Bay Area Hospital v. Oregon Health Authority , 23 Or. Tax 368 ( 2019 )

368 April 30, 2019 No. 16
IN THE OREGON TAX COURT
REGULAR DIVISION
BAY AREA HOSPITAL
Plaintiff,
v.
OREGON HEALTH AUTHORITY,
Defendant.
(TC 5333)
Plaintiff, a hospital, asserted that the Regular Division had jurisdiction
to hear its substantive claim that a hospital assessment fee was, in fact, a tax.
Granting Defendant’s motion to dismiss, the court determined that it lacked sub-
ject matter jurisdiction because an administrative remedy was available. When
the legislature has not expressly conferred jurisdiction on the Tax Court and has
made an administrative remedy available, the court does not have subject matter
jurisdiction over a claim.
Submitted on Defendant’s Motion to Dismiss.
William F. Gary, Harrang Long Gary Rudnick, PC,
Eugene, filed the response for Plaintiff.
James C. Strong, Assistant Attorney General, Department
of Justice, Salem, filed the motion for Defendant.
Decision for Defendant rendered April 30, 2019.
ROBERT T. MANICKE, Judge.
I. INTRODUCTION
The 2017 legislature imposed a 0.7 percent charge on
the “net revenue” of a class of hospitals (the “2017 Charge”).
See Or Laws 2017, ch 538, §§ 26-41 (HB 2391 (2017)). Plaintiff
claims that it is the only hospital in the class and that the
2017 Charge is a tax. Plaintiff seeks a declaration from this
court1 that, as a public body, Plaintiff is not subject to the
2017 Charge because the legislature failed to make an ade-
quate “affirmative legislative declaration” of its intention to
impose a tax on only one public body. Plaintiff’s complaint is
before the court on Defendant’s Motion to Dismiss pursuant
1
See TCR 1 C(1)(a) (requiring complaints for declaratory judgment under
ORS chapter 28 to be filed directly in the Regular Division).
Cite as 23 OTR 368 (2019) 369
to Tax Court Rule (TCR) 21 A for lack of subject matter
jurisdiction and for failure to state ultimate facts sufficient
to constitute a claim.
The 2017 provisions are recent amendments2 to
uncodified portions of a 2003 law that established several
mechanisms to generate revenue for health care purposes.
Or Laws 2003, ch 736, §§ 1-74.3 This case concerns one
such mechanism, contained in sections 1 through 9 of the
2003 law,4 which the court refers to collectively and with all
amendments5 as the “Hospital Assessment Law.” As enacted
in 2003, the Hospital Assessment Law provided for a single
charge on the net revenue of certain hospitals (the “2003
Charge”). Id. § 2(1). The 2017 amendments added the 2017
Charge, in section 2(2) of the Hospital Assessment Law, as
a second charge on the net revenue of a subset of hospitals.
See Or Laws 2017, ch 538, § 28 (amending Or Laws 2003,
ch 736, § 2). This order discusses primarily sections 1, 2,
and 6 of the Hospital Assessment Law, reprinted below with
all amendments and after accounting for a contingency
expressed in the 2017 amendments:6
2
Even more recently, on March 13, 2019, the Governor signed House Bill
(HB) 2010 (2019). Among other changes, HB 2010 amended Oregon Laws 2003,
chapter 736, section 10, by extending the sunset date of the 2003 Charge to
September 30, 2025. HB 2010 is not relevant to this matter.
3
The 2003 law also imposed charges on long-term care facilities as discussed
below (sections 15 to 36) (the “Long-Term Care Assessment Law”), certain man-
aged care organizations (sections 37 to 51), and programs of all-inclusive care for
elderly persons (sections 52 to 63). The same law also enacted a film production
income tax credit (sections 75 to 82) and modified a surtax on personal income
(sections 83 to 85).
4
Sections 10 to 14 of the 2003 law contained the operative dates and a sunset
provision, none of which are relevant to this matter.
5
See Or Laws 2005, ch 757, §§ 1-2; Or Laws 2007, ch 780, §§ 1-2; Or Laws
2009, ch 792, § 34; Or Laws 2009, ch 828, §§ 51-53; Or Laws 2009, ch 867, §§ 17-19;
Or Laws 2011, ch 602, § 59; Or Laws 2013, ch 608, §§ 1-7 (among other things,
shifting authority for refund claims under section 6 of the Hospital Assessment
Law from Department of Human Services to Defendant); Or Laws 2015, ch 16,
§ 1; and Or Laws 2017, ch 538, §§ 26-37, 44.
