Sims v. Besaw's Café , 165 Or. App. 180 ( 2000 )

EDMONDS, J.,

dissenting.

This case presents the issue of whether a municipality lawfully can require by ordinance that a state court provide a forum for a civil law suit for compensatory damages brought by a private citizen based on the violation of a city ordinance. The lead opinion answers that question in the affirmative. I disagree because the lead opinion’s conclusion violates the concept of the state’s sovereignty over its political subdivisions and improperly enlarges a city’s authority.

A general introduction to the issue and the arguments surrounding it is helpful to an understanding of the specific arguments that bear on the core of the issue. The city has adopted Portland City Code (PCC) 23.01.050B, which prohibits discrimination in employment based on sexual orientation, and PCC 23.01.070B, which prohibits discrimination in places of public accommodation based on an individual’s sexual orientation. In its brief on appeal, the city describes the sources of its authority to promulgate those ordinances and argues:

“Portland’s first legislative charter became effective January 23, 1851, upon passage of the Council of the Legislative Assembly of the Territory of Oregon, Special Laws of Oregon 1850-51, §§1-28, pp 16-22. In 1903, the Legislative Assembly passed a special act that granted a charter to the City of Portland, Special Laws of Oregon 1903, Chapter I. Chapter II, Article IV, section 73(1), of the City’s 1903 Charter granted the Portland City Council the power: ‘To exercise within the limits of the City of Portland all the powers commonly known as the police power, to the same extent as the State of Oregon has or could exercise said power within said limits’ * * * Section 73(2) of that same chapter further grants the City the power: ‘To make and enforce within the city all necessary water, local, police, and sanitary laws and regulations.’

“Although various changes were made to Portland’s charter by the legislature or the people over the years, none affected this expansive grant of power to the City. The City’s current charter continues to grant it the power to exercise all of the powers of the state, as well as the power to ‘secure the protection of persons and property and to provide for the health, cleanliness, ornament, peace, safety and good order of the City.’ Charter, Sections 2-105(a)l and 2.”

(Emphasis added in the city’s brief.)

Article XI, section 2, of the Oregon Constitution, provides that “[t]he legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution[.]” (Emphasis added.) I do not question the city’s authority to enact PCC 23.01.050B and PCC 23.01.070B under the police power granted to it by Article XI, section 2, of the Oregon Constitution, and its charter. However, the city asserts that its charter empowers it to direct state courts to provide a forum for the violations of its ordinances and that PCC 23.01.080E, the ordinance at issue in this case, is a lawful exercise of that authority.

PCC 23.01.080 provides, in part:

“E. Any person claiming to be aggrieved by an unlawful discriminatory act under the provisions of this code shall have a cause of action in any court of competent jurisdiction for damages and such other remedies as may be appropriate. Election of remedies and other procedural issues relating to the interplay between administrative proceedings and private rights of action shall be handled as provided for in ORS 659.095 and 659.121. The court may grant such relief as it deems appropriate, including, but not limited to, such relief as is provided in ORS 659.121.”

PCC 23.01.080E differs from PCC 23.01.050B and PCC 23.01.070B. The latter impose obligations on Portland citizens. Arising out of those obligations are rights held by others, including employees, under the ordinances. The former provides a remedy for the violation of those rights. By its enactment of PCC 23.01.080E, the city seeks to establish within courts of competent jurisdiction a cause of action for the vindication of those rights by its offended citizens. In this case, the “court of competent jurisdiction” is the circuit court, according to plaintiff and the city.

To the extent that the city seeks to direct by ordinance that the circuit court of the State of Oregon is a court of competent jurisdiction for the adjudication between private parties of a violation of the city’s ordinances, its exercise of the police power granted to it by the constitution and its charter is ultra vires.¹ Only the people of the State of Oregon, by the initiative process or through their elected representatives, the legislature, can exercise that authority under the constitution. The constitution represents a grant of authority to state government by the people of the State of Oregon whereby they consent to be governed with respect to the subjects enumerated therein. Municipal corporations such as cities can exercise no more authority than what is granted to them by the constitution. As political subdivisions created under the constitution, their authority is inferior to that exercised by the legislature, unless the constitution expressly provides to the contrary. As the city must acknowledge, its police power under its charter is expressly limited to its territorial limits. Consequently, the authority to provide remedies through court proceedings is similarly limited.

