Lane Educ. Service Dist. v. Swanson

• Decision Date: 12 December 1984
• Citation: 692 P.2d 622,71 Or.App. 328
• Parties: , 22 Ed. Law Rep. 472 LANE EDUCATION SERVICE DISTRICT, an Oregon municipal corporation, acting by and through its Board of Directors consisting of Frank Nearing, Hugh Peniston, Douglas McKay, Jeanne Armstrong, Beverly Ficek, Cleve Dumdi and Nile Williams, Respondent--Cross-Appellant, v. James R. SWANSON, Appellant--Cross-Respondent. 16-83-03350; CA A29141.
• Court: Oregon Court of Appeals

Page 622

692 P.2d 622

71 Or.App. 328, 22 Ed. Law Rep. 472

LANE EDUCATION SERVICE DISTRICT, an Oregon municipal corporation, acting by and through its Board of Directors consisting of Frank Nearing, Hugh Peniston, Douglas McKay Jeanne Armstrong, Beverly Ficek, Cleve Dumdi and Nile Williams, Respondent--Cross-Appellant, v. James R. SWANSON, Appellant--Cross-Respondent.

16-83-03350; CA A29141.

Court of Appeals of Oregon.

Argued and Submitted April 23, 1984.

Decided Dec. 12, 1984.

Robert D. Durham, Eugene, argued the cause for appellant--cross-respondent. With him on the briefs were Kulongoski, Heid, Durham & Drummonds, Eugene.

Gordon R. Hanna, Eugene, argued the cause for respondent--cross-appellant. With him on the briefs were Frye, Hanna & Veralrud, Lawyers, P.C., Eugene.

Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.

YOUNG, Judge.

Plaintiff Lane Education Service District commenced what it claims is a declaratory judgment action, contending, inter alia, that defendant's election to plaintiff's board of directors is void because he was ineligible to serve on the board on the date of the election. Defendant moved to dismiss the complaint, because plaintiff is not the real party in interest and lacks standing and because the complaint fails to state a claim. The motion was denied and, on cross-motions for summary judgment, the trial court entered a declaratory judgment in favor of defendant, declaring:

"1. Defendant's employment with plaintiff on March the 29th, 1983, the date of the election, does not affect the validity of his election.

"2. Since defendant was lawfully elected and has qualified by taking his appropriate oath and is no longer an employe of [plaintiff] plaintiff may not lawfully declare his position vacant or refuse to seat him.

"3. In view of the foregoing declarations * * * the court need not decide whether plaintiff has the power or authority to declare a vacancy in the office of director or remove a director for reasons other than those set out in ORS 334.095.

"4. All other issues are moot.

"5. Costs are awarded to no party * * *."

Defendant then petitioned for an award of attorney fees under ORS 258.046(2), claiming that plaintiff's action is an election contest under ORS 258.006-258.085 and not a declaratory judgment action under ORS ch. 28. The petition was denied.

Defendant appeals, contending that the action is an election contest and, because plaintiff failed to meet certain procedural requirements to bring the action, including having standing to sue, it was error to deny the motion to dismiss. Defendant also claims that, because he prevailed on the merits, he is entitled to costs and attorney fees at trial and on appeal. Plaintiff cross-appeals and argues, essentially, that it was error to declare defendant eligible to serve on the board of directors.

Plaintiff is an education service district organized under ORS ch. 334 and is governed by a board of directors consisting of the individually named plaintiffs. Defendant was a permanent teacher employed by plaintiff. On March 29, 1983, while serving in that capacity, he was elected to plaintiff's board for a term to commence July 1. ORS 334.090(2). Defendant's teaching position was to be eliminated for the 1983-84 school year. Because of that reduction in force, plaintiff's superintendent, on March 30, 1983, notified him that he would recommend his dismissal, effective June 16, 1983. Defendant did not contest the dismissal, and the board approved it on April 19, 1983. ¹ Defendant, however, retained a right to recall pursuant to ORS 342.934(6).

Defendant was notified by plaintiff's attorney that he must take the oath of office within 30 days of the date of the election. The last board meeting within the 30-day period was scheduled for April 19, 1983. Defendant was informed:

"As an employee of the district you are not presently eligible for the oath of office nor qualified to serve on the board. As counsel to the district, I have advised the board not to give you the oath of office unless your resignation from the district is received and accepted prior to the swearing in."

Defendant attended the meeting but was not sworn in. This action was filed on April 20, 1983. Defendant took the oath of office before a notary on April 26 and again on May 13, 1983, and filed the oaths with plaintiff. On June 21, 1983, after the trial court had denied the motion to dismiss, defendant resigned from all employment with the district. The effect of his resignation was to waive his statutory right to recall.

