Jurisdictional Statement — Morgan v. Board of Forestry

OCT T0909

No OD 8? ; Jo DAVIS, ‘CLERK

Tn the =m Court of the

age Gnited States =

VERNON R. MORGAN and .

ROBERT C. YOUNG,

Appellants

BOARD OF. FORESTRY OF

THE STATE OF OREGON, :

. and POLK. COUNTY, ‘a municipal copiniien,

4 Appellees

ON APPEAL FROM THE SUPREME COURT

OF THE STATE OF OREGON ~

+ JURISDICTIONAL STATEMENT - —

ERVIN. W. POTTER

of Attorneys of Record for tein

300 Pioneer Trust Building

Salem, Oregon 97301.

. WILLIAM B. WYLLIE

300 Pioneer Trust Building

Salem, Oregon 97301

Of Attorneys of Record for Appellants.

THOMAS C: STACER

P, O. Box 2289

- Salem, Oregon 97310 ©

CLARENCE R. WICKS

1410 Yeon Building

Portland, Oregon 97204

ROBERT ‘W. DeARMOND

687° Court Street N.E. —

’ Salem, Oregon ‘97301

Atorneys for Appellee Board of Forestry

MARVIN J. WEISER

Polk County Courthouse

Dallas, Oregon 97338 .

Attorney for A ppellee Polk Coanty

" Page

Jurisdictional INN ssc siconserincaicnnnsuiisonsinisisannitoien omen,

. Opinions Below .............. aiid Pessecesnncacsanstnsqeameccanes fl

Jurisdiction ........... Le aS ee ON wineicineiac Se

Statutes and CETTE pisses .:

: Questions Presented ................... caesiisaiiiialabalia alii 3

Statement of I eat ici 4

DE SEAR NOS aE 4

“Tl. How-F ederal Question Presented dioiea enagnenibenes 4:

’ The, Federal Question Is Substantial eae seh 6

Conclusion ...... essai hibleetilbdilipaiinsteitnictenindiinbnniasgamc? ee "a 9 .-

Appendix A {Findings and’ Decree as appear’

a I ND eign 10

Appendix B (Opinion of Oregon Silene Court) ..

_ Appendix: C ( Opinion of Oregon Supreme Court a

in Hood River County Gemini a

A

TABLE OF CASES

- 4 s i. 7 ro Page

Armstrong v. ieee 380 USS. 545, 85 Sup. ct. |

£187 (1965) ............. apse Scanahaiegilandthtnbataptanitatnnhatutinnn 7

Covey v. Town of Somers, 351 U. S. (1441, 76 Sup. |

Ct. 724 (1956) alinnenapniemitinannenanics gp odnnniinatinnsnetinnans 6

/itvergreen Timber Co. v. ‘Clackamas County, as

. Or. 552, 385 P.2d 1009" (1968) ih entails 5

‘Hood River County v. Dabney, 246 Or. 14, a

423 P.2d 954 (1967) ........... Phe An 5, 6, 14

_ Morgan and Young v.. Board of Forestry and

Polk County, 86 Adv. Sh.’ 1053, P.2d .

(1968) .--erseeesssceseeecsssnensseseeeeeennnnsnsseeeseeennsnnnansnnsen 15

‘Mullane v.-Central Hanover Trust Co., 339 USS.

306, 70 Sup. Ct. 652 (1950) © ........----2-eeceeeeeee 8

Schroeder v. City of New York, 371 U. S. 208,

| 83-Sup. Ct. 278 (1962) | diintiinilatiiehbcnainbatinanninn 3, 7,8

- Standard Oil Co. of California v. Johnson, ia

‘316 U,S. 481, 62 Sup. Ct. 1168 (1942) -........... 3,9

Walker v. City of Hutchinson, 352 U.S. 112,.

