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BY
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IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR LANE COUNTY
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In the Matter of

A Declaration That No Deed Restriction nor

Dedication on That Piece of Property Known Case No. 17CV3 7767
as the Buttery Lot Would Prevent the
Construction of a City Hall, Farmers Market,
or Public Space on That Lot, Nor Would
Prevent Construction of a County Courthouse
on That Piece of Property Known as the
Former City Hall Lot.

OPINION LETTER

Page 1 of 7 OPINION LETTER (17CV37767)

2()l7. RICHARD L. BARRON
Senior Judge
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ol()riginul

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November 14, 2017
Correct

Mr. Stephen Dingle

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Office of Legal Counsel
125 East Eighth Avenue
Eugene, OR 97401

Mr. Ben Miller

Assistant City Attorney
125 East Eighth Ave., 2d Floor
Eugene, OR 9740137767

Mr. John Cox

Attorney at Law
940 Willamette St., Suite 400
Eugene, OR 97401

Re: Matter of Declaration That No Deed Restriction nor Dedication on That Piece
of Property Known as the Butterfly Lot, Lane County Case No. 17CV37767

Counsel:

This is the second time the issue involved in this case is before the court.
The first time was when Lane County (County) and the City of Eugene (City) filed a
petition in Lane County Case No. 16CV31275 on September 23, 2016 seeking a
declaration by the court that there was no deed restrictions relating to what is
known as the Butterfly Lot. The petition was based on ORS 33.710(2)(e)(A), which
allows a governing body to ask a court to validate a decision of the governing
body that presents a novel or important legal issue involving the significant
expenditure of public money. The court heard arguments in that case, but did not
reach the merits of the issue presentet issued a letter opinion on November 30,
2016 stating there was no decision made by a governing body involving
2()l7. important legal issues [relating to]* * * the expenditure of significant amounts of
public money as required under ORS 33.710(2)(e)(A). A judgment was entered on
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February 13, 2017 dismissing the case.

ol()riginul
The present case was initiated on September 5, 2017 when the County, City
and Urban Renewal Agency of the City(Agency) filed a petition seeking the same
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relief under ORS 33.710(2)(e)(A) as in the first case, namely, that there are no
deed restrictions on what is known as the Butterfly Lot. As in the first case, an
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lntervenor appeared.The lntervenor has filed two motions to dismisszone claiming

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there was no justiciable controversy beforethe court and one claiming there was
a failure to join a party.
The court will first discuss the latter motion, which was filed under ORCP
21A(7) and ORCP 29 The basis of the motion is that the County, City, and Agency
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did not receive proper notice of the proceeding. ORS 33.720(2) states that
jurisdiction over municipal corporations is gained by published notice to the
municipal corporations.lt is given by the governing bodies which have filed a
petition. ORS 33.720(2) also states that jurisdiction over the electors of a
municipal corporation is obtained by published notice to all electors,
freeholders, taxpayers and other interested parties.
The published notice was attached to Intervenors motion. It was directed
TO: All Electors, Freeholders, Taxpayers and Other Interested Parties of Lane
County Oregon. It was not directed to the three municipal corporations, but the
notice states:

Joint Petitioners Lane County, the City of Eugene, and the Urban Renewal
Agency of the City of Eugene have commenced the above described action in the
Lane County Circuit Court to determine the validity of action taken by the Board
of Commissioners of Lane County, acting in its role as the governing body of Lane
County, and the City of Eugene, as governing body ofthe City of Eugene and in its
role as the governing body of the Urban Renewal Agency of the City of Eugene* *
* 1

Intervenors argument is basically that the notices T0 line should have

included the three municipal corporations so they had notice as set forth in ORS
33.720(2). lntervenor citedEdwards v. Edwards, 310 Or 672 (1990) as authority
when the court mentioned that the municipal corporations had actual notice of
the publication since they were responsible for having the notice published. The

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Governing body" and Municipal corporation are defined separately in ORS 33.710(1)(a) and (b).

