25 OTR 584
Or. T.C.
2024

David John MEDNANSKY, Plaintiff, v. DEPARTMENT OF REVENUE, State of Oregon, Defendant, and CURRY COUNTY ASSESSOR, Defendant-Intervenor.

TC 5465

IN THE OREGON TAX COURT REGULAR DIVISION

June 10, 2024

25 OTR 584 (2024)

No. 36

In this property tax matter, Plaintiff made several initial procedural motions to the court. The court, in three separate orders ruled thus:

  1. (1) Denied as premature Plaintiff‘s motion for default judgment because Plaintiff had miscalculated the due date for Defendant‘s initial appearance;
  2. (2) Denied Plaintiff‘s motion to vacate the court‘s order allowing the county to intervene as a defendant. Although Plaintiff did not receive a copy of the county‘s motion to intervene because the county failed to serve him at the correct address, Plaintiff‘s right to due process was not violated because the court heard his motion to vacate. The court denied the motion to vacate because while Plaintiff objected to county‘s actions in the Magistrate Division proceeding, those objections were not sufficient grounds for the court to deny county‘s motion to intervene in the Regular Division proceeding; and
  3. (3) Denied Plaintiff‘s motion to disqualify the judge following denial of Plaintiff‘s motion to vacate. The mechanism to disqualify a judge “for prejudice” under ORS 14.250, including the requirement that disqualification be decided by a disinterested judge, does not apply to the Tax Court, and the court found no facts supporting disqualification on any other ground.

Submitted on Plaintiff‘s motions.

David John Mednansky, Plaintiff, filed the motions pro se.

Brian Collins, Assistant Attorney General, Department of Justice, Salem, filed the responses for Defendant.

Decisions rendered June 10, 2024; July 23, 2024; and August 27, 2024.

ROBERT T. MANICKE, Judge.

This matter comes before the court on Plaintiff‘s Motion for Entry of Default, filed June 3, 2024, and Plaintiff‘s Motion for Default Judgment, filed June 10, 2024. The court‘s records and a declaration of Defendant‘s counsel show the following relevant facts:

  1. (1) On or about May 1, 2024, the court received the complaint in this matter, in a United States Mail package postmarked April 29, 2024.
  2. (2) On May 1, 2024, the court transmitted a copy of the complaint to Defendant under cover of a transmittal letter of the same date; the court mailed a copy of the transmittal letter to Plaintiff.
  3. (3) On May 14, 2024, Defendant filed an answer, along with a certificate of service stating that Defendant‘s counsel had directed a copy to be served on Plaintiff by U.S. Mail that same day (May 14, 2024).
  4. (4) On June 3, 2024, Plaintiff filed a “Motion for Entry of Default,” alleging that “Defendant had until the 31st of May to answer but did not.”
  5. (5) On June 5, 2024, Defendant filed its answer a second time, along with a certificate of service certifying that Defendant‘s counsel had directed a copy to be served on Plaintiff by U.S. Mail that same day (June 5, 2024).
  6. (6) On June 6, 2024, Defendant filed a response to Plaintiff‘s June 3 motion. The response includes a declaration in which Defendant‘s counsel states that he realized upon reading the June 3 motion that he inadvertently had failed to serve Plaintiff on May 14. Defendant‘s counsel further declares that he mailed a copy of the answer to Plaintiff on June 5, 2024.
  7. (7) On June 10, 2024, Plaintiff filed a “Motion for Default Judgment.”

Plaintiff has miscalculated the due date for Defendant‘s answer; the court‘s records show that Defendant both filed and served its answer within the time allowed for filing.

Tax Court Rule (TCR) 7 A(1) defines the date of the court‘s service of the complaint on Defendant as the third day after the date on the court‘s transmittal letter. The transmittal letter is dated May 1, 2024; the third day thereafter was May 4, 2024. However, May 4 was a Saturday; under TCR 10 A(1), neither Saturday, May 4, nor Sunday, May 5, may be counted in computing the date of service. Therefore, Defendant was served on Monday, May 6, 2024.

