State ex rel. Smith v. Hitt

424 P.3d 749, 291 Or. App. 750
CourtCourt of Appeals of Oregon
DecidedMay 16, 2018
DocketA161069
StatusPublished
Cited by3 cases

This text of 424 P.3d 749 (State ex rel. Smith v. Hitt) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Smith v. Hitt, 424 P.3d 749, 291 Or. App. 750 (Or. Ct. App. 2018).

Opinion

ARMSTRONG, P.J.

*752By 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 *753Morgan'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 *751of 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 will have no practical effect on Morgan's or the other relators' rights. The case is, therefore, moot.

However, in matters involving public interest, we may exercise our discretion to review an otherwise moot case if (1) the party who commenced the action had standing to commence it, (2) the act challenged is capable of repetition or the policy continues in effect, and (3) the challenged act or policy is likely to evade judicial review in the future. See ORS 14.175 ; Couey v. Atkins , 357 Or. 460, 520, 355 P.3d 866 (2015) (Oregon Constitution does not impose "justiciability limitations on the exercise of judicial power in public actions or cases involving matters of public interest"). Both parties urge us to exercise our discretion under ORS 14.175 to review this case, and we agree that it is appropriate for us to do that.

First, Morgan had standing to bring this challenge. Second, although Morgan withdrew her candidacy, the ordinance continues in effect, and its application is capable of repetition in future elections for county commissioner.

*754And, finally, any challenge to this initiative is likely to evade judicial review, because election cycles are short and the judicial process can be lengthy. See Couey , 357 Or. at 478-83, 355 P.3d 866 (applying the "capable of repetition, yet evading review exception" to an election-related challenge). Because this case concerns an initiative measure enacted by the voters of Douglas County that imposes term limits on a public office, and therefore concerns a matter of public importance, we exercise our discretion to review the case. See, e.g. , Eastern Oregon Mining Assoc. v. DEQ , 285 Or. App. 821, 832-35, 398 P.3d 449, rev. allowed , 362 Or. 175, 406 P.3d 612 (2017).

We turn to the merits of the appeal. We review the circuit court's ruling on the constitutionality of the ordinance for legal error. See State v. Mercer , 269 Or. App. 135, 137, 344 P.3d 109, rev. den. , 357 Or. 299

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Cite This Page — Counsel Stack

Bluebook (online)
424 P.3d 749, 291 Or. App. 750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-smith-v-hitt-orctapp-2018.