In the absence of any authority from its charter, the city is dependent on the legislature for authority to enact ordinances like PCC 23.01.080E. ORS 221.315, ORS 221.337, ORS 3.132 and ORS 3.134 permit cities to utilize state courts and are examples of the legislature’s exercise of the authority that was granted to it by the constitution. ORS 221.315 permits a city attorney in the name of the city to prosecute violations of the city’s charter or ordinances. ORS 3.132 (formerly ORS 46.040) provides that circuit and municipal courts have concurrent jurisdiction of all violations of municipal charters or ordinances. ORS 3.134 (formerly ORS 46.047) provides that, when an offense defined by municipal ordinance is tried in a circuit court, it is subject to the statutes and rules that govern the trial of similar offenses under state statute. When read together, those statutes permit a city to prosecute violations in a state court. However, those statutes do not authorize a private citizen to bring a civil claim for damages in circuit court based on the violation of the city’s anti-discrimination ordinances. In sum, the city is unable to point to any express provision of the Oregon Constitution or of the Oregon Revised Statutes that authorizes it to direct the circuit court to provide private parties a forum for the violation of its anti-discrimination ordinances.

The lead opinion takes a different tack from that argued by plaintiff and the city to avoid the dilemma of the city’s ultra vires enactment. It relies on Article VII (original), section 9, of the Oregon Constitution. Section 9 provides, in part:

“All judicial power, authority, and jurisdiction not vested by this Constitution, or by laws consistent therewith, exclusively in some other Court shall belong to the Circuit Courts * *

To the extent that the lead opinion argues that section 9 supports the city’s and plaintiffs reasoning, there is not one word in section 9 about any grant of authority to municipalities. A municipality’s power to provide a forum for the enforcement of the laws that it creates can be no greater than the power granted to it by the source of its authority, or in this case, the constitution.² It is clear that the authority of the city to direct that the circuit court provide a remedy³ for the violation of its ordinances cannot be found in any express grant of authority in the constitution to the city and that such authority does not exist.

Nonetheless, the lead opinion reasons that, because circuit courts of the State of Oregon are courts of general jurisdiction and the city has assigned by its ordinance a function to the circuit court that is within the court’s jurisdiction, it follows that the city is authorized to direct the state circuit courts to provide private parties a forum for the violations of the city’s ordinances. The lead opinion perceives the circuit court conceptually as a global reservoir for all claims brought by the citizens of Oregon, regardless of the source of law for those claims.⁴ Thus, it concludes that, regardless of the city’s authority, the courts authority is not enlarged by the city’s ordinance directing that the court provide a forum for the violation of the city’s anti-discrimination ordinances. In general, the lead opinion’s reasoning has several fatal flaws.

First, the lead opinion’s reasoning is non sequitur. The constitutional grant of authority to a municipality to make law and impose duties on its citizens is fundamentally different from and does not overlap with the constitutional grant of authority to state circuit courts to adjudicate civil claims. Under the constitution, the lawmaking function and the judicial function are vested in different branches of government. Moreover, the constitutional grant of lawmaking authority to the city is not only discrete from the grant of judicial authority to state courts but is vested in a political subdivision that is subordinate to the authority granted to the legislature. Under the lead opinion’s views, any political subdivision of the state could contribute, through its ordinances, to state jurisprudence and, regardless of the will of the legislature or the people, compel enforcement of its legislation by appropriating state courts, the judicial arm of the state, to its own use. The lead opinion’s reasoning, when taken at face value, violates principles of state sovereignty over its political subdivisions.

Second, the lead opinion’s reasoning improperly conflates what are discrete concepts that circumscribe the authority of municipalities and of the circuit courts. Just as a municipality has only the constitutional police power to impose obligations on its own citizens and to declare rights only on behalf of those injured by the violations of its ordinances, so too is its authority circumscribed regarding the forums that it can provide to adjudicate the remedies it has enacted. What governs the subject matter jurisdiction of courts differs from what legal rules provide the extent of a city’s authority. The circuit courts operate under a constitutional grant of authority that is discrete from the constitutional grant of authority to municipalities. As courts of general jurisdiction under section 9, circuit courts are empowered to exercise jurisdiction over matters of discrimination. However, it does not also follow from that grant of general jurisdiction that they are required to recognize any legal rule governing discrimination, regardless of its source. The lead opinion’s reasoning requires circuit courts to recognize the legislative enactments of municipalities as binding upon them merely because circuit courts are courts of general jurisdiction. That reasoning is erroneous because, even though a court has subject matter jurisdiction, a court exercises its authority erroneously if it gives effect to a rule of law that is ultra vires, that is, a rule of law that exceeds the authority of the promulgating body. When a court applies an ultra vires rule, it improperly enlarges the authority of the promulgating body. In light of the foregoing general discussion, I turn to the specific claims made by plaintiff and the lead opinion’s reasoning regarding those claims.

