Response to questions on Validation Process

Sorry Whitney, I did not. The Board has become so bizarre in its behavior and engaged in shoot the messenger with me for so long that I no longer waste time on it. Who did you replace?

Henry and Kerry, here is the objection I filed for everyone else's information. The formatting didn't carry over, I can email it if anyone would prefer. It would be easier to read. If anyone or their lawyer sees something in there that is wrong or doesn't make sense I'd like to chat about it.

I am also preparing to file a motion for an order compelling the Board to submit their proposal to the County for their legality opinion. It turns out the Board could have done so a year or more ago, it's free, just fax it to the County and we would have had our legal opinion in 5 business days, a year or more ago. FREE. Instead they continued this farce, wasting our money on their bevy of lawyers, then filing a secret Court action against their neighbors for the purpose of .... let's see, what was it, oh yeah... they're just trying to pave the roads.

I see no hint of honesty or good faith in the Board's actions over the last year?! The timing and manner of their filing of a Court action was despicable. If a recall was available I'd start one, but they're appointed. Best I can suggest is for everyone to light up the County commissioners by phone, email in the papers(?) until they replace the Board. I've tried but they don't seen to want any part of it. Maybe some of the Commissioners agree with the Board or are working with them, who knows.

I have also asked the Secretary of State to audit the Board's actions, spending and liabilities resulting from their actions. Anyone can go online and file a request or complaint. I focused on the misspending and voter suppression. You might see other issues too.

I want our tax money back that the Board has misspent on this project. I believe we have a claim under our Error and Omissions insurance policy for that. I'd like to make sure that if we have even one new owner who has been "deceived" in this process that they are contacted and compensated. Anyone who did not receive a ballot in the "election" the Board held last year might have a claim for being excluded from the vote. Government officials collaborating to misspend tax money and suppress voters to advance their own personal agenda is not a small issue. I have always thought the Board failed to realize the seriousness of their actions along those lines.

I also notice the Board has an Executive Session scheduled on this matter, If anyone could prevail on a member of the press to be there I believe they have to let them in. The Nugget has done so for school board executive sessions over the years, it might be interested in doing so here if anyone would like to take that on. I think it's time if they haven't already been attending.

On the topic of the Board's lawyers, I"m not sure everyone is aware that the Board now has AT LEAST THREE LAW FIRMS working working against us on this. THREE! YOU AND I ARE PAYING FOR BOARD'S THREE LAW FIRMS. Why? How about the Board pay for its own lawyers? How about the Board approve a resolution to pay for a lawyer for the objectors? How about the Board tell us, on here, the total it has spent on legal fees for Resolutions2021,22 ?

In the meantime I would like to file a counterclaim in the Court for a Court-supervised accounting of the District, but would need some support on that. We as opponents have not so far organized our efforts and planning. It's a huge tactical advantage to the Board and their lawyers. I'm fine continuing on as I am, but if anyone is interested in coordinating I'm at glennbrown27@gmail.com.

IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF DESCHUTES

IN THE MATTER OF THE PETITION

of the Panoramic Access

Special Road District,

Petitioner

Case No.: 21CV41823

RESPONDENT'S OBJECTIONS

INTRODUCTION

The Court should deny Petitioner's Petition. The Court does not have subject matter jurisdiction because there is no justiciable controversy. The Court does not have subject matter jurisdiction over PASRD Resolutions 2021-21 and 2021-22 because the RESOLUTIONS have not been submitted for a vote of all of PASRD's voters. The Court does not have personal jurisdiction over the Respondent because the rights at issue are too important to be resolved in an In Rem proceeding and Respondent has not been served with a Summons.

The Court should also deny Petitioner's RESOLUTIONS since Petitioner, without explanation, has for two years refused to avail itself of the mandated Special District bond measure process. The bond measure process would provide the expeditious legal examination sought by Petitioner in 5 days after filing. And it could have been done a year or more ago. Petitioner has simply refused, no explanation. Therefore examination of the Resolutions by this Court would be an unnecessary use of judicial resources. For each of these reasons Respondent asks the Court to deny Petitioner's Petition.

