Gugler v. Baker County Education Service District , 305 Or. 570 ( 1988 )

754 P.2d 903 (1988) 305 Or. 570

Arthur D. GUGLER, Donald H. Phillips, Ella M. Shephard, Ronald E. and Eila A. Lewis, Robert K. Martin, Everett Zimmerman, Russell Rose, J.D. Lethlean, II, John A. Albert, Vern and Alice Knapp, William R. Rudolph, Charles E. Risley, III, and Calvin G. Sissel, On Behalf of Themselves and Other Similarly Situated Taxpayers, Appellants,
C.E. Hardwick, Plaintiff,
v.
BAKER COUNTY EDUCATION SERVICE DISTRICT, a Body Corporate Organized and Existing under Ors Chapter 334, Respondent.

Tax Court No. 2486; SC S34450.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 1, 1988. Decided April 26, 1988.

Jesse R. Himmelsbach, Jr., Baker, filed briefs and argued the cause for appellants.

Joel S. DeVore, Pendleton, argued the cause for respondent. With him on the brief and additional authorities were W. Eugene Hallman and Mautz, Hallman & DeVore, Pendleton.

CARSON, Justice.

This case concerns a challenge to the 1986-87 tax levy of defendant Baker County Education Service District. It is a companion case to Gugler v. Baker County Education Service District, 305 Or. 548, 754 P.2d 891 (1988) (Gugler I) and Gugler v. Baker County Education Service District, 305 Or. 563, 754 P.2d 900 (1988) (Gugler II), also decided today.

The structure and functions of defendant were described in our previous opinion and need not be repeated. See Gugler I, supra, 305 Or. at 550-51, 754 P.2d at 892-93. We proceed to consider plaintiffs' four assignments of error from rulings of the Tax Court.

I. Constitutionality of ORS 334.025(3) and 334.240(1).

Plaintiffs allege that the structures of defendant's board of directors under ORS 334.025(3) and budget committee under ORS 334.240(1) violate the constitutional one-person, one-vote principle. See Hadley v. Junior College District, 397 U.S. 50, 90 S. Ct. 791, 25 L. Ed. 2d 45 (1970). Adhering to its previous decision in Gugler v. Baker County Education Serv. Dist., 10 Or. Tax 315, 318 (1986) [Available on WESTLAW, 1986 WL 15532], the Tax Court struck these allegations from the complaint.

Except for the differing fiscal year (1986-87 as opposed to 1985-86), plaintiffs' constitutional challenges are indistinguishable from those made in Gugler I, supra. We conclude, as we did in Gugler I, that whatever the merits of these challenges, the Tax Court lacked jurisdiction to consider them. Gugler I, supra, 305 Or. at 551-557, 754 P.2d at 893-96.

II. Money held in "special trust."

Plaintiffs allege various violations of the Local Budget Law^[1] which do not relate to fiscal year 1986-87. For fiscal year 1984-85, plaintiffs allege that defendant's board estimated a "General Fund Contingency" which was unreasonable, not based on past experience, and not based on the operation and purpose of such funds. See ORS 294.352(8); Gugler I, supra, 305 Or. at 561-62, 754 P.2d at 898-99; OAR 150-294.352(8). They make the same allegations about defendant's "Unappropriated Ending Fund Balance" for the 1984-85 fiscal year. See ORS 294.371; OAR 150-294.371.

Plaintiffs also allege that, in the midst of the 1985-86 budgeting process, defendant's general fund had an uncommitted balance in excess of that permitted by law. Finally, they allege that the "Unappropriated Ending Fund Balance" of the 1985-86 budget was, again, unreasonable, not based on past experience, and not based on the operation and purpose of such funds. They argue that all "illegally accumulated funds" — as they allege these funds to have been — must be held under a "special trust." The Tax Court struck these allegations from plaintiffs' amended complaint.

Challenges to tax levies under the Local Budget Law must be commenced within 30 days of the filing of the notice of the tax levy with the county assessor. ORS 294.485(2)(a); Smith v. Colton School Dist. No. 53, 10 Or. Tax 295, 296 (1986) [Available on WESTLAW, 1986 WL 15535]. Plaintiffs, however, filed their complaint on August 11, 1986. That was one to two years after the 1984-85 and 1985-86 tax levies. Because the applicable time period had run for making challenges to the 1984-85 and 1985-86 tax levies, plaintiffs are barred from making those challenges.

III. Notice of budget document availability.

The notice by defendant of the budget committee's first meeting stated where the budget document "will be available." That was in contradistinction to ORS 294.401(1), which requires a statement of where the document "is available." The Tax Court concluded that this variance was not a failure substantially to comply with the Local Budget Law.

We also conclude that defendant did not fail substantially to comply with ORS 294.401(1), but for the reasons stated in our previous opinion. Gugler I, supra, 305 Or. at 558-59, 754 P.2d at 897-98.

IV. Attorney fees.

Plaintiffs argue, citing Deras v. Myers, 272 Or. 47, 535 P.2d 541 (1975), that they should be awarded attorney fees. They argue that they should not have to pay out of their own pockets for the allegedly valuable service rendered the public in prosecuting this action.

The Deras plaintiff, however, succeeded in his action, while plaintiffs have not succeeded. In such circumstances, we decline to award plaintiffs attorney fees. See Lewis v. Dept. of Rev., 294 Or. 139, 143, 653 P.2d 1265 (1982); State ex rel. Eckles v. Livermore, 72 Or. App. 650, 661-62, 696 P.2d 1153 (1985).

The decision of the Tax Court is affirmed.

NOTES

[1] ORS 294.305 to 294.520, 294.555 and 294.565.