Under TCR 7 C(2)(b) Defendant was required to “appear and defend within 30 days from the date of service.” The 30th day after May 6 was June 5, 2024. However, three days must be added under TCR 10 B, which provides: “Except for service of summons or the initial filing of an appeal, whenever a party has the right to or is required to do some act within a prescribed period after the service of a notice or other document upon that party and the notice or document is served by mail, electronic filing system, e-mail, or facsimile communication, three days will be added to the prescribed period.” Three days after June 5 was June 8, a Saturday. Under TCR 10 A(1), neither Saturday, June 8, nor Sunday, June 9, may be counted. The result is an extended deadline of Monday, June 10, 2024.

Accordingly, the answer was required to be filed on or before today, June 10, 2024. It was, and the court has no reason to doubt that Defendant served a copy on Plaintiff on June 5, 2024, as shown on the certificate of service attached to the re-filed answer and in the declaration of Defendant‘s counsel. There is no basis for Plaintiff‘s motions because Defendant has not “failed to appear” within the prescribed time. TCR 69 A(1). Plaintiff‘s Motion for Entry of Default and Motion for Default Judgment are denied.

Defendant‘s answer states in part: “Defendant has notified Curry County of its intent to tender the defense of the assessment to Curry County and has asked Curry County to intervene and defend the assessment.” To date, no motion to intervene has been filed. If no such motion is filed on or before June 20, 2024, the court will schedule an initial case management conference solely including Plaintiff and Defendant, for the purpose of setting a date for trial or other proceedings.

After reviewing the motions and response and being fully advised of the premises, the court finds that Plaintiff‘s motions should be denied. Now, therefore,

IT IS ORDERED that Plaintiff‘s Motion for Entry of Default is denied.

IT IS FURTHER ORDERED that Plaintiff‘s Motion for Default Judgment is denied.

ORDER OF JULY 23, 2024

This matter comes before the court on two motions filed by Plaintiff that follow from the court‘s July 2, 2024, Order Granting Curry County Assessor‘s Motion to Intervene in this matter (order). Defendant responded to each motion, and the court heard oral argument as part of a case management conference on July 22, 2024.

On June 17, 2024, Defendant-Intervenor (the county) filed a Motion to Intervene in this property tax case as well as its Answer (answer). To each document, the county attached a certificate of service showing service on Plaintiff and listing the house number of Plaintiff‘s address as 27485 Eighty Acres Road, although the correct house number is 27486. The county concedes its error. On July 2, 2024, after the period to object to the Motion to Intervene had passed without response, the court issued its order allowing intervention. A few minutes later, Plaintiff informed court staff by email that he had read the order but had never received copies of the Motion to Intervene or of the answer. Court staff transmitted copies to Plaintiff by email a few minutes after that.

On July 3, 2024, Plaintiff filed a Motion for Sanctions against counsel for the county (motion for sanctions). On July 5, 2024, Plaintiff filed a Motion to Vacate Order Granting Curry County‘s Motion to Intervene (motion to vacate). In both motions, Plaintiff asserted that the county‘s error deprived him of the ability to respond before the court allowed intervention. In response to the motion to vacate, Defendant argues, among other things, that there is no evidence that the county‘s error “affect[s] the substantial rights” of Plaintiff, and that the court is thus required to deny the motion. Tax Court Rule (TCR) 12 B (“The court will, in every stage of an action, disregard any error, defect, or omission in the pleadings or proceedings which does not affect the substantial rights of the adverse party.“) (Emphasis added).

The court agrees with Defendant. Plaintiff asks the court to undo its order allowing intervention, but his motion offers no substantive reason why the county should not be allowed to intervene. It is true that the county‘s error in service prevented Plaintiff from presenting substantive arguments before the court allowed intervention. However, Plaintiff promptly asserted a right to be heard by moving to vacate the court‘s order. When Defendant argued that the order did not affect Plaintiff‘s substantial rights, Plaintiff replied by simply reiterating his due process argument. Likewise, at oral argument Plaintiff added no substantive objections to intervention.

