ELLIS v. ROBERTS

GILLETTE, Justice.

This is an action brought under both the declaratory judgments act, ORS 28.010 et seq., and ORS 246.910(1).1 Plaintiffs are two Oregon residents and registered voters whose more particular interest in this controversy will be detailed below. Defendant Roberts is the Secretary of State. Defendant Frohnmayer is the Attorney General and principal legal adviser to the Secretary of State concerning her duties under the state election laws. Defendants Wolverton, Wyers and Hendricksen are the principal sponsors of Ballot Measure 11, which the Secretary of State has certified for placement on the November 4, 1986, general election ballot. Plaintiffs claim that Ballot Measure 11 violates the "one subject only" clause in Oregon Constitution, Article IV, section 1(2)(d), and that the Secretary of State's certification of the measure is therefore unlawful. They seek injunctive and other relief designed to keep Ballot Measure 11 off the ballot. The trial court found that these plaintiffs are barred by laches. It dismissed the case. The case comes here on certification from the Court of Appeals. ORS 19.210. We affirm the judgment of the trial court, but on a different ground.

JURISDICTION OF THIS COURT

This case has been delayed by certain procedural and jurisdictional difficulties. The trial court's judgment dismissing plaintiff's case was signed on August 25, 1986. As it happened, however, the judgment was not entered in the trial court register2 until August 28, 1986. In the meantime, plaintiffs filed a notice of appeal on August 26. Attached to it was a copy of the signed (but not yet registered) August 25 judgment. That notice of appeal was premature; there was not yet a judgment from which an appeal could be taken.

Plaintiffs, realizing that their first notice of appeal was premature, filed an amended notice of appeal on September 5, 1986. This notice was correct as to form and was timely. However, another problem existed. ORS 19.033(1) provides:

This court has recognized that the pendency of an appeal deprives a trial court of authority to make substantive rulings, Nickerson and Nickerson, 296 Or. 516, 522-23, 678 P.2d 730 (1984), and the Court of Appeals has long held that, in cases like the present one, filing a notice of appeal divests a trial court of jurisdiction subsequently to enter a judgment—see, e.g., Murray Well-Drilling v. Deisch, 75 Or.App. 1, 704 P.2d 1159 (1985). It follows that plaintiffs' appeal of August 25 was not taken from a judgment or other final order, ORS 19.010, but did serve to oust the trial court of jurisdiction so that the actual entering of the judgment on August 28 was ineffectual and the subsequent, September 5, appeal was also premature. There was, as yet, no final, appealable judgment in this case.

The foregoing problem was pointed out to counsel at oral argument. Supplemental memoranda were requested and received from the parties. Both parties asked that, rather than dismiss the appeal, this court follow the procedure set out in ORS 19.033(4). That statutory subsection, enacted in 1985 (Oregon Laws 1985, chapter 734, section 5), provides:

"* * *

Having determined that the criteria of ORS 19.033(4)(a) and (b) had been met, this court accepted the parties' recommendations and entered an order on September 11, 1986, that gave the trial court leave to enter an appealable judgment. The trial court entered such a judgment on September 19, 1986, and the plaintiffs filed a proper notice of appeal on September 23, 1986. The case is now properly before us.3

LACHES

Plaintiff Ellis is the president and plaintiff Crumpton is the executive secretary of the Oregon Education Association (OEA). Ballot Measure 11, which creates a homestead exemption from property taxes and also prohibits the legislature from enacting or referring to the people a general sales tax, is opposed by OEA. OEA supports a competing measure, Ballot Measure 7, which would enact a sales tax.

The elements of laches are delay by a party, with knowledge of relevant facts under which it could have acted earlier, to the substantial prejudice of an opposing party. See Stephan v. Equitable S & L Assn., 268 Or. 544, 569, 522 P.2d 478 (1974). Plaintiffs and OEA have been aware, at least in general terms, of the existence of Ballot Measure 11 since the prospective petition was filed with the Secretary of State on April 30, 1985, and approved for circulation by her on August 16, 1985. All of the defendants, in their answers to plaintiffs' complaint, alleged as an affirmative defense that plaintiffs were therefore guilty of laches.

