Mabon v. Myers

984 P.2d 278, 329 Or. 1, 1999 Ore. LEXIS 380

• Court: Oregon Supreme Court
• Decided: June 24, 1999
• Docket: SC S46240
• Status: Published

Opinions

GILLETTE, J.

This is an original proceeding brought under ORS 250.085 for review of a ballot title certified by the Attorney General. Petitioner, the principal sponsor of the measure in question, is an elector who timely submitted written comments to the Secretary of State concerning the Attorney General’s draft ballot title under ORS 250.067(1). Accordingly, he is entitled to seek a different title in this court, ORS 250.085(2), unless some procedural impediment exists that prevents this court from reaching the merits. For the reasons that follow, we conclude that there is such a procedural impediment in this case. Accordingly, we dismiss the petition.

The Attorney General has moved to dismiss the petition for review of ballot title on the ground that, although the petition was filed timely in this court, petitioner failed to notify timely the Secretary of State that the petition for review of ballot title had been filed, as he is required to do by ORS 250.085(4). That statute provides:

“An elector filing a petition [for review by the Supreme Court of a ballot title] under this section shall notify the Secretary of State in writing that the petition has been filed. The notice shall be given not later than 5 p.m. on the next business day following the day the petition is filed.”

The parties have submitted argument on this question and have included affidavits that establish the factual predicate for resolution of the issue. From the documents, we conclude that the following fairly states the procedural history. Petitioner filed his petition in this court on March 23, 1999. Petitioner mailed a copy of the petition by certified mail to the Secretary of State.¹ The next business day was March 24,1999. The certificate returned to petitioner discloses that the copy of the petition was received by Ronald Ingram, an employee of the Department of Administrative Services (DAS), on March 24,1999.

Ingram is a “mail specialist” who processes outgoing and incoming mail for the state; he is not an employee of the Office of the Secretary of State. One of his duties is to sign for certified mail addressed to certain state officials (among whom, we infer, is the Secretary of State) and to ensure that such mail is delivered promptly to those officials. However, Ingram acknowledges in his affidavit in this case that if, at the time when he signs for a piece of certified mail, the last mail delivery of the day already has left the state mail room, then “the mail will not reach the designated state official until the next business day.”

We infer from the record that the foregoing description was true in this case. The return receipt signed by Ingram shows only that he received petitioner’s mailing on “Mar[chj 24, 1999.” The Secretary of State’s office-receipt stamp shows that that office did not receive the mailing until 10:36 a.m. on March 25, 1999 — the next business day after Ingram had signed for it, and two business days after the petition to review ballot title had been filed in this court.

The Attorney General argues that, when viewed in light of the foregoing facts, this case is governed by this court’s decision in Sizemore v. Myers, 327 Or 71, 957 P2d 577 (1998), a case construing the same statute that is at issue here. In Sizemore, the parties agreed that the requisite notice to the Secretary of State was not timely. The petitioners in that case argued that the fact that notice to the Secretary of State was not timely was irrelevant, because ORS 250.085(4) was not a jurisdictional statute. This court held that, although ORS 250.085(4) is not a “jurisdictional” statute as that term commonly is used, compliance with its requirements is necessary for a petitioner to be entitled to obtain review of a ballot title:

“Ballot title review proceedings are entirely a creature of statute. A party’s right to review, the bases on which it can be obtained, the grounds on which an objection to a ballot title may be sustained, and the scope of this court’s authority to modify a ballot title are prescribed by statute. * * * Thus, this court’s authority to review a ballot title extends only to those cases in which the statutory prerequisites to review have been satisfied. * * * [T]he court recognize^] the limits on its authority created by the statutory arrangement and * * * [keeps] itself within those limits.”

Sizemore, 327 Or at 74-75. Because the requirement in ORS 250.085(4) that the Secretary of State be given notice by 5:00 p.m. on the next business day was “clear” and had not been met, the petition in that case was dismissed. Id. at 75.

This case differs factually from Sizemore in that, in the present case, notice had been given timely to someone. It is clear, however, that the someone was Ingram, an employee of DAS, not the Secretary of State. Petitioner argues, in essence, that Ingram should be treated as the Secretary of State’s agent and that notice to the agent should be deemed to be notice to his principal.

We are not persuaded. The record contains nothing to suggest that the Secretary of State ever has designated Ingram as his agent. Ingram’s affidavit emphasizes that he is not an employee of the Secretary of State; he is employed by — and is the agent of — DAS. There is a statute that describes how DAS came to receive mail directed at the Secretary of State. ORS 283.140 provides, in part:

“(1) * * * [DAS] may operate central mail * * * service for agencies located in Salem, * * * where it would be economical to do so. * * * [T]he cost of mail * * * services, shall be charged to the various agencies served and paid to [DAS] in the same manner as other claims against the agencies are paid.

“(2) If [DAS] operates central mail service, it shall:

* * * *

“(b) Report biennially to the Director of [DAS] on opportunities for savings through state agency mail room centralization, consolidation and automation and through mail route coordination.”

Nothing in that statutory text or context suggests that, in authorizing DAS to process agency mail in Salem, the legislature intended to permit DAS to become the agent of various agencies for the purpose of receiving time-sensitive materials subject to statutory service or notice deadlines. Instead, it is clear that the legislature intended the statute only to authorize DAS to put in place a cost-saving procedure, if the facts warranted doing so. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993) (establishing template for determining legislative intent in enacting statutes; authorizing court to decide legislative intent at text and context level if intent is “clear”). The statute does not assist petitioner.

Under all the circumstances, the only permissible factual conclusion is that the Secretary of State did not receive the requisite notice until 10:36 a.m. on March 25, 1999. That was a day too late. Sizemore, 327 Or at 75. Petitioner is responsible for any untimeliness caused by a shortcoming in the method of notification he chose. The motion to dismiss the petition is well taken.²

Motion to dismiss is allowed. Petition to review ballot title is dismissed.

1 We assume, for purposes of this opinion, that service by mail of a copy of the petition for review of ballot title, if timely given to the Secretary of State, would constitute the notice contemplated by ORS 250.085(4).

2 It may be argued that, as a practical matter, future petitioners will need to deliver their written notices to the Secretary of State physically to assure compliance with the requirements of ORS 250.085(4). If so, then that consequence flows from the stringent requirements that the legislature chose.