Oregon Advisory Opinions August 17, 1960: OAG 60-103 (August 17, 1960)
Collection: Oregon Attorney General Opinions
Docket: OAG 60-103
Date: Aug. 17, 1960
Advisory Opinion Text
OAG 60-103.
Secretary of State
You have requested an opinion whether Clackamas County is now entitled to two additional circuit court judges on the basis of its population under the provisions of ORS 3.160. You state that upon examination of the latest federal decennial census supplied to you by the Department of Commerce, Bureau of Census, Regional Field Office, Seattle, Washington, Clackamas County now has a total population of 112,399.
You present the following questions:
"(1) In view of the increased population of Clackamas County and as provided for in ORS 3.160 and the provisions of ORS 3.022 (5) notwithstanding is Clackamas County now entitled to two additional circuit court judges?
"(2) If Clackamas County is entitled to two additional judges must these positions be certified to on the general election ballot for November 8, 1960?
"(3) If this office is to certify two new positions for circuit court judge for the general election will these two positions be designated as positions 3 and 4 and within the framework of reference of ORS 252.130 and ORS 3.160 will position number 3 be designated as 'Department of Domestic Relations'?"
ORS 3.160 provides as follows:
"In every judicial district comprising but one county and having a population of more than 90,000 but less than 125,000, according to the latest federal decennial census , there shall be four circuit judges and four departments of the circuit court , one of which shall be designated the department of domestic relations. One of the circuit judges, to be designated by law, shall sit in the department of domestic relations. * * *" (Emphasis supplied)
ORS 3.010 designates Clackamas County as the single county composing the fifth circuit court judicial district.
ORS 3.022 (5) provides:
"There is one circuit judge for each judicial district, except that the following ju
dicial districts have the number of circuit judges indicated as follows:
"(5) Fifth District, two judges. * * *"
Both the provisions of ORS 3.022 and 3.160 are part of chapter 557, Oregon Laws 1959, being §§ 2 and 3, respectively. ORS 3.022 fixes the number of judges in each judicial district as they were intended to be at the time of the enactment of the statute, Clackamas County comprising the fifth judicial district, and having two circuit court judges. On the other hand, statutory provisions such as ORS 3.160, basing classification upon population, are interpreted as having a progressive and prospective application and when a certain population figure is reached the statute automatically becomes operative as to the area coming within the classification. See opinion of the Attorney General No. 4953, dated July 29, 1960, and authorities cited.
Accordingly, as to your first question, Clackamas County, having attained the population figure designated by the provisions of ORS 3.160, is removed from the operation of ORS 3.022 (5), designating the number of judges for the fifth judicial district, and has now become subject to the provisions of ORS 3.160, entitling the county to two additional circuit court judges upon the basis of the population figure designated by this section.
Answering your second question, it is my opinion that since Clackamas County, under the facts presented, attained the requisite population figure in time for the two additional positions for circuit court judge to be certified for the ballots for the November election, the Secretary of State should proceed to make such certification. See opinion of the Attorney General No. 4953, supra.
Your third question involves the provisions of ORS 3.160, quoted supra, and ORS 252.130, which reads:
"(1) In all proceedings for the nomination of candidates for election to the office of circuit judge in any judicial district in which circuit judges are designated by position numbers, every petition or declaration for nomination, certificate of nomination, ballot or other document used in connection with such nomination, shall state the position number, as designated in ORS 3.210, of the position to which the candidate aspires, and his name shall appear on the ballot only for the designated position.
"(2) On the ballots at the general election, each position to be filled shall be separately designated by its official position number, and the names of the nominees shall appear only for the positions for which they were nominated.
"(3) In the case of Position No. 3 in the third judicial district, the words 'Department of Domestic Relations' shall always be set forth, in parentheses, following the designation of the position number."
ORS 3.210, referred to in the above quoted section, sets forth the position numbers of the circuit judges in multiple judge judicial districts. Again, ORS 3.210 must be regarded as designating the position numbers in the judicial districts as they were intended to be when the Act became effective. However, since ORS 3.160, supra (providing for circuit judges in judicial districts comprised of but one county, having a population between 90,000 and 125,000), is to be given prospective application and since Clackamas County has now qualified under this section for two additional circuit judges, it follows that two more positions should be certified on the ballot for the fifth judicial district (Clackamas County), which logically would be designated as Positions Nos. 3 and 4. As indicated above, ORS 3.160 provides that in a judicial district qualifying for additional judges under this section,
"* * * there shall be four circuit judges and four departments of the circuit court, one of which shall be designated the department of domestic relations. One of the circuit judges, to be designated by law, shall sit in the department of domestic relations. * * *"
We note that subsection (3) of ORS 252.130 specifically provides that Position No. 3 in the third judicial district (Marion County) shall be designated the "Department of Domestic Relations," and, likewise, ORS 3.210 (3) provides that in the third judicial district the judge holding Position No. 3 shall preside over the department of domestic relations, but no provision is made for designation of the positions of the judges in districts qualifying for additional judges under the provisions of ORS 3.160 upon attaining the requisite population.
Since ORS 3.160 directs that one of the four departments of the circuit court in a county having the requisite population shall be designated the "Department of Domestic Relations," orderly procedure and reasonable legislative intent would appear to indicate that the Secretary of State, in certifying the positions of the new circuit judges for the election, should follow the procedure indicated for the third judicial district, which was in existence when the provisions of ORS 3.160 were enacted, and that he shall likewise designate the third position in the fifth judicial district (Clackamas County) as the "Department of Domestic Relations."
In brief, answering your third question, it is our opinion that the two new positions for circuit judge certified for the general election should be designated as Positions Nos. 3 and 4 and that Position No. 3 should be designated as the "Department of Domestic Relations."