6
The 2017 law makes the operation of certain provisions contingent on a par-
ticular action by the federal Centers for Medicare and Medicaid Services (CMS).
Section 44 of the 2017 law provides that the amendments in section 27 apply if the
CMS do not take the action, and that the amendments in section 28 (which incor-
porate and further revise the amendments in section 27) apply if the CMS do take
the action. See Or Laws 2017, ch 538, § 44. In connection with summary judg-
ment proceedings in this case that are briefly noted below, Defendant supplied an
uncontested declaration that the CMS took the specified action in October 2017.
370 Bay Area Hospital v. Oregon Health Authority
“Sec. 1. As used in sections 1 to 9, chapter 736, Oregon
Laws 2003:
“(1) ‘Charity care’ means costs for providing inpatient
or outpatient care services free of charge or at a reduced
charge because of the indigence or lack of health insurance
of the patient receiving the care services.
“(2) ‘Contractual adjustments’ means the difference
between the amounts charged based on the hospital’s full
established charges and the amount received or due from
the payor.
“(3)(a) ‘Hospital’ means a hospital licensed under ORS
chapter 441.
“(b) ‘Hospital’ does not include:
“(A) Special inpatient care facilities;
“(B) Hospitals that provide only psychiatric care;
“(C) Pediatric specialty hospitals providing care to
children at no charge; and
“(D) Public hospitals other than hospitals created by
health districts under ORS 440.315 to 440.410.
(Def’s Resp Ptf’s Mot Summ J at 2 (citing Decl of Marlowe).) Accordingly, the text
of section 2 of the Hospital Assessment Law, as amended by section 28 of the 2017
law, applies and is reprinted below. See Or Laws 2017, ch 538, § 28.
In addition, the court notes that a joint committee of the 2017 legislature
referred portions of the 2017 law to the people for a special election. See Parrish
v. Rosenblum, 362 Or 96, 98-102, 111-12, 403 P3d 786 (2017) (recounting his-
tory of HB 2391, enacted in part as Oregon Laws 2017, chapter 538, section 28;
ordering modifications to ballot title). Section 27 of the 2017 law was among the
referred provisions, which the people approved on January 23, 2018. See Ballot
Measure 101 (2017); Official Voters’ Pamphlet, Special Election, January 22,
2018, 16 (text of Measure 101); Or Sec’y of State, State Measure No. 101, Official
Election Results, available at https://sos.oregon.gov/elections/Documents/results/
january-2018-results.pdf (accessed Apr 23, 2019). Solely for the purpose of this
order, the court concludes that section 44 of the 2017 law, when read together
with the uncontested Marlowe declaration, provides that the amendments in sec-
tion 28 of the 2017 law became operative on January 1, 2018, so that section 27
of the 2017 law was rendered inoperative before the people voted to approve it.
Finally, the court notes that section 29 of the 2017 law amends sections 27
and 28 by deleting the language imposing the 0.7 percent charge. Pursuant to
section 44(1)(c) of the 2017 law, section 29 becomes operative on July 1, 2019.
Accordingly, the 0.7 percent 2017 Charge is temporary in duration and is elimi-
nated July 1, 2019. See Parrish, 362 Or at 108-09.
Cite as 23 OTR 368 (2019) 371
“(4) ‘Net revenue’:
“(a) Means the total amount of charges for inpatient
or outpatient care provided by the hospital to patients, less
charity care, bad debts and contractual adjustments;
“(b) Does not include revenue derived from sources
other than inpatient or outpatient operations, including but
not limited to interest and guest meals; and
“(c) Does not include any revenue that is taken into
account in computing a long term care facility assessment
under sections 15 to 22, 24 and 29, chapter 736, Oregon
Laws 2003.
“(5) ‘Type A hospital’ has the meaning given that term
in ORS 442.470.
“(6) ‘Type B hospital’ has the meaning given that term
in ORS 442.470 [(Or Laws 2003, ch 736, § 1; Or Laws 2009,
ch 792, § 34; Or Laws 2017, ch 538, § 26)].
“Sec. 2.
