Brown v. Dearborn

• Decision Date: 21 July 1981
• Docket Number: No. 117303,117303
• Citation: 52 Or.App. 237,628 P.2d 405
• Parties: Rodney H. BROWN, Richard Kelly and Robert Ritchie, Respondents, v. Darrell DEARBORN, Personnel Director of the City of Salem, Appellant. ; CA 17910.
• Court: Oregon Court of Appeals

Page 405

628 P.2d 405

52 Or.App. 237

Rodney H. BROWN, Richard Kelly and Robert Ritchie, Respondents, v. Darrell DEARBORN, Personnel Director of the City of Salem, Appellant.

No. 117303; CA 17910.

Court of Appeals of Oregon.

Argued and Submitted Jan. 19, 1981.

Decided May 18, 1981.

Review Denied July 21, 1981.

Jeannette M. Launer, Asst. City Atty., Salem, argued the cause for appellant. With her on the brief was William J. Juza, City Atty., Salem.

James J. Susee, Salem, argued the cause and filed the brief for respondents.

Before JOSEPH, C. J., and THORNTON and VAN HOOMISSEN, JJ.

JOSEPH, Chief Judge.

Plaintiffs sought a peremptory writ of mandamus to compel defendant, the Personnel Director of the City of Salem, either to apply "veteran's preference points" to their scores on a civil service promotional exam or to deduct such points from the other candidates' scores to which they had been added. An alternative writ issued. After a hearing on the return to the writ, the trial court issued a peremptory writ ordering defendant to apply the points to plaintiffs' scores.

The facts are not in dispute. Plaintiffs are corporals in the city's Police Department. Each took an examination for promotion to sergeant. Each successfully completed the examination and was assigned a position on the eligibility list as of October 4, 1979. All of the plaintiffs are veterans, but none was allowed the application of veteran's preference points in ranking their scores on the eligibility list. Other veteran candidates were allowed those points. If the preference points had been added to their examination scores, each of them would rank higher on the list than some of the other candidates who received the benefit of the points and each would be more likely to be promoted.

Plaintiffs were all hired in 1972 or earlier. Each was accorded preference points on his entrance examination, although none specifically requested the application of the points and none required the points in fact in order to secure appointment as a city police officer. The six other candidates on the eligibility list who were allowed the preference points for promotion were also hired in 1972 or before. None of them had been given preference points on his entrance examination, apparently through clerical error. It was the practice of the city at that time to apply the points automatically to all veterans' entrance examination scores.

The parties agree that the question presented is: Does the law require the application of veteran's preference points to scores on a civil service promotional examination when said preference points have been applied to the entrance examination scores of the same candidate? The answer to that would require only the interpretation and application of ORS 408.230(1) as it existed before the passage of Oregon Laws 1977, chapter 854, section 3 ¹ and, possibly as it now reads after the 1977 amendment ² and ORS 408.235(2). ³ Apparently the trial judge did not view the matter quite the same way, for in his letter opinion he said, in part:

"This has been a most difficult case to decide and it would probably be even more difficult if the Court were limited to strictly legal principles. Obviously, I find it necessary to decide it on equitable principles."

He then made certain "observations or findings," ⁴ only one of which seems to relate to a question raised by the statutes ⁵ and concluded:

"These findings lead me to the conclusion that the plaintiffs have been damaged by the 'clerical errors' and are now entitled to some relief.

"The other six officers now claiming preference points are definitely entitled to them, so it would be inequitable to take them away, especially since they are not parties to this proceeding.

"The only practical remedy, therefore, and the one least burdensome to all concerned, is to restore to plaintiffs their preference points and to adjust the promotional list accordingly."

We deduce from the quoted opinion that the trial judge concluded that the "preference points" ought to have been added to the original entrance examination scores of the six officers who later got the benefit of those points on the promotional examination and that as a matter of equity these plaintiffs ought to be treated as if they, too, had never before used them. That is equivalent to saying that the law before 1977 required the points to be applied to all veterans' entrance examinations, as they were in fact applied to plaintiffs' scores, but since they were not in the instances of the non-party examinees, the plaintiffs are equitably entitled now to use their points again.