Plaintiffs first claim in his amended complaint alleges a violation of ORS 659.030. He stipulated to its dismissal in the trial court. After this case was briefed on appeal, we decided Tanner v. OHSU, 157 Or App 502, 971 P2d 435 (1998). Whether or not plaintiffs first claim states facts sufficient to state a cause of action under Tanner is not properly before us in light of plaintiffs stipulation. Plaintiffs second claim is labeled as a “[violation of PCC § 23.01.070 et seq.” The viability of the claim in circuit court rests on the proposition that the city has the authority to direct the court to provide a forum for the violation of its ordinances. Also, plaintiff alleges a third claim that he has labeled as a statutory tort claim. He alleges, in part:

“Pursuant to ORS 659.030 and PCC §23.01.070, defendants stood in a special relationship to plaintiff and owed plaintiff the duty to not discriminate against plaintiff based on his sexual orientation and to provide him with a discrimination-free workplace.”

I understand plaintiffs and the city’s present position to be that ORS 659.030 does not factor into the calculus for determining whether the trial court erred in granting summary judgment on the third claim. Because the complaint appears to allege a common-law claim as well as a claim based on the city’s ordinance, it is appropriate to analyze it under both theories.

According to the lead opinion, the judicial power identified in section 9 includes the power to adjudicate private-law disputes without regard to the source of law governing the dispute, and “Aldrich v. Anchor Coal Co., 24 Or 32,32 P 756 (1893), illustrates the principle.” 165 Or App at 187-88. In fact, Aldrich stands for a proposition contrary to that stated by the lead opinion. The plaintiffs brought an action in Oregon against a California corporation and one of its stockholders, Loomis, to recover monies on a contract after they had performed work and labor for the corporation. The complaint sought to hold Loomis liable under a California statute that made Loomis personally hable for a portion of the claim. The question posed by the court was “whether an action at law can be maintained in this state to enforce a stockholder’s liability created by the laws of California.” Aldrich, 24 Or at 37.

The court concluded that Loomis’s liability under the statute was enforceable in the action brought in Oregon. It explained:

“The statute indeed creates a new right and liability not existing at common law, but does not prescribe a peculiar remedy for its enforcement; it only declares that it may be enforced by action, leaving the creditor to select such common-law remedies as may be in use in the jurisdiction where the suit is brought to enforce such liability. When a statute not only creates a new right and liability against a stockholder, but prescribes a peculiar remedy for its enforcement, such remedy is sometimes held to be exclusive, and often cannot be enforced in another state by the employment of the remedies, and according to the course of procedure, provided by its laws. In such case, it would seem the creditor can enforce the stockholder’s liability only in the state where the corporation exists; not, however, because the liability is not recognized as valid and binding, but because the forum where it is sought to be enforced is incapable of administering the peculiar remedy provided for its enforcement. Where a liability, however, is created by statute, without making the procedure for its enforcement, as it were, a part of the liability, we cannot see why it should not be enforced in any court having jurisdiction of the subject matter and parties. There is no difference between a statutory and common-law right or liability in this regard. The nature of the remedy or the jurisdiction of the court to enforce it does not in any manner depend on the question whether it is the one or the other. * * * And, in general, a creditor of a corporation whose shareholders are by a statute made personally liable in the nature of a contract for its debts may maintain a suit or action to enforce this liability in any court capable of administering the proper relief, whenever he can obtain jurisdiction over the parties, if it is not opposed to the legislation or public policy of the state in which it is sought to be enforced.”

Id. at 38-39 (emphasis added; citations omitted).