The court finds no evidence that the county‘s error affected Plaintiff‘s substantial rights; accordingly, the court will deny Plaintiff‘s motion to vacate pursuant to TCR 12 B.

The same findings and reasoning apply to Plaintiff‘s motion for sanctions, except that this motion points out that the county‘s error deprived him not only of the ability to timely oppose intervention, but also of the ability to timely file any reply to the county‘s answer. See TCR 13 B. The possibility of a reply is not squarely covered by Plaintiff‘s motion to vacate. Therefore, the court will allow Plaintiff 10 days from entry of this order to file any reply. Now, therefore,

IT IS ORDERED that Plaintiff‘s Motion to Vacate is denied;

IT IS FURTHER ORDERED that Plaintiff‘s Motion for Sanctions is denied; and

IT IS FURTHER ORDERED that Plaintiff is allowed ten days to file any reply to Defendant-Intervenor‘s Answer.

ORDER OF AUGUST 27, 2024.

This matter comes before the court on Plaintiff‘s Motion and Affidavit to Disqualify Judge Robert T. Manicke, filed July 30, 2024. The court has also reviewed Defendant‘s response filed August 9, 2024; Plaintiff‘s Response to Defendant‘s Objection to Motion to Disqualify, filed August 12, 2024; and the parties’ statements at oral argument on July 22, 2024. Defendant-Intervenor did not respond to the motion.

The court‘s records show the following relevant facts:

  1. (1) Complaint. On or about May 1, 2024, the court received the complaint in this matter, challenging a Magistrate Division decision in a case in which Plaintiff was the plaintiff and Curry County Assessor was the defendant.
  2. (2) Order denying default. On May 14, 2024, Defendant filed an answer but, as later became evident, Defendant‘s counsel inadvertently failed to serve Plaintiff. In filings on June 3 and June 10, 2024, Plaintiff sought a default judgment. The court denied the default motions as based on an erroneous calculation of the due date for the answer, which had not yet elapsed on the date of the order (June 10, 2024). In the meantime, Defendant had timely re-filed its answer and effected service on Plaintiff (June 5, 2024).
  3. (3) Intervention. In the June 10, 2024, order denying default, the court imposed a 10-day deadline for Curry County Assessor (to which Defendant had “tendered” its defense) to intervene; otherwise, the court would convene its opening Case Management Conference (CMC) without the county assessor.
    1. (a) Curry County Assessor (Defendant-Intervenor) filed a motion to intervene on June 17, 2024, but, as later became evident, county counsel inadvertently mistyped Plaintiff‘s house number when attempting to serve the motion on Plaintiff by mail.
    2. (b) On July 2, 2024, the court granted Defendant-Intervenor‘s motion to intervene, noting that the court had not received responses from any party. Plaintiff, having received the order by email, called court staff, who provided him with a copy of the motion.
    3. (c) On July 3, 2024, Plaintiff filed a motion for sanctions against Defendant-Intervenor‘s counsel. On July 5, 2024, Plaintiff filed a motion to vacate the order allowing intervention.
    4. (d) On July 15, 2024, Defendant filed a Response to Plaintiff‘s motion to vacate. On July 16, 2024, Plaintiff filed a Reply.
    5. (e) On July 22, 2024, the court held the initial CMC, including a brief time for oral argument on Plaintiff‘s motion for sanctions and motion to vacate. Following the CMC the court sent a notice to parties, which included copies of cases explicating the de novo nature of Regular Division proceedings.
    6. (f) On July 23, 2024, the court denied Plaintiff‘s motion to vacate the order allowing intervention, finding that Plaintiff had raised no substantive grounds to overturn it. Plaintiff‘s motion, reply, and statements at oral argument included allegations regarding the conduct of Defendant-Intervenor‘s attorney in the Magistrate Division proceedings, but Plaintiff offered no reason why Defendant-Intervenor should not be a party to this de novo appeal. The court thus found no evidence that Defendant-Intervenor‘s error in failing to serve Plaintiff affected his substantial rights.

