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Bagley v. Beaverton School District 48

March 5, 1973

BAGLEY ET AL, APPELLANTS,
v.
BEAVERTON SCHOOL DISTRICT # 48 ET AL, RESPONDENTS, THOMSSEN, RESPONDENT-CROSS-APPELLANT



Appeal from Circuit Court, Washington County. Albert R. Musick, Judge. No. 32-989.

Patrick J. Furrer, Tigard, argued the cause for appellants. On the brief was James F. McCaffrey, Tigard.

Clifford N. Carlsen, Jr., Portland, argued the cause for respondents. With him on the brief were Miller, Anderson, Nash, Yerke & Wiener, and Warren C. Deras, Portland.

Edward J. Sullivan, County Counsel, Hillsboro, argued the cause and filed the brief for respondent-cross-appellant.

Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.

Langtry

Plaintiffs appeal from a circuit court judgment dismissing their petition contesting a special tax election of Beaverton School District No. 48. The judgment of dismissal was entered pursuant to the trial court finding that plaintiffs failed to file their petition within the statutory period specified by ORS 251.045. Defendant Thomssen, county clerk in charge of elections, cross-appeals from the circuit court's denial of his motion for attorney fees, costs and disbursements.

The record shows: On May 1, 1972 the District submitted to the voters a tax levy. On May 8, 1972 the District Board adopted and filed a certificate of result showing the levy to have been approved by a vote of 7,069 to 5,909. On this same day, plaintiffs allege they went to the business office of the District and made request to examine the records of the election,

and that this request was denied. Plaintiffs further allege that on May 11, 1972 they made another request to examine the records and were again denied access to all records except a list of the names of absentee voters. However, at the time of their second request, plaintiffs say they were advised that the election records would be available in the office of the Washington County Clerk on May 15, 1972. On May 15 plaintiffs say they examined all requested records except approximately 600 challenged ballots, and that a final request to gain access to the approximately 600 challenged ballots was made on May 23 and denied.

On June 26, 1972 plaintiffs filed their petition contesting the election. On July 12 the court heard defendants' motions to quash and dismiss plaintiffs' petition (as amended) and found that plaintiffs had not filed their petition contesting the election within the 10-day period prescribed in ORS 251.045. Judgment was entered dismissing the petition.

ORS 251.045 provides:

"Not later than 10 days after the final canvass of votes or other final compilation of the result of any primary, general or special election * * * any person authorized by ORS 251.025 to contest * * * the approval or rejection of any measure at such election may file a petition of contest with the clerk of the circuit court for the county in which the certificate of * * * proclamation * * * is or will be issued * * *. The petition shall specify with particularity the cause of the contest, shall name the contestees * * *." (Emphasis supplied.)

ORS 251.015 (2) provides that a contestee in a contest of a measure on the ballot shall mean "* * * any person ...


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