RESPONDENT

Respondent Glenn Brown is an individual and at all times relevant herein has been a registered Oregon voter residing within the Panoramic Access Special Road District (PASRD) at 17007 Buck Horn Drive, Sisters, Deschutes County, Oregon 97759.

RESPONENT'S OBJECTIONS

The current PASRD Board and its predecessor Board have for two years now failed to, refused to, prepare and submit the RESOLUTIONS for a vote of all district electors under the mandated Sec 371 bond measure process. Petitioner has provided no allegation of difficulty or problems it would encounter if it were to proceed via bond measure. Instead Petitioner now asks this Court to sanction a dramatic and extreme deviation from Oregon election and property tax rights and laws spelled out by the Constitutional and the Legislature.

During the last two or so years PASRD has tried two strategies instead of submitting a bond measure application. First a vote of only property owners. Although there are about 221 registered voters in PASRD (Exh. 1), the Board only sent out apr. 147 ballots, and only to owners of in-district properties, regardless regardless of residency. Between 70 and 80 registered District voters were denied ballots because they did not own property in PASRD. That was apparently done knowingly and intentionally. “We don't want renters voting.” (former PASRD Commissioner.) The number of excluded ballots exceeded the margin of victory in the first property-owners-only vote.

The second process then appears to have stalled for months. Then the Commissioners dispensed with a voter election altogether in favor of a “Commissioners” vote to approve the Resolutions.

The result is the same in both. Non-property-owners are intentionally excluded, only property owners get to vote; in the Commissioner vote all but 3 property owners – the Commissioners - were excluded. During all this time and without justification the Commissioners failed to simply submit a bond measure for a district=wide vote.

B. The Court does not have personal jurisdiction over Respondent absent service of a Summons.

Respondent has not been served with a Summons. A judgment in rem may affect the interests of a defendant in the status, property, or thing acted upon only if a summons has been served upon the defendant pursuant to Rule 7 or other applicable rule or statute. ORCP 5 – JURISDICTION (In Rem)

Petitioner alleges that it acquired personal jurisdiction over its electors, including Respondent, by publication under ORS 33 et seq. However, ORS 33 requires Petitioner to serve Summons on any party whose property or other rights would be seriously and adversely affected. ORS 33 et seq. It would appear that granting Petitioner's Prayers for Relief would significantly affect voting and property rights of over 200 of Petitioner's electors. ORS Sec 33 et seq, ORCP 5, and procedural and substantive due process (and fairness) dictate that prior to granting Petitioner's Examination the Court must require that all PASRD electors be served a Summons rather than relying on Notice publication.

A. The Court does not have subject matter jurisdiction.

Petitioner asserts that subject matter jurisdiction is provided by ORS 33 et seq. However, “[n]othing in this section 33.710 allows a governing body to have a judicial examination and judgment of the court without a justiciable controversy. [Amended by 1975 c.133 §1; 2003 c.548 §1; 2013 c.768 §124; 2015 c.767 §46]. ORS 33.710.

"A controversy is justiciable where there is an actual and substantial controversy between parties having adverse legal interests. The controversy must involve present facts as opposed to a dispute which is based on future events of a hypothetical issue. A justiciable controversy results in specific relief through a binding decree as opposed to an advisory opinion which is binding on no one. The court cannot exercise jurisdiction over a nonjusticiable controversy because in the absence of constitutional authority, the court cannot render advisory opinions." Brown v. Oregon State Bar, 293 Or. 446, 449, 648 P.2d 1289 (1982) (citing Oregon Cty. Mfgs. Ass'n v. White, 159 Or. 99, 109, 78 P.2d 572 (1938)).

A justiciable controversy requires a ripe controversy. The Petitioner must have first exhausted all of its administrative remedies before a Court is permitted to hear a case. Petitioner has not done so.