In support of his disqualification motion, Plaintiff points to an adverse order in this proceeding as evidence of the judge‘s bias and prejudice. Plaintiff cites the court‘s order denying Plaintiff‘s Motion to Vacate the Order Allowing Intervention. As authority, Plaintiff cites ”ORS 14.250 and any other rules in the state of Oregon that cover judicial disqualification * * *.”

ORS 14.250 to 14.270 allow a party or attorney who “believes that such party or attorney cannot have a fair and impartial trial or hearing” before the assigned judge to file a motion, supported by affidavit, stating that belief.1 In the absence of a challenge by the judge moved against or the presiding judge for the judicial district, the motion “shall be allowed.” ORS 14.260(1). “In the event of a challenge, a hearing shall be held before a disinterested judge. The burden of proof is on the challenging judge to establish that the motion was made in bad faith or for the purposes of delay.” Id. ”ORS 14.250 * * * provide[s] parties and lawyers an opportunity, one that is not constitutionally or otherwise required, to remove a judge for personal, but not necessarily legal, reasons.” State v. Pena, 345 Or 198, 207-08 (2008)(emphasis in original deleted).

As a threshold matter, Plaintiff asserts that his disqualification motion must be decided by the Chief Justice of the Supreme Court and not by the Tax Court Judge. The court disagrees. Where no statute requires appointment of a disinterested judge, disqualification motions are routinely decided by the judge moved against. See e.g. Rivera v. Dept. of Rev., 16 OTR 60 (2002) (Tax Court Judge denied motion to disqualify under ORS 14.250); see also State v. Ovalle, 325 Or App 538, 529 P3d 278 (2023) (leaving undisturbed circuit court judge‘s decision to rule on his own disqualification; reversing and remanding to require hearing on allegation that judge was conflicted under ORS 14.210).

In this case, the statute Plaintiff relies on, ORS 14.250, does require that a “disinterested judge” decide the disqualification motion in certain circumstances. However, ORS 14.250 does not apply to a judge of the Tax Court. ORS 305.455 provides:

“Notwithstanding the provision of any other law, the provisions of ORS 14.250 relating to the disqualification of a judge for prejudice shall not be applicable to any judge serving regularly or temporarily as a judge of the tax court.”

ORS 305.455(2) (2023). See also Hanson v. Dept. of Rev., 294 Or 23, 653 P2d 964 (1982) (holding that ORS 14.250 does not apply to the Tax Court).2 No other statutory provision

prohibits the Tax Court Judge from deciding a motion under ORS 14.250. The court concludes that it is appropriate for the Tax Court Judge to decide this motion.

Having concluded that ORS 14.250 disqualification is unavailable in the Tax Court, the court next considers whether the other statutory basis for disqualification could apply: disqualification under ORS 14.210. See Ovalle, 325 Or App at 542 (discussing the two statutory tracks). ORS 14.210(1) provides that:

“A judge shall not act as such in a court of which the judge is a member in any of the following circumstances:

“(a) The judge shall not act as judge if the judge is a party to or directly interested in the action, suit or proceeding, except that the judge shall not be disqualified from acting as such in a case in which the judge is added as a party after taking any official action as a judge in the action, suit or proceeding, and in that case the judge shall be dismissed as a party without prejudice.

“(b) Except as provided in ORS 2.111 and 2.570, a judge shall not act as judge if the judge was not present and sitting as a member of the court at the hearing of a matter submitted for its decision. A judge may sign an order or judgment reflecting a decision made by another judge if, for good cause, the judge who made the decision is not available.

