native fish or wildlife habitats or watersheds." (Emphasis added.) Similarly, Article XV, section 4c, requires agencies that receive money from the fund to submit a report to the legislature "that describes the measurable biennial and cumulative results of activities and programs financed by the fund." (Emphasis added.) Likewise, Article XV, section 4f(2), provides that the legislature may appropriate moneys from the State Lottery for services to military veterans including "[a]ssistance for veterans with reintegration, employment, education benefits and tuition, housing, physical and mental health care and addiction treatment programs ." (Emphasis added.) The constitution's use of the term "program," like Oregon statutes, refers to government programs that provide public services, whether those services are provided to individuals or to the public at large.

With that said, we have little difficulty in concluding that the text and context of Article XI, section 15, indicate that "program"

concerns what is traditionally understood as government programs, i.e. , the provision of public services to others. The paid sick leave law, on the other hand, when applied to local governments, concerns matters of internal administration or management. The counties and the trial court, however, have reached a contrary conclusion from the measure's enactment history. We turn to that history to explain why it does not dissuade us from concluding that the paid sick leave law does not fall within the ambit of Article XI, section 15.

D. Voters' Pamphlets

If, in 1996, the voters had intended Ballot Measure 30 to reach laws of general application that happen to impact local governments, such as internal matters of personnel management, that intent was not announced in the Voters' Pamphlet that voters considered. The "Explanatory Statement," drafted by legislative committee, said, "Measure 30 amends the Oregon Constitution to require state financing of state programs imposed on local governments after January 1, 1997." Official Voters' Pamphlet, General Election, Nov. 5, 1996, 23 (emphasis added). In the "Legislative Argument in Support," several legislators explained:

"Currently, the state government or a state agency may compel a local government to provide financial, social, health and other services to the public , but does not have to provide any money to the local government to pay the cost of those services.
"* * * * *
"Measure 30 eliminates the power of state government and state agencies to demand that local money be used to pay for state required programs ."

Voters' Pamphlet at 24 (statement of Sen. Bob Kintigh, House Speaker Bev Clarno, Rep. Ken Strobeck (emphases added)). The Speaker of the House of Representatives wrote:

"Have you ever wanted to tell state government to be accountable? To stop passing the buck to someone else?
"That's what Ballot Measure 30 is all about. It's an opportunity to tell state government that, if you're going to require local government to do a job , the state is going to have to pay the bill. It's that simple."
"* * * * *
"Ballot Measure 30 simply says that if the state says to counties and cities that they have to provide a service , the state has to foot the bill. If the state is not paying the price, the county or city can decline to provide the service ."

Id. at 25 (statement of Speaker Bev Clarno (emphases added)). Two statements referred more generally to "unfunded mandates" and to analogous legislation by Congress.

Id. at 26-27 (statement of Richard Allen, Dale White, Steve McClure; statement of Randall Franke). If the statements evidence anything, they express concern for state-mandated "programs" that require a local government "to do a job" or to provide "services to the public." As such, the statements indicate a concern about state laws that require unfunded government "programs" for "services" to others, not a concern about the financial impact of general laws on the management within organizations-whether they be public or private.

In 2000, the statements in the Voters' Pamphlet were similar. The "Explanatory Statement" said, " Section 15, Article XI of the Oregon Constitution, requires the state to pay for services that the state requires local governments to provide." Voters' Pamphlet at 8. The "Legislative Argument in Support" advised:

"Measure 84 preserves the voter-approved constitutional requirement for state government to pay for services that it requires local governments to provide.
"* * * This section of the Constitution states that, if state government requires a local government to provide new or additional services , then state government must also provide the additional funding to support those services . If the state does not provide the funds, the local government is not required to provide the service ."

Official Voters' Pamphlet, General Election, Nov. 7, 2000, 9 (statement of Sen. Lee Beyer, Rep. Richard Devlin, Rep. Kevin Mannix (emphases added)). Two proponents wrote, "An unfunded mandate occurs when the state requires the county to perform tasks and does not provide funding to pay for it." Id. at 12 (statement of Jack Walker and Ric Holt (emphasis added)). As before, such statements refer to requirements that local government provide "services" or "perform tasks" for others in the traditional sense of unfunded government programs. Those statements confirm our understanding that the concern behind Measures 30 and 84 was the unwanted delegation to local governments of unfunded programs that must serve individuals or the public at large.

E. Referral History

The history of the legislative referral that became Article XI, section 15, reflects, on one hand, a conceptual confusion about the meaning of "unfunded mandates" and, on the other hand, a significant choice between two proposed measures with differing language. When a House committee opened the first public hearing, the committee had before it both HJR 2, which became Measure 30, and House Joint Resolution 17 (HJR 17), which died in committee. Minutes, House Committee on General Government and Regulatory Reform (House Committee), Mar. 2, 1995, 1 (listing matters heard); Tape Recording, House Committee, HB 3370, Mar. 2, 1995, Tape 56, Side A at 376-387 (statement of committee counsel Anne Tweedt). HJR 2 contained the adopted language defining a "program" as a "program or project imposed by enactment of the [state] * * * under which a local government must provide * * * services to persons, government agencies or the pubic generally." HJR 17 inserted additional words that defined a program as "any program, procedure , project, or responsibility imposed by enactment" of the state. (Emphases added.)