77 Sup. Ct. 200 (1956) ..... sides amaliinmnnranuieia eal

STATUTES AND CONSTITUTIONAL PROVISIONS

RR I GF ics 2, 3, 5, 6, 10, 13

.U.S. Const. amend XIV $ 1 ......... chisesdiieelacicleealaa

wc I FI. sisincnictininictecionininnrcin Cs

In the Supreme Court of the

~ . | Gnited States

OcToBER Term, 1968

4

VERNON R. MORGAN and, Feeen

ROBERT C. YOUNG, . Appellants _.

as ca ak

“ BOARD OF FORESTRY OF

THE STATE OF OREGON,

and POLK COUNTY, a

municipal corporation, Appellees

ON APPEAL FROM THE: SUPREME: COURT

OF THE STATE OF OREGON |

- JURISDICTIONAL STATEMENT

_. This is an appeal from a decree of the Supreme .

| Court of the State of Oregon entered July 16, 1968,

quieting the appellees’ title to real property. Appel-

lants submit this statement to show that ‘the Supreme |

Court of: the United States has jurisdiction of this

appeal and that a substantial federal quéstion is pre-

sented.

OPINIONS BELOW ee ae

The opinion of the ‘Supreme Court of the State of

Oregon is reported at-86 Oregon Advance Sheets 1053, -

443 P.2d 236 (1968). The opinion of the'Circuit Court

of the State of Oregon for Polk County is not reported.

J °

ons , ° 7

A eae ita Ita a iN ALE RAL! Le! Di a eR bin 1D ‘

.

2

The findings and decree of the Circuit Court= are

attached hereto as Appendix A. ‘The opinion of the .

: Oregon Supreme Court is attached: lrereto as Appendix

B. Attached hereto as Appendix C is the order of the

— Supreme Court which is being appealed from.

JURISDICTION

This was a suit t6 declare void a. tax foreclosure

proceeding, to remove the cloud. of the proceeding

from appellants’ title and to quiet. that title. The ap-

pellants asserted that the tax foreclosure was void be-

cause the notice given did not meet the minimum.

standards required by the due process clause of section

1 of the Fourteenth Amendment to the United States:

Constitution.. The Circuit Court held that appellants

were barred from attacking the foreclosure proceeding

by section 312. eins (3) of the Oregon Revised

Statutes.

The appellants uaiinind to the Cenk Supreme |

- Court asserting that those sections were unconstitutional

as being in violation of ‘the due process clause of the

United States Constitution. On June 26, 1968, the

Oregon Supreme Court entered its decree and held

the statute did not violate ‘the United States Constitu-

tion. On July 16, 1968, the Oregon Supreme Court -

"entered an order denying a rehearing.

The notice of appeal was-filed September 27, 1968.

The jurisdiction of the Supreme Court of the United

States to review this decision by. appeal is conferred

by Title 28, United States Code, Section 1257 (2). The

following decisions sustain the jurisdiction of the Su-

preme Court to review the decree on appeal ‘in this”

case:

ine eee — Sa. EN ee Se ——

a

Schroeder y- City of New York, 371 U.S. 208, 83

Sup. Ct. 278 (1962). > 3

Standard Oil Co. of Californiaw. Johnson, 316 U.S.

481, 62 Sup. Ct. 1168 (1942)

© STATUTES AND CONSTITUTION

© ‘This case involves the validity: of sections 312.230

(1), (3) of the Oregon Revised Statutes which provide:

| < “(1) Every ‘actiori, suit or’ proceeding, commenced

_ for the purpose of determining the validity of a

sale of real property on foreclosure for delinquent

taxes, or to quiet title against such sale, or to re- .

move the cleud thereof, or to recover possession

of the. property, shall’ be commenced within two

years from the date of the judgment and decree

of foreclosure and sale to the county, or within «|

six:months from June 1, 1961, whichever is .the

later. : ;

(Coe ok ok

“(3) For all purposes .this section shall be con-

strued as a statute of prescription as well as a

statute of limitation.” —S—- setae

These sections are found in Volume 2 at page 1100

of'the Oregon Revised Statutes.

-Also involved is the due process clause of section

1 of the Fourteenth Amendment to the United States .

Constitution which provides: = a >

“ * * * nor shall any state deprive any person of

life, liberty, or property, without due process of

ao > GAA. Const., Amend. 14, “Due

Process” p. 4° vs

QUESTIONS PRESENTED |

- 1..Is a statute of limitations unconstitutional if it

4.

is held to bar an attack on a decree which is void

because it is based upon notice which did not meet

the minimum standards required by the due process

clause?

