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State ex rel. Smith v. Hitt

Court of Appeals of Oregon

May 16, 2018

STATE ex rel Norm SMITH; Lynn Herbert; Andy Owens, Sr.; Elin Miller; Dotty Randall Stapleton; Keith Tymchuk; Chuck Ireland; Georgia Stiles; Bill Markham; and Susan Morgan, Relators-Respondents,
v.
Patricia HITT, in her offcial capacity as Douglas County Clerk, Defendant-Respondent, and John PARKER, Intervenor-Appellant.

          Argued and submitted November 28, 2016

          Douglas County Circuit Court 15CV24992; Richard L. Barron, Judge.

          James L. Buchal argued the cause for appellant. With him on the briefs was Murphy & Buchal, LLP.

          William F. Gary argued the cause and fled the brief for respondents State ex rel Norm Smith, Lynn Herbert, Andy Owens, Sr., Elin Miller, Dotty Randall Stapleton, Keith Tymchuk, Chuck Ireland, Georgia Stiles, Bill Markham, and Susan Morgan.

          No appearance for respondent Patricia Hitt.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         [291 Or.App. 751] Case Summary:

         By legislative initiative, the voters of Douglas County enacted a county ordinance that limits the number of consecutive terms that county commissioners can serve. Morgan, an incumbent Douglas County commissioner, sought re-election despite being term limited under the ordinance. Relators, who include Morgan and other Douglas County voters, petitioned the trial court for a writ of mandamus to require defendant, the Douglas County clerk, to place Morgan on the ballot for the May 2016 election. Parker, the chief petitioner for the initiative, intervened in the mandamus proceeding. The trial court granted the writ of mandamus, ruling that the ordinance violates Article VI, section 8, of the Oregon Constitution, and entered a general judgment in favor of relators. Intervenor Parker appeals seeking reversal of the trial court judgment and a declaration that the county ordinance is constitutional. Held: The trial court did not err in determining that the Douglas County ordinance violates Article VI, section 8, by imposing additional qualifications for the position of county commissioner. Thus, the court did not err in granting relators' writ of mandamus, and entering a general judgment in relators' favor.

         Affirmed.

         [291 Or.App. 752] ARMSTRONG, P. J.

         By initiative petition, the voters of Douglas County enacted a county ordinance that limits the number of consecutive terms that Douglas County commissioners are permitted to serve. Morgan, an incumbent Douglas County commissioner, sought re-election despite being disqualified from re-election by the ordinance. Relators, who include Morgan and other Douglas County voters, petitioned the circuit court for a writ of mandamus to require defendant, the Douglas County clerk, to place Morgan on the ballot for the May 2016 primary election. Parker, the chief petitioner for the initiative measure, intervened in the mandamus proceeding. The circuit court granted a writ of mandamus- based on the court's determination that the ordinance violates Article VI, section 8, of the Oregon Constitution-and entered a general judgment in favor of relators. Intervenor appeals the judgment, seeking reversal of it and a declaration that the county ordinance is constitutional. For the reasons that follow, we affirm.

         Morgan was elected to the Douglas County Board of Commissioners in 2008 and was re-elected as a commissioner in 2013. In November 2014, the voters of Douglas County approved Measure 10-134, codified as Douglas County Code section 2.04.060 (the ordinance), which limits the service of county commissioners to "no more than 8 years consecutively."

         In September 2015, Morgan filed a declaration of candidacy with the county clerk seeking election to a third term as county commissioner in the May 2016 primary election. Relying on the ordinance, the county clerk refused to accept Morgan's declaration. In response, relators filed a petition under ORS 34.110 for a writ of mandamus directing the clerk to place Morgan's name on the ballot. Relators asserted that the ordinance violates Article VI, section 8, of the Oregon Constitution and the First and Fourteenth Amendments to the United States Constitution and, hence, that the ordinance could not be enforced to disqualify Morgan from the ballot.

         In December 2015, the circuit court issued a writ of mandamus commanding the county clerk to " [a]ccept Relator [291 Or.App. 753] Morgan's Declaration of Candidacy * * * and place Relator Morgan on the May 17, 2016 primary election ballot as a candidate for the office of Douglas County Commissioner." The court issued the writ based on its conclusion that the ordinance violates Article VI, section 8, and it entered a general judgment in favor of relators. However, after the writ issued, Morgan withdrew her candidacy for county commissioner. Intervenor appeals seeking reversal of the general judgment and a declaration that the ordinance is constitutional.[1]

         We begin with the question of mootness. Generally, "[c]ases that are otherwise justiciable, but in which a court's decision no longer will have a practical effect on or concerning the rights of the parties, will be dismissed as moot." Brumnett v. PSRB,315 Or. 402, 406, 848 P.2d 1194 (1993). As noted, Morgan withdrew her candidacy for county commissioner after the writ of mandamus had issued and, thus, a decision in this case ...


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