Richard Townsend, on behalf of the Oregon League of Cities, presented responses to an "Unfunded Mandates Survey," in which responding cities identified their top five "unfunded mandates" on a form. Exhibit L, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 2, 1995 (accompanying statement of Richard Townsend). There is no indication that respondents were told what an "unfunded mandate" was, and it appears that they responded accordingly. Id . Among the broad range of responses were "unfunded mandates" such as the Americans with Disabilities Act (making improvements), id. at 2, 9; the Occupational Safety and Health Act (staffing needed; costs; too many rules), id. at 2, 6, 12, 13; comprehensive statewide planning (doing land use plans; lack of expertise; doing periodic reviews), id. at 4, 10, 14; firefighter safety and training, id . at 6; public employee collective bargaining (specifically, mandatory arbitration), id at 8, 13; public contracting statutes, id. ; health insurance for retired employees, id. ; water meter installation, id. at 9; and administration of building codes, id. at 12. See also Exhibit C, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 17, 1995 (League of Cities Memo listing, among other local services that might be affected by HB 3370, employee benefits, collective bargaining, local budget law, public contracting law, some ethics laws, land use programs, building code enforcement, and public safety).

Townsend testified that the word "mandate" had become a "buzz word," and that there were "many different kinds of mandates." Exhibit L, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 2, 1995, 1 (written testimony of Richard Townsend). He identified 11 categories or "definitions of mandates," including "personnel mandates," relating to hours and benefits, "ethical mandates," "promoting high moral standards in public service," and "service level mandates," requiring local services to meet minimum standards. Id . at 3. Townsend said that the joint resolutions before the committee address "only some of these types of mandates," involving "the funding of mandated programs and services ." Id. at 1 (emphases added). Townsend, a principal witness, recognized that HJR 2 addressed what he called "service level mandates," rather than "personnel mandates."

In response to two county commissioners who testified in support of the proposals, vice chair Lehman posited that everything the legislature does has some impact or cost to the counties or someone else. He asked:

"[A]re we going to get into a nit-picking situation here where every time we do something you disagree with, you are going to say that it's going to cost us 10 minutes a month to do this and that's an unfunded mandate and we're not going to do it. And how do we keep that perspective and that balance so we don't end up in a constant battle between state, and local, and probably federal governments as to what's an unfunded mandate and what is a reasonable requirement to pass on to another entity?"

Tape Recording, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 2, 1995, Tape 56, Side B at 122-134. The witness, Rocky McVay, from the Oregon Association of Counties, responded that the answer would require "communication, cooperation, and consideration." Id . at 134. After further testimony, Representative Strobeck posed the same question to Townsend, eliciting a similar response:

"[Rep. Strobeck]: What kind of assurance do we have that if something like this goes forward, that you're not going to come back and say, well, the state would like to have this occur therefore we are going to start calling this a mandate and request funding for it? How is that going to work?"
"[Townsend]: I would assume that two intelligent people could probably either figure out whether it is or isn't [a mandate]. Or. if it is a state law, I would assume it will receive enough scrutiny that there would probably be agreement. And if there isn't and the state says it's not a mandate, then it's probably not."

Tape Recording, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 2, 1995, Tape 57, Side B at 234-42.

On a different matter, a spokeswoman for Portland General Electric expressed concern that privately owned utilities might be subject to unfair competition if publicly owned utilities, in their offer of products or services, were freed from compliance with "unfunded mandates." She asked that the same consideration be given private businesses competing with public enterprises. Exhibit N, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 2, 1995 (statement of Denise McPhail). The potential for a mandate that affected competing private and public enterprises was not further explored nor critically examined. See Tape Recording, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 2, 1995, Tape 57, Side B at 348 to end (presentation of PGE representative Denise McPhail); Tape Recording, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 17, 1995, Tape 74, Side A at 8-38 (amendments made). Nevertheless, the concern for unfair competition was the genesis of subsection 15(8) of Article XI, which exempts private business from whatever enactment might free competing public businesses from an enactment requiring an unfunded service program. Tape Recording, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 17, 1995, Tape 74, Side A at 8-38.

In a later work session, committee counsel Tweedt pointed out that HJR 2 defined a "program" differently than HJR 17, which included the word "responsibility." As for HJR2, she suggested that "new programs" or increased service levels in programs was easy enough to define. Tape Recording, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 17, 1995, Tape 74, Side A at 8-38, 57-84 (advice of Anne Tweedt).

Later, Representative Lehman asked if the state banned herbicide throughout the state and the herbicide-alternative costs more money, would a city with a municipal golf course have the option to disregard the law. Tweedt responded that the question "comes down to the definition of program." That would be a question whether it is a new program or level of service. She advised the committee that a city could not disregard such a state requirement because that would not be a new program or increased level of service. Tape Recording, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 17, 1995, Tape 73, Side B at 117-138.

Ultimately, the House committee approved HJR 2 with its definition of "program" (the definition at issue), and the committee chose not to recommend HJR 17 with its added terms in the definition of "program" (i.e. , "any program, procedure , project, or responsibility imposed by enactment"). The House and Senate approved HJR 2. HJR 2 became Measure 30 that voters adopted in 1996.

From the referral history, we observe that the legislature avoided the abstract term "responsibility" and chose the concrete term, "program," a term that is well understood in the public sector. And, we note that, when explaining HJR 2 to the drafting committee, its counsel advised that a statewide herbicide ban affecting a city golf course would not be a law imposing an unfunded government "program" for services. In other words, such a law would only be a law of general applicability. In short, we reject plaintiffs' arguments that the enactment history of Article XI, section 15, indicates that the measure is a limitation on anything other than state enactments that impose on local governments unfunded government programs to perform, provide, or deliver services to others.

F. The Enterprise Provision

As noted, plaintiffs argue that, if Article XI, subsection 15(8), is necessary to protect private enterprises who compete with public enterprises in providing products and services, then Article XI, section 15, must be understood to address all laws of general application as well as to those particular laws directed toward local governments. We consider plaintiffs' inference to be too great a leap. Referral history shows that the enterprise provision at subsection 15(8) arose from a specific concern about unfair competition between privately owned and publicly owned enterprises, particularly utilities. The concern had little discussion and drew no critical examination of whether a state enactment or rule, with the criteria described in Article XI, section 15, would reach both a publicly owned enterprise and a privately owned enterprise.

