State ex rel. Tosterud v. Druian
State ex rel. Tosterud v. Druian
Opinion of the Court
This is a direct appeal from the Oregon Tax Court’s denial of several motions to intervene in a mandamus proceeding. For the reasons that follow, we affirm the Tax Court’s order.
Relator is a taxpayer who filed a petition for an alternative writ of mandamus in the Tax Court, pursuant to ORS 311.215,
At the show cause hearing, relator presented information that, he argued, established that the hospitals should be added to the tax rolls. The director did not contest that information, but argued instead that her office lacked the resources to carry out the statutory requirements for adding a property to the tax rolls — such as valuing the hospitals’ property — until she was assured that the property was taxable.
A month after the show cause hearing, and while the matter was still under advisement in the Tax Court, the hospitals became aware of the mandamus proceeding. They moved to intervene, asserting that relator had not supplied the court with “credible information” to support his claim that the hospitals should be added to the tax rolls. The Tax Court denied the motions to intervene
“The information ** * * is credible in the sense of being trustworthy because the information was furnished by the hospitals to a government agency. The information is also credible in the sense that it directly relates to the question of whether the property is used exclusively for charitable purposes.”
The hospitals moved for recall of the peremptory writ and reconsideration of its issuance on the ground that relator had failed to provide “credible information” to support the writ. In March 1996, the Tax Court denied those motions. The hospitals now appeal from the orders denying their motions to intervene.
The hospitals argue that both ORS 34.130(4) and Tax Court Rule (TCR) 33 C govern the intervention of parties in a mandamus proceeding in the Tax Court and that both the statute and the rule authorize the Tax Court to allow them to intervene in this case. The hospitals also argue that, if the statute and the rule are interpreted to conflict, the statute takes precedence over the rule.
“At any time subsequent to the return date of [an] alternative writ [of mandamus], the court in its discretion may allow an adverse party to intervene.”
It is undisputed that the hospitals qualify as “an adverse party’
Relator argues that TCR 33 C governs whether the hospitals may intervene in this mandamus proceeding. That rule provides:
“At any time before trial, any person who has an interest in the matter in litigation may, by leave of court, intervene. In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”
Relator argues that the show cause hearing in this case constituted a “trial” for the purposes of that rule. From that premise, relator reasons that the hospitals failed to file a timely motion to intervene, because their motions were not filed “before trial.”
Relator’s argument is unpersuasive. We need not decide whether the show cause hearing in this mandamus proceeding constituted a “trial” under TCR 33 C because, even assuming that it did, ORS 34.130(4) still would govern this proceeding. The Tax Court is authorized only to promulgate rules that conform “as far as practical to the rules of equity practice and procedure.” ORS 305.425(3). Here, relator’s interpretation of TCR 33 C does not conform with ORS 34.130(4) because, under that interpretation, the Tax Court
We turn to the issue whether the Tax Court abused its discretion in denying the hospitals’ motions to intervene. The hospitals argue that the Tax Court abused its discretion, because the hospitals were the only parties that were prepared to give the Tax Court “credible information” upon which a proper determination could be made concerning whether the director was required to conduct a hearing to determine whether property should be added to the tax rolls. In other words, the hospitals argue that relator did not provide the Tax Court with credible information to support the issuance of a peremptory writ. We find that argument to be unpersuasive.
The hospitals apparently equate the requirement of ORS 311.215 — that a relator provide “credible information” to support the issuance of a peremptory writ — to a requirement that a relator provide the Tax Court with information that is more probative than contrary information that exists. We do not agree with that interpretation. The Tax Court found, as a matter of fact, that the information was credible (1) “in the sense of being trustworthy because the information was furnished by the hospitals to a government agency,” and (2) in the sense that it directly relates to the question whether the property is used exclusively for charitable purposes. We agree with that finding and conclude that relator’s information was credible within the meaning of ORS 311.215.
The hospitals also point out that they moved to intervene as soon as practicable upon learning of the mandamus proceeding. We agree that the promptness of the hospitals’ attempt to intervene is a relevant factor for a court to consider in assessing whether to exercise discretion to allow a party to intervene in a mandamus proceeding. We also are sympathetic to the fact that the hospitals did not become aware of the mandamus proceeding until after the alternative writ had been issued. When a mandamus proceeding arises from a “judicial or administrative proceeding,” a relator must serve a copy of the mandamus petition “on all parties” to the judicial or administrative proceeding. ORS 34.130(2). Had the hospitals been served with a copy of the mandamus petition, they could have moved to intervene before the return date on the alternative writ. In that event, the Tax Court would have been required to allow the hospitals to intervene as a matter of right. ORS 34.130(4).
The order of the Tax Court is affirmed.
ORS 311.215 provides that “any taxpayer” may bring a mandamus proceeding in a “court of competent jurisdiction” against an officer that, upon the receipt of “credible information,” fails to conduct a hearing to assess whether a property should be added to the tax rolls. See NW Medical Lab. v. Good Samaritan Hospital, 309 Or 262, 266 n 3, 786 P2d 718 (1990)(interpreting statute). ORS 34.120 provides that the Tax Court “shall have jurisdiction in mandamus proceedings in all cases involving tax laws.”
Six hospitals were named in the petition, and three have appealed the case to this court. For ease of reference, we refer to appellants as “the hospitals” in this opinion.
The Tax Court specified no grounds upon which it denied the motions to intervene.
ORS 311.207(1) provides:
*319 “Whenever the assessor discovers or receives credible information, or if the assessor has reason to believe that any real or personal property, including property subject to assessment * * * has from any cause been omitted, in whole or in part, from assessment and taxation on the current assessment and tax rolls * * * the assessor shall give notice as provided in ORS 311.209.”
ORS 311.209 provides, in part:
“Notice shall be given to the person claiming to own the property or occupying it or in possession thereof of the assessor’s intention to add the property to the assessment or tax roll and to assess the property in such person’s name. * * * [The notice] shall describe the property in general terms, and require the person to appear at a specified time, not less than 20 days after mailing the notice, and to show cause, if any, why the property should not be added to the assessment and tax roll and assessed to such person.”
The hospitals also appeal from the orders denying their motions to reconsider the issuance of the peremptory writ. However, at oral argument, the hospitals conceded that if the Tax Court did not err in denying their motions to intervene — as we conclude here — then their motions to reconsider would be moot due to lack of standing.
ORS 34.105 defines “adverse party,” for purposes of ORS 34.130, to mean “a beneficially interested party to a judicial or administrative proceeding from which a mandamus proceeding arises, whose interests are adverse to the relator.”
ORS 34.130(4) also provides that any adverse party may intervene as a matter of right at any time before the return date of the alternative writ.
Even if the statute and the Tax Court’s rule could be read not to conflict, a more specific provision takes precedence over a related, more general one. ORS 174.020; Smith v. Multnomah County Board of Commissioners, 318 Or 302, 865 P2d 356 (1994). In this case, ORS 34.130(4) is more specific, because it governs intervention in mandamus proceedings, whereas TCR 33 C governs intervention in any form of trial.
Reference
- Full Case Name
- STATE OF OREGON ex rel Theodore A. TOSTERUD v. Janice DRUIAN, Director, Multnomah County Division of Assessment and Taxation, or her successor in office, and LEGACY HEALTH SYSTEM, Legacy Good Samaritan Hospital and Medical Center, and Sisters of Providence in Oregon, an Oregon Nonprofit Corporation dba Providence Portland Medical Center
- Status
- Published