1. The Court does not have subject matter jurisdiction because the RESOLUTIONS have not been submitted to a district-wide, all-elector vote.

Where as here, a Special District Board has voted to approve an assessment and funding for a capital improvement, there is no ripe controversy and the Court has no subject matter jurisdiction unless and until there has been a vote of all electors. Morgan vs. Sisters School District No. 6, 301 P.3d 419. (no justiciable controversy and therefore no standing where special district had not yet put capital improvement funding measure to district-wide vote.)

In Morganthe School District challenged plaintiff's standing to contest the validity of a school capital improvement assessment and bond funding proposal. (Standing and subject matter jurisdiction require the same justiciable controversy analysis.) The School Board in Morgan had approved by Board vote a bond measure proposal, but had not yet submitted the bond measure to a district-wide, all elector vote. The Court found that the plaintiff in that case had no standing because there was no ripe controversy unless until an election of all electors had been held. Id.

The facts in this are strikingly similar. As in Morgan, Petitioner has adopted by Board vote a resolution to approve capital construction planbut has not yet submitted it to a vote of ALL district electors. Here as in Morgan there is no justiciable controversy because an all-electors vote has not been held.

2. Petitioner has for two years now refused, without explanation, to submit a statutory bond measure proposal.

Petitioner has asked the Court for a dramatic remedy – to approve a novel, unprecedented approval and funding scheme for funding the paving of PASRD roads. Petitioner would, with the Court's sanction, dispense with a vote of electors altogether and trample the rights of more than 200 district electors in favor of the Commissioners' 3 votes. It should not be permitted to do so. This is extraordinary relief and an extraordinary request, some might say outrageous.

Petitioner already has a perfectly good remedy and does not need relief from the Court. ORS Sections 371 et seq, specifically entitled Road Districts and Road Assessment Plans, comprises a compete, specific, limited grant of administrative authority from the county to Special Road District Commissioners to assess and levy taxes for road improvements.

371.097. Levy of taxes - Application of Local Budget Law

(1) A road district may assess, levy and collect each year an ad valorem tax on all taxable property within the road district.

(2) Ad valorem taxes authorized by this section shall be paid in money and shall be levied and collected in the same manner as other county taxes.

1. Notwithstanding ORS 294.316 (Exclusions from scope) (5), 294.305 (Sections constituting Local Budget Law) to 294.565 (Failure to file copy of required budget, reports or other documents) apply to the road district for each fiscal year in which ad valorem taxes are assessed and levied by the district. [1987 c.667 §2] ORS 371.097(Emphasis added)

In other words, PASRD could use the same bond measure process that every other Special District in Oregon employs.

If not one would expect that Petitioner would identify a problem that could not be adequately addressed by the statutory Sec. Petitioner in its pleadings has not alleged a single problem it would encounter using the Special Road District levy process prescribed, mandated, in ORS 371 et seq. Petitioner has simply refused to do so.

The only problem with the Sec. 371 levy process that has been referenced by a Commissioner of which Petitioner is aware is that the Board decided not to submit a 371 levy vote to all district electors because the Commissioners do not want renters voting. If so that would be an improper purpose, and would not sufficient justification for refusing to submit a statutory 371 bond measure to District voters.

Excluding non-owner electors violates Article II, Sec. 2 of the Oregon Constitution. Oregon's Constitution requires a vote of "electors", i.e citizens residing in the district, and at the same time prohibits property ownership as a pre-qualification as an elector in the SRD. The Oregon Supreme Court has held that property ownership cannot be a pre-qualification of voting in a taxing election. Loe v. Britting, 132 Or 572, 287 P 74, decided in 1930, held unconstitutional as in conflict with Art II, § 2, an act of the legislature passed in 1929 (Oregon Laws 1929, ch 281), which provided that no person should be allowed to vote upon the question of levying a special tax or issuing public bonds unless such person was a taxpayer upon real or personal property situated within the particular tax-levying or bond-issuing district. Peterkort & Co. v. County Zoning District, 313 P. 2d 773 - Or: Supreme Court 1957.