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2()l7. facts in Edwards are entirely different from the present case in that the
respondent was not also the petitioner in the Edwards case. This case is like, for
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example, Mr. Smith having a notice published in a newspaper inviting the friends
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of Mr. and Mrs. Smith to their 50th wedding anniversary celebration and then
having Mr. Smiths son claim that Mr. Smith did not get notice of the celebration
Copy because he was not specifically invited even though he was named in the body of
the notice and paid for the notices publication.The argument of Intervenor lacks
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merit. Further, counsel, on behalf of their respective municipal clients, waived any
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defect in the notice at the time of oral argument on the motions to dismiss. The
motion to dismiss for failure to join a party is denied.
The motion to dismiss based on the lack ofjusticiability is more involved. In
2003 the Oregon legislature passed HB 2581, which amended ORS 33.710. 2003
Oregon Laws, Chapter 549, section 1. One of the amendments added three
additional grounds under which governing bodies could ask a court to validate
some action of the public body including subsection (2)(e)(A). It also amended
ORS 33.710 by adding a new subsection (4) which reads as follows:

Nothing in this section allows a governing body to have a judicial

examination and judgment without a justiciable controversy.

Under State v. Gaines, 346 Or 160 (2009), the court is to look at the text
and context of the statute and can, but is not required to, examine the legislative
history even if there is no ambiguity in the statute. The weight given to the
legislative history is up to the court. The text of ORS 33.710(4) is very clear as to
its meaning. There is no ambiguity. A justiciable controversy must exist for a
governing body to have a judicial examination under ORS 33.710. Nothing in the
context adds or subtracts from that understanding. There is, however, legislative
history, including tapes of the hearings on HB 2581, that has been provided to the
court by the parties. The court has listened to the tapes and considered the
comments of the parties in relation to the legislative history. The court will
consider the legislative history because it provides help in understanding the
legislatures intent and motive in adding subsection (4) to H8 2581.
Intervenor points out that there is no opposition that has been filed to the
petition of the County, City and Agency. Intervenor has filed motions to dismiss
the case, but has not filed to oppose the relief requested by the three municipal
corporations. As Intervenor points out, if there is no justiciable controversy when
a case is initiated, intervention to contest the courts jurisdiction does not make a
2()l7. justiciable controversy. Constitutionality of the Oregon Mass Transit Financing
Authority, 284 Or 241 (1978).
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The petition does state that the then presiding judge of Lane County Circuit
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Court did write a letter ten years ago objecting to the use of the Butterfly Lot for
other than a Courthouse because of what she believed to be deed restrictions on
Copy the use of the Butterfly Lot. The petition also states that others have expressed
similar opinions. There was no testimony or other evidence presented at the
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hearing to prove the allegations. Do the allegations in the petition mean there is a
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justiciable controversy or does there have to be actual opposition?
The legislative history addresses this matter. HB 2581 had two hearings in
the House, April 2 and 15, 2003, and two in the Senate, May 12 and June 2, 2003.
Representative Ackerson, a chief sponsor of the bill, testified at those hearings
and answered questions asked by the committee members.Committee members
expressed concern over municipalities recruiting what they referred to as a straw
man appearing to demonstrate token opposition to the notice. Members also
expressed concern that those who did not get notice would be prevented from
contesting issues not raised in the petition at a later time. Justiciability and issue
preclusion were intertwined. As to issue preclusion, there was no intent behind
the bill to block challenges that were not part of the issues resolved under a
petition filed.
Representative Ackerman made it clear that the language in subsection (4)
reflected the law as it was at the time.2 It was not meant to change existing law,
which would, of course, mean existing case law. He also made it clear that there
had to be an opposing party appear, and if there was no opposing party, there
was no justiciable controversy. This is in accord with Oregon case law. In Brown v.
Oregon State Bar, 293 Or 446, 449 (1982), the court wrote that A controversy is
justiciable, as opposed to abstract, where there is an actual and substantial
controversy between parties having adverse legal interests.3Representative
Ackermanstated that the legislation was flawed because if no one appeared in

2
It is apparent that subsection (4) was added to overcome the concerns expressed by committee members. It did
not succeed totally because the committee did not unanimously vote the bill out of committee. In fact, at least one
committee member believed that municipalities had their own counsel and should proceed with matters by, in
effect, following counsels advice. This would also maintain the separation of powers by not putting the courts in
the middle of validating decisions made by the legislative and executive arms of municipal governments. Instead,
the courts would review a decision to proceed with a matter if a challenge was made in court.Subsection (4), then,
was clearly added to make sure there was an actual case with opposing parties so there was a Justiciable issue.
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The court realizes Brown was decided at a time when the Supreme Court considered justicrability as
constitutionally based, but the concept of having parties with adverse legal interests is not affected by the courts
change in thinking that justiciability is not constitutionally based.

