Oregon Advisory Opinions October 17, 1956: OAG 56-74 (October 17, 1956)

Oregon Attorney General Opinions

1956.

OAG 56-74.

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This is to acknowledge your letter of October 15, 1956, with the enclosed telegram from William M. Langley, District Attorney of Multnomah County. Mr. Langley's letter to you, which was delivered to me at a later time is also acknowledged.

In your letter you ask my advice as to the validity of Mr. Langley's charges and what is your official duty with respect to these charges.

Mr. Langley's charges, as appear in his telegram to you, are as follows:

"Robert Y. Thornton's article in Official Voters' Pamphlet, General Elections, November 6, 1956, distributed by you libels me. The article also violates the civil and criminal provision of the Federal Civil Rights Act, and denies me a fair trial. Am holding you responsible. And I demand that you cease distribution of this article and repossess and destroy all those distributed."

At the very outset it is apparent, from the contents of the above telegram which is substantially the same as the charges and demands made in Mr. Langley's letter of October 14, 1956, that the writer has not set out any statutory authority showing wherein you are required to comply with the demands made.

In arriving at a solution to your question consideration must be given to a fundamental and underlying principle of our system of government, that is, public officials must find sanction for their doings in the law itself; in other words, we are, as a people, governed by law and not by men. Safeway Stores v. State Board of Agriculture, 198 Or. 43, 103. Under these circumstances the question then arises as to what is your duty under the law?

ORS 255.210 authorizes the filing with the Secretary of State portrait cuts, statements and arguments of the eligible candidate seeking office. The time for filing this material is to be "not later than the seventieth day before the regular biennial general election."

ORS 255.220 (1) requires that the Secretary of State " shall reject any statement or other matter favoring or opposing any candidate and offered for filing and printing in the Voters' Pamphlet, which, in his opinion, contains any obscene, vulgar, profane, scandalous, libelous or defamatory matter."

ORS 255.220 (2) provides that:

"Within five days after such rejection the persons submitting such statement for filing may appeal to a board of review, consisting of the Governor, Attorney General and Superintendent of Public Instruction. The decision of such board shall be final upon the acceptance or rejection of the statement or matter thus in controversy."

It is then provided that "not later than the fifty-ninth day before the general election the Secretary of State shall deliver to the State Printer" the election material to appear in the Voters' Pamphlet. ORS 255.230 (1).

ORS 255.230 (2) provides:

"The State Printer shall begin delivering the pamphlets to the Secretary of State as soon as possible and complete delivery within 35 days. The Secretary of State shall begin mailing the pamphlets to the voters of the state as soon as they are delivered to him and shall complete the mailing on or before the twentieth day before the general election."

It is clear from the above sections, particularly ORS 255.220 (1) that you have a duty to pass upon all material offered to you by a candidate for filing. You are to determine whether or not any such material submitted contains, among other things, "any obscene, vulgar, profane, scandalous, libelous or defamatory matter" and if, in your "opinion" such material does contain objec

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tionable matter you are to reject it and refuse to file the same.

Recognizing the express language of the above statutes, particularly the time limitations contained therein, it is apparent that the Legislative Assembly clearly intended that the action by the Secretary of State in accepting and filing a statement was to be a final administrative determination as to whether the "statement or matter" violated the statute. The only course of procedure open to an aggrieved party to override a determination by the Secretary of State is that set out in ORS 255.220 (2), above quoted. Here again the administrative determination becomes final as to the acceptance or rejection of the material, with no right for further appeal from the determination. See School District No. 68 v. Hoskins, 194 Or. 301, 312.

You are advised that you have no statutory authority to comply with the demand made and that distribution of the Voters' Pamphlet must proceed according to law.