Several observations are evident from the court’s holding in Aldrich that cut against its use as support for the lead opinion’s position. Aldrich does not involve an attempt by a subordinate political subdivision of the State of Oregon to direct a state court to provide a forum and a remedy. No policy concern regarding interference with Oregon’s sovereignty inhibited the recognition of California’s statute by the Aldrich court. Rather, Aldrich presents the issue of whether a California statute will be recognized in Oregon when a common-law remedy is employed. Additionally, the Aldrich court clearly distinguishes between the concepts of subject matter jurisdiction and the enlargement of a foreign jurisdiction’s authority, a distinction that the lead opinion blurs in its analysis of the issue in this case. As the Aldrich court observed, it would have properly declined to provide a remedy for the enforcement of the California statute had the California statute provided for a specific remedy. To have enforced the California statute in Oregon under that circumstance would have resulted in the improper enlargement of the California legislature’s authority because it would mean that the California legislature could lawfully direct Oregon courts to provide a forum for its remedy. To permit the City of Portland to direct the circuit court to provide a forum and to supply a remedy for the violation of its ordinances absent a grant of authority from the legislature or the constitution results in a similar usurpation of authority.

The lead opinion recognizes that:

“The dissent is correct that Oregon municipalities infringe on state sovereignty, and thereby act beyond their authority, by requiring or authorizing state officials to perform functions that they have not been authorized by state law to perform.”

165 Or App at 189. However, it asserts that “[t]he dissent is wrong, however, in its belief that Portland’s creation of the cause of action at issue in this case runs afoul of that principle.” Id. at 189. According to the lead opinion,

“the challenged Portland ordinance does not add to the circuit court’s authority to adjudicate claims. One of the basic functions of the circuit court is to resolve disputes over harm caused to people as a result of failure by others to conform their behavior to the requirements of law. Therefore, independently of the Portland ordinance, the circuit court has authority to adjudicate a claim by an employee of a Portland employer for harm caused by discriminatory treatment by the employer on the basis of sexual orientation.”

165 Or App at 190 (emphasis in original).

When the lead opinion claims that PCC 23.01.080E “does not add to the circuit court’s authority,” it fails to perceive the effect of its reasoning. The question is not whether the circuit court’s authority has been enlarged by the City’s ordinance. Clearly, the circuit court has subject matter jurisdiction over claims based on workplace discrimination. However, subject matter jurisdiction is not equivalent to the authority to appropriate another political entity’s courts and require those courts to provide a forum and a remedy. When a municipality legislates by promulgating an ordinance that exceeds its authority, courts, even courts of general jurisdiction, will not recognize the effect of the ordinance because to do so would enlarge the authority of the municipality beyond what has been granted to it. Even though a court may have subject matter jurisdiction, it errs if it gives efficacy to an ultra vires ordinance.

The above proposition is founded on a rule that is generally accepted throughout jurisdictions in the United States:

“The well-established general rule is that a municipal corporation cannot create by ordinance a right of action between third persons or enlarge the common law or statutory duty or liability of citizens among themselves. Under the rule, an ordinance cannot directly create a civil liability of one citizen to another or relieve one citizen from a liability by imposing it on another.”

Eugene McQuillin, 6 The Law of Municipal Corporations § 22.01, 388 (3d ed 1998) (emphasis added; footnote omitted). The lead opinion’s reasoning and its conclusion in this case are in contradiction to McQuillin’s pronouncement. When a municipality undertakes to provide a remedy for the violations of its ordinances by directing a state court to entertain actions for the violations, it acts in an ultra vires manner outside its grant of authority because it has sought to enlarge its grant of authority. Here, by its ordinance, the city has created a new, civil cause of action between private citizens that enlarges liability in a state court. That liability is not founded on a state statute or the common law. Nonetheless, the lead opinion says “Oregon cities can ‘enlarge the common law * * * duty or liability of citizens among themselves’.” 165 Or App at 193 (emphasis in original). That assertion cannot be correct in the context of this case because the city did not merely impose a liability, duty or standard of care on its citizens but sought to provide a new common-law remedy that is enforceable by private parties in an extraterritorial forum, the state circuit court. The common law is not a product of the legislative will of a municipality. Common-law remedies are created by courts when confronted with conduct causing injuries that the court believes should be compensable. In creating a common-law remedy, the court exercises the sovereign prerogative of choosing between the view that the court for lack of precedent is impotent and the view that the court has authority to declare a remedy to grant redress for injury resulting from conduct which universal opinion would condemn. Nees v. Hocks, 272 Or 210, 215, 536 P2d 512 (1975). The circuit court’s authority to enlarge common-law remedies to citizens is implicit if not express from the authority granted to it by section 9. There is no such corresponding grant to municipalities.

