Oregon Advisory Opinions May 09, 1958: OAG 58-71 (May 9, 1958)

Oregon Attorney General Opinions

1958.

OAG 58-71.

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You have requested an opinion of this office as to whether or not, under the provisions of ORS 236.100, the person appointed by the county court to fill the vacancy of the office of Sheriff of Crook County, who resigned April 25, 1958, must be registered as an Independent. You stated in your letter that the retiring sheriff, at the time of his election, was registered as a Democrat, but that he ran in the election as an Independent.

The statute in question, ORS 236.100, is set forth below:

"Whenever a vacancy occurs in any partisan elective office in this state and is to be filled by appointment, including the office of United States Senator, no person shall be eligible for such appointment unless he is affiliated, as determined by the appropriate entry on his official election registration card, with the same political party as that by which the elected predecessor in such office was designated on the election ballot."

The statute clearly contemplates a situation where the predecessor was designated on the election ballot as the candidate of a given political party. If the predecessor was not so designated, the statute has no effect or applicability. There is no ambiguity in the section and no need for judicial construction or interpretation.

ORS 248.010 and 249.011 provide the following definition:

"'Major political party' means an affiliation electors representing a political party or ORGAnization which polled for its candidates for presidential electors, at the last general election, at least 20 percent of the entire vote cast for that office."

ORS 249.710 (2) provides:

"(2) * * * * 'minor political party' means an affiliation of electors representing a political party or ORGAnization which:

"(a) Polled for any one of its candidates for any public office in the state, county, precinct or other electoral district for which the nomination is made, at the last general election, at least five percent of the entire vote cast for Representative in Congress in such electoral district, or

"(b) Files with the Secretary of State a petition with the signatures of at least a number of registered electors equal to five percent of the vote cast in the electoral district for which the nomination is made for all candidates for Representative in congress at the last general election. The petition shall also state the intention to form a new political party and give the designation of it. * * *"

The designation "Independent" comes within neither of these definitions and is obviously a term used to describe a person who is not running as a member

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of any political party, but rather as an "Independent" or "nonpartisan" candidate.

In Stanfield v. Kozer, 119 Or. 324, 327, 249 P. 631, the court said:

"It is conceded, for the purposes of this case, that plaintiff is not the nominee of any existing political party, and that he has been nominated by a regularly constituted assembly of voters, and is, therefore, an independent candidate within the meaning of the law."

In the case you present, where the predecessor was not designated on the election ballot as the candidate of any political party, it is my opinion that ORS 236.100 is to be disregarded and any person otherwise qualified may be appointed to the position.