Clackamas County, Office of County Council
Myles E. Ward; Interim County Counsel
(& others) assistants
(906 Main Street, Oregon City, OR 97045)
((503) 655-8362, Fax 650-8925)
TO: Commissioner Larry Sowa
FROM: Office of County Council
DATE: January 5, 2000
RE: January 5, 2000 Fax from Charles Stewart

            Ginny Van Loo gave me a copy of the fax that you received toady from Mr Stewart. I have read it carefully and believe that despite its length, it does not contain much that is either new or different from the fax he sent either new or different from the fax he sent to you dated December 6, 1999.

            One item which he mentions that is somewhat new is the question of whether the Board of County Commissioners is violating any laws in the manner in which it declares an emergency when adopting County Ordinances. Mr Stewart writes that "over half" of the Ordinances that have been adopted by the Board contain emergency declarations, and that this practice
constituted "... an effuted "... an effective "Bad Faith" work-around of the "Chains of the Constitution", thereunder subjecting "We the People" to an extra-constitutional ( foreign) Malum-Prohibitum Jurisdiction." I believe however, that Mr. Stewart is incorrect.

            ORS 203.045 (4) provides that a county Board may adopt an ordinance and declare it to be an emergency. Under ORS 203.045 (9), county ordinances go intoi effect 90 days after the date of adope date of adoption, except for emergency ordinacnes, which take effect immediately. The language of this statute mirrors Art. 4, Section 28 of the Oregon Constitution, which provides that in the Legislature "No act shall take effect, until ninety (days) from the end of the session at which the same shall have been passed, except in case of emergency; which emergency shall be declared in the preamble, or in the body of the law."

           sp;   In 1903 the Supreme Court of Oregon decided the case of Kadderly .v City of Portland, 44 Or. 118 (1903)) which involved a challenge to special assessments on property to raise funds for bridge repair. A challenge was made to the legislature's passage of an act authorizing the city to make those assessments. The act contained an emergency clause, and property owners objected in part because the bridges had been slowly deterioration for years, and repairs would not be undert not be undertaken immediately. They argued that due to this there was no real emergency, and the emergency declaration as well as the rest of the authorizing legislation were invalid.

            The Court held that since the Constitution specifically authorized an emergency clause, and reserved all decisions concerning it to the Legislature, no Court could ever review the Legislature's decision to declare an emergency. In 1975, the Oreg1975, the Oregon Court of Appeals applied this same reasoning in a case that challenged an emergency clause in an ordinance adopted by the Multnomah County Board of Commissioners. Relying on the decision in Kaddrely, the court held: "It has always been the rule, and is now everywhere understood, that the judgement of the legislature and executive departments as to the wisdom, expediency, or necessity of any given law is conclusive on the courts, and cannot be reviewed or called into questiointo question by them. Defendants correctly argue that if the charters of there respective cities require their legislative bodies to offer reasons for declaring an emergency, then the court may inquire into the existence or adequacy of a declared emergency. Here, however, the Board of County Commissioners, like the state legislature, is not subject to such requirement." Multnomah County v. Mittleman, 24 Or App 237, 243-244 (1976).

        &np;      Like Multnomah County, Clackamas County has not imposed on itself any requirement to offer reasons justifying the declaration of an emergency. Instead, Clackamas County falls under ORS 203.045, which allows a declaration of emergency to be made without reasons justifying it. Accordingly, there is no reason to agree with Mr Stewart's accusation that the Board of County Commissioners is violating any law in the manner in which it adopts emergency ordinances.


            Finally, Mr Stewart on page 4 of his January 5, 2000 letter appears to ask for answers to two questions. I would offer the following responses to his inquiries:

            1: "Is the "Clackamas County Commissioners" the "Governing Body" of "Clackamas County", as is recognizable from within ORS 203.111?

              Answer: Yes. Article 7 Section 12 of the Oregon Constitution allows the legislature to provide for a Board of County Commissioners to transact county business in Clackamas County. In 1959, in Chapter 174 of Oregon Laws, 1959, the Legislature abolished the county judge and county court in Clackamas County and transferred all duties and powers over county business to the Board of County Commissioners. Under ORS 203.240 the Board has complete authority over all county ac all county activities. This statute also provides that, "any reference in the statutes to the county court of that county shall be considered a reference to the board of county commissioners of the county." Clearly, the Constitution and the Legislature intended to create a Board of County Commissioners to conduct county business in Clackamas County. The reference in ORS 203.111 to a county court can only be interpreted to be a reference to the Board of County Commissioners by operation of ORS 203n of ORS 203.240. There simply is no County Judge or County Court in Clackamas County today, and there has not been since 1959.

2: "When a Felony Criminal-Complaint is placed before them; Does the "Governing-Body" of the County have a "Duty" to "We the People" of Clackamas County to Act as Judges in a "Court of Justice" (Article 4 Section 23, Oregon Constitution) for the historically recognizable "County Court" (Article 7 (original) Section 1); & to thereunder follow that "Due Courthat "Due Course & Process of Law" (as in essence in Article 1 Section 10) all so as to bring the entire matter to a Naturally Conscionable sense of "Justice"?

            Answer: No. For all of the reasons detailed above, there is no County Court or County Judge in Clackamas County today. ORS 3.130 provides that in Clackamas County, and a number of other named counties, all judicial jurisdiction, authority, power and functions are nctions are transferred to the circuit courts and judges thereof, except for the transaction of county business. Accordingly, it would be completely contrary to the Constitution and the laws of this state for the Board of County Commissioners of Clackamas County to attempt to act as judges in any manner in a felony criminal case.
            Interestingly, even in a county which retained its county judge and county court intact since tintact since the time of the original state Constitution, there would be no jurisdiction over any felony. Article 7, Section 12 limits the criminal jurisdiction of a county court to "such criminal jurisdiction not extending to death or imprisonment in the penitentiary, as may be prescribed by law." ORS 161.525 describes a Felony as a crime in which a convicted person may be sentenced to a maximum term of imprisonment of more than one year. Therefore, county courts do not appear to have ever had ju ever had jurisdiction over felony cases. And their jurisdiction in civil cases was limited to $500.00.

            Accordingly, our recommendation to you remains that there is no valid basis for the Board of County Commissioners to conclude that its members are "judges", or that it can convene as a "Court" and exercise judicial functions, powers or jurisdiction in felony criminal cases or civil cases involving private parties. We feel ties. We feel that Mr Stewart is incorrect in each relevant portion of his recent communications.

Very truly yours,

Miles Ward
Assistant County Counsel >