McQuillin also states another general rule that is applicable to the analysis in this case:

“However, the mere fact that an ordinance cannot directly create a civil cause of action does not mean that state law cannot attach tortious liability to a breach of an ordinance proximately causing injury to another, and in many jurisdictions, if not all, such a breach of an ordinance under certain circumstances constitutes or evidences a civil and actionable wrong.”

McQuillin, 6 The Law of Municipal Corporations § 22.01 at 388. That rule recognizes situations in which no enlargement of the municipality’s authority occurs. A municipality’s police power permits it to govern the conduct of its citizens and to impose standards of care or conduct that are consistent with its grant of authority. When it imposes a standard of care or duty on its citizens, there is no conflict with state sovereignty because the municipality is regulating within its own boundaries and within its grant of authority. When a cause of action is predicated on the violation of the standard imposed by the municipality and is founded on a theory of civil recovery for a wrong recognized by the state court, the state court is a proper forum for the claim. Such a situation is devoid of any ultra vires exercise of authority by the municipality, in contrast to the situation where the municipality directs the state court to provide a forum for what is otherwise a noncog-nizable claim within its jurisprudence.

Examples of the application of both of McQuillin’s rules can be found in Oregon case law. The first rule finds expression in La Grande v. Municipal Court et al., 120 Or 109, 251 P 308 (1926). In that case, A. W. Wall was “[c]onvicted in the recorder’s court of a violation of an ordinance of the City of La Grande[.]”Id. at 110. He gave notice of appeal to the Circuit Court of Union County. The municipal judge, acting under the city’s initiative charter, which provided for a right of appeal to the circuit court, “allowed the appeal, approved the proffered undertaking and ordered a stay of execution on the judgment appealed from.” The city then sought a writ of review challenging Wall’s right to appeal.

On appeal, the Oregon Supreme Court explained:

“From the earliest times to the present, it has been the law of this state that grants of power to municipal corporations are to be strictly construed!.]”

Id. at 112. The court reasoned:

“If a city can assume extramural powers which the legislative branch of the government by general law might grant but has not conferred, the municipality need not wait for the sanction of a general law to appropriate to its own use and behest the whole judicial system of the state. * * * [That] doctrine * * * would lead naturally to the usurpation of the state power by every locality that chose to do so.”

Id. at 115. Concluding that Wall could not appeal to the circuit court, the court said:

“The state has a right to establish its own tribunals and has done so. Until it gives authority to a municipality to add to or detract from the duties of state courts there must be some primary authority issuing from the state in the form of general legislation. There is no such legislation with respect to appeals from the municipal court of La Grande.”

Id. at 116. Because the city charter provision giving the right to its citizens to appeal to circuit court from the municipal court was ultra vires, Wall’s remedy, an appeal to state court, was not cognizable in that court. The analogy to this case is apparent because the city’s ordinance is also ultra vires', i.e., the remedy it affords, a private claim for compensatory damages in state circuit court, is outside its grant of authority.

The holding in City of Eugene v. Roberts, 305 Or 641, 756 P2d 630 (1988), is also instructive. In that case, the city sought “to compel Lane County election officials to place on the state primary election ballot an ‘advisory question’ ” that the city wished to submit to its voters. Id. at 643. The Secretary of State had directed the officials not to place the question on the ballot. In an appeal to the Supreme Court, one of the issues was whether the city could rely on its own charter and ordinances as authority to require the officials to place the question on the ballot in the absence of a state law requiring or authorizing a vote on an advisory question. Relying, in part, on the analysis in La Grande, the court rejected the city’s argument. The court said:

“The City here seeks to compel action by state and county officials. Home rule does not extend so far. The source of any duty to comply with the City’s request must be in state law.”

City of Eugene, 305 Or at 650. Under La Grande and City of Eugene, the source of authority to provide a forum for plaintiffs remedy must also be in state law.

In response to these cases, the lead opinion says,

“The effect of the Portland ordinance is to change the law that bears on such a claim, making it one on which the employee can prevail, but it does not add to the function or duties of the circuit court for it to adjudicate the claim.

“That contrasts with the situation presented in La Grande, * * * [and] City of Eugene * * *. In each of those cases, cities had to change state law in order to permit the state officials to do what the cities wanted them to do. The cases held that the cities simply did not have the power to do that.”