“(c) A judge shall not act as judge if the judge is related to any party, or to the attorney for any party, or to the partner or office associate of any such attorney, by consanguinity or affinity within the third degree.

“(d) A judge shall not act as judge if the judge has been attorney in the action, suit or proceeding for any party.

“(e) If appeal is made from a decision of another court, or judicial review of a decision of an administrative agency is sought, a judge shall not act as judge on appeal if the

judge participated in making the decision that is subject to review.”

ORS 14.210(1) (2023).

Unlike ORS 14.250, ORS 14.210 is applicable to the Tax Court.3 ORS 14.210 (“A judge shall not act as such in a court of which the judge is a member in any of the following circumstances ***“) (emphases added). However, Plaintiff has not alleged any facts that would support disqualification under any subsection of ORS 14.210(1).

Having concluded that no statutory grounds support disqualification, the court next considers whether any constitutional grounds require disqualification. See Hanson, 294 Or at 28 (addressing taxpayer‘s constitutional arguments for disqualification after determining that ORS 14.250 is inapplicable to a judge of the Tax Court).

Due Process requires “[a] fair trial in a fair tribunal * * *.” Id.4 To be disqualifying on procedural due process grounds, the judge‘s alleged bias and prejudice “must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” See Hanson, 294 Or at 28 (citing US v. Grinnell Corp., 384 US 563, 583, 86 S Ct 1698, 16 L Ed 2d 778 (1966); Berger v. United States, 255 US 22, 31, 41 S Ct 230, 65 L Ed 481 (1921)).

In support of Plaintiff‘s motion to disqualify, Plaintiff cites statements made by the court in rulings adverse to the Plaintiff. Plaintiff‘s allegations of bias and prejudice all relate to this court‘s decisions to grant Defendant-Intervenor Curry County‘s Motion to Intervene

and to deny Plaintiff‘s Motion to Vacate the order allowing intervention. Plaintiff has not alleged any bias or prejudice stemming from any extrajudicial source unrelated to TC 5465, therefore, Plaintiff‘s motion to disqualify does not meet the standard for disqualification under the Due Process Clause.

After reviewing the motion, response, and reply and being fully advised of the premises, the court finds that Plaintiff‘s motion should be denied. Now, therefore,

IT IS ORDERED that Plaintiff‘s Motion and Affidavit to Disqualify is denied.

Notes

1
The court‘s references to the Oregon Revised Statutes (ORS) are to the 2023 edition.
2
Even if ORS 14.250 were applicable to the Tax Court, Plaintiff would not prevail because he has not met the “strict procedural limitations” of ORS 14.250 to 14.270. See Ovalle, 325 Or App at 548. Plaintiff filed his motion to disqualify well beyond the time permitted by ORS 14.260(3) (“A motion to disqualify a judge may not be made after the judge has ruled upon any petition, demurrer or motion other than a motion to extend time in the cause, matter or proceeding.“). Judge Manicke entered an order on June 10, 2024, denying Plaintiff‘s Motion for Entry of Default and Motion for Default Judgment. Plaintiff‘s Motion to Disqualify Judge Robert T. Manicke was not filed until July 30, 2024.
3
Additionally, the procedural requirements applicable to disqualification under ORS 14.250 are inapplicable to disqualification under ORS 14.210, so Plaintiff‘s arguments under ORS 14.210 are not procedurally barred by ORS 14.260(3). See Ovalle, 325 Or App at 545.
4
On the subject of procedural fairness, the court notes that Plaintiff had multiple opportunities to be heard on any substantive grounds for denial of the county‘s motion to intervene: in his motion to vacate, on reply, and at oral argument. In the instant motion, Plaintiff points to his earlier allegations that county counsel behaved badly in the Magistrate Division proceedings. However, Plaintiff provided no declaration or other evidence substantiating these allegations, ignoring the court‘s explanation that Regular Division proceedings apply the rules of evidence and constitute a de novo trial rather than a review of proceedings before the magistrate.