“(1) An assessment is imposed on the net revenue of each
hospital in this state. The assessment shall be imposed at
a rate determined by the Director of the Oregon Health
Authority by rule that is the director’s best estimate of
the rate needed to fund the services and costs identified
in section 9, chapter 736, Oregon Laws 2003. The rate of
assessment shall be imposed on the net revenue of each hos-
pital subject to assessment. The director shall consult with
representatives of hospitals before setting the assessment.
“(2) In addition to the assessment imposed by sub-
section (1) of this section, an assessment of 0.7 percent is
imposed on the net revenue of each hospital in this state
that is not a type A hospital or type B hospital.
“(3) Each assessment shall be reported on a form pre-
scribed by the Oregon Health Authority and shall contain
the information required to be reported by the authority.
The assessment form shall be filed with the authority on
or before the 45th day following the end of the calendar
quarter for which the assessment is being reported. Except
as provided in subsection (6) of this section, the hospital
shall pay the assessment at the time the hospital files
the assessment report. The payment shall accompany the
report.
372 Bay Area Hospital v. Oregon Health Authority
“(4)(a) To the extent permitted by federal law, assess-
ments imposed under subsection (1) of this section may not
exceed the lesser of:
“(A) A rate of 5.3 percent; or
“(B) In the aggregate, the total of the following
amounts received by the hospitals that are reimbursed by
Medicare based on diagnostic related groups:
“(i) 30 percent of payments made to the hospitals on a
fee-for-service basis by the authority for inpatient hospital
services;
“(ii) 41 percent of payments made to the hospitals on a
fee-for-service basis by the authority for outpatient hospital
services; and
“(iii) Payments made to the hospitals using a payment
methodology established by the authority that advances
the goals of the Oregon Integrated and Coordinated Health
Care Delivery System described in ORS 414.620 (3).
“(b) Notwithstanding paragraph (a) of this subsection,
aggregate assessments imposed under subsection (1) of this
section on or after July 1, 2015, may exceed the total of
the amounts described in paragraph (a) of this subsection
to the extent necessary to compensate for any reduction of
funding in the legislatively adopted budget for hospital ser-
vices under ORS 414.631, 414.651 and 414.688 to 414.745.
“(c) The director may impose a lower rate of assess-
ment on type A hospitals and type B hospitals to take into
account the hospitals’ financial position.
“(5) Notwithstanding subsection (4) of this section, a
hospital is not guaranteed that any additional moneys paid
to the hospital in the form of payments for services shall
equal or exceed the amount of the assessment paid by the
hospital.
“(6)(a) The authority shall develop a schedule for col-
lection of the assessment for the calendar quarter ending
September 30, 2021, that will result in the collection occur-
ring between December 15, 2021, and the time all Medicaid
cost settlements are finalized for that calendar quarter.
“(b) The authority shall prescribe by rule criteria for
late payment of assessments [(Or Laws 2003, ch 736, § 2;
Cite as 23 OTR 368 (2019) 373
Or Laws 2007, ch 780, § 1; Or Laws 2009, ch 828, § 51; Or
Laws 2009, ch 867, § 17; Or Laws 2013, ch 608, § 2; Or Laws
2015, ch 16, § 1; Or Laws 2017, ch 538, §§ 27, 28)].”
“Sec. 6.
“(1) Any hospital that has paid an amount that is not
required under sections 1 to 9, chapter 736, Oregon Laws
2003, may file a claim for refund with the Oregon Health
Authority.
“(2) Any hospital that is aggrieved by an action of
the authority or by an action of the Director of the Oregon
Health Authority taken pursuant to subsection (1) of this
section shall be entitled to notice and an opportunity for a
contested case hearing under ORS chapter 183 [(Or Laws
2003, ch 736, § 6; Or Laws 2013, ch 608, § 4)].”
See compilation of Hospital Assessment Law (as amended),
first reprints of sections 1 and 2, compiled as a note after
ORS 414.839 (2017) (emphases added to show portions pri-
marily discussed in this order).
II. FACTS
For purposes of Defendant’s motion, the court
accepts as true the following facts alleged in Plaintiff’s
amended complaint:7 Plaintiff is a hospital operated by the
Bay Area Health District, a health district formed under
what is now ORS chapter 440. Plaintiff is a public body, a
special district, and a municipal corporation under Oregon
law. Since 2003, Plaintiff has been subject to, and has con-
sistently paid, the 2003 Charge on its net revenue under
section 2(1) of the Hospital Assessment Law. In May 2018,
Plaintiff also timely paid to Defendant its first quarterly
amount of the 2017 Charge.