If we are correct in our reading of the reasoning process the trial court used, we must reject it. In the first place it is based on a proposition for which there is no authority (i. e., mandamus is an equitable proceeding rather than an extraordinary remedy); and in the second place it creates a new and different duty to act as a substitute for the legal duty it impliedly finds was violated. The parties did not directly raise the issue of the applicability of equitable principles to this case in their briefs, but on oral argument we asked for supplemental authorities on the point. Those authorities, on our analysis, show quite clearly the trial court's error.

The leading case is Buell v. Jefferson County Court, 175 Or. 402, 152 P.2d 578, 154 P.2d 188 (1944). The officials of an irrigation district had ceased after 1927 to levy and collect annual assessments required by a law. In 1941 a mandamus proceeding was initiated by bond holders to enforce the legal duty. A statute of limitation defense was tendered, but the trial court refused it and ordered the assessments to be made and collected. On appeal the Supreme Court said that a "special proceeding" like mandamus is not subject to the statutes of limitations, but it went on:

"In determining the question of whether statutes of limitation apply to mandamus it is necessary to consider the nature of that procedure. While mandamus is classed as a legal remedy in the nature of an action at law * * *, it is an extraordinary remedial process which is awarded not as a matter of right, but in the exercise of a sound judicial discretion and upon equitable principles: * * *." 175 Or. at 408, 152 P.2d 578, 154 P.2d 188.

"Although mandamus is not embraced within the limitation prescribed by our code for any ordinary action, it is nevertheless subject to the equitable doctrine of laches: * * * In the instant case the defendants in their answer plead the facts herein above stated and aver that the plaintiff is chargeable with laches and should not be permitted to maintain this proceeding.

"A writ of mandamus, as we have above pointed out, is not awarded as a matter of right, but on equitable principles. An application for the writ should be made seasonably and within a reasonable time after the alleged default or neglect of duty. Delay which has been detrimental or prejudicial to the rights of the defendant or others interested may be sufficient cause for denial of the writ. Every case must be considered on its own particular facts: * * *." 175 Or. at 410, 152 P.2d 578, 154 P.2d 188.

Buell has since been cited for disparate propositions. In Lee v. Brown, 264 Or. 341, 505 P.2d 924 (1973), it was used to support this proposition:

"Mandamus is an extraordinary remedy at law to which the rules of procedure relating to actions at law are applicable."

Justice Rossman, specially concurring in Lafferty v. Newbry, 200 Or. 685, 702, 268 P.2d 589 (1954), cited it for what it actually said:

"Mandamus is an extraordinary remedial process which is awarded, not as a matter of right, but in the exercise of a sound judicial discretion, and upon equitable principles."

He continued, however:

"A relator is not entitled to mandamus unless he has a clear legal right to the performance of a particular duty sought to be enforced and unless the defendant has a clear legal duty to do the thing he is called upon to do. * * * " ⁶

Buell by no means turned the special proceeding of mandamus into an equitable proceeding. What it did was to establish that once the petitioner has established the legal duty asserted, then the question of whether to order the performance of that duty is in the court's discretion, in the exercise of which the court may apply equitable principles, particularly the doctrine of laches.

The problem in this case is that the trial judge never clearly decided the existence, vel non, of a legal duty or what that legal duty was. Instead he concluded that the duty itself was an equitable one and then molded a remedy. That is not the way the proceeding works in Oregon.

Moreover, assuming that the legal duty underlying the equities of the situation was to apply the "preference points" to the entrance examination scores of the officers who are not parties here, Buell cuts exactly the opposite direction. The plaintiffs assert that the preference points should not have been applied to their entrance examinations, all of which were taken before 1977. If that application was not lawful, it should have been corrected then. Instead plaintiffs waited until a promotional examination came up in 1979 and then asked either that they be given the points again or that the non-party officers have the preference points taken away from their scores on the promotional exam. That seems to call for the application of Buell's laches doctrine, for by waiting to assert their pre-1977 legal right they would cause others to be prejudiced, and that would be...