The complaint for "declaratory judgment" alleges in pertinent part:

"5. On March 29, 1983 and until the present, defendant was and is an employee of LESD. ORS 334.090(6) provides:

" 'No person who is an employee of an education service district shall be eligible to serve as a member of the education service district board by which the employee is employed.'

"ORS 334.090(3) provides:

" 'Members of education service district boards must qualify by taking the oath of office within 30 days after their election or appointment and before assuming the duties of office.'

"* * * * *

"ORS 258.016 provides:

" 'The nomination or election of any person ... may be contested by any elector entitled to vote for the person ... or by any person who was a candidate at the election for the same nomination or office, only for the following causes:

* * *

" '(2) Ineligibility of the person elected to the office to hold the office at the time of the election.'

"ORS 334.095 provides:

" '(1) The education service district board shall declare the office of director vacant upon the happening of any of the following:

"* * * * *

" '(b) When an incumbent is removed from office or the election thereto has been declared void by the judgment or decree of any competent court;'

"* * * * *

"6. Plaintiff contends that the Board, as the district election authority, is required by law to supervise and control all district elections. Plaintiff further contends that such authority coupled with ORS 334.125(3) both allows and requires the Board to determine the validity of district elections.

"Defendant contends that the exclusive method of challenging his election is by strict compliance with ORS 258.016 and related election contest laws. He further contends that neither the district nor board may contest his election.

"7. Plaintiff contends that ORS 334.095 is directive but not an exclusive listing of when a board may permissibly declare an office of director vacant as the district election authority.

"Defendant contends that ORS 334.095 contains the exclusive listing of when a board may permissibly declare an office of director vacant.

"8. Plaintiff contends that the taking of the oath of office by defendant will make him a member of the board on that date of the oath taking. Since defendant is an employee, the board contends he may not legally be administered the oath of office.

"Defendant contends that so long as he does not begin the term of his office until he is no longer an employee of the district, he may legally be administered the oath of office, and, in fact, he must be given the oath of office by the Board.

"9. Plaintiff contends that defendant's election was void because he was not eligible to serve on the board on the date of election as required by ORS [258.016] and 334.090(6).

"Defendant contends the Board had no standing to raise this issue.

"10. On April 15, 1983 attorneys for the defendant wrote to LESD counsel threatening legal action if the board 'attempt(s) to deny Mr. Swanson his right to take the oath of office ...' On April 19, 1983 the Board, on advice of counsel, did not administer the oath of office to defendant although he was present and requested it be given.

"WHEREFORE, plaintiff prays:

"That a declaratory judgment be rendered and entered declaring the respective rights and duties of the plaintiff and defendant relative to the validity of defendant's election, the administration of the oath of office to him while employed by the district and whether the board may lawfully declare position $7 vacant. * * *." (Emphasis in original.)

The questions on the appeal are whether plaintiff's action is an election contest and, if so, whether the court erred in denying the motion to dismiss.

We understand the complaint to allege essentially two claims for which plaintiff seeks a declaration. The first concerns defendant's eligibility to serve on the board despite his employment by plaintiff at the time of the election, as alleged in paragraphs 6, 7 and 9 of the complaint. ORS 258.016(2); ORS 334.090(6). The second is defendant's employment by plaintiff within the time he was required to take the oath of office in order to qualify, as alleged in paragraphs 8 and 10 of the complaint. ORS 334.090(3).

Plaintiff contends that defendant's election was void under ORS 258.016(2), because he was ineligible to hold office on the date of the election by virtue of ORS 334.090(6). ORS 258.016 sets out the exclusive grounds for bringing an election contest. Bagley v. Beaverton School District, 12 Or.App. 377, 507 P.2d 39 (1973). A contest may only be brought by an "elector entitled to vote," or by a "candidate." Plaintiff is neither and clearly lacks standing under ORS 258.016(2) to contest the validity of defendant's election.

This court has the duty to notice any failure of jurisdiction. ORCP 21 G(4); Powell v. State Bd. of Pilot Com'r, 224 Or. 122, 126, 355 P.2d 224 (1960). Jurisdiction cannot be remedied by waiver, or estoppel. Wink v. Marshall, 237 Or. 589, 592, 392 P.2d 768 (1964); Bagley v. Beaverton School District, supra, 12 Or.App. at 382, 507 P.2d 39. For the reasons that follow, we believe that the trial court lacked jurisdiction to declare the validity of defendant's election.

An election contest is a special statutory proceeding; no right existed at common law to contest an election. Bradburn v. Wasco County...