7
On a motion to dismiss for failure to state ultimate facts sufficient to con-
stitute a claim, the court’s review is limited to the allegations, accepted as true,
made in the complaint. Gray v. Dept. of Rev., 23 OTR 220, 221 (2018). On a motion
to dismiss for lack of subject matter jurisdiction, the court also may consider
“matters outside the pleading, including affidavits, declarations and other evi-
dence.” Work v. Dept. of Rev., 22 OTR 396, 397-98, aff’d, 363 Or 745, 429 P3d
375 (2018). As part of its response to Defendant’s motion, Plaintiff submitted a
declaration authenticating copies of the enrolled version of HB 3057 (2007) and
of a staff measure summary, dated June 13, 2007, relating to the A-Engrossed
version of that bill. In addition, Plaintiff filed a motion for summary judgment
simultaneously with its response to Defendant’s motion; in connection with its
own cross-motion, Defendant filed the Marlowe declaration referred to above.
374 Bay Area Hospital v. Oregon Health Authority
III. ISSUES
The first issue is whether this court has subject
matter jurisdiction to decide Plaintiff’s claim.
The second issue is whether Plaintiff has pleaded suf-
ficient facts to state a claim upon which relief can be granted.
IV. ANALYSIS
A. Subject Matter Jurisdiction
A number of statutes expressly provide for or pre-
clude jurisdiction in this court. See, e.g., ORS 118.410 (juris-
diction—estate tax); ORS 285C.140(9), ORS 285C.175(6),
ORS 285C.240(9), ORS 285C.403(6) (jurisdiction for various
claims under Oregon Enterprise Zone Act); ORS 294.461
(jurisdiction—making of tax levies under local budget law);
ORS 403.230 (jurisdiction—emergency communications
tax); ORS 111.025 (precluding jurisdiction—probate mat-
ters).8 Where the legislature has neither expressly conferred
nor precluded jurisdiction in this court, jurisdiction depends
on whether the case fits within the general grant of exclusive
jurisdiction in this court to hear all cases “arising under the
tax laws of this state.” ORS 305.410(1). In that statute, too,
the legislature has expressly declared some laws to be “not
tax laws of this state,” and thus outside this court’s jurisdic-
tion, including some laws that the legislature characterizes
as “taxes” and others that it characterizes as “fees,” “assess-
ments,” or “contributions.” See ORS 305.410(2) (emphasis
added; listing 14 sets of laws). When no statute expressly
resolves jurisdiction, the court determines whether a case
“aris[es] under the tax laws of this state” using a framework
that the Oregon Supreme Court and this court have devel-
oped over time. Of importance for this case, the Supreme
Court has stated:
“The tax court is limited to hearing cases which a statute
places within its authority.
“Where jurisdiction over a case is positively located in
another court, then that procedural fact implies that the
case is not one ‘arising under the tax laws’ and is not within
the jurisdiction of the tax courts.”
8
Unless otherwise indicated, the court’s references to the Oregon Revised
Statutes (ORS) are to 2017.
Cite as 23 OTR 368 (2019) 375
Sanok v. Grimes, 294 Or 684, 692 n 6, 662 P2d 693 (1983)
(quoting ORS 305.410). As this court explained in Perkins v.
Dept. of Rev., 22 OTR 370, 375 n 5 (2017):
“The [tax] court’s jurisdiction is limited in that it does
not reach to claims affirmatively located elsewhere. The
court’s jurisdiction is exclusive in that, if a claim is within
this court’s jurisdiction, it cannot be within another court’s
jurisdiction absent a legislatively created exception.”
Plaintiff argues that the Hospital Assessment Law
is one of the “tax laws of this state” under ORS 305.410(1).
Its substantive claim, which the court does not reach here,
is that the 2017 Charge is a tax, as opposed to a fee, crafted
to apply solely to Plaintiff, and that the legislature was pro-
hibited from imposing the 2017 Charge on Plaintiff as a
public body, absent an “affirmative legislative declaration”
of its intention to do so. Plaintiff claims that the legisla-
ture vested this court, as a court of record authorized to
declare the rights of parties, with jurisdiction to determine
under ORS 28.010 whether the legislature violated that
prohibition.
