Oregon Legal Heritage |
Who's the Sheriff?Oregon's contest of a recount |
By Jerry Banks |
It was late one Saturday morning in mid-November 1962. I was working Saturdays in those days, as most of us did. I was beginning my fifth year as an associate at Mautz, Souther, Spaulding, Kinsey & Williamson. There were about 20 of us then - partners and associates.
Ken Roberts stuck his head in the doorway of my small one-window office and asked what I was doing later that afternoon.
'Nothing,' I replied, like a good associate. 'Do you need me?'
'Some people from the Republican Central Committee in St. Helens just called for Mautz,' he told me. (Bob Mautz had been Republican National Committeeman a few years before.) 'He's gone, so Mrs. Davis gave me the call. They need to see someone around three this afternoon. I won't be here. Can you talk to them?'
I agreed, and that began an amazing month in the life of this 30-year-old lawyer.
Promptly at three, two members of the Republican Party Central Committee for Columbia County and a husky ex-state policeman named Roy Wilburn were in our waiting room on the 10th floor of the Board of Trade Building. We met in the conference room. What they told me got my attention.
Wilburn ran that year as a Republican for Sheriff of Columbia County. His opponent was the Democratic incumbent of several decades, Spencer Younce. The general election was on Tuesday, November 6, and much to everyone's surprise Wilburn won by a few thousand votes. It was surprising because the registration in Columbia County was heavily in favor of the Democrats.
Almost immediately after Wilburn's election was declared, Younce demanded a recount. The state election law at that time (ORS 251.590) required that the recount be completed in at least 10 days, so it had been conducted during the week that proceeded our meeting.
During the recount a couple of the counting boards called for the district attorney, who at that time was Dave Williamson, the county's only elected Republican. (That turned out to be a break for Wilburn.) They called him, because they had found numerous disqualified ballots, either with marks in both boxes for sheriff or the boxes scratched over. One of the boards found fresh unmarked ballots in several of the boxes.
Their findings were highly unusual, because the law required the original counting boards to segregate any defaced ballots, and unused ballots were to be secured and stored away from counted ballots. Thus, when the recount boards opened the boxes, there shouldn't have been any disqualified or unused ballots.
Dave Williamson took possession of the disqualified, defaced and unused ballots, and, after the recount was completed, he secured the ballot boxes. He also suggested to the Republican observers that Roy seek legal counsel.
Younce won the recount by a few hundred votes.
Of course, Wilburn and the others wanted to know what could be done. I told them, honestly, that I didn't know. I'd never had the problem arise before. I did agree, however, to look at the law over the weekend and call them first thing Monday.
What I found was ORS 251.015-251.090, which covered election contests and recounts at that time. An election contest was available to challenge a recount. The statutes listed five causes for a contest, and specifically no others. The causes were:
1.
Deliberate and material violations of the election laws.
2. Ineligibility of the person elected.
3. Illegal votes.
4. Mistake or fraud in the canvass of votes.
5. Fraud in the count of votes.
It seemed to me that Wilburn had at least one and possibly three causes to contest the recount, and I called them on Monday with that advice. They retained our office to contest the election.
The job ahead was fast track. According to ORS 251.045, the petition contesting the election had to be filed no later than 10 days from the compilation of the votes on the recount. That had occurred on either Thursday or Friday of the previous week, so, to be safe, I figured that I should file it by Friday the 23rd.
ORS 251.070 also provided that after the petition was filed, a notice to answer must be immediately served on the contestee. At the discretion of the court, the contestee had not less than 3 or more than 7 days to respond. The hearing was to be conducted no more than 20 days after that return date.
Following the path of all of those dates, I figured that the hearing would be have to be held before the 19th of December, so I had to work fast. I say 'I' had to work fast, because with only 7 other associates in the offices, no investigator and no paralegals (we didn't have them in those days), all the work would be left to me.
I prepared a petition - Wilburn v. Younce - and I personally went to St. Helens and filed it on Friday as planned. Illegal votes, mistake or fraud in the canvass and fraud in the counting were listed as the grounds.
I'd never been to the Columbia County Courthouse before. I was impressed by its location and age. It's a classic wooden courthouse, with stone steps leading up to front doors at the second level, which was, however, its first floor. I don't know when it was built, but I bet it had served the county for most of the century up to that time. While no longer in use, it still stands at the end of Stand Street, overlooking the Columbia River.
Although we spoke to no one about our plans, the word got out somehow. As I started up the front steps of the courthouse, I was approached by a reporter from the Oregon Journal. I had never seen him before, but he suspected who I was. He asked if I was there in connection with the sheriff's race. His name was Dennis Buchanan - the same Dennis Buchanan, who later became a Multnomah County Commissioner.
I didn't want to talk to him. On the other hand, after I filed the petition, I wanted some time alone to investigate at the courthouse. So I made him a proposition. I told him that I was filing a petition to contest the election. I also told him that I needed some time to investigate on my own. If he would give me a free hand the rest of that day, I promised to answer his questions as we proceeded with the case. He agreed.
