STATE EX REL. PODDAR v. Lee
Decision Date | 27 October 2004 |
Citation | 100 P.3d 747,196 Or. App. 34 |
Parties | STATE ex rel Bhagwati P. PODDAR, Philip N. Tussing, W.T. Ballard and Saradell Poddar, Appellants, v. Richard LEE, Helen Westbrook and Lylla Gaebel, Respondents. |
Court | Oregon Court of Appeals |
Bhagwati P. Poddar, Philip N. Tussing, W.T. Ballard, and Saradell Poddar filed the briefs pro se.
Blair J. Henningsgaard, Astoria, filed the brief for respondents.
Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.
Plaintiffs appeal the trial court's dismissal of their action to remove defendants from their offices as Clatsop County Commissioners. We affirm the trial court on the merits, but we reverse the award of attorney fees under ORS 258.046.1
The material facts are undisputed. In 2001, the voters of Clatsop County approved a revision to the county charter that modified the manner in which county commissioners are elected. Before the revision, candidates for the Board of County Commissioners were nominated for the general election ballot by petition and the candidate for each district who received the highest number of votes in the November election won the election. The revision substituted a nominating election to be held in May. The two top vote-getters in May in each district would face each other in November; however, if one candidate received more than 50 percent of the May vote, his or her name would be the sole name on the November ballot. Defendants were elected to their offices through the new nominating election procedure in 2002.
Plaintiffs style this action as "in the nature of quo warranto" under ORS 30.510,2 seeking to remove defendants from their offices because, as plaintiffs see it, the 2001 revision to the Clatsop County Charter was unlawful. Plaintiffs' theory is that the charter is not subject to revision. Defendants moved to dismiss on several grounds, including that plaintiffs failed to state a claim and that the action, properly understood, is really an untimely contest to defendants' election under ORS 258.016. Defendants requested attorney fees under ORS 258.046.
The trial court first concluded that the Clatsop County Charter was lawfully revised. Then, the trial court determined that plaintiffs' action was an untimely election challenge and awarded defendants attorney fees under ORS 258.046. Plaintiffs appeal, assigning error to the trial court's dismissal of their action and its award of attorney fees. We affirm the ruling that the Clatsop County Charter was lawfully revised in 2001 without discussion. However, we reverse the trial court's award of attorney fees to defendants.
An action under ORS 258.016 is the exclusive method to contest election results. See Bagley v. Beaverton School District, 12 Or.App. 377, 382, 507 P.2d 39 (1973)
() (quoting Bradburn v. Wasco County, 55 Or. 539, 541, 106 P. 1018 (1910)). It must be filed within 40 days of the election. ORS 258.036. However, an action under ORS 30.510—the statutory equivalent of a quo warranto proceeding—is the exclusive method to challenge someone's claim to public office. State ex rel Boe v. Straub, 282 Or. 387, 392, 578 P.2d 1247 (1978) (); State ex rel Madden v. Crawford, 207 Or. 76, 81, 295 P.2d 174 (1956) ( ).
The ultimate question in this case is whether plaintiffs are contesting the results of the 2002 election or challenging defendants' lawful title to their offices.3 If it is an election contest, then the trial court acted beyond its authority in ruling on the merits (because plaintiffs filed the action more than 40 days after the election), but it correctly awarded attorney fees to defendants. ORS 258.046. If the action is an action under ORS 30.510, then the trial court acted within its authority when it ruled on the merits. For the reasons that follow, plaintiffs' action is properly understood as an action under ORS 30.510.4
rev. dismissed, 334 Or. 693, 56 P.3d 405 (2002) ( ).
In contrast, none of plaintiffs' arguments falls within the scope of ORS 258.016. Defendants admit as much with their argument that plaintiffs' complaint fails to state a claim under ORS 258.016. Plaintiffs could not state a claim under ORS 258.016 for the simple reason that this is not an election contest. Plaintiffs argue that defendants' election itself was unlawful from its inception, not that the process or results are unlawful.
The election contest statute, ORS 258.016, provides:
Plaintiffs' argument that defendants' claim to public office is based on an unlawful revision to the county charter does not fit within the terms of that statute.
rev. den., 293 Or. 634, 652 P.2d 810 (1982) (...
To continue reading
Request your trial-
State v. Toste
... ... "ORS 135.470 ... "Article I, § 12, Oregon Constitution ... "Amendment V, United States Constitution ... " State ex rel Turner v. Frankel, 322 Or. 363 [908 P.2d 293] (1995) ... " State v. Martin, 288 Or. 643 [607 P.2d 171] (1980) " ... At the ... ...
-
Mabon v. Wilson
...Or. 9, 14 n. 3, 76 P.3d 109 (2003); State ex rel McIntire v. Balmer, 336 Or. 1, 5 n. 5, 75 P.3d 894 (2003); State ex rel Poddar v. Lee, 196 Or.App. 34, 38 n. 4, 100 P.3d 747 (2004), rev. pending (2005). None of those cases resolved the issue. 3. The scope of the district attorney's duties u......
-
State Va. Ex Rel. Donald Hicks v. Bailey
...Council v. Stanley, 264 Kan. 690, 957 P.2d 379 (1998); Big Spring v. Jore, 326 Mont. 256, 109 P.3d 219 (2005); State ex rel. Poddar v. Lee, 196 Or.App. 34, 100 P.3d 747 (2004). ...
- State ex rel Poddar v. Lee, S52271.