Oregon Advisory Opinions June 18, 1964: OAG 64-67 (June 18, 1964)
Collection: Oregon Attorney General Opinions
Docket: OAG 64-67
Date: June 18, 1964
Advisory Opinion Text
OAG 64-67.
You request an opinion concerning a vacancy in the nomination for the office of district judge for Yamhill County. You state:
"Prior to the 1964 Primary, two candidates filed for the office of District Court Judge for Yamhill County; the incumbent, Judge Rollin B. Wood, and a Mr. Harold E. Witty. The official abstract of votes for this election from Yamhill County shows that Mr. Witty received the nomination for this position.
"As you probably know, Mr. Witty died shortly following the Primary Election. Thereby, a vacancy in nomination as described in ORS 252.060 was created.
"Several individuals are attempting to fill this vacancy in nomination and are proceeding to do so in the manner provided for the nomination of independent candidates.
"This whole situation raises a question to which I can find no immediate answer in the statutes. My question then is as follows:
"Is there any specific statute in ORS Chapter 252 which would prohibit Judge Rollin B. Wood, the defeated candidate for nomination, from attempting to fill this vacancy as provided by law?"
Under the nonpartisan judiciary Act, judges are nominated at a primary election and are elected at a general election. ORS 252.050 and 252.070. The two methods of presenting candidates for nomination at a primary election are by declaration of candidacy and by individual petition. ORS 252.020. Notwithstanding the general election law, when the nonpartisan Act governs the procedure for the nomination of candidates, that procedure is exclusive. ORS 252.010; Howell v. Bain, (1945) 176 Or. 187, 156 P. (2d) 576.
The nonpartisan Act makes provision for other methods of nomination in the event of the death of a candidate nominated at a primary election. When a candidate nominated under the Act dies on or after the day set for holding a primary election, ORS 252.060 states:
"* * * candidates for such judicial office shall be nominated in the manner provided for the nomination of independent candidates. * * *"
The method of such nomination is found in ORS 249.710 to 249.860.
Therefore, upon the death of Mr. Witty, the nominee for district judge in Yamhill County, there resulted a vacancy in nomination to be filled in the manner provided for the nomination of independent candidates.
Under the general election law the defeated candidate of a major political party may not accept the nomination of any other political party or become an independent candidate. ORS 249.470 provides:
"No candidate for nomination to an office to be voted for in the state at large or in a district composed of one or more counties who fails to receive the highest number of votes for the nomination of the major political party with which he was affiliated at the time of filing his petition for nomination or declaration of candidacy shall be entitled to be the candidate of any other political party or to become an independent candidate at the succeeding general election. In either case the Secretary of State shall not include in his proclamation any such candidate."
While no cases in this state have discussed the purpose of this statute, in Heney v. Jordan, (1918) 179 Cal. 24, 175 P. 402, the court suggested, in connection with a similar statute, that the legislature might well have concluded that it would not be conducive to the integrity of political parties that one who failed to obtain the nomination of his party should be allowed to avail himself of the nomination of an opposing party for the same office in opposition to the successful nominee of his own party, or that the opposing party should be allowed to have the unsuccessful candidate as its nominee under such circumstances.
In any event, a judicial election is nonpartisan and there can be no defeated candidate of a major political party. For this reason, the statute can have no application to the present case.
Accordingly, it is our opinion that Judge Rollin B. Wood, who was defeated in the last primary election for the nomination of judge of the district court for Yamhill County, is eligible to be nominated for that office which will be voted on at the next general election.