165 Or App at 191 (emphasis in original). The lead opinion acknowledges that the holdings in La Grande and City of Eugene are illustrative of attempts by municipalities to change state law but claims that that is not the effect of PCC 23.01.080E. The lead opinion is wrong because the ordinance gives injured litigants a remedy in circuit court that otherwise they would not have under state law. Accordingly, the circuit court would have erred if it had not dismissed plaintiffs second claim. To have done otherwise would have permitted plaintiff to enforce an ultra vires ordinance as if it were a state statute.

The lead opinion also relies on the holdings in Marsh v. McLaughlin et ux, 210 Or 84, 309 P2d 188 (1957), and Olson v. Chuck et al., 199 Or 90, 259 P2d 128 (1953). What the lead opinion fails to recognize is that those cases are examples of the application of the second rule that McQuillin describes in his treatise:⁵ “[T]he mere fact that an ordinance cannot directly create a civil cause of action does not mean that state law cannot attach tortious liability to a breach of an ordinance.” McQuillin, 6 The Law of Municipal Corporations § 22.01 at 388. There are a number of Oregon cases in which state courts have recognized civil liability arising out of the violation of an ordinance. For example, Lange v. Minton, 303 Or 484, 738 P2d 576 (1987), involved a negligence per se claim where plaintiff relied on a standard of care established by a city ordinance. Similarly, Brennan v. City of Eugene, 285 Or 401,407,591 P2d 719 (1979), involved a common-law negligence claim where the court concluded that the city’s “agent had an employment responsibility to process license applications pursuant to the requirements of the ordinance.” Additionally, in Harris v. Sanders, 142 Or App 126, 919 P2d 512, rev den 324 Or 322 (1996), the plaintiff appealed from a directed verdict for defendants on her claim that they were negligent per se because they violated an ordinance by failing to remove leaves from sidewalks abutting their property that caused her injury. We reversed and indicated that the issue was “[wjhether the liability imposed by [the ordinance could] include a duty for abutting landowners to maintain sidewalks free from leaves.” Id. at 130. Specifically, we held that it was error for the trial court to conclude as a matter of law that an accumulation of leaves was not within the contemplation of the ordinance. Those cases express the rule that, when a municipality acts within the scope of its authority by establishing a duty or standard of care pursuant to its police power, the violation of the ordinance can be a ground for a remedy that is recognized by the circuit court’s jurisprudence. None of the above cases involve an ordinance that is ultra vires or an ordinance that attempts to impose its will by changing state law.

According to the concurrence, the city without a grant of authority can provide lawfully a private right of action in a state court when its regulatory goal is a legitimate one. It relies on Covey Garage v. Portland, 157 Or 117,70 P2d 566 (1937), as a case in which the city’s creation of private liability was challenged as beyond the city’s authority and upheld. In Covey, the ordinance provided, in part:

“ ‘The cash deposit, the surety bond, or the insurance policy, shall each be conditioned that the licensee, his surety or insurer, will pay any adjudicated claim within the limit of the liability of $1,000 ten days after the date of the final adjudication of any claim. The cash deposit, the surety bond or the liability insurance shall be further conditioned that the licensee and the surety or insurer will be hable for injury to or the death of any person and for damages to the property of any person caused by the carelessness, negligent or unlawful act of the driver of the vehicle rented or hired out. The liability of said cash deposit, said surety bond or liability insurance shall not exceed the sum of $1,000 arising out of any one accident: * * * Any person sustaining personal injuries or property damage caused by the carelessness, negligent or unlawful act of the driver of any motor vehicle rented or hired out under the terms of this article; or in case of death resulting from personal injuries, the personal representative of the deceased, is hereby authorized to institute an action against the licensee, the surety, or against the liability insurance company on his own relation in the name of the city and to prosecute the same to final judgment.* * *’ ”

157 Or at 120-21 (omissions in original). In determining that the standard imposed by the ordinance was a valid exercise of the city’s police power, the court reasoned:

“The enactment of an ordinance or of a statute — unless they be merely codifications of existing regulations — necessarily alters the existing law. * * * Ordinarily, the violation of such a regulation constitutes negligence [per se] when applicable in civil actions. * * * In other words, the enactment of the ordinance affects the common law by prescribing a different standard of conduct.”

Id. at 139. As to the remedy for the enforcement of the standard imposed by the ordinance, the court stated that the ordinance was a form of voluntarily incurred contractual liability.

