Oregon Advisory Opinions September 18, 1956: OAG 56-64 (September 18, 1956)
Collection: Oregon Attorney General Opinions
Docket: OAG 56-64
Date: Sept. 18, 1956
Advisory Opinion Text
OAG 56-64.
District Attorney, Linn County
This is in response to your letter of September 6, 1956, relative to the candidacy of George Nolan for the office of County Assessor of Linn County.
You ask our opinion on the following questions:
"Should the County Clerk certify George Nolan as the democratic nominee even though there has been no acceptance of nomination by him, on the grounds that the attempted withdrawal was ineffective?
"If George Nolan is in fact ineligible by reason of leaving the county, under what duty is the County Clerk placed to determine such fact, and should he then certify the name of Jason Anderson as the democratic nominee and place his name on the ballot?"
From your letter, it appears that George Nolan was the successful Democratic candidate in the recent primary election, for the office of County Assessor of Linn County. Thereafter, the county clerk mailed an acceptance to Mr. Nolan, for him to execute and return to the county clerk in acceptance of said nomination. On August 27, 1956, the county clerk received back the form of acceptance, unexecuted, but with the following notation thereon: "'Unable to accept office of County Assessor. Resign: Leaving County. Sincerely George Nolan (M.N.)'." It further appears that on September 6, 1956, the Democratic Central Committee requested the county clerk to file the name of Jason Anderson as the candidate selected by it for this vacancy.
ORS 249.450 provides:
"In all primary elections in this state, under the provisions of the primary election law, the person having the highest number of votes for nomination to any office shall be deemed to have been nominated by his political party for that office." (Emphasis supplied)
ORS 249.830 provides:
"Any person who has been nominated and accepted some nomination, as provided in ORS 249.710 to 249.850 or any other statutes governing the nomination of candidates for public office, may cause his name to be withdrawn from nomination not later than the sixty-ninth day before the election. This may be done by a writing declining the nomination and stating the reason, which shall be signed and acknowledged by him before some officer authorized by the laws of this state to take acknowledgments of deeds. It shall be certified by the acknowledging officer. It shall be filed with the Secretary of State or the county clerk, clerks or other officer with whom the certificate nominating him was filed. The withdrawal may be sent by telegram to the Secretary of State through a county clerk, as provided by ORS 249.850 in case of certificates of nomination." (Emphasis supplied)
As was held in Opinions of the Attorney General, 1950-1952, p. 30, there is no provision in our election laws which requires that a nominee, nominated at the primary election under our primary election laws, need file an acceptance of such nomination.
The attempted withdrawal by George Nolan, submitted to the county clerk, was ineffective; it was not signed by him nor was it acknowledged as required by ORS 249.830.
Provisions of ORS 249.120 appear to be applicable under such circumstances. Said section provides in part:
"In case any candidate nominated under the provisions of the primary election law dies, withdraws or for any reason is ineligible, or * * * either the state, congressional or county central committee, as the case may be, of any political party, or the managing or executive committee thereof, may nominate a candidate for the vacancy upon the call of the chairman of the committee. * * *" (Emphasis supplied)
The case of Starkweather v. Hoss, (1928) 126 Or. 630, involved interpretation and application of what is now ORS 249.120. Beginning at page 635, the court said:
"By Chapter 289, Laws of 1919, it is provided that in case any candidate nominated under the provisions of this act shall die, withdraw or for any reason be ineligible, the State Congressional or County Central Committee, as the case may be, of the political party of which such candidate was a member shall fill such vacancy.
"What, then, is the meaning of the provision of the statute authorizing a party committee to act when any candidate nominated shall for any reason be ineligible? We think the ineligibility here referred to pertains to the qualification of the person to have his name printed on the ballot at the succeeding election. It was the purpose of the Direct Primary Law to provide for the nomination of candidates whose names are to be so printed. In so far as the nomination made by the Democratic party of a candidate for Congress in the first district is concerned, there was a vacancy which the Congressional Central Committee was authorized by the statute to fill. This is the apparent purpose and intent of the legislative expression." (Emphasis supplied)
The problem is therefore one of determining what evidence is necessary to show or establish the ineligibility of the candidate.
It would appear that the county clerk should, if the same can be obtained, secure a sworn statement from George
Nolan himself to the effect that he is or has removed from the county and that he is therefore ineligible as a candidate. If the candidate cannot be contacted for such purpose, then the county clerk should satisfy himself from all of the evidence available whether or not George Nolan has become an ineligible candidate. In this connection, the county clerk should seek the assistance of the district attorney in evaluating the evidence available, or in preparing a form of statement to be executed by and secured from the candidate, George Nolan.
Answering your questions, it is my opinion that if the county clerk is satisfied, from the evidence submitted or available to him, that George Nolan is in fact ineligible to have his name appear on the ballot by reason of his removal from the county, then the clerk should not certify him as the candidate for office of county assessor nor cause his name to be printed on the ballot; and, he should accept the nomination of Jason Anderson tendered to him by the Democratic Central Committee, should certify him as the nominee to fill the vacancy and should cause his name to be printed on the ballot as the nominee for the office of county assessor.