2. In a‘foreclosure weweieiltiins does a published

notice which contains an erroneous description satisfy

the requirements of due process if no other notice is —

_ given? :

STATEMENT OF THE CASE

. ‘I, FACTS re

In 1941 Polk County commenced a suit to foreclose’

delinquent taxes. It sought to foreclose the interest of —

Ralph E. Williams in the following property:

S % of the NW % and N % of the SW %, Sec. 29,

Twp. 9S, R: 8W of Willamette Meridian, Polk

County, Oregon.

The only notice given was by viebibcustan, It described

the property as:

“S % of the NW % and the N % of the SW % of

Section 29, T.9S., R.8W., W.M., in — a

Oregon.”* (Emphasis added.)

_. The county acquired a sheriff’s deed to the property

. and in 1964 it conveyed the property to the Board of

_ Forestry, the appellee here. The appellants through

a series of conveyances have acquired the interest of

. Ralph E. Williams. |

Il HOW FEDERAL QUESTION PRESENTED

‘The complaint filed in this case alleged that the

erroneous, published summons violated due process and -

that for that reason all Subsequent proceedings were

void. It alleged:

° 5

_“ * * * said Decree, Order of Sale, Sheriff’s Deed,

and all proceedings were and are void, a nullity,

and without due process of law ***.” .

Appellants first attacked the constitutionality of the

statute of limitations, section 312.230 ‘of the Oregon

Revised Statutes, in its brief on appeal. This issue was

not raised inthe Circuit Court because the Oregon

Supreme Court had held in Evergreen Timber Co. v.

Clackamas County, 235 Or. 552, 385 P.2d 1009 (1963),

that that section did not apply to proceedings in which

the published notice contained errors such as those

in the-instant case. That case remained the law in

the State of Oregon until the instant case was decided.

The trial court held, however, that the statute of limi-

tations was a bar to the attack on the foreclosure (App.

A). e ; ;

The appellants’ brief in the Oregon Supreme Court

asserted that the ‘erroneous published notice violated

due process and the statute of limitations did also if

it was applied to the appellants.

Reading the instant decision together with’ that in.

Hood. River County v. Dabney, 246 Or. 14, 423 P24

954 (1967), upon which the instant decision rests,

demonstrates that the Oregon Supreme Court decided -

the constitutional questions: In the Hood. River County

case the court declared: -

“Although we could: rest our decision solely upon

‘the ground that the defect in the summons was

nonjurisdictional and that, therefore the foreclosure

decree.is free from collateral attack, in the interest

of carrying: out the Clearly indicated legislative

purpose to give the ‘utmost stability’ to tax titles

we prefer to rest our decision upon -the broader

ground that even if the defect in the proceedings

was denied without comment. |

a violation of due process resulting from the failure

6 .

is jurisdictional for failure to meet either legislative

- or constitutional requirement deemed essential to .

jurisdiction, it was within the purpose and power

_ of the legislature in eyacting ORS 312.220 and ORS

312.230 to bar the delinquent owner from attacking

the foreclosure decree.”

In the instant case the court declared:

“Assuming, without deciding, that the error in the

description in the published notice constituted a

jurisdictional defect and rendered the tax foreclosure

proceeding void as to Williams, plaintiffs are bar-

_.red from recovery for the reasons.stated in Hood

River County. v. Dabney, 84 Or Adv Sh 179,:246 ©

Or. 14, 423 P 2d 954 (1967).” - | - a

Again, in the petition for rehearing appellants

attacked the constitutionality of the statute of limita-

tions and of the foreclosure proceedings based upon the

erroneous published notice. The petition for rehearing

THE FEDERAL QUESTION Is SUBSTANTIAL

This appeal presents the important issue of whether

a statute of limitations may be used to avoid or “cure”

to give a:-party notice of a judicial proceeding. A num-

ber of states have statutes similar to the statute of’

limitations which the appellants attack here. One such

provision was considered—by this court in*Covey 2.

Town of Somers, 351 U.S. 141,.76 Sup. Ct. 724 (1956).

However, the court,did not find it necessary to pass

on its validity. } ’

The precise question presented here has never been

decided by the United States Supreme Court. It has

decided a number of cases in which the principles

*

e 9

7

es ¥

controlling this case have been enunciated. The Oregon,

Supreme Court has ignored, and in fact repudiated

those prificiples in the instant case.

No proceeding can be accorded finality in the

absence of notice reasonably calculated to notify in-

terested parties of the action against them. .