I went into the clerk's office on the first floor. There was one woman behind the counter. I told her that I wanted to file a petition contesting the sheriff's election. She took my check for the filing fee and stamped the petition and the notice to answer. She told me she was expecting it, so I decided to ask some questions.
I soon learned that she was very familiar with the operation of the office and the problems with the election. I asked her about the procedure with the ballots after the first count - how they were handled, where they were stored, where the unused ones were stored.
She told me that the ballots were stored in their boxes in the safe in the basement (the building's first level). She offered to show me. She reached under the counter that was between us and took a key from a hook. Then she led me down an inside stairway to a large safe that looked like a bank vault. The large vault door open. Inside the open door was a steel mesh door, which she unlocked with a key.
We went inside the safe, and she pointed to some shelves, where the ballot boxes had been stored. 'The D.A. has them now,' she said.
As we were leaving, I asked how often the vault door is opened.
'Oh, it's open all the time,' she said. 'The lock's broken.'
'You mean anyone can get in there with that key to the steel mesh door?' I asked.
She allowed how that was true. Then I asked her, if it was that way during all of the month of November, and she said that it was.
When I got back to the office, I called the clients and reported my findings. Wilburn said that he was going to have some of his state policemen friends do some snooping around. And that they did.
The basement of the courthouse also housed the sheriff's office and the county jail. Roy's friends interviewed several men, who had been inmates in the jail during November. According to these men, several of the sheriff's deputies took them out of their cells one evening , a day or two after the election, and had them carry the ballot boxes from the vault and to the sheriff's office. Later that night, the deputies got them again and they carried the boxes back into the vault.
The court set the hearing in mid-December, well within the 20 days. In those days Columbia County did not have a regularly assigned Judge. It was in 19th Judicial District with Tillamook, Washington and Clatsop Counties, and it shared the judges from those counties.
By statute the hearing was to be heard by the court without a jury. The judges of that district decided to have it conducted by two judges, Judge Hieber from Hillboro and Judge Bohannan from Tillamook. Judge Hieber handled the legal matters, and Judge Bohannan conducted the trial.
I spent lots of time in our library looking for some kind of precedent. There seemed to be none. Our statute was passed in 1957. It had little legislative history, and it wasn't a product of another state. I finally went to our 'books of last resort,' LRA (Lawyer's Reports Annotated - the work that preceded the original edition of ALR).
There I found a Minnesota case from the late 1890s, where a contest also involved double-checked and defaced ballots discovered in the boxes during a recount. In that case the contestant had offered evidence showing that the original count had been properly done and that the original counting boards had segregated out the defaced ballots. The court held that finding defaced ballots in the boxes by the recount boards disqualified the recount, and it declared the winner of the original count to be elected.
Now I was posed with a serious tactical problem. How do I present the case? Should I call the ex-inmates as witnesses and try to prove that Spencer Younce or his deputies fixed the recount? I couldn't actually prove what went on in the sheriff's office after the boxes were delivered there. It seemed obvious, however, that some ballots had been disqualified and defaced in his office that night.
It is also probable that they found some unused ballots in some of the boxes, as the recounting board did. They could well have used those to cast more votes for Younce. Would the judges believe the inmates against the sheriff and his deputies? Even if they did, would they infer from that evidence that Younce did it?
On the other hand, if Judge Hieber bought my Minnesota case, I could win by showing what happened during the recounting and by calling someone from each of the original counting boards to establish that their count was accurate and that no defaced ballots were left in the boxes.
I decided on the latter course, after significant counsel from partners at the office. It was cleaner. The judges wouldn't be forced to find that a long-time public servant had committed fraud.
It was the right way to go. Judge Hieber liked the Minnesota case. The trial took several days, because of the numerous counting and recounting boards involved. The first witness was Dave Williamson. Then I called one lady from each board, and they were terrific witnesses. They said just what you'd expect. Roy Wilburn was declared the winner.
The case produced a couple of interesting footnotes. The woman in the clerk's office, who accepted the petition and gave me the tour, turned out to be Florence Younce, the sheriff's wife. The trial was broadcast from start to finish by a Portland radio station. The 'play-by-play' commentator was one of its newsmen, Tom McCall. Finally, Roy Wilburn was reelected, but he wisely changed his registration to Democrat the next time. +
ABOUT THE AUTHOR
Roland F. (Jerry) Banks is a retired partner of Schwabe, Williamson & Wyatt. As a trial lawyer for more than 40 years, he represented a broad cross-section of clients in matters relating to complex business, banking and insurance law, employment, products liability, professional liability defense and general litigation. In the late 1980s and early 1990s, he served as the firm's managing partner. During that time he helped to establish the firm's East County Clinic, which provides free legal services to the poor. He is a former member of the OSB Board of Governors and past president of the Oregon Association of Defense Counsel.