In the trial court, both sides moved for summary judgment on the laches issue. Affidavits were filed by both sides. On August 22, 1986, the trial court held an extensive hearing that included taking testimony from four witnesses. The matter was taken under advisement and, on August 25, the court announced its judgment, holding that these two plaintiffs were barred by laches. The judge explained,

In this court, plaintiffs argue that laches should not have been applied against them because (1) all of the evidence establishes as a matter of law that they were not aware of the defect they allege is found in Ballot Measure 11 until just before they commenced this action or, (2) at the least, there is a material issue of fact as to whether they were aware, so that summary judgment was inappropriate.

The parties style the trial court's decision as "summary judgment," although the court took live testimony from both sides and there is no document granting "summary" judgment in the file. The judgment entered purports to be a "judgment"— nothing more. We think it more accurate to say that trial was held on a segregated issue, but the labels do not matter in this case. The issue is the propriety of applying laches to these plaintiffs. We hold that it was inappropriate.

ORS 246.910(1) requires only that a person be "adversely affected" before he can bring an action challenging an election ruling of the Secretary of State. In effect, this means that any registered voter—and probably others, as well—can file an action. See Columbia River Salmon & Tuna Packers v. Appling, 232 Or. 230, 234-35, 375 P.2d 71 (1962). The potential plaintiff "pool" in these cases is over one million. To require in a particular case that a trial judge take evidence and decide whether there are a few people who may not bring such an action, when a million could, is a waste of time. We hold that laches should not be utilized in this way in actions under ORS 246.910(1) or under a parallel theory advanced under the declaratory judgments act.

Defendants rely on State ex rel. Fidanque v. Paulus, 297 Or. 711, 688 P.2d 1303 (1984), where this court did forestall a "one subject only" attack on a ballot measure by applying the doctrine of laches. Fidanque, however, was a case involving this court's original mandamus jurisdiction. Mandamus in this court is an extraordinary remedy, available only as a matter of discretion, administered on equitable principles and subject to equitable defenses. See, e.g., Buell v. Jefferson County Court, 175 Or. 402, 152 P.2d 578, reh. den. 175 Or. 402, 154 P.2d 188 (1944). The party must show affirmatively that he has no plain, speedy and adequate remedy in the normal course of the law. ORS 34.110; State ex rel. Sajo v. Paulus, 297 Or. 646, 688 P.2d 367 (1984). We called upon all the aforementioned considerations when we ruled, in Fidanque:

Our application of laches in Fidanque was a vindication of established principles relating to our exercise of an original jurisdiction that we attempt to confine to the most needful cases.4

By contrast, the present case is one in which plaintiffs seek through the ordinary course of the law to challenge certain election law actions of the Secretary of State. Such challenges are specifically authorized by law and any "adversely affected" person can bring one. ORS 246.910(1). The trial court is better situated than are we to resolve competing factual contentions, but that resolution takes time and does not eliminate the eligibility of other potential plaintiffs. The trial court has no discretion to refuse to entertain such actions at all, while this court has such authority. We adhere to Fidanque, but we hold that the considerations that justified our application of laches there have no application to non-discretionary consideration of these cases by the trial courts.

REASONABLE TIME

Defendants argue that, even if the application of the doctrine of laches is inappropriate, these plaintiffs should still be barred because their action was not commenced within a "reasonable time." This argument presents three issues: (1) Should actions like the present one be subject to some kind of "reasonable time" limitation on filing, in the absence of statutes imposing such restraints? (2) If some reasonable time period should be imposed, when does it begin to run? (3) How long is a reasonable time, in cases of this kind? We address each question in turn.

1. Must actions be filed in a "reasonable time"?

While we answer this question in the affirmative, we wish to note at the outset that, with respect to this question and the two which follow, we are providing our answers in a legislative vacuum. The legislature is at liberty to answer all three questions in other ways, if it finds it appropriate to do so. In the absence of legislation, however, we are required to provide some judicial framework until the legislature provides a statutory one.