If approved, the RESOLUTIONS would add unconstitutional voting limitations that exclude otherwise qualified electors. It has no authority to do so. Not even the Oregon Legislature could do so. See e.g. "That the legislature cannot add to the constitutional qualifications of voters, unless expressly provided therein, is too well established to admit of contradiction. Livesley v. Litchfield, 47 Or 248, 83 P 142; Loe v. Britting, supra; Peterkort v. East Washington County Zoning District, 211 Or 188, 313 P2d 773, 314 147*147 P2d 912.

There is no problem with the Sec 371 levy process. Most if not all Oregon Special Districts in Oregon use it and have for decades. The Board is simply persisting in its refusal so submit a statutory levy vote to its electors, without providing the Court any proper reason. Commissioners' personal wish to exclude non-property-owner electors from voting on an assessment would clearly not be proper or sufficient justification. Before granting Petitioner should be made to identify a compelling and legal reason why it has refused for about two years not to let everyone vote in a Sec 371 election. So far none is evident.

Petitioner should also be made to first specifically delineate any obstacles or problems preventing it from funding using the statutory Sec 371 levy vote process. It indisputably has an unused administrative remedy available to Petitioner, and this Court has no subject matter jurisdiction until and unless Petitioner.

1. Petitioner could have obtained the requested relief within 5 days of filing for a Sec 371 Bond Measure but has refused to do so for two years.

Not later than the fifth business day after receiving a prospective petition for an initiative measure, the elections officer shall determine in writing whether the initiative measure meets the requirements of section 1 (2)(d) and (5), Article IV of the Oregon Constitution.ORS 255.140 (emphasis added.)

FIVE DAYS AFTER FILING. There is no apparent reason why Petitioner has instead chosen complicated, expensive litigation with all its uncertainties and refused an efficient, fast, authoritative examination of the Resolutions. Why?

4. Examining Petitioner's Request prior to a Sec. 371 levy vote would be a waste of the Court's resources.

The Sec. 371 levy process provides administrative resolution of issues of legality and constitutionaliy under OES 255.140 which provides that after submission of a Sec Sec 371 levy to the County, the County tax authorities make a determination whether the proposal meets all the legal requirements.

“Not later than the fifth business day after receiving a prospective petition for an initiative measure, the elections officer shall determine in writing whether the initiative measure meets the requirements of section 1 (2)(d) and (5), Article IV of the Oregon Constitution.” ORS 255.140(1).

That is the same relief Petitioner is seeking from this Court. In five days after filing! With all due respect the Court could not likely resolve those issues within 5 days of the Petitioner's filing. The reason is simple, Oregon has elections and tax authorities in place to provide fast and fair resolutions to these issues. Petitioner could avoid this waste of judicial resources by simply submitting a statutory 371 funding proposal.

Instead Petitioner has chosen litigation for no stated reason. As long as Petitioner maintains its unjustified refusal to do submit a statutory Sec 371 funding proposal, the Court should deny Petitioner's request as an unnecessary waste of judicial resources.

The Court should deny Petitioner's Request for Examination because it would unjustly enrich PASRD Commissioners at the expense of their less wealthy neighbors.

1. The RESOLUTIONS propose a uniform lump sum assessment on each properties regardless of value. That is inherently unfair. PASRD is gentrifying along with the rest of Central Oregon. Many electors own or live in modest homes which they have held for years.

For example, one district property is for sale for more than $2,000,000. On the other hand there district properties worth only around $200,000. Both would be assessed at the same lump sum, both would receive a similar per centage increase in value. The wealthy owner would realize about $200,000, the poorer owner just $20,000. This would unjustly enrich the wealthier owners at the expense of less wealthy neighbors, , and would constitute an unfair subsidy of the wealthy property owners and speculators by the less wealthy, long-term residents. The Board's response so far has been “Well, maybe not everybody can afford to live here.” (former PASRD Commissioner). Indeed, especially if the Court approves the RESOLUTIONS.

