Oregon Advisory Opinions February 29, 1952: OAG 52-25 (February 29, 1952)

OAG 52-25.

Dear Sir: You handed me a telegram received from Douglas MacArthur, which reads:

"Please withdraw my name from the Republican state primary for presidential nomination. It was entered without my consent and I have no desire to participate in any state primary."

On first impression, it would seem that if the facts are true as narrated in the above telegram, it should be an inherent right of such an individual to have his name withdrawn, especially in view of the facts that, according to reports, he has never announced his candidacy for the presidency but has at all times denied that he is a candidate, nor has he been considered a candidate, unlike other prospective candidates whose names have been heralded in the press of the land as such. Under such circumstances it would seem that his right of privacy is being invaded and his name illegally used.

In our sister state of Washington, in the case of State ex rel. La Follette et al. v. Hinkle, Secretary of State, 229 Pac. 317, the court said, on page 319:

"* * * Nothing so exclusively belongs to a man or is so personal and valuable to him as his name. His reputation and the character he has built up are inseparably connected with it. Others can have no right to use it without his express consent, and he has a right to go into any court at any time to enjoin or prohibit any unauthorized use of it. " (Emphasis supplied)

This expression was upheld by Justice Lusk of our supreme court in the case of Hinish v. Meier & Frank Co., 166 Or. 482, where the right of privacy was involved and considered. On page 506 we find:

"* * * If the facts are as alleged, the defendants appropriated to themselves for their own purposes, without the plaintiff's consent and against his will, his name, his personality and whatever influence he may have possessed, and injected them into a political controversy in which, as far as appears, he had no interest. * * *" (Emphasis supplied)

In the state of Minnesota the statute contains the following statement:

"* * * that if on or before February 25th there is filed with the secretary of state an affidavit of any person filed as a candidate under the provisions of section 202.45 stating that he is not a candidate for the nomination of president for the party for which he has been filed and that if nominated by such party he will not accept, then the name of such person and the delegates pledged to his candidacy shall not be included in the ballot of that party." (Emphasis supplied)

Telegrams were received by the secretary of state of Minnesota from candidates whose names were filed, requesting the withdrawal, and the matter was referred to the attorney general of that state by the secretary thereof for advice. We quote from the attorney general's opinion:

"If each of the proposed candidates whose communications are here considered had furnished to you affidavits in the language of the statute, there, of course, would have been no question as to your duty to exclude their names and those of their proposed delegates. However, the question now to be considered is whether their above quoted requests require you to exclude their names from the primary presidential ballots. It is assumed that in both cases the filings of their candidacies were without authority from them and against their wishes and that their requests for withdrawal are genuine."

"The right of a person not to have an unauthorized filing for a nomination forced upon him is, in my opinion, an inherent right and a personal liberty of which no American citizen can be deprived. The possession of such a liberty in the United States differentiates our country from a totalitarian state, where the individual may at any time be ordered into political or other service at the direction of an all-powerful government. Compelling an American citizen to be a candidate when he is opposed to being one would be depriving him of what may be of much more importance to him than his property, the taking of which without his consent by an individual is a crime and by the government without just compensation is illegal."

We take it that the doctrine enunciated by the learned attorney general of Minnesota is in line with the holding of the Washington case and that of the Oregon supreme court. I have been advised by telegram that the conclusion reached by the attorney general of Minnesota was upheld by the supreme court of that state on February 28, 1952, but the opinion of the court is not available.

Notwithstanding the conclusions of other jurisdictions, however, in the state of Oregon we have the case of McCamant v. Olcott, 80 Or. 246, wherein our court, under an identical set of facts involved herein, decided that a candidate under such circumstances has no right to withdraw his name.

Individually, we may not subscribe to the strained construction placed by our supreme court in McCamant v. Olcott, supra, but as public officials we feel bound thereby, and until there is a modification thereof or the statute is amended by the legislature, it remains the law of the state.

We have requests from both opponents and proponents to the question involved, that is, for and against the name of General MacArthur appearing on the Republican primary ballot, including that of the reputed sponsor. However, the sponsor's attitude in this instance does not alter the situation.

The question under consideration is unlike that presented with reference to the request for withdrawal of the name of Dwight D. Eisenhower from the Democratic primary ballot, pursuant to which our opinion No. 2019, dated February 4, 1952, was issued, for the reasons of the sponsors, the "Veterans Draft Eisenhower Committee for National Unity", who were both sponsors and circulators of the petition as your record discloses, to wit:

"At the time this petition was circulated and filed the sponsors of the petition as well as the Democratic electors who signed same, were of the belief General Eisenhower was a member of the Democratic Party, and the petition was circulated and filed in good faith.

"Subsequent events, however, principally public statements attributed to General Eisenhower, now indicate the man we sought to nominate is not a member of the Democratic Party.

"For the reasons herein set forth, therefore, we, as the sponsors of the petition which you have accepted, respectfully request the petition be withdrawn, and the name of Dwight D. Eisenhower not be placed on the Democratic ballot in the coming Democratic Primary election."

Since the withdrawal of Eisenhower's name by the above sponsors, a petition has been filed by Republican sponsors requesting that his name be placed upon the Republican presidential primary ballot.

Under the present state of facts we have reached the conclusion, after due consideration, that we are bound by the opinion of our supreme court, and by reason thereof the request of Douglas

MacArthur should be denied and his name be placed on the Republican primary ballot, unless otherwise ordered by the supreme court of the state of Oregon.