In OEA v. Roberts, 301 Or. 228, 235, 721 P.2d 833 (1986), this court ruled that the Secretary of State has a duty, under Oregon Constitution, Article IV, section 1(2)(d), to examine proposed ballot measures for compliance with the "one subject only" rule and to refuse to accept or approve those that violate the rule. The duties of the Secretary of State with respect to ballot measures involve "a series of decisions." State ex rel. Fidanque v. Paulus, supra, 297 Or. at 716 n. 5, 688 P.2d 1303; see also OEA v. Roberts, supra, 301 Or. at 232-35, 721 P.2d 833. Although, as noted, it was a mandamus action, we find the Fidanque analysis of this problem helpful. We therefore deal with that case at some length.

We described the procedural history of the ballot measure in Fidanque this way:

The first issue this court faced in Fidanque was: Assuming that the Secretary of State has a duty to consider whether a proposed initiative violates the "one subject only" rule of Oregon Constitution, Article IV, section 1(2)(d)—an issue we would not answer affirmatively until the later case of OEA v. Roberts, supra—when does that duty commence? Again, we quote from our opinion in Fidanque at length:

"Plaintiff-Relators argue that the Secretary of State breached her duty on July 20, 1984[,] when she certified the petition and assigned to it a ballot measure number. However, in light of the statutes and existing caselaw, we hold that if the Plaintiff-Relators' allegation that a duty was created is correct, that duty would have been breached when the prospective petition was approved under ORS 250.065(2) and was sent to the Attorney General for a ballot title.4 It is this determination that provides the first opportunity for the Secretary of State to exercise her official power with respect to the prospective petition. If * * * there is a constitutional duty to act, it would arise at this time. It is in approving a prospective petition which did not comply with the * * * requirements of Article IV, section 1, that the Secretary of State's authority under the constitution and statutes first would be exceeded and her duty breached. [Footnote omitted.]

"In Holmes v. Appling, 237 Or. 546, 554-55, 392 P.2d 636 (1964), this court addressed the issue of when the duty of the Secretary of State to determine his constitutional authority arose. In Appling, Plaintiff-Relators were attempting to force the Secretary of State to furnish a ballot title for a proposed law. The Secretary of State refused to furnish the ballot title `because he had been advised by the Attorney General that the petition proposed a new constitution or a revised constitution and that the initiative power reserved to the people to amend the constitution does not permit the submission to the people of a revised or new constitution and that he was acting upon such advice.' Id., at 548, 392 P.2d 396.

This court also stated:

"Therefore, in the submission process, a series of decisions must be made. As each decision is made, it becomes susceptible to challenge." 297 Or. at 715-16 n. 5, 392 P.2d 396.

After the foregoing discussion in Fidanque, this court turned to a consideration of the effect a late challenge to a ballot measure would have on the initiative process. We first noted that, if eleventh-hour challenges were entertained,

"* * * the organizers and proponents of * * * [a] measure * * * [will have] in essence wasted their time, energy and money to obtain sufficient signatures to be certified for placement on the ballot." 297 Or. at 718 n 6, 668 P.2d 1303.

We further said,

Our remarks were made in the context of a mandamus proceeding in Fidanque, but they have an equal place here. The present measure was first filed with the Secretary of State on April 30, 1985. Petitions were approved for circulation on August 16, 1985—over 13 months ago. On July 16 of this year—11 months after circulation of petitions began—the Secretary of State certified Ballot Measure 11 for the November ballot. On July 24, these plaintiffs made written demand on the Secretary of State that she remove Ballot Measure 11. The present action was commenced on July 31, 1986. The trial court hearing that led to the judgment under consideration here occurred 22 days later. The rest of the hurried history of this case has already been chronicled. One thing is clear: An eleventh-hour action in the trial court leaves no more time for "the narrowing and clarification of issues through the normal judicial process" than did the eleventh-hour petition for writ of mandamus in Fidanque. If these actions are not brought within a reasonable time after they first could have been brought, meaningful judicial review will be difficult, if not impossible. We hold that actions like the present one must be brought within a reasonable time. We adopt this statement from Fidanque:

"* * * [R]eview under the `single subject only' language of Article IV, section 1(2)(d) * * * must be commenced within a reasonable time after approval by the Secretary of State and the submission to the Attorney General for a ballot title. This will allow participants in the initiative process to rely on the finality of such determinations so far as the attempts to collect signatures are concerned and at the same time provide potential challengers of the proposed measure adequate time to bring suit." 297 Or. at 718, 688 P.2d 1303.

2. When does the reasonable time period begin to run?

Again, we adhere to the answer we stated in Fidanque: such actions must be brought within a reasonable time after preliminary petitions for a ballot measure have first been approved by the Secretary of State and submitted to the Attorney General for a ballot title. There is a season for each kind of challenge to the Secretary of State's administration of the election laws, whether as to the ballot title, the signature gathering process or constitutional evaluation. ORS 250.045(1); 250.065(2), (3) and (4). The Secretary of State makes—or fails to make—the constitutional decision at the outset. OEA v. Roberts, supra; State ex rel. Fidanque v. Paulus, supra; Holmes v. Appling, supra. Later actions, such as acceptance of a ballot title from the Attorney General, verification of signatures and certification, do not call for her to reassess the original constitutional evaluation that is supposed to be the predicate for placing the entire initiative machinery in operation. It is either done or not at this initial stage. The period of reasonable time commences then.

3. How long does the period of reasonable time extend?

We think the answer to this question necessarily must take into consideration the ballot title preparation process. It is only after the Attorney General has prepared a title and certified it to the Secretary of State and the title either has been legally challenged or the time for such a challenge has passed that petitions are actually circulated to the voters at large. Requiring a challenge to the constitutional determination of the Secretary of State prior to the petitions being circulated tends to limit challenges to the cognoscenti; if that were the rule, we might as well reimport laches into the process. We note also that the duty of the Secretary of State to review for compliance with the "one subject only" rule is not necessarily a brief, self-executing process. She often may need the period of time from initial filing to ballot title certification to determine the acceptability of the measure.

The question boils down to this: How long after the ballot title finally is approved and the public at large presumably becomes conversant with the proposed measure is it reasonable to say that actions like the present one reasonably may yet be brought? While many answers can be given —and, again, we note that the legislature is free to do as it wishes—we think the answer is 60 days.

We identify 60 days by looking to other expressions of legislative policy on questions like this. The Secretary's decision that the proposed measure does not violate the "one-subject only" rule is, in Administrative Procedures Act terms, an "order in other than a contested case." ORS 183.310(5)(a), 183.484. A challenge to an order in other than a contested case—like appeals of all the Secretary of State's actions or failure to act with respect to the election laws, ORS 246.910(1)—is taken to the circuit court. ORS 183.484. Such challenges must be brought within 60 days. ORS 183.484(2). This court has, in the mandamus context, similarly used a statute analogous to the case on review to limit the time in which a challenge to a trial court's rulings could be brought. State ex rel. Redden v. Van Hoomissen, 281 Or. 647, 576 P.2d 355, reh. den. 282 Or. 415, 579 P.2d 222 (1978) (time in which state may seek mandamus challenging trial judge's order granting a new trial in a criminal case limited to 30 days, the same length of time in which a criminal appeal could be taken). We find a similar methodology appropriate here.

We hold that the reasonable time for challenging the decision of the Secretary of State—including her failure to decide —whether a proposed initiative violates the "one subject only" rule of Oregon Constitution, Article IV, section 1(2)(d), expires on the 60th day following final approval of the ballot title. As previously recited, the challenge in this case was not filed until 11 months after the ballot title was established. It was not timely. The trial court's order dismissing plaintiff's complaint was therefore correct. It is affirmed.5

Judgment of the trial court affirmed.