In any case, matters involving competing enterprises like utilities involve unique or specialized relationships between the public and private sectors. See, e.g. , PacifiCorp v. City of Ashland , 88 Or. App. 15, 744 P.2d 257 (1987), modified on recons. , 89 Or. App. 366, 749 P.2d 1189, rev. den. , 305 Or. 594, 754 P.2d 579 (1988) (involving conflict between the service areas of public and private utilities); Columbia River People's Utility Dist. v. Portland General Electric , 40 F.Supp.2d 1152 (D. Or. 1999) (background of dispute included Public Utility Commission grant of exclusivity). As such, competing public and private enterprises like utilities are a unique subset of a much larger and varied world of business. To imagine that drafters and voters envisioned Measure 30 to involve laws directed at all businesses or the public at large is neither supported by any comments in the referral history nor the voters' pamphlets. Plaintiffs' inference, drawn from subsection 15(8), is contrary to other indications of the measure's meaning and is not reasonable. The reasonable inference is that the legislature acted in a precautionary way to safeguard competing private enterprises from unfair competition from public enterprises, if any. That, and nothing more, explains subsection 15(8).

G. Confusion About "Unfunded Mandates"

From the referral history of Article XI, section 15, we recognize the conceptual confusion in the statements and exhibits from legislative witnesses who spoke in broad terms of "unfunded mandates" as things that ranged from any requirements of law, even in an entity's own conduct (e.g. , labor arbitration, ethics standards, or public contracting statutes) to programs for services to the public (e.g. , water meter installation). Such witness statements, with little engagement with the particular words employed, are the least helpful indications of the meaning of a measure's terms. See Sagdal , 356 Or. at 642-43, 343 P.3d 226 ("[W]e are cautious in relying on statements of advocates, such as those found in the voters' pamphlet, because of the partisan character of such material.").

The same conceptual confusion is evident in the hedged opinion of the attorney general, on which plaintiffs and the trial court relied. See 49 Op. Atty. Gen. 152 (1999) (opining that, "although the issue is not without doubt," proposed legislation for an increase in PERS benefits could implicate the unfunded programs measure). The same confusion is evident in several ways. The opinion failed to fully appreciate the two differing measures then before the 1995 house committee at the time the witnesses testified; the opinion relied on advocates speaking loosely of "unfunded mandates" without a common understanding of the meaning of the term; the opinion did not appreciate the more limited language adopted by the legislature and voters; the opinion did not examine text in its immediate context; and the opinion did not relate the term "program" to the preexisting statutory framework. At oral argument in this case, the Department of Justice, representing the defendants, expressly disavowed that prior opinion, although it acknowledged that the opinion has not been withdrawn. Ultimately, however, the opinions of the attorney general do not bind the court, especially when the present attorney general expresses views contrary to those of her predecessor. See Alexander v. Gladden , 205 Or. 375, 383-84, 288 P.2d 219 (1955) (so stating); Felkins v. Department of Revenue , 5 Or. Tax 475, 478 (1974) (state's answering brief effectively "overruled" the prior published opinion of the attorney general).

Conceptual confusion about "unfunded mandates" continues on, appearing in this litigation in the parties' arguments about the meaning of terms. That confusion is most evident when plaintiffs contend that Article XI, section 15, addresses any law of general application to all Oregon entities, public and private alike, even if the enactment does not require that government programs furnishing services to individuals or the public. That confusion is no longer warranted.

III. CONCLUSION

We conclude that Article XI, section 15, concerns state enactments that require unfunded government programs to perform, provide, or deliver services to individuals, agencies, or the public at large. The paid sick leave law, ORS 653.601 to ORS 653.661, is not a "program" for government services to others within the meaning of the unfunded programs measure. Consequently, the trial court erred in granting plaintiffs' motion for summary judgment and entering a judgment with the declaratory rulings requested by plaintiffs. That judgment is reversed and remanded.

Reversed and remanded.

      Because defendants did not assign error to the denial of their cross-motion for summary judgment, which is essentially the converse of plaintiff's motion, our decision speaks in terms of the ruling on plaintiffs' motion, leaving appropriate proceedings to the trial court on remand.

      The nine counties were Linn, Douglas, Jefferson, Malheur, Morrow, Polk, Sherman, Wallowa, and Yamhill counties.

      Pursuant to ORS 28.020,
      "[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."
      Pursuant to ORS 28.080, the court may grant further relief whenever necessary and proper.

      In relevant part, ORS 653.601(2) provides:
      "(a) Employer' means any person that employs one or more employees working anywhere in this state, a political subdivision of the state and any county, city, district, authority, public corporation or entity, and any instrumentality of a county, city, district, authority, public corporation or entity, organized and existing under law or charter.
      "* * * * *
      "(c) 'Employer' does not include the federal government."

      In March 1995, Congress had enacted the Unfunded Mandates Reform Act. Pub. L. 104-4, 109 Stat. 48 (1995), codified as 2 USC §§ 1501 -1571. Among other things, it declared its purposes included
      "to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State, local, and tribal governments without adequate Federal funding, in a manner that may displace other essential State, local, and tribal governmental priorities[.]"
      2 USC § 1501(2). With some specific exclusions, the law defined a "Federal mandate" as
      "any provision in statute or regulation or any Federal court ruling that imposes an enforceable duty upon State, local or tribal governments including a condition of Federal assistance or a duty arising from participation in a voluntary Federal program."
      2 USC § 1555 (emphasis added); see 2 USC § 1503 (exclusions). Those terms of the federal law were not published or discussed in either of the Voters' Pamphlets in 1996 and 2000.

      One opponent expressed concern that
      "Ballot Measure 30 contains a host of clauses, conditions and exemptions having to do with state mandates. It leaves open the opportunity for court fights, interpretations, and long debates over the meaning of mandate[s]. It complicates state law and the interaction between the state and other jurisdictions."
      Voters' Pamphlet at 28 (statement of Ken Allen).