There appears to be no limit to the amount of an assessment the Board could impose on electors under the RESOLUTIONS. This time it's some $5500 or so. If freed of the constraints of the Sec 371 statutory system of elector votes, why could the same three wealthy Commissioners assess $10,000 or $20,000 on each lot for a club house for example? Where does it stop?

There's nothing fair about it and they know it. That was an arbitrary and capricious finding that should be rejected out of hand by the Court, and the Court would be justified in doing so without more.

CONCLUSION

The Court should DENY Petitioner's request for examination of the Resolutions, ORDER Petitioner to prepare and file a bond measure application, and retain jurisdiction over its ORDER to ensure compliance. Doing so would provide the requested relief and best conserve judicial resources.

PRAYER FOR RELIEF

WHEREFORE,

RESPONDENT seeks the following relief from the Court:

1. An Order denying DENYING Petitioner's Prayers for an examination of the Resolutions.

2. An Order ordering PASRD to submit its paving proposal via a Sec. 371 bond measure and in compliance with ORS 255 et seq.

3. An ORDER enjoining PASRD Commissioners Head, Wittington and Becker, and any other PASRD Officer or Road Committee member with actual notice of the ORDER, from expending any further PASRD funds for the subject paving proposal UNLESS and UNTIL a prior vote of ALL PASRD electors and otherwise in accordance with OES 371 et seq. has been held.

4. An ORDER enjoining each PASRD Commissioner, Officer or Road Committee member who receives actual notice of the ORDER, from telling or otherwise representing any third party that a paving proposal has been passed, will be passed, or that PASRD roads will be paved, UNLESS and UNTIL a prior vote of ALL PASRD electors and otherwise in accordance with OES 371 et seq. has been held.

5. An ORDER ordering an AUDIT of PSARD's prior surveys, polls, votes and elections to determine whether and if so to what extent SPARD voters were improperly excluded from

6. An ORDER for an ACCOUNTING of PSARD's assets, liabilities, funds and expenditures, including but not limited Resolutions 2021, 2022, and prior paving proposals put forth by PASEF since January 1, 2018.

7. An ORDER granting Respondent its costs and attorneys fees.

8. Any other legal and equitable relief that the Court finds warranted.

/

/

/

Dated this 25th day of January, 2022

Glenn Brown, Respondent

Glenn Brown

17007 Buck Horn Drive

Sisters, Oregon 97759

541-815-5513 (voice)

glennbrown27@gmail.com

CERTIFICATE OF SERVICE

I, Glenn Brown, certify that a true and accurate copy of the Complaint was served on Petitioner's counsel by being deposited in first class mail, postage prepaid, on January 31, 2012 at the following address:

Karnopp Peterson LLP

301 SW Bond Street, Suite 400

Bend, Oregon 97702

Plaintiff also transmitted a courtesy copy electronically to Petitioner.

DATED: January 25, 2022

___________________________

Glenn Brown, Respondent

Why not just put an objection form up here in the doc's to help people respond? It's not legal advice, and saying so is just an excuse to obfuscate the process. It's a form, the Courts and legal form companies do it all the time, but they are meant to encourage participation. This Board's biggest obstacle is informed participation.

You may consider this your law firm Mr. Lowe, but it is not "our law firm" - it is the Board's law firm. Our three Commissioners are acting intentionally and in concert to deny apr. 70 or 80 of their electors, your and my neighbors, an Oregon Constitution-guaranteed right to a levy vote on this assessment. It is not clear to me how anyone can be in favor of that. How about you?

I am also now curious to learn how you know what the Board's lawyers have said to the Board? Have you helped the Board plan and implement this strategy? Are they also sharing that info with anyone else not on the Board? If so then how about they come on here and tell all of us, seems fair eh? After all we're paying their fees.