Defendant argues that this court lacks jurisdiction
because the legislature has provided another means out-
side this court by which Plaintiff may seek relief, namely
the administrative remedy of claiming a refund of the 2017
Charge pursuant to section 6(1) of the Hospital Assessment
Law. If Defendant denies that refund claim, Plaintiff may
request a contested case hearing under section 6(2) of the
Hospital Assessment Law. It is Defendant’s position that
a contested case hearing will give Plaintiff the opportu-
nity to fully litigate the issue of whether it is subject to the
2017 Charge. Thus, because the legislature has “positively
located jurisdiction” over the 2017 Charge “in a forum other
than the tax court,” Defendant argues that the legislature
did not intend the 2017 Charge to be one of the “tax laws of
this state” subject to the tax court’s jurisdiction.
In rebuttal, Plaintiff asserts that the legislature
enacted section 6 of the Hospital Assessment Law solely as
a mechanism to adjudicate overpayment claims made by
hospitals seeking a refund. Plaintiff asserts that it is not
seeking a refund, and that the availability of a refund does
376 Bay Area Hospital v. Oregon Health Authority
not preclude jurisdiction in this court to issue a declaratory
judgment.
The court first analyzes whether the legislature
intended this court to have jurisdiction over the 2017
Charge generally, then turns to whether Plaintiff’s request
for declaratory relief changes the result. Because no stat-
ute expressly addresses whether this court’s jurisdiction
includes matters arising under the Hospital Assessment
Law, the court looks to the test in Sanok to determine
whether section 2(2) of the Hospital Assessment Law is a
tax law of this state, examining the text, context, and rele-
vant legislative history of that law based on State v. Gaines,
346 Or 160, 171-72, 206 P3d 1042 (2009) (outlining analysis
of text, context, and legislative history to the extent helpful,
and general rules of construction to resolve any remaining
uncertainty).
1. Text
Section 6(1) of the Hospital Assessment Law states:
“Any hospital that has paid an amount that is not required
under sections 1 to 9, chapter 736, Oregon Laws 2003, may
file a claim for refund with the Oregon Health Authority.”
It is undisputed that this provision applies to the 2017
Charge, which is imposed under section 2(2) of the Hospital
Assessment Law. The next question is whether section 6
allows Plaintiff, as a public-body hospital, to base a claim for
a refund on the legal theory that section 2(2) is invalid due to
a failure of the legislature to affirmatively declare its inten-
tion to tax Plaintiff. Plaintiff contends that the legislature
intended the procedure in section 6 to have the “single, nar-
row purpose” of refunding overpayment claims, and that it
was not meant to adjudicate claims challenging the validity of
the 2017 Charge. The court sees nothing in the text of section
6(1) that supports Plaintiff’s argument; Plaintiff could simply
allege that the entire amount it has paid is “not required”
under section 2(2). Plaintiff ultimately acknowledges that
Defendant, in adjudicating such a refund claim, would have
authority to consider Plaintiff’s legal argument. Based on
the plain text, the court concludes that the legislature has
vested jurisdiction in another forum (in this case, Defendant,
followed by contested case proceedings and appellate review)
Cite as 23 OTR 368 (2019) 377
to adjudicate Plaintiff’s claim, at least if Plaintiff chooses to
claim a refund of the 2017 Charge amount.
The final question is whether, as Plaintiff asserts,
the legislature intended that this court have jurisdiction to
provide the declaratory relief Plaintiff seeks, even assuming
that relief in the form of a refund is available in a different
forum. Based on the relevant statutory text, the court con-
cludes that the legislature did not intend this court to have
the power to provide declaratory relief in this case. The court
sees no substantive difference between the result Plaintiff
seeks here and the result Plaintiff would obtain if it were to
prevail in an administrative claim for refund. In this court,
Plaintiff would receive a judgment “[d]eclaring that Plaintiff
is not subject to” the 2017 Charge. Plaintiff has paid the
2017 Charge and has pointed to no reason, other than the
requirement to pay that charge, why it objects to the 2017
amendments to the Hospital Assessment Law. Therefore, on
the judgment it seeks in this court, Plaintiff would be enti-
tled to a refund of amounts paid, although Plaintiff might
need to take the additional step of formally requesting the
refund.9 Likewise, in a successful proceeding under section
6 of the Hospital Assessment Law, Plaintiff would obtain a
“refund,” but that refund would be based on a determina-
tion, explicit or implicit, that Plaintiff is not subject to the
2017 Charge. Given the similarity of ultimate results, the
court finds nothing in the text of the Hospital Assessment
Law suggesting that the legislature intended to create or
preserve jurisdiction in this court specifically for the pur-
pose of awarding declaratory relief.10
9
Plaintiff’s original complaint included a request for a specific declaration
of its right to a refund; Plaintiff’s amended complaint is identical except that it
omits that request.
