Oregon Advisory Opinions March 05, 1979: OAG 79-30 (March 5, 1979)

OAG 79-30.

ORS 260.532 prohibits generally the making of any false statement of material fact relating to an election, and provides a civil right of action for damages against a candidate who does so. Subsection (7) of the statute provides:

"If a judgment is rendered in an action under this section against a defendant who has been nominated or elected to public office, such defendant shall be deprived of the nomination or election and the nomination or office shall be declared vacant."

The question is whether this provision for judicial determination that a candidate may be deprived of the office to which he has been elected can prevail, in the case of a candidate for election to the legislature, over art IV, sec 11 of the Oregon Constitution, which provides:

"Each house when assembled, shall choose its own officers, judge of the election, qualifications, and returns of its own members; . . ."

The constitutional provision prevails over the statute and a court would not have authority to determine under ORS 260.532(7) that a candidate for the legislature shall be deprived of his election.

The controlling case is Combs v. Groener, 256 Or 336, 472 P2d 281 (1970), which held that art IV, sec 11 granted to each house of the legislative assembly sole jurisdiction to determine the election of its members. The court noted its holding was in accordance with decisions in other jurisdictions:

This does not mean that ORS 260.532(7) is unconstitutional. It simply does not apply in the case of elections to the legislature. Regarding ORS ch 251 which contains a similar provision, the court said:

We point out that the rule is different in the case of a primary nominating election. In Cook v. Corbett, 251 Or 263, 446 P2d 179 (1968), the nomination of a candidate for the legislature was set aside judicially. In the Combs case, the situation was distinguished:

"There is justification for a distinction between a primary and general election contest. The primary election does not make the winner of that election a member of the legislative assembly. It is no more than a form of party nomination. . ." 256 Or at 339.

However, in the case of a general election, art IV, sec 11 of the Oregon Constitution controls in vesting jurisdiction in each house of the legislature to determine whether a candidate for membership therein has been duly elected.

This opinion relates only to subsection (7) of ORS 260.532. A court has jurisdiction to entertain a complaint under the statute against a person elected to the legislature, to find that a material false statement has been made and to enter judgment for punitive and general damages. Only the additional sanction of deprivation of the office is inapplicable in such a case. We also suppose that the particular house of the legislature would consider the result of the court proceedings in any challenge which it entertains to the seating of the member.