Stork v. Columbia River People's Utility Dist., 26840

• Decision Date: 23 June 1982
• Docket Number: No. 26840,26840
• Parties: Werner STORK, Maxine Stork, Voris Probst, Mildred Probst, Lee Applegate, and Betty Applegate, Appellants, v. COLUMBIA RIVER PEOPLE'S UTILITY DISTRICT: Wes Kimble, Director; Donald Nys, Director; Richard Sahagian, Director; Steve Spinden, Director; and Arnold Tarbell, Director, Respondents. ; CA A21779.
• Court: Oregon Court of Appeals

Page 1372

646 P.2d 1372

58 Or.App. 51

Werner STORK, Maxine Stork, Voris Probst, Mildred Probst, Lee Applegate, and Betty Applegate, Appellants, v. COLUMBIA RIVER PEOPLE'S UTILITY DISTRICT: Wes Kimble,

Director; Donald Nys, Director; Richard Sahagian,

Director; Steve Spinden, Director; and

Arnold Tarbell, Director, Respondents.

No. 26840; CA A21779.

Court of Appeals of Oregon.

Argued and Submitted April 19, 1982.

Decided June 23, 1982.

David B. Williamson, St. Helens, and John W. Osburn, Portland, argued the cause for appellants. With them on the briefs was Williamson, Williamson & Leineweber, St. Helens.

Robert A. Lucas, St. Helens, argued the cause for respondents. With him on the brief was Lucas, Petersen & Huffman, St. Helens.

Before BUTTLER, P. J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Plaintiffs, taxpayers residing in Columbia County, challenge a special election held in November, 1980, approving a $17 million general obligation bond issue to allow acquisition of electrical energy facilities by a people's utility district (PUD). Plaintiffs sought invalidation of the election on the grounds that (1) some illegal votes were cast and some legal voters were disenfranchised; and (2) defendants, the directors of the PUD, ran an advertisement containing a false and misleading statement in violation of the Corrupt Practices Act, ORS 260.532. The trial court, sitting without a jury, upheld the election. On appeal, plaintiffs assign error to the trial court's (1) upholding the election despite a level of disenfranchisement that could have changed the result of the election; (2) upholding the election despite the false statement of material fact; and (3) awarding attorney fees to defendants. We affirm.

Columbia River People's Utility District was formed in 1940; its boundaries were designated as falling outside the then corporate limits of cities in the county. After 1940, the cities annexed various areas. Although the actual PUD boundaries remained the same, voters in the annexed areas were not considered to reside within the district for the purposes of subsequent PUD elections. In 1975, counsel for the PUD notified the county of the annexation problem. The county election official contacted the cities, and by utilizing county records redrew some of the PUD boundary lines. A 1978 election was held, without objection from any voter. With respect to the 1980 election challenged in this proceeding, the trial court made findings of fact set forth here in relevant part:

"1. On November 4, 1980, the Columbia River People's Utility District duly and regularly held a special election on the question of whether they should contract a general obligation bonded indebtedness not to exceed 17 million dollars ($17,000,000). The initial count showed the measure passed 3,533 votes to 3,502 votes. Upon recounting, the measure passed by 66 votes with 3,562 votes in favor and 3,496 against.

"2. Primarily because of difficulty in determining the 1940 boundary lines of the excluded municipalities and determining the location of voters' properties in relation to those boundaries, some voters outside the district voted and other voters within the district were not given an opportunity to vote. * * *

" * * *

"6. Twenty-three (23) illegal 'yes' votes and twelve (12) illegal 'no' votes were cast. One hundred twenty-nine (129) voters were disenfranchised. * * *

"7. None of the disenfranchised voters exercised a challenge to their denial of a ballot by election officials.

"8. The elections officials for Columbia County were not aware of any particular problem with their election materials for the district prior to the November 4, 1980, election. The election officials were diligent and careful in their work."