10
Plaintiff also argues that the procedure under section 6(1) of the Hospital
Assessment Law is “ill-suited” to adjudicate its claim and would “dramatically
expand the amount of time required to obtain judicial review.” The court does
not find this argument persuasive. If Defendant were to deny Plaintiff’s refund
claim under section 6(1), Plaintiff would be entitled to a contested case hearing
under the Administrative Procedures Act, the result of which would be review-
able in the Oregon Court of Appeals. See Hospital Assessment Law § 2(2); ORS
183.482(1). Although that procedure entails two steps before Plaintiff obtains
judicial review, that result is consistent with the general requirement to exhaust
administrative remedies, a time-honored doctrine that also persists in this court.
See Fields v. Dept. of Rev., 19 OTR 547, 550 (2009).
378 Bay Area Hospital v. Oregon Health Authority
Moreover, the text of the Uniform Declaratory
Judgments Act implies that that act does not create juris-
diction: “Courts of record within their respective jurisdic-
tions shall have power to declare rights, status, and other
legal relations, whether or not further relief is or could be
claimed.” ORS 28.010 (emphasis added). This court concludes
that it must first have subject matter jurisdiction before it
can declare the rights of the parties. The court finds nothing
in the text of the Hospital Assessment Law or the Uniform
Declaratory Judgments Act that authorizes this court to
issue the declaration that Plaintiff seeks.
2. Context
The court’s analysis of a statute’s context includes
“prior versions of the statute” and “other related statutes.”
Jones v. General Motors Corp., 325 Or 404, 411, 939 P2d 608(1997) (citations omitted). Plaintiff urges the court to consider
the context provided by a 2007 law that amended numerous
provisions of the 2003 law, including substantive changes to
both the Hospital Assessment Law and the Long-Term Care
Assessment Law. See Or Laws 2007, ch 780. Plaintiff argues
that the 2007 legislature’s decision to expressly define the
Long-Term Care Assessment Law as not a tax law of this
state by adding paragraph (n) to ORS 305.410(1)11 implies
that the 2003 Legislative Assembly intended to vest juris-
diction over both that law and the Hospital Assessment Law
in this court. Id. § 29 (relying on the principle of expressio
unius est exclusio alterius—“the expression of one implies the
exclusion of another”). Plaintiff points out that the Hospital
Assessment Law and the Long-Term Care Assessment Law
were enacted in the same bill; they also contain materially
identical provisions allowing an administrative process for
refund claims. Plaintiff argues that the legislature would
11
ORS 305.410(1)(n) reads:
“(1) * * * [T]he tax court shall be the * * * exclusive * * * judicial authority
for * * * questions of law and fact arising under the tax laws of this state. For
the purposes of this section * * * the following are not tax laws of this state:
“* * * * *
“(n) Sections 15 to 22, 24 and 29, chapter 736, Oregon Laws 2003, relat-
ing to long term care facility assessments.”
(Emphasis added.)
Cite as 23 OTR 368 (2019) 379
not have needed to add ORS 305.410(1)(n) unless it intended
that this court would otherwise have jurisdiction over
cases involving the Long-Term Care Assessment Law, and
Plaintiff imputes the same intention to the legislature with
respect to the Hospital Assessment Law.
The court does not find Plaintiff’s argument per-
suasive. The 2007 Legislative Assembly’s decision to exclude
the Long-Term Care Assessment Law from the jurisdic-
tion of this court says nothing about the 2003 Legislative
Assembly’s intention regarding the Long-Term Care Assess-
ment Law itself, let alone the Hospital Assessment Law. E.g.,
DeFazio v. WPPSS, 296 Or 550, 561, 679 P2d 1316 (1984)
(“The views legislators have of existing law may shed light
on a new enactment, but it is of no weight in interpreting a
law enacted by their predecessors.”).