      One opponent of Measure 84 came closer to referring to employment circumstances. He wrote:
      "Important issues are at stake, from clean air or water standards, to minimum standards for road or building construction, to safety and health for workers on the job . Major efforts to protect the quality of life and business climate in Oregon should not be undermined.
      "Measure 84 makes it difficult to set new policy in this state and require all government jurisdictions within the state to enforce these new policies."
      Official Voters' Pamphlet, General Election, Nov. 7, 2000, 13 (statement of Sen. Tony Corcoran (emphases added)). The statement, however, does not focus narrowly on the health and safety standards of employees of local governments themselves. Rather, the statement appears to be directed at preservation of road, building, safety, and health policies that local governments are required "to enforce" among the larger public.

      In addition, the committee had before it House Bill (HB) 3370, which was proposed as a statutory enactment of the provisions of HJR 2. See Minutes, House Committee, Mar. 2, 1995, 1 (listing matters heard). It would have been effective without the vote of the people at the general election. Its essential terms were substituted into House Bill (HB) 3222. The legislature approved HB 3222, but the governor vetoed the bill. 1995 House Journal, H-201 (proceedings on HB 3222), HLS-2 (table of vetoed house bills).

      Denise McPhail, the PGE spokeswoman, warned that "without some modification this could be some unintended consequences. It is not just utilities, you have municipal golf courses, you have private and publicly funded ambulance companies, landfills, hospitals * * *." Tape Recording, House Committee, HB 3370, HJR 2, & HJR 17, Mar. 2, 1995, Tape 57, Side B, at 8-38 (statement of Denise McPhail).

      Tape Recording, House Committee, Apr 20, 1995, Tape 104, Side A at 153 (as to HJR 2, recommending "do pass"); 1995 House Journal H-258 (HJR 2), H-261 (HJR 17).

      1995 House Journal H-258 (HJR 2), HLS-2 (HJR 2, measures referred to the people); 1995 Senate Journal H258-59 (HJR 2).

      Oregon Laws 1997, ix (Vote on Statewide Measures, Nov. 5, 1996, Measure 30 [HJR 2] ).

      In the federal debate, which preceded HJR 2 and Measure 30, the concept of "unfunded mandates" grew out of the "Contract with America," urged by Representatives Newt Gingrich and Dick Armey. Julie Roin, Reconceptualizing Unfunded Mandates and Other Regulations , 93 N.W. U. L. Rev. 351 n. 7 (1999) (discussing the Unfunded Mandates Reform Act of 1995, Pub. L. No. 104-4, 109 Stat. 48 ); see also Daniel H. Cole, Rhetoric, Reality, and the Law of Unfunded Federal Mandates , 8 Stan. L. & Pol'y Rev. 103 (1997) (examining the financial reality of federal mandates).

      The attorney general's opinion observed that "[n]othing in the 1995 Voters' Pamphlet indicates whether the measure was intended to apply to local governments' personnel obligations * * *." 49 Op. Atty. Gen. at 154. And, the opinion allowed that
      "the voters may have intended the word 'service' to include only those functions performed in a local government's capacity as a governmental entity, and not those performed in its capacity as an employer."
      Id . But, the opinion added, "Nothing in this definition expressly limits 'program' services to activities performed in a governmental capacity." 49 Op. Atty. Gen. at 154-55.


source: Caselaw Access Project

author: ORTEGA, P. J.

license: Public Domain

text:
    Irene BERG, Personal Representative, ON BEHALF OF the ESTATE OF Deborah Lee HIGBEE, aka Deborah Lee Benton, Plaintiff-Respondent, v. Lynn Edward BENTON, Defendant-Appellant.
    A165572
    Court of Appeals of Oregon.
    Argued and submitted October 4, 2018. May 1, 2019
    Jessie Y. Minger, Portland, argued the cause for appellant. On the opening brief were Jan K. Kitchel, Casey M. Nokes, and Cable Huston, LLP. On the reply brief were Jan K. Kitchel and Cable Huston, LLP.
    J. William Savage, Portland, argued the cause for respondent. On the brief was also J. William Savage, P.C.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   ORTEGA, P. J.

Defendant appeals a judgment awarding money damages to plaintiff, the personal representative of the Deborah Higbee estate, in a wrongful death action. Defendant was accused of participating in Higbee's murder and, after a jury trial, he was convicted of two counts of aggravated murder, one count of attempted murder, and two counts of conspiracy to commit murder. During the wrongful death proceeding, plaintiff filed a motion for partial summary judgment asserting that liability and causation were established in defendant's criminal case and, therefore, issue preclusion barred defendant from relitigating those same issues in this civil case. Defendant argued that he intended to appeal his criminal convictions and filed a motion to postpone the court's ruling on plaintiff's motion until after his criminal appeal was resolved. However, the trial court granted plaintiff's motion for partial summary judgment, resulting in a denial of defendant's motion for postponement and, on appeal, defendant assigns error to both rulings. Because we conclude that defendant did not establish a basis for avoiding summary judgment based on whether he had a full and fair opportunity to be heard on the issue sought to be precluded, and likewise did not establish that the trial court acted outside the range of allowable discretion in denying the motion to postpone, we affirm.

Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to prevail as a matter of law. ORCP 47 C. To determine whether a genuine issue of material fact exists in this case, we review the summary judgment record in the light most favorable to defendant-the nonmoving party-and draw all reasonable inferences in defendant's favor. Jones v. General Motors Corp. , 325 Or. 404, 408, 939 P.2d 608 (1997). We state the facts consistently with that standard.

Higbee was defendant's wife at the time of her murder. Defendant was accused of soliciting and paying others to kill Higbee, and the state charged him with several counts of aggravated murder, attempted murder, and conspiracy to commit murder. Defendant was taken into custody and was awaiting trial when plaintiff-Higbee's mother and personal representative of her estate-filed a wrongful death action requesting noneconomic damages for the loss caused by defendant's actions. Because defendant's criminal trial had not yet occurred, the court placed the wrongful death case in abatement.