“It may be avoided by avoiding the driverless car business; but, as a condition of entering the business, the bond must be filed. The liability attends upon the bailment even though the negligent injury is inflicted in some distant state. It is enforced in the remote place, not because Portland’s authority extends there, but because the other state will enforce the contractual liability in its courts.”

Id. at 140. Thus, Covey stands for the unremarkable proposition that a municipality may create liability between its citizens that may be enforced in a state court in accordance with an already available remedy. Covey is unlike this case because, here, the city is attempting to provide a tort remedy in a forum outside its territorial limits: in a court that does not already recognize such a remedy.

In light of the general rules pronounced in McQuillin’s treatise and the holdings in La Grande and City of Eugene, the trial court did not err in granting summary judgment on plaintiff’s second claim. The city has no authority to require state courts to provide a forum for the violations of its ordinances, and the circuit court would exercise its authority erroneously if it were to recognize the remedy that the city prescribes. It does not follow from the fact that circuit courts exercise subject matter jurisdiction over employment discrimination cases in general that its doors are open to the use of ultra vires remedies created by municipalities. To the extent that plaintiff’s third claim rests on PCC 23.01.080E, it is similarly flawed. I turn then to the common-law aspect of the third claim.

To allege a common-law claim for wrongful discharge of an at-will employee, there must be a discharge and that discharge must be “wrongful.” McGanty v. Staudenraus, 321 Or 532, 551, 901 P2d 841 (1995). Discharges have been recognized as “wrongful” in two categories of cases. The first category involves the discharge of a plaintiff for fulfilling a societal obligation such as serving on a jury. Holien v. Sears, Roebuck and Co., 298 Or 76,86,689 P2d 1292 (1984) (quoting Delaney v. Taco Time Int’l., 297 Or 10, 681 P2d 114 (1984)); see also Nees, 272 Or 210. Plaintiff’s third claim that he was discharged because of his sexual orientation does not involve a discharge for fulfilling a societal obligation.

The second category in which a discharge has been found to be wrongful involves an employer who discharges an employee for pursuing a right that is of important public interest as indicated by constitutional provisions, statutory provisions and case law and that is related to his role as an employee. Holien, 298 Or at 86. Holien is an example of a case that falls into the second category. The court in Holien explained:

“In this case, the plaintiff, Holien, sued defendant Sears in her second claim alleging that she was terminated for fulfilling her right to be gainfully employed without being subject to sexual advances and sexual harassment. We have stated that sexual harassment on the job is a forbidden discriminatory act under state and federal law and an employe[e] has a legal right which is of important public interest not to be discharged for resisting sexual harassment on the job. Following the rationale of the second category of Delaney, it is not the supervisor’s demand, or discriminatory sexual harassment, for which plaintiff seeks common law tort damages; it is for a tortious discharge following her rightful resistance to those demands or harassment. Such a discharge of an employe[e] by an employer would be an actionable common law tort under the second category of Delaney unless the provisions of ORS Chapter 659 demonstrate the legislature’s intent * * * to abrogate or supersede any common law remedy for damages.”

298 Or at 90-91. In this case, unlike in Holien, plaintiffs claim that he was terminated because of his sexual orientation does not involve a discharge for pursuing his right to file a complaint for discrimination with BOLI. In that regard, he is like the plaintiff in Patton v. J. C. Penney Co., 301 Or 117, 719 P2d 854 (1986), who alleged that he was fired because he refused to terminate a social relationship with a coemployee. The plaintiff in Patton argued that his “ ‘fundamental, inalienable human rights were compromised * * * and made the subject of an illicit barter in that he was forced to forego these rights or to purchase them with his job.’ ” Id. at 121. The court rejected his argument, reasoning: 301 Or at 122. The same reasoning applies here. Plaintiffs claim falls outside the recognized exceptions to the rule that termination of employment ordinarily does not create a common-law tortious cause of action.⁶

“It may seem harsh that an employer can fire an employe[e] because of dislike of the employe[e]’s personal lifestyle, but because the plaintiff cannot show that the actions fit under an exception to the general rule, plaintiff is subject to the traditional doctrine of‘fire at will.’ ”

Finally, plaintiff, the City and the amicus curiae argue that, because the ordinance defines a right, Article I, section 10, of the Oregon Constitution, compels a remedy. Article I, section 10, provides:

“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”

The preface to the argument is lacking. Article I, section 10 protects statutory and common-law rights. This case involves an ultra vires municipal ordinance. As I have previously pointed out, PCC 23.01.080E does not have the force of a state statute enacted by the legislature. Therefore, section 10 is inapplicable.

