Mabon v. Wilson

• Decision Date: 16 March 2005
• Citation: 108 P.3d 598,198 Or. App. 340
• Parties: Lon Thurston MABON, Appellant, v. Janice R. WILSON, Respondent.
• Court: Oregon Court of Appeals

108 P.3d 598

198 Or. App. 340

Lon Thurston MABON, Appellant, v. Janice R. WILSON, Respondent.

0212-12568; A121483.

Court of Appeals of Oregon.

Submitted on Record and Briefs January 7, 2005.

Decided March 16, 2005.

Lon Thurston Mabon filed the briefs pro se.

Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.

ARMSTRONG, J.

Plaintiff appeals from a judgment that dismissed an action that challenged the authority of defendant to hold the office of Multnomah County Circuit Judge. He based his challenge on the contention that defendant had failed to subscribe to the correct oath of office and therefore was not qualified to hold the office. We affirm.

Plaintiff filed his action under ORS 30.510, which, among other things, provides the mechanism for challenging a person's right to public office. The thrust of plaintiff's argument is that defendant did not subscribe and file, word-for-word and comma-for-comma, the oath of office set forth in Article VII (Original), section 21, of the Oregon Constitution.¹ Defendant filed a motion to dismiss for failure to state ultimate facts sufficient to constitute a claim, arguing that the oath that she subscribed satisfied all legal requirements. The trial court agreed and granted defendant's motion to dismiss.

Plaintiff timely filed a notice of appeal and, on September 24, 2003, filed his opening brief, asserting seven assignments of error. On October 24, 2003, defendant filed a motion to dismiss the appeal, arguing that we lacked jurisdiction to hear it because actions under ORS 30.510 must be commenced by the district attorney, and this action had not been. In April 2004, plaintiff requested a stay of the appeal while he sought to involve the Multnomah County District Attorney. We denied that request and granted defendant's motion to dismiss the appeal on July 22, 2004. On August 5, 2004, plaintiff moved for reconsideration of our order dismissing the appeal, arguing that he had asked the district attorney to participate in the case and that the district attorney had refused. On September 7, 2004, we denied the motion for reconsideration but, on our own motion, vacated our July 22, 2004, order insofar as it dismissed the appeal. We did so because we have jurisdiction of appeals from judgments entered in the trial court, and that jurisdiction includes the resolution of disputes over the subject matter jurisdiction of the trial court. Thus, we denied defendant's motion to dismiss the appeal and reinstated plaintiff's appeal. The threshold — and ultimately dispositive — question is whether a private party may bring an action under ORS 30.510 without the involvement of the district attorney.² For the reasons discussed below, we hold that (1) an action under ORS 30.510 to 30.640 must be commenced and prosecuted by the district attorney for the district in which the action is triable, and (2) that requirement is jurisdictional. That is, unless the action is commenced and prosecuted by the district attorney, a trial court lacks subject matter jurisdiction of the action.

First and foremost, this is a case of statutory construction. Thus, we turn to the well-worn template of PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), which describes the manner in which we are to determine the legislature's intent in enacting ORS 30.510 to 30.640. First, we consider the statute's text and context. Id. at 610, 859 P.2d 1143. If that analysis reveals the statute's intended meaning, then our task is complete. Only if we conclude that the statute is ambiguous do we turn to legislative history and general maxims of statutory construction. Id. at 611-12, 859 P.2d 1143.

Because the statutes at issue here have such a long history, their genesis is pertinent to our analysis. See Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, 322 Or. 406, 415, 908 P.2d 300 (1995),

modified on recons, 325 Or. 46, 932 P.2d 1141 (1997) (beginning PGE analysis with a discussion of historical background). At common law, the method by which the crown would displace usurpers of an office in violation of the king's right was by the writ of quo warranto. Such actions were brought by the attorney general or the master of the crown office. See State v. Douglas County Road Co., 10 Or. 198, 200 (1882). By statute in Oregon, the writ of quo warranto has been abolished. ORS 34.810. In its stead, the legislature created four distinct actions, now codified at ORS 30.510, 30.570, 30.580, and 30.600. ORS 30.510 provides an action to oust a person from public office or to challenge the lawfulness of an association's incorporation. ORS 30.570 provides an action to annul a corporation at the direction of the Governor; ORS 30.580 provides for a similar action on leave of the court. ORS 30.600 provides an action to annul letters patent.

