Appeal from the United States District Court for the District of Oregon. D.C. No. CV-92-1302-HJF. Helen J. Frye, District Judge, Presiding. This Opinion Substituted by the court for Withdrawn Opinion of January 19,.
Before: Betty B. Fletcher, Dorothy W. Nelson, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Rymer.
We must decide whether the City of Portland's ordinance requiring non-residents to consent to annexation as a condition of receiving a subsidy, or reduction in hook-up costs, for mandated sewer connections, violates their federal constitutional rights to free speech or equal protection.
Michelle and James Hussey along with several of their neighbors*fn1 are homeowners residing in an area of East Multnomah County outside the City of Portland called "Mid-County" who are required to connect to the City sewer system. When Portland decided to offer connection at a reduced charge to those who signed irrevocable consents to annexation, Hussey sued for declaratory and injunctive relief under 42 U.S.C. §§ 1983 and 1988. On cross-motions for summary judgment, the City prevailed. Hussey appeals, arguing that since consent of a majority of electors (registered voters), as well as homeowners, is required for annexation under Oregon law, the City has infringed the electors' rights to political speech, and that by imposing financial distress upon those who refuse to consent, the City has violated their rights to equal protection. We hold that Portland's offer of a subsidy to electors who consent to annexation impermissibly burdens Hussey's right to vote.*fn2 We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
In 1986, the State of Oregon's Environmental Quality Commission ordered the City of Portland to provide sewer services to residents of Mid-County, who must connect to the sewers. The Commission forbade the City from requiring annexation as a condition of using its sewer systems.
Some of the Mid-County area is within the City; some is not. Historically, Portland has charged the actual costs of installing sewers against the properties benefitted. In this case, however, it adopted a program to minimize financial distress faced by City residents, funded by sewer customers within the City, and decided to extend the same program to owners of single family residential property outside the City limits but inside the Portland Urban Services Boundary if they consented to annexation. Hussey is in this group.
City Ordinance 165188, implementing the program, was enacted March 11, 1992. It provides a sewer connection subsidy to homeowners who irrevocably consent to annexation as both landowners and electors. The subsidy, which depends on lot size and the date on which the property owner consents, can be thousands of dollars.
Under Oregon law, annexation may be accomplished in several ways, two of which are relevant here: in a conventional election by a majority of the ballots cast, ORS § 222.120(4)(a); or by the written consent of a majority of all voters registered in the territory to be annexed, and the written consent of owners of a majority of the land in that territory - the so-called "double majority" method. ORS § 199.490(2)(a)(B). Under both approaches, either all the territory will be annexed or none of it will be.
Hussey argues that imposing financial distress only on electors who oppose annexation violates his personal right to equal protection under the Fourteenth Amendment because once a governmental entity extends the right to vote on a particular subject to its citizens, that right to vote has the same constitutional significance as the right to vote on any other issue, and that the government therefore should be bound by the same constitutional standards as in a conventional election. Since Oregon law requires the assent of electors for annexation, Hussey submits that Portland may not restrict that form of voting without a compelling state interest. There can be none, in his view, as the integrity of the political process is at stake.
Portland, on the other hand, denies that there is any financial penalty involved and argues that, in any event, as a matter of law there is no inherent state or federal constitutional right to vote on annexation. Further, the City contends that because ORS § 199.490(2)(a)(B), the statute applicable here, does not provide for a right to vote, the ...