Oregon Advisory Opinions September 01, 1960: OAG 60-111 (September 1, 1960)
Collection: Oregon Attorney General Opinions
Docket: OAG 60-111
Date: Sept. 1, 1960
Advisory Opinion Text
OAG 60-111.
Secretary of State
You ask our opinion in connection with the following facts:
"On August 9, 1960, there was filed in this office a certificate of nomination on behalf of Clifford E. Nelson, a certificate of nomination for the position of Judge, District Court, County of Multnomah, Position Number 4.
"Initial examination of the subject documents revealed that the essential elements as provided for in ORS 249.720 et seq were present. The certificate of nomination as signed by Leonord D. Alley, Chairman of the Convention, and A. J. McCallen, Secretary of the Convention, attested to the fact that all statements and documents made in support of the certificate were true and accurate.
"As further provided for in ORS 249.730(1) there was attached to the certificate of nomination a document containing the names and addresses of 256 individuals. This list purported to be the listing of those present at the date, time and place of the Assembly of Electors who placed in nomination the name of Clifford E. Nelson.
"Information presented to this office caused us to make a preliminary investigation of this certificate of nomination. Our investigation revealed that ten individuals listed as being present at the Assembly of Electors were in fact not in attendance. These facts are substantiated by sworn affidavits of ten individuals whose names appear on the Roster of Electors.
"On August 22 Mr. Leonard A. Alley presented himself at my office and of his own volition did submit to me over his signature a statement relating to his role as presiding officer of the nominating convention described above. In essence Mr. Alley admits to the insufficiency of the documents submitted by him as it obtains to the number of persons present at the nominating convention. A copy of Mr. Alley's statement is attached for your information and study.
"From the information described may we conclude that the certificate of nomination presented in behalf of Mr. Nelson is defective and insufficient and, if so, may we revoke the certificate of acceptance issued to Mr. Nelson by this office, and may we set aside the certificate of nomination of the Assembly of Electors thereby eliminating Mr. Nelson's name from the November ballots?"
Candidates for the office of judge of the district court must be nominated and voted for at primary and general elections in accordance with the non-partisan Act. ORS 252.010. In the case of vacancies the candidates must be nominated in the manner provided for the nomination of independent candidates. ORS 252.060.
The nomination of independent candidates is provided for in ORS 249.710 to ORS 249.850. In general, a certificate of nomination must be filed with the Secretary of State. A certificate made by an assembly of electors must be signed by the presiding officer and secretary and must contain their affidavit that not less than 250 eligible electors of the district were present at a public meeting at which the nomination was made and that the candidate received the highest number of votes. Under ORS 250.020 the Secretary of State must furnish a statement to the county clerk so that the nominated candidate may be voted on at the general election.
You have indicated that the certificate of nomination revealed the essential elements as provided for in ORS 249.720 et seq. were present. Inasmuch as we do not have before us the certificate and its supporting documents we must limit this opinion to the facts presented.
The duty of the Secretary of State with respect to the filing of certificates of nomination has been described in Sears v. Kincaid, (1898) 33 Or. 215, at p. 220, 53 P. 303, as follows:
"* * * His duty is confined to the arrangement of the names and other information concerning the candidates contained in the certificates of nomination on file in his office, in the manner provided by law for the arrangement of the names and other information upon the ballot, and to certify to the same and transmit to the various county clerks, and post in his office a duplicate thereof. In short, he is required to certify to the names of the candidates, and to the other matters contained in the several certificates of nomination, and which are required by law to be placed on the official ballot, but not that the persons so named are, in fact, the nominees of any party; and, so far as the question has received judicial consideration, the holdings are quite uniform that, under statutes like ours, he has no power or authority in so doing to pass upon the regularity or validity of such nomi
nations, or to inquire into the regularity of the conventions by which they purport to have been made. * * *"
In response to a question as to what action the Secretary of State is required to take when a declaration of candidacy is sufficient as to form but the candidate may be ineligible because of failure to meet residence requirements, this office stated in Opinions of the Attorney General, 1954-1956, p. 9, at p. 10, as follows:
"If upon examination of the declaration of candidacy the Secretary of State finds that it contains 'such information as is required by the law relative thereto and is properly executed and verified, and is filed within the time allowed therefor by law' the Secretary of State has no other duty but to file it: Opinions of the Attorney General, 1920-1922, pp. 670 and 671; 1950-1952, p. 349."
In State ex rel. Van Winkle v. Boyer, (1928) 127 Or. 91, 271 P. 46, the court had before it the legality of the nominations made by the Progressive Party. The court held that the nominations were illegal because of the failure to announce notice of the convention to the party electors and because the president and secretary were members of another party. The court indicated that the Secretary of State had functioned legally in certifying the nominees of the Progressive Party because there was nothing in the certificate to justify him in refusing to so certify. At page 102, the court stated:
"The Secretary of State had no authority to go behind the certificate. It was his duty to file the certificate and certify the ballot as he did. The Secretary of State is a ministerial officer and his authority is limited by the prima facie evidence afforded by the certificate."
Accordingly, it is our opinion that the Secretary of State is not required to take any action other than to process the filing as any other legal certificate of nomination.