Oregon Advisory Opinions April 10, 1957: OAG 57-29 (April 10, 1957)

Oregon Attorney General Opinions

1957.

OAG 57-29.

---

95

---

96

This is in response to your inquiry of April 8, 1957, requesting advice pertaining to the appointment of a successor to fill a vacancy in an office of district attorney, and the applicability of ORS 236.135 to the following situation.

You indicated that a candidate for an office of district attorney, registered as a member of the Republican party, was nominated by his party at the primary election in May 1956; that he was also nominated by the Democratic party, by write-in votes, as the nominee of that party for said office; and, that by reason of those circumstances, there was printed opposite his name as candidate on the official ballot at the general election in November 1956, the designation "Republican-Democrat". It was further indicated that said candidate was elected to office as district attorney, and, that he has recently resigned.

Your question is, "of which political party must his successor be a member?"

ORS 236.135 provides:

"Whenever a vacancy occurs in any partisan elective office in this state and is to be filled by appointment, including the office of United States Senator, no person shall be eligible for such appointment unless he is affiliated, as determined by the appropriate entry on his official election registration card, with the same political party as that by which the elected predecessor in such office was designated on the election ballot. " (Emphasis supplied)

In the case of Putnam v. Kozer, (1926) 119 Or. 535, 537, the court said:

"* * * In other words, the Democrat voting at the Democratic primaries votes for the nominees of the Democratic party, and the Republican, at his primary election, votes for the nominees of the Republican party. But, while Democrats alone can lawfully vote at a Democratic primary, they are authorized to nominate for office as a Democratic candidate any person eligible thereto, even though such person may be of a different political faith or the nominee of another party for the same office. It must be borne in mind, however, that such candidate, when nominated, becomes a candidate of the political party or parties so nominating him, provided he accepts such nomination: Or. L., § 4003. Obviously, then, a candidate nominated at the primary election * * * is the candidate of the party or parties nominating him." (Emphasis supplied)

Oregon Laws, § 4003, is now a part of ORS 250.110 and 250.120. ORS 250.110 (3) provides:

"The name of each person nominated shall be printed upon the ballot in but one place, without regard to how many times he may have been nominated. There shall be added opposite his name the party or political designation. This shall be expressed in not more than three words for any one party, as specified in each of the certificates of nomination." (Emphasis supplied)

In the illustration of ballot form set out in ORS 250.120 it is to be noted that opposite the name of the candidates for the office of county surveyor and for justice of the peace there appears the designation "Republican; Democrat".

Under our law, it is permissible for a candidate for a particular office to become the candidate of both the Republican and the Democratic parties, and such a candidate may properly be designated as "Republican-Democrat" on the general election ballot.

Under such circumstances the appointment of any person, otherwise eligible, who is affiliated with either the Democratic or Republican party according to his official election registration card, would satisfy the requirements of ORS 236.135, which provides that such appointee's political party affiliation be the same as that by which the elected predecessor in such office was designated on the election ballot.

Accordingly, it is my opinion that you are authorized to appoint either a Republican or a Democrat, otherwise eligible, to fill the vacancy in said office of district attorney.