Oregon Advisory Opinions June 03, 1944: OAG 44-88 (June 3, 1944)

Oregon Attorney General Opinions

1944.

OAG 44-88.

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471

Dear Sir: I have given consideration to your letters of May 31, 1944, and June 1, 1944, in which you submit for my opinion the following questions:

1. Whether a person desiring to become a candidate for circuit judge may proceed by a petition of individual electors under section 81-1003, O. C. L. A., or by an assembly of electors under sections 81-1001 and 81-1002, O. C. L. A.; and

2. If the answer to the foregoing is in the affirmative, whether the assembly of electors could be held at any time so long as the certificate of nomination is filed not more than 100 days and not less than 45 days before the day of election.

Your questions arise by reason of the death on May 2, 1944, of the Honorable Robert Tucker, judge of Department No. 3, of the Circuit Court of Multnomah County. The appointed successor assumed office on May 22, 1944, and will continue in office by virtue of said appointment until the forthcoming general election on November 7, 1944. Since the death of Judge Tucker occurred after the time fixed by law for the filing of declarations of candidacy and nominating petitions, and after the time required for the arrangement and certification of the contents of the ballots and the preparation thereof, this position did not appear upon the primary judiciary ballot. As a result no nominations for the position were made.

The nonpartisan nomination and election of judges is governed by chapter 12, title 81, O. C. L. A., section 81-1201 of which provides:

"Candidates for the offices of judge of the supreme, circuit and district courts shall be nominated and voted for at the primary and general elections in this state, as herein provided, and not otherwise."

Section 81-1202 requires that candidates for the judiciary shall be nominated by individual nominating petitions or declarations of candidacy.

Section 81-1203 relates to the contents of the nominating petition or declaration of candidacy, and forbids any reference therein to a party ballot or party affiliation.

Section 81-1204 and 81-1205 provide for the names that shall appear on the primary judiciary ballot, and the method of determining the nominees whose names appear on the general election judiciary ballot. Of course, no party designation is permitted on either ballot.

Section 81-1206 provides that there shall appear on the general election judiciary ballot "The names of all candidates who have been nominated in any manner in this act provided."

Particularly pertinent to your inquiry is section 81-1207, which provides:

"All election laws of this state now or hereafter enacted, relating to the nomination and election of candidates for office, shall apply to the nomination and election of judges of the several courts herein enumerated, except where in conflict with the provisions of this chapter; provided, however, that when there is more than one candidate for the same judicial office or for the same position or department of a judicial office, at either the primary or the general election, the names of the candidates shall be rotated on the ballot at such election or elections in the same manner as the names of candidates are rotated on the ballot in partisan primary elections."

The situation presented is not governed by any procedure prescribed in the nonpartisan judiciary act and the question, therefore, arises as to whether any of the general laws governing elections are applicable. The direction in section 81-1207, supra, that all election laws shall apply "except where in conflict with the provisions of this chapter" indicates that the act was not intended to be independent of all other statutes,

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nor to constitute an exclusive treatment of all possible situations. On the contrary, the act contemplates the existence of a general system of laws governing matters not covered by the act.

Of course, it is true that section 81-1201 demands that judges be nominated and elected "as herein provided, and not otherwise," and that section 81-1206 requires that the general election judiciary ballot shall contain the names of candidates "nominated in any manner in this act provided."

However, if section 81-1207 authorizes the application of other laws to the case, any nominations resulting would be by virtue of the provisions of the nonpartisan judiciary act. Accordingly, the above quoted provision of sections 81-1201 and 81-1206 present no difficulty.

There remains to consider the question of whether the nomination of candidates by petition or assembly would conflict with any provision of chapter 12, title 81.

Chapter 10, title 81, relates to the nomination of candidates by petition or assembly. This act was enacted in 1891, and on its face purports to apply to the nomination of circuit judges, among other officers. Express recognition of its application to circuit judges is contained in section 81-1007, wherein certificates of nomination of circuit judges are required to be filed with the secretary of state. This particular section was amended and reenacted by chapter 170, Oregon Laws, 1935, and the reference therein to circuit judges was retained in the statute as reenacted.

We must assume that the legislature at the time of the 1935 amendment was mindful of the provisions of the nonpartisan judiciary act of 1931. We, therefore, have a legislative expression subsequent to the enactment of said act, which recognizes that circuit judges may be nominated by convention or assembly, or by the petition of individual electors.

Whether the independent method could be pursued in instances where nominations can be made under the nonpartisan judiciary act is a question upon which I express no opinion, but I think the procedure is clearly available where, as in the instant case, the nonpartisan judiciary act offers no appropriate procedure, except by its reference to other laws. Chapter 12, title 81, as a special act, would ordinarily control, but it can not control as to matters on which it makes no provision.

Since there is nothing in chapter 10, title 81, which in any way conflicts with any of the requirements of chapter 12, title 81, I am of the opinion that your first question must be answered in the affirmative.

As to your second question, I find no statutory provision requiring that a nominating convention or assembly be held at any particular time. Section 81-1007 requires that the certificate of nomination made by the convention or assembly be filed not more than 100 days and not less than 45 days prior to to the day fixed by law for the election.

It is, therefore, my opinion that although the certificate must be filed within the time fixed by statute, the convention or assembly may be held prior thereto.