In Schroeder v. City of New York, 371. U.S. 208,

83 Sup. Ct. 278 (1962), the court held that.a property

owner ‘who had not received adequate notice of con-’

demnation proceedings could. attack the proceedings

even though the time had expired in which to file a

claim for compensation under the state law.

/~ In Walker v. City of Hutchinson, 352 U.S. 112,

77 Sup. Ct. 200 (1956), the court reached the same

result. There it allowed an attack on a condemnation

proceeding by a landowner. Because he had not re-

ceived adequate notice the court held that he was

not limited to the time permitted by the state statute

in which to attack the proceeding.

The Oregon Supreme Court also vielated the rule

announced by this court in Armstrong v. Manzo, 380 :

US. 545, 85 Sup. Ct. 1187 (1965). There the court

held that a party deprived of the notice required by

the due process clause must be restored to the position

he would have occupied had due process been accorded q

him in the first place. The Oregon courts have not

restored appellants to the position they would have .

occupied had due process been accorded them. The

Oregon. courts have held that the statute of limitations

bars them from any redress for the violation of their

constitutional rights. — ,

The Oregon Supreme Court did: not decide whether

the erroneous published notice violated due process.

ee Te TEE ee

8

It apparently assumed that it did and, if SO, it was

right.’

To meet the requirements of due process, notice

must be reasonably calculated under all the circum-

stances to apprise interested parties of the_pendency

of the action. Notice by publication is at best a poor

- method of warning those whose interests may be ad-

versely affected by litigation. When it is used the

warning should not be muffled by ambiguity.

In Mullane v. Central Hanover Trust Co., 339 U.S.

306, 70 Sup. Ct. 652 (1950), this Court prescribed the

constitutional requirements for notice. The court de-

clared: — : . .

“The reasonableness and hence the constitutional

validity of any chosen method may be defended

on the ground that it is reasonably certain to in-

form those affected [citations omitted] or where .

‘conditions do not reasonably permit such notice,

that the form chosen is not substantially less likely

to bring -home notice than other of the feasible

and customary substitutes.” 339 U. S. at 315, 70

Sup. Ct. at 657.

In Walker v. City of Hutchineon, 352 U. s. 112, 77

Sup. Ct. 200 (1956) and Schroeder v. City of New

York, 371°U.S. 208, 83 Sup. Ct. 278 (1962), the court

observed that newspaper publication rarely informs

the landowner of proceedings against his property.

In the instant case the notice suffered all the inherent

limitation’ of notice by publication. In addition it in-

correctly described the property in jeopardy. ,It is sub-

mitted that due process requires more. |

In the instant case as in the Schroeder case the

state courts have upheld the state statute against a

9

claim that it is unconstitutional. The court in Standard

Oil Co. of Calif. v. Johnson, 316 U.S. 481, 62 Sup. Ct.

1168 (1942), dealt with a contention that a statute,

if construed as the appellees urged it should be, would —

violate the constitution. The court held that since the

validity of the state statute as construed was drawn in

question it had jurisdiction of the appeal. In the instant

case the appellants urged in the Oregon Supreme Court

that the challenged statute of limitations, if applied

to this case, was unconstitutional. | ;

«

CONCLUSION —

_ It is submitted that the decision of the Oregon

supreme Court fails to recognize the principles of due

process. It permits a party’s right to notice to be violated.

and then prohibits him from seeking redress when he

liscovers that fact. We believe the questions presented

y this appeal are substantial and that they are of

ublic importance.

Respectfully submitted,

Ervin W. Porrer :

Of Attorneys of Record for

Appellants

Witu1am B. WYLutE

Of Attorneys of Record for

Appellants - .

300 Pioneer Trust Building

Salem, Oregon 97301

PAO RO Ng NEO TENE I Mig CNN Gm HS Het HEE

ne es hla rend teeta Oa aera aS

ET AEE OO ‘ oe

10

| APPENDIX A

" DECREE

which omitting recitals, follows in material part:

The court having previously decided that the issues

of laches, waiver, estoppel, tender and champerty,

affirmative defenses of: the defendant Board of Forestry

of the State of Oregon, were not sustained by the testi-

mony or the: law, and such defenses are -resolved in

favor of plaintiffs; and .

