# State Ex Rel. Bunn v. Roberts > Oregon Supreme Court · October 13, 1986 · 302 Or. 72 URL: https://www.frixlaw.com/law-library/cases/9607720 ## Case - **Full name:** STATE Ex Rel BUNN Et Al, Appellants, v. ROBERTS Et Al, Respondents; BUNN Et Al, Respondents, v. ROBERTS Et Al, Appellants - **Court:** Oregon Supreme Court - **Decided:** October 13, 1986 - **Citations:** 302 Or. 72; 726 P.2d 925 - **Precedential status:** Published - **Opinion:** Concurrence by Peterson - **Judges:** West, Gillette, Peterson, Jones - **Cited by:** 14 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9607720 ## How later opinions describe it (automated extraction) - affirming on appeal the dismissal of a mandamus on timeliness grounds even though the trial court relied on other grounds for the dismissal - characterizing Ellis as using the APA provision “by analogy” to determine the time to bring a challenge to a ballot certification ## Opinion text PETERSON, C. J., concurring. I concur in the opinion of the court, but write separately to express concerns about judicial review of pre-election decisions of the Secretary of State. We have decided a number of such cases by judicial “enactment” of procedural rules. This is one such case. Others include Ellis v. Roberts, 302 Or 6 , 725 P2d 886 (1986) (challenge to ballot title under ORS 249.910(1) must be brought within 60 days after preliminary petitions for a ballot title have been approved by Secretary of State; time limit found by looking to other expressions of legislative policy on similiar issues), and State ex rel Fidanque v. Paulus, 297 Or 711, 717 , 688 P2d 1303 (1984) (mandamus action brought to challenge ballot title forestalled by application of the doctrine of laches). I use the word “enactment” because what we have been required to do is to create, on a case-by-case basis, a procedural framework for judicial review of the decisions of the Secretary of State. Although a court may be the only forum currently available for cleaning up issues that the legislature has overlooked or is unwilling to decide, see Sadler, Voters Get New Barrier to Hurdle, The Oregonian, July 7, 1986, the legislative process is better suited to create the needed procedural framework. In other areas of election law, the legislature has created a statutory framework for the review of elections decisions of the Secretary of State. See ORS 250.065, 250.067, 250.085 (procedures for preparation of ballot titles for state measures and judicial review); ORS 251.205 to 251.235 (procedures for preparation of state ballot measure explanatory statement and for judicial review); ORS 250.175, 250.195 (procedures for preparation of ballot titles for county measures and for judicial review); ORS 250.275, 250.296 (procedures for preparation of ballot title for city measures and for judicial review). See also ORS 251.055, 251.155 (Secretary of State is to reject certain statements offered for filing and printing in voters’ pamphlet, but such material submitted not admissible as evidence to enjoin publication of voters’ pamphlet). The legislature has also dictated what constitutes a timely action with respect to other issues in the election *84 process. See ORS 260.225 (court procedures to compel a candidate to file a correct statement of expenditures and contributions), ORS 260.532 (procedures and remedies for persons aggrieved by false publication relating to candidate or measure). The legislature should consider enactment of further procedural statutes governing the review of elections decisions of the Secretary of State and others involved in the election process not presently covered by statute. Plaintiffs’ appeal under ORS 246.910 was filed on September 19, 1986, final judgment in the trial court was entered on September 26, 1986, the notice of appeal was filed on September 29,1986, the Court of Appeals certified the case to us on October 3, 1986, briefs were filed on October 6, 1986, and we heard the case at 11:30 a.m. on October 7,1986. At oral argument, we were told that absentee ballots must be mailed before the end of the day. See ORS 253.045(1). At our conference immediately following oral argument, the court reached agreement on the outcome and an order issued the afternoon of October 7,1986, with opinion to follow. 1 One negative result of the lack of established statutory procedures is this: Questions that should be answered on their merits often are not reached, for neither the parties nor their lawyers know what procedures are to be followed. Here, plaintiffs’ lawyers filed two actions — one for mandamus and one an appeal to the circuit court under ORS 246.910 — only to learn, at this level and for the first time, that the appeal was untimely. Another negative result is that no court — neither the trial court, the Court of Appeals, nor the Supreme Court — has had a fair opportunity to consider the merits of the controversy, notwithstanding Herculean efforts by the lawyers to fairly present the issues. The courts’ certainty quotient is lower than it should be when important decisions must be made virtually instantaneously. 2 *85 The worst result is that those concerned — the proponents, opponents, election officials, courts and the electorate — derive no benefit from the resolution of important elections questions on technical procedural grounds. The opinion in these cases should not be construed as approving the Secretary of State’s decision to include an estimate of financial effect on Ballot Measure 6. The trial judge may have been correct in ruling that a measure that prohibits spending state funds is not a measure that “involves expenditures of public money by the state.” ORS 250.125. We do not reach that important question, for we have decided this case on a procedural ground. Jones, J., joins in this concurring opinion. The order reads, in part: “The judgment in State ex rel Bunn v. Roberts, Marion County Circuit Court case number 86-11688, is affirmed. The judgment in Bunn u. Roberts, Marion County Circuit case number 86c-11827, is reversed and the case is remanded with instructions that it be dismissed. An opinion will issue in due course.” Although 100 percent certainty, even at the moment of decision, is not always present, hidden factors of unreliability are great in cases such as this, even though the opinion contains no unexpressed doubt. See Schaefer, Precedent and Policy, 34 U Chi L Rev 3, 7 (1966). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9607720. Public record. Not legal advice.