Pacificorp v. Dept. of Energy , 21 Or. Tax 116 ( 2013 )

116 January 7, 2013 No. 16
IN THE OREGON TAX COURT
REGULAR DIVISION
PACIFICORP,
an Oregon corporation,
and Cascade Natural Gas Corporation,
a Washington corporation,
Plaintiffs,
v.
OREGON DEPARTMENT OF ENERGY,
an agency of the State of Oregon,
and Bob Repine, as Director
of Oregon Department of Energy,
Defendants.
(TC 5106)
Plaintiffs filed for declaratory judgment, asserting that a fee imposed under
ORS 469.421(8) was a tax and sought a declaration that any such imposition was
in violation of certain provisions of the Oregon Constitution. Defendants moved
to dismiss on the ground that the tax court did not have jurisdiction in the mat-
ter. Granting Defendants’ motion, the court ruled that the actions of the legisla-
ture with respect to the statutes in question meant that it did not have jurisdic-
tion to hear the matter because the statutory scheme in question authorized the
Director of the Department of Energy to take actions to collect amounts of money
determined under statutory formulas, the liability for such amounts was created
by an order of the Director, and that because the legislature contemplated that
such an order might be the subject of objection and litigation, it had stated that
judicial review of such orders would be by way of a proceeding in the circuit court.
Oral argument on cross-motions for summary judgment
was held November 14, 2012, in the courtroom of the Oregon
Tax Court, Salem.
Jeffrey G. Condit, Miller Nash LLP, Portland, filed the
cross-motion and argued the cause for Plaintiffs (taxpayers).
Marilyn J. Harbur, Senior Assistant Attorney General,
Department of Justice, Salem, filed the motion and argued
the cause for Defendants.
Decision for Defendants rendered January 7, 2013.
HENRY C. BREITHAUPT, Judge.
Cite as 21 OTR 116 (2013) 117
I. INTRODUCTION
This matter is before the court on cross-motions for
summary judgment.
Plaintiffs filed this declaratory action in this court,
asserting that a fee imposed under ORS 469.421(8) is a tax
and seeking a declaration that any such imposition was in
violation of certain provisions of the Oregon Constitution.
Defendants assert that this court lacks jurisdiction
to decide this matter.
II. ANALYSIS
The jurisdiction of this court is a matter of legislative
intent. Although the court can be said to have jurisdiction
over matters “arising under the tax laws of this state,” ORS
305.410,1 some state taxes are stated as not being within
the jurisdiction of the court. See ORS 305. 410(1)(a) to (o).
Further, some tax disputes not in any way arising under
state law are within the jurisdiction of the court. See ORS
305.620. In each case, actions of the legislature have altered
what might otherwise have been a conclusion derived from
the basic statement of jurisdiction found in ORS 305.410
After review of the actions of the legislature with
respect to the imposition of liability under the statutes in
question here, the court is of the opinion that it does not
have jurisdiction to hear this matter. The statutory scheme
in question here authorizes the Director of the Department
of Energy (the Director) to take actions to collect from cer-
tain persons amounts of money determined under statutory
formulas. The liability for such amounts is created by an
order of the Director.
The legislature contemplated that such an order,
along with other orders of the Director, might be the subject
of objection and litigation. It then stated that judicial review
of such orders would be by way of a proceeding in the cir-
cuit court. See ORS 469.421(8)(i). The legislature knew of
the existence of the tax court and could have vested it with
jurisdiction in the matter. That did not occur. This court
1
All references to the Oregon Revised Statutes (ORS) are to 2011.
118 Pacificorp v. Dept. of Energy
concludes that the legislature either concluded that the
exaction under ORS 469.421(8) was not a tax, cf. Multnomah
County v. Talbot, 56 Or App 235, 641 P2d 617 (1982), or, if
the legislature considered the exaction to be a tax, it none-
theless placed jurisdiction for disputes regarding the exac-
tion in the circuit court. As this court has stated, “where a
statute specifically locates jurisdiction in a particular court,
all issues arising under that statute will be decided by that
court.” TVKO v. Howland, 15 OTR 335, 339 (2001), aff’d 335
Or 527, 73 P3d 905 (2003).
Plaintiffs point out that at the time they filed their
action in this court, the Director had issued no order that
could be the subject of the remedies provided in ORS 183.484
or ORS 183.486. That fact is not, however, determinative.
Even in advance of an order, a circuit court would have
jurisdiction to hear an action for a declaratory judgment. If,
as this court concludes, the circuit court is the court with
jurisdiction once an order issues, placing jurisdiction on
pre-order declaratory relief actions would have the effect of
providing for different courts at different stages of the rela-
tionship between a regulated entity and its regulator. That
splitting of jurisdiction is to be avoided. TVKO, 15 OTR at
342; Jarvill v. City of Eugene, 289 Or 157, 167, 613 P2d 1(1980).
Plaintiffs argue that this court should exercise
jurisdiction because the circuit court is not able to afford
them complete relief against the statutory scheme and the
actions of the Director under that scheme. In particular,
Plaintiffs have argued that the circuit court may not be
able to address constitutional challenges or afford a remedy
under ORS 305.765. Those arguments are not well taken.
ORS 183.484 and ORS 183.486 together vest in the circuit
court the jurisdiction and authority to address all matters
and fashion or provide all relief to which a victorious party
is entitled. Further, nothing in ORS 305.765 suggests that
only the Tax Court may afford the remedy provided in that
statute.
Even if the statutory scheme of ORS 469.421(8)
and ORS 183.484 or ORS 183.486 did not provide some
particular remedy, that deficiency would be objectionable
Cite as 21 OTR 116 (2013) 119
only if the Oregon Constitution, a valid federal statute, or
the Constitution of the United States required provision
of such a remedy. Plaintiffs have raised no argument that
the procedural and remedial provisions of ORS 469.421(8),
ORS 183.484 and ORS 184.486 violate any of the relevant
constitutional or statutory limits on actions of the Oregon
Legislature.
Finally, Plaintiffs argue that the failure of this
court to hear this matter will produce a result potentially
wasteful of judicial resources. This could occur, Plaintiffs
argue, if they proceed in the circuit court only to later find
out that this court had exclusive jurisdiction. The legisla-
ture has addressed such problems of unclear jurisdiction in
ORS 14.165. Under that statute circuit courts may initiate a
review of the appropriate jurisdiction for a case. This court
cannot initiate such review under ORS 14.165. It is to ORS
14.165 that Plaintiffs must look to avoid waste of resources,
and not to an opinion of this court.
III. CONCLUSION
The motion of Defendants is granted and the motion
of Plaintiffs is denied. Counsel for Defendants is directed to
prepare an appropriate form of judgment. Now, therefore,
IT IS ORDERED that Defendants’ Motion for
Summary Judgment is granted; and
IT IS FURTHER ORDERED that Plaintiffs’ Cross-
Motion for Summary Judgment is denied.