During that criminal trial, the state had to prove, beyond a reasonable doubt, that defendant was criminally liable for Higbee's death, which required the state to prove that defendant's actions caused Higbee's death. After a lengthy trial, the jury returned a unanimous guilty verdict on two counts of aggravated murder, one count of attempted murder, and two counts of conspiracy to commit murder; defendant was sentenced to life in prison without the possibility of parole. Defendant filed a notice of appeal, but plaintiff's wrongful death case was removed from abatement.

Plaintiff filed a motion for partial summary judgment on liability and causation. Specifically, plaintiff asserted that, because "there are no remaining issues regarding the liability of defendant for the death of plaintiff's decedent, and that defendant caused the death of plaintiff's decedent, partial summary judgment in favor of plaintiff of the issue of liability should be granted." Defendant responded that the trial court "should either deny the motion for partial summary judgment, or postpone a ruling on it until defendant's criminal appeal is over" because it "would be unfair and illegal to grant summary judgment based solely on the criminal conviction when a criminal appeal is pending." As a result, defendant contended that the judgment in his criminal case could not be given preclusive effect in the civil case while his appeal is still pending and later filed a motion to postpone the court's ruling on plaintiff's summary judgment motion.

The court ultimately granted plaintiff's motion for partial summary judgment and denied defendant's motion for a postponement, concluding that there was no "dispute that [a] criminal judgment of this nature could be the basis for issue preclusion on liability and causation" based on the circumstances of this case and that "Oregon law provides that a judgment that is on appeal is still preclusive."

On appeal, defendant assigns error to the trial court's grant of partial summary judgment in favor of plaintiff on the basis of issue preclusion. He also assigns error to the denial of his motion for postponement, asserting that entering judgment in this case impacted his criminal appeal.

In arguing that the court erred in granting partial summary judgment, defendant asserts that judgment in his criminal case should not be given preclusive effect. Specifically, defendant contends that, while his appeal is still pending, he has yet to have a full and fair opportunity to defend his conviction because all of his options to challenge his conviction have not been exhausted. Furthermore, defendant argues that "because of the risk of asserting * * * arguments prematurely, with the criminal appeal not yet briefed, it is unfair to impose issue preclusion on defendant, when he cannot even appeal that effectively." Therefore, he contends that the trial court's grant of partial summary judgment was improper. In response, plaintiff asserts that issue preclusion applied and that defendant cannot relitigate liability and causation given that the state proved its case beyond a reasonable doubt and the jury returned a unanimous verdict.

We review whether the trial court erred in applying issue preclusion for errors of law. City of Portland v. Huffman , 264 Or. App. 312, 315, 331 P.3d 1105 (2014). Under the doctrine of issue preclusion, "[i]f one tribunal has decided an issue, the decision on that issue may preclude relitigation of the issue in another proceeding if five requirements are met: (1) '[t]he issue in the two proceedings is identical'; (2) '[t]he issue was actually litigated and was essential to a final decision on the merits in the prior proceeding'; (3) '[t]he party sought to be precluded has had a full and fair opportunity to be heard on that issue'; (4) '[t]he party sought to be precluded was a party or was in privity with a party to the prior proceeding'; and (5) '[t]he prior proceeding was the type of proceeding to which this court will give preclusive effect.' " Nelson v. Emerald People's Utility Dist. , 318 Or. 99, 104, 862 P.2d 1293 (1993).

The party asserting issue preclusion bears the burden of placing into evidence the prior judgment and sufficient portions of the record for the court to conclude " 'with the requisite degree of certainty' " that " 'an identical issue was actually decided in [the] previous action.' " Barackman v. Anderson , 214 Or. App. 660, 667, 167 P.3d 994 (2007), rev. den. , 344 Or. 401, 182 P.3d 200 (2008) (quoting State Farm v. Century Home , 275 Or. 97, 104-05, 550 P.2d 1185 (1976) ). The burden then shifts to the opposing party to "bring to the court's attention circumstances indicating the absence of a full and fair opportunity to contest the issue in the first action or other considerations which would make the application of preclusion unfair." Id.

Here, defendant does not dispute that liability and causation were established in his criminal case-i.e. , the issue in his criminal case is "identical" to the issue in this wrongful death action. Nelson , 318 Or. at 104, 862 P.2d 1293. Instead, defendant only disputes that, while his appeal is pending, under our current case law, he has not yet had a fair and full opportunity to be heard on the issues of liability and causation. However, contrary to defendant's assertions, in Oregon "[t]he pendency of an appeal does [not] * * * prevent a judgment from operating as res judicata or collateral estoppel"-i.e. , issue preclusion. Ron Tonkin Gran Turismo v. Wakehouse Motors , 46 Or. App. 199, 207, 611 P.2d 658, rev. den. , 289 Or. 373 (1980); see Nelson , 318 Or. at 103, 862 P.2d 1293 (abandoning "the use of the terms 'res judicata ' and 'collateral estoppel ' in favor of, respectively, 'claim preclusion' and 'issue preclusion' " (emphases in original)). Defendant's broad assertions about the potential assignments of error in his criminal appeal and the tactical disadvantages he would face from having to disclose his appellate strategy prematurely fail to establish the necessary special circumstances in this case-that, under the particular circumstances at issue here, giving the determination of liability and causation in his criminal case preclusive effect while the criminal appeal is pending deprives him of a fair and full opportunity to be heard on those issues. Because the court did not err in applying the doctrine of issue preclusion and no genuine issue of material fact existed as to liability and causation, the court correctly granted summary judgment.