The ¢ourt finds that plaintiffs made a proper tender

of delinquent taxes herein and’ they are not barred

by laches, waiver, estoppel or champerty in this pro-

ceeding; and

- The court having taken under advisement during

the course of trial the motion of defendant Board of

Forestry: of the State of Oregon to dismiss plaintiffs’

- complaint, finds that said motion should be denied;_,

and

— ‘ie

The court having considered the testimony, exhibits, —

memorandum and closing arguments’ of the parties, .

finds that defendants ‘have failed.to sustain their de-

fense of adverse possession on the ground that there

was a failure to show ouster or’ notice thereof; and

The court further finds that the title of defendant

Board of Forestry of the State of Oregon, acquired

through the Polk County foreclosure proceeding No.

9562, is free from attack by operation of ORS 312.230

and that the validity of the tax foreclosure is resolved

‘in favor of the defendant Board of Forestry of the

State of Oregon and that by virtue of the short term

statute of limitations heretofore cited, due process has

?

| 11 a We

~ been complied with and that the fiverdiiadion decree,

under the facts in this case, could not be attacked; and

_ The court finds that plaintiffs’ complaint should

be dismissed and the foreclosure decree and the title

“of the defendant: Board of - Forestry of the State of

Oregon upheld; and ‘the court being fully advised, ~

> IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that that certain judgment of foreclosure

and order of sale in Polk .County Suit No. .9562%e¢

‘and the same hereby is declared a valid tax foreclosure

and that the defendant Board of Forestry of the State _

of Oregon is the owner, in fee simple, free of any 4

claim, right, title, cloud or interest of plaintiffs or their

predecessors in interest, of - following described real

property, to-wit:

The South % of the Northwest % and the North

% of the Southwest % of Section 29, Township 9 £.

South, Range 8 West, Willamette Meridian, i in Polk

County, Oregon.

Pa

WMBnew ee.

12

APPENDIX B

O'CONNELL, J.

This is a suit’ to declare void a tax foreclosure pro-

- ceeding. Defendant, State Board of Forestry, seeks a

' decree quieting title to the property./Plaintiffs appeal -

from a decree upholding the foreclosure decree and

quieting title in the defendant. Defendant et “appeals

from that portion of the decree rejecting its claim of

adverse possession.

In December, 1941, Polk. County instituted me

foreclosure proceedings on various. parcels of property

including.an undivided one. quarter interest of Ralph

E. Williams, plaintiffs’ predecessor in title. A summons

_was published on. December 11, 1941, naming R. E._

Williams as a party defendant and directing him to:

appear. within a specified time. Early in 1942, prior

to the completion of the foreclosure proceeding, the

Board of Forestry acquired from’ Polk County a deed

to an undivided three quarter interest in the disputed

property, making the Board: a tenant in common with

Williams who held a one quarter interest in the same .

parcel.

Ralph E. Williams made no appearance and a

decree of foreclosure was entered against the property

on January 24, 1942. The following year, ‘the sheriff

sold the Williams’ interest to Polk County \and the

deed was recorded on April 3, 1943. In 1964 Polk

County deeded the interest to the Board of Forestry.

Plaintiffs contend that the decree of foreclosure

was void because the summons published | by. Polk»

County failed to accurately describe the property. The

correct description of the property is:

mS

13

'§ % of the NW % and the N % of the SW. % of,

Section 29, T. 9 S., R. 8 W. of ‘Willamette Meridian

in Polk County, Oregon.@ :

In the published summons, the property was described

? Sen hd ;

_ ; Pies |

“S % of the NW % and the N % of the SW % of

Section 29, T. 9 S., R. 8 W.W.M., in Polk Count A

Oregon.” (Emphasis added.) ~ Seely

Plaintiffs also claim that the method of giving notice

of the foreclosure suit by newpaper publication was

not a method reasonably calculated under the circum-

stances. to apprise the’ parties of the proceeding ‘and

therefore did not meet the requirement of due process.

Defendant, Board of Forestry, answered arguing

that plaintiffs’ claim was barred by laches and estop-

pel and by the running of the Statute of limitations

provided for in ORS 312.230." ‘The defendant claims

good title through the tax foreclosure suit and also

_ by reason of adverse possession under ORS 12.050.