The first issue is whether plaintiffs' attack on the election is an election contest under ORS chapter 258 or a challenge to certain PUD proceedings under ORS chapter 261. Plaintiffs argue that the proceeding was brought under both, but they seek to avoid the "deliberate and material" standard required to set aside an election under ORS 258.016(1). ¹ Instead, plaintiffs contend the appropriate standard is supplied by ORS 261.620, ² which provides that the court must disregard any error or irregularity not affecting the substantial rights of the parties. ³ We resolve the ambiguity in plaintiffs' characterization of the action in favor of applying ORS chapter 258.

ORS 261.605(1) provides for judicial review of proceedings in connection with the creation of a PUD. This PUD was created in 1940, and has had a board of directors with regular elections since that time, although it has not furnished electricity to its constituents. Although the bond issue was thus necessary to "energize" the PUD, we do not consider that to be part of the creation or establishment of the PUD. Moreover, the proceeding challenged here does not fall within the chapter 261 provisions cited by plaintiffs. Plaintiffs first rely on ORS 261.605(1)(a), permitting court review of an irregularity with respect to the action of a county governing board in "declaring the result of any general or special election" in a PUD. Plaintiffs have alleged no irregularity, however, in the county's "declaring" the results of the election; the challenge is to the election procedure itself. Second, plaintiffs point to ORS 261.605(1)(b), allowing review of actions of a PUD in authorizing and providing for issue and sale of bonds. But other than in their corrupt practices claim, which we hold infra to be ineffective, plaintiffs do not focus on the acts of the PUD but on the acts of the county election officials in running the election. In short, this is an election contest brought under ORS chapter 258 to set aside an election. The trial court properly so ruled in granting defendants' motion to strike the original petition on the ground that it contained more than one claim not separately stated. We conclude that the trial court properly tested the claimed irregularity by the "deliberate and material" standard of ORS 258.016(1).

Our scope of review is that applied to actions at law determined without a jury, and the question is whether there is substantial evidence to support the trial court's finding that there was no clear and convincing evidence of a deliberate and material violation of the election laws. Thomas v. Penfold, 23 Or.App. 168, 171-72, 541 P.2d 1065 (1975). Here, there were not enough illegal votes cast to change the outcome of the election, a prerequisite under ORS 258.026(2) for setting the election aside. Therefore, the principal factual issue before the trial court was whether the disenfranchisement of some voters occurred as a result of deliberate and material acts by the county. Plaintiffs contend that, because the PUD's attorney notified the county clerk in 1975 of the annexation problem, any irregularity in the 1980 election was axiomatically deliberate. In one of its memorandum opinions, incorporated by reference in the judgment, the trial court noted that the county was in fact diligent:

"In 1975 it was brought to the attention of the elections supervisor that city annexations subsequent to 1940 did not cause a movement of the district boundary. That is, the district boundary around each city remained at the 1940 line. Upon learning this, action was taken to obtain descriptions of the 1940 city boundaries. The evidence establishes that although there have been problems in obtaining these descriptions and mapping them, the real difficulty in this election revolves around the location of particular properties in relation to those lines. However, I find that the elections officials for Columbia County were not aware of any particular problem with their election materials for the district prior to the November 14th election. Although questions had been raised in earlier elections, they were not of major proportions and the county election officials were satisfied that the problems raised were properly resolved. Further, there is nothing in the evidence to suggest that the clerk, the elections supervisor and the additional full-time employee who works in elections have not been diligent and careful in their work. The evidence is to the contrary."

Plaintiffs do not contend that the record lacks substantial evidence to support the trial court's findings on this issue. There was no error. ⁴ With respect to the second assignment, plaintiffs contend that the trial court erred in ruling that the PUD directors' pledge that they would not levy property taxes to pay for the bond issue was not a false statement of material fact but, rather, a campaign promise. The short answer is that ORS 260.532, ⁵ upon which plaintiffs rely, authorizes only the...