We next turn to defendant's other assignment of error. In arguing that the court erred in denying his motion for postponement, defendant contends that the trial court abused its discretion because failure to postpone ruling on plaintiff's summary judgment motion resulted in him raising premature arguments about his criminal appeal that could affect the outcome of that appeal. However, given our conclusion that the court did not err in finding that issue preclusion barred defendant from relitigating liability and causation, we conclude that the court's decision to deny defendant's motion was " 'within the range of legally correct discretionally choices and produced a permissible, legal correct outcome.' " State v. Romero , 236 Or. App. 640, 643, 237 P.3d 894 (2010) ; see id. (stating abuse of discretion standard of review). Therefore, the trial court correctly granted partial summary judgment in plaintiff's motion and denied defendant's motion to postpone ruling on that motion.

Affirmed.


author: SHORR, J.

text:
    In the MATTER OF the ESTATE OF Robert S. CASEBEER, Deceased.
    Carol Ann Casebeer, Appellant, v. Kathleen B. Krocker, Personal Representative, Respondent.
    A166359
    Court of Appeals of Oregon.
    Argued and submitted November 16, 2018. April 24, 2019
    Laurie R. Hager, Portland, argued the cause for appellant. Also on the briefs were William G. Fig and Sussman Shank LLP.
    George W. Kelly, Eugene, argued the cause and filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

This case involves a dispute over the rightful ownership of a property in Springfield, Oregon (the property), between Kathleen Krocker, as personal representative for the estate of Robert Casebeer (husband), and Carol Ann Casebeer, decedent's former wife (wife). Pursuant to the couple's stipulated judgment of dissolution of marriage, husband had sole possession of the property in the 15 years between the dissolution of the marriage and his death. Upon husband's death, wife took possession of the property and claimed ownership thereof based on a quitclaim deed that purported to give her a right of survivorship. The personal representative sought a declaration from the trial court that husband had sole title to the property at the time of his death and that the estate was therefore the rightful owner. The estate argued that the quitclaim deed was merely additional security on a promissory note required by the dissolution judgment, under which husband had agreed to pay wife a $ 40,000 equalizing payment for her share of the couple's equity in the property. The estate presented uncontested evidence that husband had satisfied the note before his death, which, the estate argued, cancelled the quitclaim deed by operation of law.

The trial court entered a judgment declaring that (1) husband had sole title to the property at the time of his death, (2) the property was an asset of husband's estate, and (3) wife had no legal interest in the property. Wife appeals and assigns error to those rulings. We conclude that the trial court did not err in declaring the parties' respective interests. The dissolution judgment required that husband provide the quitclaim deed as security for husband's promissory note to wife and, once the note was satisfied, wife's survivorship interest in the property was extinguished. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

We begin with a summary of the relevant facts, which are undisputed. Husband and wife divorced in 2001. At the time of their divorce, the couple owned the Springfield property. The terms of the divorce, including the distribution of marital property between the parties, were established by a stipulated dissolution judgment. The dissolution judgment, which was entered in June 2001, described the interrelated interests that both husband and wife-respondent and petitioner, respectively, in the language of the judgment-had in the Springfield property:

"Respondent is awarded as his sole and separate property the [Springfield property], free and clear of any claim on the part of Petitioner. * * *
"Respondent is in the process of refinancing said real estate. After the completion of the refinance, and in order to equalize the distribution of assets between the parties, Respondent shall execute a note and trust deed in Petitioner's favor in the sum of $ 40,000. * * * In addition, and after the recording of the trust deed, Respondent shall execute a Quitclaim Deed in favor of Petitioner and Respondent, said real property to be held not as tenants in common, but with right of survivorship."

The dissolution judgment then provided:

"The Petitioner shall be paid her $ 40,000 of equity in the marital home when the home is sold or refinanced, whichever may occur first. If the home is not sold or refinanced and the Petitioner outlives the Respondent, then she shall become sole owner of said property by right of survivorship. If the Respondent outlives the Petitioner then the Petitioner's interest in the real property shall extinguish."

Earlier that month, wife had conveyed the Springfield property to husband via a bargain and sale deed. The following month, July 2001, the parties signed the $ 40,000 promissory note and recorded the trust deed and the quitclaim deed. All three deeds-the bargain and sale deed, the trust deed, and the quitclaim deed-include language indicating that they were executed "pursuant to [the] stipulated judgment of dissolution of marriage."

In December 2003, husband paid wife the $ 40,000 equalizing payment owed under the promissory note. At husband's request, wife then reconveyed to husband her interest in the trust deed. Husband did not request that wife reconvey the quitclaim deed and made no attempt to otherwise cancel or terminate the quitclaim deed. Similarly, wife did not offer to reconvey or waive her interest in the quitclaim deed or take steps to do so.

In April 2016, husband died, and wife took possession of the property based on the right of survivorship provided by the quitclaim deed. Husband's estate disputed her ownership and, in a petition for determination of ownership, sought from the trial court the declarations that are the bases for this appeal. In support of its petition, husband's estate argued that both the trust deed and the quitclaim deed required by the dissolution judgment were intended solely to be security for the $ 40,000 promissory note that husband provided to wife as part of the stipulated dissolution of their marriage. In short, husband's estate argued that the quitclaim deed was akin to a mortgage rather than a conveyance of a permanent interest in the property and that the deed expired by operation of law at the moment that the promissory note was satisfied. Wife argued in response that the quitclaim deed was a valid conveyance deed of the property itself that gave her a right of survivorship in the property regardless of whether husband had paid her the $ 40,000 so long as husband predeceased her.

The trial court agreed with the estate's understanding of the dissolution judgment and its effect on the quitclaim deed. With respect to the purpose of the quitclaim deed, the court made the following finding:

"The property was awarded to husband [by the dissolution judgment]. Husband was required to pay $ 40,000 to wife, and, as security, he was to provide wife the promissory note, the trust deed, and also the quitclaim deed. [The quitclaim deed] was added security, it was not intended as an ownership interest, and it was only to be utilized, and end up an ownership interest, if certain criteria were met. One, that husband did not pay the $ 40,000, and two that husband predeceased his former wife."