_ The trial court found that the defendant’s defenses

of laches, estoppel, and adverse Possession were not

sustained by the evidence. However, the court further

found that the foreclosure proceeding was free from

attack by virtue of the statute of limitations -contained

in ORS 312.230. |

‘ORS 312.230 provides as follows:

“(1) Every action, suit or proceeding, commenced for the Purpose of

ining the validity of a sale of real property on foreclosure for- delinquent —

faxés, or to quiet title against such sale, or to remove the cloud thereof, or to

recover possession of the Property, shall be commenced within two years from

the date of the judgment and decree of foreclosure and sale to the county, or

within six months from June 1, 1961, whichever is the later.

ee e &

“(3) For all purposes this section shall be construed‘as a statute of pre-

xription as well as a statute of limitation.” ;

- saad

V vind indy Laint leo

14

Assuming, without deciding, that the error in the

description in the published notice constituted a juris.

dictional defect and rendered the tax foreclosure pro-

ceeding void as to Williams, plaintiffs are barred from

recovery for the reasons stated in Hogg River County

v. Dabney, 84 Or Adv Sh 179, 246 Or 14, 423 P 2d 954

(1967).?_ :

The decree of the trial court is affirmed.

2See ea Deardorff v. Hood River County, ‘84 Or Adv Sh 175, 246 Or

~ 7, 423 Pad 952 (1967); Evergreen Timber v. Hood-River Co., 84 Or Ady -

Sh 205, 246 Or 11, 423 P2d 963 (1967); Johnson v. State of Oregon, 245

Or-618, 621, 423 Pad 964 (1967).

15

APPENDIX Cc

BE FT REMEMBERED ‘that at a regular term of

the SUPREME COURT of the State of Oregon begun

and held at the. courtroom in the city of Salem on

the first Monday, the 4th day of March, 1968, WHERE-.

UPON on this Wednesday, the 26th day of June, 1968,

the same being the 51st judicial day of said term,

when the following proceedings were had:

VERNON R. MORGAN and

ROBERT C. YOUNG,

Appellants and Cross-Respondents

i. - Oe ‘ ;

BOARD OF FORESTRY

of the State of Oregon, ye !

Respondent and Cross-Appellant ~ County °

and

Appeal from

Polk County, a municipal corporation, .

> . Defendant - |

This cause on May 10, 1968; having been duly

argued and submitted upon and concerning all ques-

tons arising upon the record and then reserved for

further consideration, and. the court having fully con-

idered: all said questions as well as suggestions of

ounsel in their argument and briefs finds there is

lot error as alleged. .. we ae

IT THEREFORE IS CONSIDERED ORDERED: and |

JECREED that the decree of the court below rendered

ind entered in this cause be and’ the same hereby is

n all things affirmed. ase 7

Appellants having given an undertaking on appeal —

ith St. Paul Fire and Marine Insurance Company as

”

uf , . * 4 — ot dovite Lucia Stas oP DS Si eee AP AOR: RE He B

UD emanates Hh WE ice iii te ai a ie Mowe Cn A ehh hE vy shag ated tailor brs Lee woes tn

ae

surety conditioned that appellants will pay all dam.

ages,.costs and disbursements which may be awarded

againsf*them on the appeal,

IT IS THEREFORE ORDERED that respondent

have and recover of and from appellants and their

surety its costs and disbursements in this court taxed

vat $40.00. on

IT FURTHER IS ORDERED that this €ause be

remanded to the court below from’ which the appeal

was taken with directions to enter a decree in accord-

ance herewith.

.

‘ .

. . e :

“ .

ies . | ' z

Ba ited ciate, Grameen :

Wer oe ed ae oe hy Ne a TI wee Oren Salted eS all wine + on a » bt yf Plan 2

an aanee s . « ~ ‘ . *e a n a ‘ row a. a te het i Se er Jahren ainsi

| . i

| . .

j .

¢

.

4 » § ~

: . . a

.

.

‘ ‘ y

+

* .

’

. “

4 ‘ :

| r¢ '

; .

: ‘

ae

‘ a

‘

¥ . s

.

.

>

4 .

mY

: _ * ‘.

; . .

‘

.

: .

.

.

¢

. ag .

. .

. -

.

;

.

.

.

.

. . ‘

+ . . . »