At the beginning of this opinion, I identified the issue as being whether a municipality’s authority is improperly enlarged if it is held that the municipality can lawfully direct by ordinance that a state court provide a forum for a civil action brought by a private citizen based on the violation of municipal ordinances. The lead opinion has found authority for the City’s enactment in section 9, a constitutional provision that has nothing to do with the authority of a municipality. In its reasoning process, the lead opinion has ignored the dictates of generally accepted legal propositions about state sovereignty and the resulting limitations on municipal authority. Its reasoning that PCC 23.01.080E is permissible because it does not enlarge the authority of the courts is mistaken. In fact, the ordinance changes state law regarding cognizable theories of employment discrimination and improperly enlarges the authority of municipalities as legislative bodies. Because no state statute, the constitution or the city’s charter authorizes the city to promulgate such legislation, the city’s ordinance is ultra vires, and it would be error for the circuit court to exercise its authority by furnishing efficacy to the ordinance. Consequently, the trial court did not err in granting summary judgment to defendants.

I dissent.

1 Ultra vires means ‘Tain act performed without any authority to act on [the] subject” and an “[u]ltra vires act of Tal municipality is one which is beyond [the] powers conferred upon it by law.” Black’s Law Dictionary, 1522 (6th ed 1990).

2 For example, at issue in State v. Logsdon, 165 Or App 28, 30, 995 P2d 1178 (2000), was whether a provision in a county charter, “which forbids police to search private property without prior written consent or a search warrant,” was invalid. In holding that the provision was invalid, we reasoned:

“In particular, it is well established that, whatever else local government authority may entail, it does not include governing the conduct of state and federal officials. See, eg., Multnomah County v. $5,650 in U.S. Currency, 309 Or 285, 289, 786 P2d 729 (1990) (‘The fact that a county acts under a home rule charter does not mean that it can call upon the state courts to enforce ordinances or otherwise to exercise their jurisdiction in any case that the county wishes.’); La Grande v. Municipal Court et al., 120 Or 109, 114-15, 251 P 308 (1926) (cities cannot alter jurisdiction or function of state courts); Kiernan v. Portland, 57 Or 454,463, 111 P 379 (1910), error dismissed 223 US 151,32 S Ct 231, 56 L Ed 386 (1912) (home rule entities may not regulate other governmental units); Lines v. City of Milwaukie, 15 Or App 280, 286, 515 P2d 938 (1973), rev den (1974) (home rule city does not have authority to alter the jurisdiction of state courts).”

Logsdon, 165 Or App at 32-33.

3 A “remedy” is defined, in part, as ‘Ttlhe means by which * * the violation of a right is * * * redressedM” Black’s at 1294. A remedy includes an action for damages in a particular forum.

4 If the lead opinion is correct, then statutes like ORS 221.315, ORS 221.337, ORS 3.132 and ORS 3.134 that permit cities to utilize state courts to enforce their criminal and quasi-criminal ordinances are meaningless; the general jurisdiction of the circuit court would permit municipalities to enforce ordinances in circuit court as well as permit claims between private citizens. Although the lead opinion’s reasoning is premised on a distinction between such claims and private claims, it never identifies the origin of the distinction in terms of grants of authority.

5 Both Marsh and Olson concerned whether the violation of a municipal ordinance could give rise to a remedy in a state court under the common law. In Olson, the ordinances at issue imposed a duty on landowners to maintain their sidewalks and imposed liability for damages arising from the offender’s fault or negligence. Because the plaintiffs claim was founded in common-law negligence as affected by the duty and liability imposed by the ordinance, a proper remedy existed in circuit court. In contrast, the city’s charter in Marsh imposed a duty on landowners to repair their sidewalks but imposed no liability for damages for a violation. Accordingly, the Supreme Court affirmed the trial court’s decision to sustain general demurrers to the common-law negligence and nuisance actions brought by the plaintiff. This case presents a third variation of those facts. Although the duties imposed by the city’s ordinances are within its charter authority, the remedy it seeks to provide, a private-law action in circuit court, is not authorized. Thus, this case differs from Marsh and Olson because it is not founded in common-law negligence.

6 The court in Delaney also described a third category of cases “where an adequate existing remedy protects the interests of society so that an additional remedy of wrongful discharge will not be accorded.” 297 Or at 16. That category is inapplicable here.