Having determined that the quitclaim deed was intended only as security for the $ 40,000 promissory note and that husband had satisfied the note before his death, the court declared that wife "has no interest in the real property at issue," and, by contrast, that decedent "had sole title to the real property at issue at the time of his death." The court then declared that "the real property at issue is an asset of [husband's] estate."

II. ANALYSIS

The dispute between the estate and wife reduces to whether the stipulated judgment requires the quitclaim deed as, essentially, an additional trust deed or mortgage securing the $ 40,000 promissory note or a true conveyance deed granting wife a right of survivorship in the property conditioned only on husband predeceasing wife. The construction of a dissolution judgment "ultimately presents an issue for the court." Neal and Neal , 181 Or. App. 361, 365, 45 P.3d 1011 (2002). We "examine the text of the provision in the context of the dissolution judgment as a whole" to determine whether the trial court properly construed the disputed provisions. Id . at 366, 45 P.3d 1011.

A. Quitclaim deeds may be construed as security for a promissory note.

Before construing the dissolution judgment itself, we note that, under certain circumstances, a quitclaim deed that, on its face, appears to convey title to property can operate instead as a trust deed or mortgage-that is, as security on a promissory note or another form of debt. Unlike a conveyance, a trust deed, which is analogous to a mortgage, "conveys no legal or equitable interest in fee or in life * * * but merely creates a lien which constitutes security for [a] debt." West v. White , 92 Or. App. 401, 404, 758 P.2d 424 (1988). The general presumption is that "a deed absolute on its face is 'what it purports to be unless and until proved otherwise by clear and convincing evidence.' " Swenson v. Mills , 198 Or. App. 236, 241-42, 108 P.3d 77 (2005) (quoting Fry v. D.H. Overmyer Co., Inc. , 269 Or. 281, 292, 525 P.2d 140 (1974) ). If "it appears that the parties' intent was to convey and receive the property as security for the fulfillment of an obligation, then the form of the instrument becomes immaterial and the true nature of the transaction may be shown by parol evidence." Id. at 242, 108 P.3d 77 (citing Umpqua Forest Ind. v. Neenah-Ore. Land Co. , 188 Or. 605, 614, 217 P.2d 219 (1950) ). There is " 'no conclusive test of universal application to determine whether a deed, absolute on its face, is a mortgage.' " French v. Boese , 50 Or. App. 369, 375, 623 P.2d 1070 (1981) (quoting Blue River Sawmills v. Gates , 225 Or. 439, 461, 358 P.2d 239 (1960) ). Rather, it is "determined based on a consideration of the whole transaction, by the 'mutual intention of the parties at the time the transaction was consummated.' " Swenson , 198 Or. App. at 242, 108 P.3d 77 (quoting Blue River Sawmills , 225 Or. at 446, 358 P.2d 239 ).

B. Husband and wife intended the quitclaim deed to secure the promissory note.

Turning to this case, we agree with the trial court's conclusion that husband and wife intended for the quitclaim deed to serve as additional security on the $ 40,000 promissory note rather than as a true conveyance deed. In other words, the parties did not intend for wife to have an unconditional right of survivorship in the property in the event that husband predeceased wife even after satisfying the note. Although the quitclaim deed does not contain language expressly providing that wife's right of survivorship exists only up until the point that husband satisfies the promissory note, that intention is nonetheless clear from the conditional language that the parties used when describing that right in the dissolution judgment.

As noted, the dissolution judgment provides that the right of survivorship under the quitclaim deed operates as follows:

"If the home is not sold or refinanced [as a means of paying wife her $ 40,000 of equity in the property] and [wife] outlives [husband], then [wife] shall become sole owner of said property by right of survivorship."

(Emphases added.) In effect, the dissolution judgment clearly provides that wife's right of survivorship results in a conveyance of the property to wife only under the limited and specific circumstance that husband predeceases wife without having repaid her the $ 40,000 equalizing payment required by the dissolution judgment. Based on the conditional nature of that language, the quitclaim deed-which is expressly intended to reflect the intentions of the parties established by the dissolution judgment-contemplates that wife's survivorship interest in the property would end automatically upon satisfaction of the promissory note. By contrast, husband's right of survivorship is unconditional-if wife predeceased him, the dissolution judgment indicates that the parties intended for his possession of the property to continue in perpetuity rather than transferring by right of survivorship to wife's estate upon husband's death.

We are convinced that the parties' overriding concern was that wife must receive her equalizing share of the couple's combined equity in the property. The preferred method by which to ensure that wife received her share was for husband to pay wife $ 40,000. Husband's obligation to pay that sum was reflected by the promissory note, and the trust deed unambiguously served as security on that note. But the quitclaim deed was additional security on that note, notwithstanding that the deed appears absolute on its face. By the plain terms of the dissolution judgment, the intended purpose of the quitclaim deed was to ensure that wife was not left emptyhanded in the event that husband predeceased wife without having satisfied the promissory note. The dissolution judgment evinces a mutual intention that wife should have a right of survivorship under only those specific circumstances. Indeed, if the parties had intended to condition wife's right of survivorship only on wife surviving husband, it is difficult to imagine why the parties would have used conditional language that makes wife's right of survivorship dependent on whether husband predeceased her without paying her the $ 40,000 equalizing payment for her share of the property.

In sum, the dissolution judgment evinces a clear intention that the right of survivorship under the quitclaim deed is not a conveyance but rather an additional layer of security on the $ 40,000 promissory note. The use of conditional "if-then" language in the dissolution judgment linking wife's right of survivorship to the specific circumstance of husband predeceasing wife without having satisfied the promissory note overrides the general presumption that the quitclaim deed is what it purports to be on its face. See Swenson , 198 Or. App. at 242, 108 P.3d 77.

