Oregon Advisory Opinions July 29, 1954: OAG 54-51 (July 29, 1954)

Oregon Attorney General Opinions

1954.

OAG 54-51.

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This is in response to your letter of June 18, 1954, referring to an enclosed letter from Mr. Lowell C. Paget, stating that Mr. William L. Dickson, candidate for the position of judge of the circuit court, 4th Judicial District (Multnomah County), Department No. 7, does not reside in Multnomah County and that Mr. Dickson's declaration of candidacy fails to declare that he resides within ten miles of the judicial district boundary, referring to the provisions of ORS 3.040.

You ask to be advised as to what action, if any, the Secretary of State is required to take with respect to the question involved.

To be qualified to assume a position as circuit court judge a person must (1) at the time of his election have been admitted to practice in the Supreme Court of Oregon: ORS 3.050, (2) be a citizen of the United States, (3) have resided in Oregon at least three years next preceding the election or appointment and (4) be a resident of the judicial district for at least one year immediately prior to becoming a candidate either for election or appointment:

"* * * provided, that in districts comprising but one county now or hereafter having a population of 200,000 or more, judges of the circuit courts shall be residents of their districts or shall have resided within 10 miles of the district boundary for a period of at least one year immediately prior to becoming candidates either for election or appointment."

Candidates for the office of judge of the circuit court are nominated and voted for at primary and general elections as provided in ORS 252.010 to 252.080 and "not otherwise".

ORS 252.030 prohibits the petition or declaration of candidacy from containing any reference to any party ballot or to party affiliation of the candidate and provides also that:

"* * * Nothing shall be attached to or contained in a petition or declaration of candidacy other than the name of the county in which the candidate resides, a statement, not exceeding 10 words, of his qualifications and experience, and a declaration by the candidate

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that, if nominated and elected, he will qualify for the office."

The question of whether or not Mr. Dickson has resided within ten miles of the judicial district boundary for a period of one year prior to becoming a candidate is one going to his eligibility and qualification for office and not to the legal sufficiency of his declaration of candidacy: ORS 3.040, 252.030 and 252.060.

The statement in the declaration of candidacy that Mr. Dickson lives in Clackamas County and outside the 4th Judicial District, does not per se render Mr. Dickson ineligible: ORS 3.040.

The opinion has been repeatedly expressed by this office that the duties of the Secretary of State in these matters are purely ministerial and not judicial: Opinions of the Attorney General, 1950-1952, p. 349. The Secretary of State has no power to determine the eligibility of the candidate for this office: Opinions of the Attorney General, 1920-1922, p. 670.

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.

The declaration of candidacy of Mr. Dickson has been examined and is found to be legally sufficient within the terms of ORS 252.030. To answer your question specifically, the Secretary of State is not required to take any action with regard to the matters referred to in Mr. Paget's correspondence.

Any elector desiring to challenge the eligibility of any candidate may do so in court by following the procedure outlined in ORS 251.310 et seq. See Tazwell v. Davis, (1913) 64 Or. 325.