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2()l7. opposition to the petition, there was no justiciable controversy and the court
could make no decision. Of course, what Representative Ackerman refers to as a
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flaw merely reflects what Oregon law requires.

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Representative Ackerman also stated he believed that in prior cases coming
before the courts, some fraud on those courts had occurred and there was no real
Copy controversy before the court.The court would point out that in the all cases it
cited on page 8 of its letter opinion in 16CV31275, an opposing party did appear
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and contest the merits of the petition, and those parties appeared to have raised
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legitimate issues, rather than the token opposition of a straw man.Each of those
cases was initiated under ORS 33.710 and 33.720 and one, Brown v. City of
Eugene, 250 Or App 132 (2012), was decided after the passage of HB 2581. In light
of the legislative history and the prior cases, the courts discussion would
normally come to an end, but the County, City, and Agency argue that Couey v.
Atkins, 357 Or 460 (2015), a case cited by the court in its letter opinion in
16CV31275, changed the law relating to justiciable controversies involving issues
of public importance.
This court was concerned in 16CV31275 about issuing an advisory opinion
and cited Gortmaker v. Seaton, 252 Or 440 (1968), as an example of what the
Supreme Court termed a friendly litigation for the purposes of obtaining an
advisory opinion in a declaratory action case. This court, after mentioning
Gortmaker, then briefly discussed Couey, which had before it the question of
whether the legislature could enact a statute, ORS 14.175, giving the courts
authority to decide cases involving issues of public importance even though such
cases were moot, which is part of the whole discussion relating to whether there
is a case or controversy. The Supreme Court held that the enactment was a valid
exercise of legislative authority because justiciability was not constitutionally
based. The Court did note that there were limits on the legislatures authority to
enact laws granting courts jurisdiction to hear cases that were moot or lacked a
justiciable controversy, but that ORS 14.175 did not surpass such limits.
In the present case, there is no statute granting the court authority to hear
a case that does not meet the traditional definition of a case or controversy. The
statute, ORS 33.710, specifically requires that there be a justiciable controversy. If
the legislature has the authority to enact a statute granting the courts some
authority to hear cases that would normally be considered lacking a justiciable
controversy, it clearly has the authority to enact a statute requiring that a case
present a justiciable controversy.Couey did not change the law in all cases
involving issues of public importance and cannot be said to have impliedly
Zill7 overruled 33.710(4). In fact, Couey states courts still may decline to hear such
ORS
cases as a prudential matter. 357 Or at 520. See also Eastern Oregon Mining
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Association v. Department of Environmental Quality, 360 Or 10, 15 (2016). In this

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case, then, whether there is no justiciable controversy or the court in exercising
its discretion declines to reach the merits of the case, the result is the same. The
Cop} motion to dismiss the petition because there is no justiciable controversy is
granted.4
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Since it does not appear that there is any way in which the petition can be
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amended, Mr. Cox is to prepare an order and judgment dismissing this case.

Sincerely,

manage
Richard L. Barron
Senior Judge

4
In answer to the courts question about why the three municipalities did not file for a declaratory Judgment
against the heirs ofthose who deeded the Butterfly Lot, counsel indicated that it was considered, but they decided
not to do so because anyjudgment rendered by the court would have been limited to the named parties only.
This, of course, is true, but there would be a justiciable controversy dealing with the merits of whether the deed
contained restrictions on what could be built on the property. The court is not suggesting any particular way in
which the municipalities should proceed. It is up to them. The court understands the trepidation the three
municipalities have about proceeding with a project involving millions of dollars and not knowing if legal challenges
will be filed, but to get a decision on the merits of deed restrictions, there has to be a justiciable controversy.