At the court’s request, the parties provided supple-
mental explanations of their positions in light of legislative
history, but the court finds nothing persuasive in those sub-
missions. A staff summary, a question posed by one legislator,
and the responses of witnesses from among groups affected
by the 2007 changes all characterize the addition of ORS
305.410(1)(n) as a “removal” of Tax Court jurisdiction. See,
https://olis.leg.state.or.us/liz/2007R1/Measures/Overview/
HB3057 (accessed Apr 23, 2019). The witness responses
state that the removal “applies just to” the Long-Term Care
Assessment Law. Id. (quoting statement of Loren Rhodes).
When determining what the legislature intended,
the court does not lightly ascribe statements of witnesses,
or even of a single legislator, to the legislature as a whole,
and the court declines to do so in this case. See, e.g., State v.
Stamper, 197 Or App 413, 424-25, 106 P3d 172, rev den, 339
Or 230, 119 P3d 790 (2005) (“[W]e are hesitant to ascribe
to the Legislative Assembly as a whole the single remark
of a single nonlegislator at a committee hearing.”). More
fundamentally, however, in this case the limited content of
the 2007 statements makes them of little assistance to the
court. Although they convey the impression that the speak-
ers held a subjective belief that this court had jurisdiction
over matters arising under the Long-Term Care Assessment
Law, the statements give no reasoning for that belief. The
380 Bay Area Hospital v. Oregon Health Authority
2007 legislative history gives no guidance to this court
about how to apply the legal framework of longstanding case
law. No one discussed the jurisdiction of this court in light of
the administrative remedy available under the Long-Term
Care Assessment Law or its materially identical counter-
part under the Hospital Assessment Law. Accordingly, even
if the court were able and inclined to overlook the fact that
the 2007 statements cannot declare the legislature’s inten-
tion from two sessions before, the court could give no weight
to the 2007 statements.
3. Legislative history of the Hospital Assessment Law
The court has reviewed the legislative history of the
Hospital Assessment Law, some of which the parties also
supplied at the court’s request, and has found nothing to
help determine whether the Tax Court has subject matter
jurisdiction over Plaintiff’s claim for declaratory relief from
the 2017 Charge.12
B. Failure to State a Claim
Because this court lacks subject matter jurisdic-
tion, it does not reach whether Plaintiff has failed to state
ultimate facts sufficient to support a claim upon which relief
can be granted.
12
The court has reviewed the written legislative history materials of the fol-
lowing laws amending Oregon Laws 2003, chapter 736, sections 1 to 9: Or Laws
2005, ch 757, § 2; Or Laws 2009, ch 828, §§ 51-53; Or Laws 2009, ch 867, §§ 17-19;
Or Laws 2009, ch 729, § 34; Or Laws 2011, ch 602, § 5; Or Laws 2013, ch 608,
§§ 2-5, 7; Or Laws 2015, ch 16, § 1.
In addition, the court has reviewed oral testimony from the proceedings
relating to the following laws: Or Laws 2003, ch 736, §§ 1-14; Or Laws, ch 780,
§§ 1-2; Or Laws 2017, ch 538, §§ 26-52.
Finally, the court also has reviewed the text of Ballot Measure 101 and its
enactment history, notwithstanding the court’s conclusion, discussed above,
that for purposes of this order the text referred to voters relating to the 2017
Charge had been rendered inoperative prior to the date of the special elec-
tion. See 23 OTR at 369 n 6; see also Parrish v. Rosenblum, 362 Or 96, 98-102,
111-12, 403 P3d 786 (2017) (recounting history of HB 2391); Voters’ Pamphlet
at 15-47 (containing explanatory statement and arguments in favor of and
in opposition to Measure 101). The court has found nothing that assists with
the jurisdiction analysis. While the voters’ pamphlet contained evidence of
a robust public debate, neither the arguments in favor nor those in opposi-
tion indicate voters intended to vest jurisdiction over the 2017 Charge in this
court.
Cite as 23 OTR 368 (2019) 381
V. CONCLUSION
After reviewing Defendant’s Motion to Dismiss and
Plaintiff’s response and being fully advised of the premises,
the court finds that the motion should be granted. Now,
therefore,
IT IS ORDERED that Defendant’s Motion to
Dismiss is granted.