Plaintiff brings this action under ORS 30.510, which provides:

"An action at law may be maintained in the name of the state, upon the information of the district attorney, or upon the relation of a private party against the person offending, in the following cases:

"(1) When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state[.]"

Several other statutes provide relevant context. As noted, ORS 30.570, ORS 30.580, and ORS 30.600 provide for actions to annul corporate existence and letters patent issued by the state. All of the actions described above are governed by ORS 30.610, which provides:

"The actions provided for in ORS 30.510 to 30.640 shall be commenced and prosecuted by the district attorney of the district where the same are triable. When the action is upon the relation of a private party, as allowed in ORS 30.510, the pleadings on behalf of the state shall be signed by the relator as if the relator were the plaintiff, or otherwise as provided in ORCP 17; in all other cases the pleadings shall be signed by the district attorney in like manner or otherwise as provided in ORCP 17. When an action can only be commenced by leave, as provided in ORS 30.580, the leave shall be granted when it appears by affidavit that the acts or omissions specified in that section have been done or suffered by the corporation. When an action is commenced on the information of a private person, as allowed in ORS 30.510, having an interest in the question, such person, for all the purposes of the action, and as to the effect of any judgment that may be given therein, shall be deemed a coplaintiff with the state."

Finally, ORS 30.620 provides:

"When directed by the Governor, as prescribed in ORS 30.570, it shall be the duty of the district attorney to commence the action therein provided for accordingly. In all other actions provided for in ORS 30.510 to 30.640 it shall be the duty of the proper district attorney to commence such action, upon leave given where leave is required, in every case of public interest, whenever the district attorney has reason to believe that a cause of action exists and can be proven, and also for like reasons in every case of private interest only in which satisfactory security is given to the state to indemnify it against the costs and expenses that may be incurred thereby."

Taken in isolation, the text of ORS 30.510 would appear to allow actions to be brought under it without the involvement of the district attorney. The language of the introductory sentence seems to be disjunctive: "An action at law may be maintained in the name of the state, upon the information of the district attorney, or upon the relation of a private party * * *." ORS 30.510(1) (emphasis added). Thus, at first blush, it seems that ORS 30.510 plausibly could be interpreted to allow a private party to bring an action without the participation of the district attorney.

However, at the first level of statutory analysis, we are not concerned solely with the text of the particular statute. We must also consider the statute in context. Here, relevant context is provided by other related statutes, prior judicial construction of the same or similar language, and prior enacted versions of the same statute. See State v. Carr, 319 Or. 408, 411-12, 877 P.2d 1192 (1994)

("Context includes other related statutes."); State v. King, 316 Or. 437, 445, 852 P.2d 190 (1993) ("When [the Supreme Court] interprets a statute, the interpretation becomes a part of the statute, subject only to a revision by the legislature."); State v. Webb, 324 Or. 380, 390, 927 P.2d 79 (1996) ("Prior enacted legislative changes are part of a statute's context.").

ORS 30.610, quoted in full above, is a related statute we must consider. The first sentence provides that "[t]he actions provided for in ORS 30.510 to 30.640 shall be commenced and prosecuted by the district attorney of the district where the same are triable." ORS 30.610 (emphasis added). The plain meaning of that statute is that actions under ORS 30.510 must be commenced and prosecuted by a district attorney. "Shall," of course, is mandatory language. That is, if an action under ORS 30.510 is to be commenced, it must be commenced by the district attorney.

ORS 30.620 also provides context for ORS 30.510. It provides, in part:

"In all other actions [besides that set forth in ORS 30.570] provided for in ORS 30.510 to 30.640 it shall be the duty of the proper district attorney to commence such action, upon leave given where leave is required, in every case of public interest, whenever the district attorney has reason to believe that a cause of action exists and can be proven, and also for like reasons in every case of private interest only in which satisfactory security is given to the state to indemnify it against the costs and

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