Polonsky v. Wash. Cty.

552 P.3d 110

333 Or.App. 212

Jonathan POLONSKY, an individual Washington County elector, Plaintiff-Appellant,

v.WASHINGTON COUNTY, an Oregon home rule county, and Mickie Kawai, in her official capacity as Election Officer for Washington County, Defendants-Respondents.

A178777

Court of Appeals of Oregon.

Argued and submitted November 15, 2023.

June 12, 2024

Washington County Circuit Court, 22CV12904; Theodore E. Sims, Judge.

Nathan R. Rietmann, Salem, argued the cause for appellant. Also on the opening brief was Rietmann Law, P.C. Also on the reply brief were Daemie M. Kim and Rietmann & Kim, LLP.

Johnathan E. Mansfield argued the cause for respondents. Also on the brief were Jason Bush and John Mansfield.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot, Judge.

AOYAGI, P. J.

This action pertains to Washington County Ordinance 878, which, among other things, prohibits the sale of flavored tobacco products. Plaintiff gathered enough signatures for Ordinance 878 to be referred to the county’s voters for approval, under Washington County Charter, ch V, § 50(h). A month before the election, plaintiff filed this action against defendants Washington County and Elections Officer Mickie Kawai, asserting that they were not properly referring the ordinance to voters for "approval," having instead drafted a measure asking voters whether it should be "repealed." The trial court granted summary judgment for defendants on the merits. The court did not address the timeliness of the action, which was another asserted basis for summary judgment.

On appeal, we conclude that this action was filed too late and affirm the summary judgment on that basis. Our analysis has two components. First, we conclude that plaintiff could bring this action under ORS 246.910, as he did, rather than bringing an action under ORS 250.195, as defendants contend that he should have. Second, recognizing that an ac- tion under ORS 246.910 must be brought within a "reasonable time," Ellis v. Roberts, 302 Or. 6, 725 P.2d 886 (1986), we conclude that a reasonable time in this case was within 60 days from publication of the ballot title. Because this action was filed beyond that deadline, it was filed too late. Accordingly, we affirm.

FACTS

The following facts were stipulated, or are otherwise undisputed, for purposes of summary judgment.

On November 2, 2021, the Washington County Board of Commissioners adopted Ordinance 878, which prohibits the sale of flavored tobacco products and otherwise regulates tobacco and nicotine products.

On November 17, 2021, plaintiff filed a prospective petition regarding Ordinance 878 with the Washington County Elections Division. See ORS 250.165 (regarding prospective petitions).

Upon receiving the prospective petition, the county prepared a ballot title, sent it to plaintiff as the chief petitioner, and published it in the newspaper on November 29, 2021. See ORS 250.175 - 250.185 (regarding preparation of ballot titles). The ballot title read in full:

"CAPTION: Referendum on Washington County Ordinance 878, Regulating Tobacco Products.

"QUESTION: Should ordinance 878, prohibiting flavored tobacco products, machine sales, coupons, discounts, and movable sales of tobacco products, be repealed?

"STATEMENT: This referendum seeks to repeal Washington County Ordinance 878. The proposed referendum seeks to repeal prohibitions under Washington County Ordinance 878 related to tobacco products including the removal of prohibitions:

"• against the sale of flavored tobacco products;

"• against the sale of tobacco products from machines or other devices without a human vendor present;

"• on the price promotion of tobacco product sales through the use of coupons or price discounts;

"• on the sale of tobacco products in packages containing fewer than 20 cigarettes; and

"• on the sale of tobacco products from kiosks, trucks, vans, automobiles or other vehicles or transportable shelters."

(Boldface in original.)

By January 27, 2022, plaintiff had collected enough signatures for Ordinance 878 to be referred to the voters on the May 2022 ballot.

On March 11, 2022, the Elections Division assigned a number to the referendum, making it Measure 34-314 (2022). On March 16, 2022, the Elections Division provided to plaintiff, and published on its website, a copy of the explanatory statement to be included in the voters’ pamphlet. At that point, plaintiff realized that he disagreed with the measure’s framing, which asked voters whether to "repeal" Ordinance 878, instead of whether to "approve" it. Plaintiff had been urging voters to vote "no" on approving Ordinance 878, rather than to vote "yes" on repealing Ordinance 878.

Plaintiff hired a lawyer, who sent a letter to the county on March 24, 2022. The parties met on March 28, 2022, but nothing came of that meeting.

