Oregon Advisory Opinions December 10, 1963: OAG 63-166 (December 10, 1963)

Oregon Attorney General Opinions

1963.

OAG 63-166.

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You request an opinion on the following two questions:

"(1) Can a duly elected or properly appointed precinct committeeman or woman be active in the primary campaign of someone seeking the nomination of their own political party in a contested primary campaign, without having to resign the position of precinct committeeman or woman?

"(2) Assuming the answer to No. 1 is yes, does the County Central Committee have any power of removal of a precinct committeeman or woman who is active as described in question No. 1?"

Every major political party elects, at the general primary election, two committeemen of the opposite sex for each election precinct. ORS 248.020. These committeemen are the representatives of the party choosing them and constitute the county central committee of their party. ORS 248.030.

ORS chapter 248, governing major political parties, further regulates the ORGAnization of the various political committees, the power to assess party nominees, and other party matters; but contains no prohibition against a precinct committeman actively supporting the nomination of a person of his own party in a primary campaign.

Accordingly, it is our opinion that there is no statutory prohibition against a precinct committeeman supporting the nomination of a person of his own party in a primary election.

As to the power of removal of a precinct committeeman by a county central committee, there is no statute specifically dealing with the subject of removal. However, ORS 248.020 provides for the regular election of committeemen at the general primary election; ORS 248.050, supra, provides them with a term of two years and, to ensure continuous representation from a precinct, authorizes the county central committee to fill a vacancy---"In case of a vacancy in the representation from any precinct occurring because of death, resignation or otherwise * * *."

In Williamson v. Killough, (1932) 185 Ark. 134, 46 S. W. (2d) 24, under a primary law by which precinct committeemen were elected to serve for a definite term and the central committee could fill vacancies created by death, absence, resignation or ineligibility, it was held that the precinct committeemen were entitled to serve for the term for which they had been elected until conditions arose which constituted a vacancy within the meaning of the primary law. The county central committee was held to be in error when it refused to recognize several committeemen whose residences from the townships from which they had been elected were removed by an act of the county court in changing the boundary lines of the townships.

At page 27 the court quoted with approval 9 R. C. L. 1088, § 98, as follows:

" 'The dormant idea pervading the primary law is the absolute assurance to the citizen that his wish as to the conduct of the affairs of his party may be expressed through his ballot and thus be given effect, whether it is in accord with the wishes of the leader of his party or not, and so shall be put in effective operation in the primaries. In other words the scheme is to permit the voters to construct the ORGAnization from the bottom upwards, instead of permitting leaders to construct it from the top downwards. And in order to accomplish this end not only is it necessary to protect the right of party

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members to vote at the primary as against unreasonable regulation, but also to protect the committeeman or other party official elected thereat from being summarily ejected from his place in the party ORGAnization. So, where the primary law provides for party committees and the election of party committeemen, membership may be gained in no way other than that provided by the statute, namely, by the suffrage of the party members at the primary election. The committee cannot remove the committeemen so elected, and it is the duty of the court to give full force and effect to the legislative intent so manifested.' "

In People ex rel. Coffey v. Democratic Com., (1900) 164 N. Y. 335, 58 N. E. 124, 51 L. R. A. 674, it was held that, under a primary law requiring each political party to have a general committee in each county, the members to hold their office for one year upon being elected at primary elections in the manner provided by law, a member of the committee could not be removed by the committee during the term for which he was elected.

After following reasoning similar to the Williamson case, supra, the court stated, at page 345:

"It has been suggested that it would be intolerable for the members of a general committee to associate with a member who is hostile to the ticket, and that it follows that the legislature must be presumed to have had such a situation in mind. I answer---without assenting for one moment that the legal conclusion follows from the proposition of fact standing alone---that it does not stand alone; that the legislature was confronted with what it regarded as an abuse of the rights of the citizens in party matters, which compelled it to decide which was the lesser of two evils,---to compel association occasionally with a member who is hostile to some portion of the party candidates or a majority of the committee, or to permit the general committee to deprive the primary voters of the choice of a representative. It decided that the wrongs that had been and were being done to the primary voters exceeded that which could result from occasional association with a hostile member. In other words, it was determined that the majority of the primary voters were entitled to select any representative they might desire, who should be responsible to those electing him, and only to them, for his conduct in office. That determination should be given effect by the decision of this court agreeably to that well-understood canon of construction that commands the court in construing a statute to give effect to the intention of the legislature."

Accordingly, it is our opinion that a county central committee has no power to remove a precinct committeeman from the committee.