C. Wife was obligated to reconvey the quitclaim deed upon satisfaction of the promissory note.

We turn to whether the trial court erred when it declared that husband and his estate had title to the property to the exclusion of any interest of wife. As explained, a trust deed, like the quitclaim deed here, is akin to a mortgage on the property rather than a conveyance. West , 92 Or. App. at 404, 758 P.2d 424. A mortgage "creates only a lien or encumbrance and does not abrogate the mortgagor's title to the property." Sam Paulsen Masonry v. Higley , 276 Or. 1071, 1075, 557 P.2d 676 (1976). Although a lienholder may have the opportunity to acquire title to the property to which the lien is connected if the underlying debt goes unpaid, the lienholder does not otherwise have title to the property. See Smith v. Mills , 207 Or. 546, 553, 296 P.2d 481 (1956) (rejecting the common-law approach wherein "a mortgagee held the fee to the real property subject to defeasance by the doing of some act, such as the payment of money in a prescribed time and manner"); West , 92 Or. App. at 404, 758 P.2d 424 ("[A mortgage] merely creates a lien which constitutes security for the debt.").

Under Oregon law, a mortgage or trust deed "is satisfied when the debt is discharged." Smith , 207 Or. at 553, 296 P.2d 481 ; accord. 55 Am. Jur. 2d Mortgages § 318 (2016) ("[P]ayment of secured debt extinguishes the lien of the mortgage or deed of trust by itself and instantaneously."). That is because a mortgagee or beneficiary of a trust deed in Oregon does not hold title to the secured property; when the underlying debt is paid in full, the mortgagee or beneficiary does not retain an extant right to title because the mortgage never abrogated the mortgagor's right to title in the first place. In fact, under ORS 86.720, the beneficiary of a trust deed is obligated to request that the trustee reconvey the deed to the grantor upon performance of the obligation secured by the deed.

In this case, wife argued to the trial court and on appeal that her survivorship interest in the property was not extinguished upon satisfaction of the promissory note because husband had failed to request a reconveyance of the quitclaim deed under ORS 86.720. Even assuming that ORS 86.720 applied here, wife misperceives the obligations imposed by that statute. In fact, the beneficiary of the trust deed-here, wife-is responsible for seeking reconveyance of the trust deed upon performance of the secured obligation. ORS 86.720(1). In short, the grantor is not obligated to request reconveyance under ORS 86.720.

The trial court's declarations correctly state the interests of the respective parties. The court declared the following:

"1. That [wife] has no interest in the real property at issue;
"2. That [husband] had sole title to the real property at issue at the time of his death; and
"3. That the real property at issue is an asset of [husband's] estate."

None of the trial court's declarations was in error. First, wife has no extant interest in the property, because she was merely a beneficiary of the promissory note secured by the trust deed and quitclaim deed. The quitclaim deed provided a right of survivorship as security on the note that expired when the note was paid. As discussed, the quitclaim deed functioned as a mortgage-not as an ownership in property-that was satisfied when the debt was paid.

Second, husband had sole title to the property at the time of his death. Under the bargain and sale deed from June 2001, wife conveyed the property to husband in its entirety, reserving no interest in the property for herself. Both the trust deed and quitclaim deed essentially operated only as a mortgage securing the promissory note for wife's equitable share in the property. Once husband had satisfied the note in 2003, wife reconveyed the trust deed to husband, and her sole remaining interest in title to the property-the conditional possibility of a right of survivorship-expired, leaving her with no interest in the property whatsoever upon husband's death in 2016.

Third, for those same reasons, the property passed to husband's estate upon his death. Husband had sole title to the property when he died, and wife's only potential interest had expired upon payment of the promissory note several years prior. As a matter of law, wife had no claim to title upon husband's death, because she conveyed the property to husband through the bargain and sale deed and lost her right of survivorship under the quitclaim deed upon payment of the promissory note.

Affirmed.

      For the sake of simplicity, we use the terms "husband" and "wife," although we acknowledge that the parties dissolved their marriage prior to the dispute that gave rise to this case.

      Wife also assigns error to the trial court's failure to dismiss the estate's action on statute of limitations grounds or based on the doctrine of laches. We reject those assignments without further written discussion.

      The dissolution judgment provided that husband "is in the process of refinancing [the property]" and that wife would be paid "when the home is sold or refinanced, whichever may occur first." It is not clear from the record if husband successfully refinanced the property. However, we understand the reference to the property being "sold or refinanced" to describe how husband was expected to acquire the $ 40,000 owed under the dissolution judgment and not an independent, affirmative obligation. Because husband in fact paid wife $ 40,000, it is not relevant to our resolution of this case whether husband refinanced the property.

      Clear and convincing evidence means evidence that establishes that "the truth of the asserted fact is highly probable." Hammond v. Hammond , 296 Or. App. 321, 328-29, 438 P.3d 408 (2019).

      In fact, if husband predeceased wife without having paid the $ 40,000 note, wife would get the added benefit of receiving the entire property automatically upon husband's death. Under the terms of the trust deed, if husband did not pay wife on the $ 40,000 note, wife would only have a right to seek foreclosure to satisfy the $ 40,000 obligation.

      ORS 86.720 provides, in relevant part:
      "(1) Within 30 days after performance of the obligation secured by the trust deed, the beneficiary shall deliver a written request to the trustee to reconvey the estate of real property described in the trust deed to the grantor. Within 30 days after the beneficiary delivers the written request to reconvey to the trustee, the trustee shall reconvey the estate of real property described in the trust deed to the grantor. In the event the obligation is performed and the beneficiary refuses to request reconveyance or the trustee refuses to reconvey the property, the beneficiary or trustee so refusing shall be liable as provided by ORS 86.140 in the case of refusal to execute a discharge or satisfaction of a mortgage on real property."