On April 18, 2022, which was 29 days before the election, plaintiff filed this action. Plaintiff alleged that Mickie Kawai, in her capacity as Elections Officer for Washington County, had "failed to place Ordinance 878 before voters for approval at the May 17, 2022 election" and had unlawfully placed Measure 34-314 on the ballot for the May 17, 2022, election. Plaintiff asserted a claim under ORS 246.910, as a person adversely affected by Kawai’s "act or failure to act" under election law. He also asserted a claim under the Declaratory Judgments Act, seeking a declaration that Measure 34-314 did not place Ordinance 878 before the county’s voters for approval, a declaration that Measure 34-314 was not lawfully referred, and an injunction preventing defendants "from pre- paring abstracts or certifying any votes cast on Measure 34-314."

The parties filed cross-motions for summary judgments Plaintiff argued that defendants had a legal obligation to refer Ordinance 878 to voters for "approval" and that instead referring the question whether to "repeal" Ordinance 878 violated both the Washington County Charter § 50(h)—which provides that "[a]n ordinance referred by action of the voters shall become effective when approved by a majority of the voters"¹ —and the Oregon Constitution, Defendants argued that plaintiff’s action was untimely, specifically that plaintiff needed to bring a ballot-title challenge under ORS 250.195, which has a seven-day deadline, and that plaintiff had waived the right to challenge Measure 34-314 by failing to follow that procedure.² In the alternative, defendants argued on the merits that Measure 34-314 complied with ORS 250.035, which sets forth requirements for the form of ballot titles, and that the authorities cited by plaintiff did not require the ballot measure to be phrased in terms of voter "approval" of Ordinance 878.

On the timeliness issue, plaintiff responded that his claim sought post-election relief and that the pre-election deadlines cited by defendants therefore did not apply.

The trial court granted summary judgment for defendants. The court did not address the timeliness of plaintiff’s action. Instead, it ruled on the merits that the county lawfully referred Ordinance 878 to the voters for approval. Plaintiff appeals.

ANALYSIS

[1, 2] We review summary judgment rulings for errors of law. Beneficial Oregon, Inc. v. Bivins, 313 Or App 275, 277, 496 P.3d 1104 (2021). Here, defendants moved for summary judgment on two bases—timeliness and the merits. We choose to resolve this case based on the timeliness issue. Although the trial court did not rule on it, the timeliness issue was presented to the trial court, the record was fully developed, and the question presented is purely one of law, requiring no factfinding or exercise of discretion, so it is appropriate for us to decide on appeal. Sherertz v. Brownstein Rask, 314 Or App 331, 341, 498 P.3d 850 (2021), rev. den., 369 Or. 338, 504 P.3d 1181 (2022).

[3] The first question is whether plaintiff’s action had to be brought as a ballot-title challenge under ORS 250.195, as defendants contend, or whether it was permissibly brought under ORS 246.910, as plaintiff contends.

ORS 250.195 provides a procedure for challenging a county ballot title, stating in relevant part:

"(1) Any elector dissatisfied with a ballot title filed with the county clerk by the district attorney or the county governing body, may petition the circuit court of the judicial district in which the county is located seeking a different title and stating the reasons the title filed with the court is insufficient, not concise or unfair. The petition shall name as respondent either the district attorney or county governing body, depending on who prepared the ballot title, and must be filed not later than the seventh business day after the title is filed with the county clerk. The court shall review the title and measure to be initiated or referred, hear arguments, if any, and certify to the county clerk a title for the measure which meets the requirements of ORS 250.035.

"* * * * *"(3) The review by the circuit court shall be the first and final review, and shall be conducted expeditiously to insure the orderly and timely circulation of the petition or conduct of the election at which the measure is to be submitted to the electors."

Meanwhile, ORS 246.910 provides a procedure to challenge any act or failure to act of a state, county, or city official under any election law:

"(1) A person adversely affected by any act or failure to act by the Secretary of State, a county clerk, a city elections officer or any other county, city or district official under any election law, or by any order, rule, directive or instruction made by the Secretary of State, a county clerk, a city elections officer or any other county, city or district official under any election law, may appeal therefrom to the circuit court for the county in which the act or failure to act occurred or in which the order, rule, directive or instruction was made.

"(2) An appeal described in subsection (1) of this section of an order of the Secretary of State approving or...