Oregon Advisory Opinions February 17, 1958: OAG 58-25 (February 17, 1958)

Oregon Attorney General Opinions

1958.

OAG 58-25.

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This is to acknowledge receipt of your letter in which you state that County Judge J. G. Barratt has recently resigned and that another person has been appointed to fill the vacancy in that office. It is my understanding that Judge Barratt's term would have ended in January, 1961.

As we view it, there are two questions suggested by your letter:

1. Must a person appointed to fill a vacancy in the office of county judge be a candidate for election to that office at the next general election?

2. If the answer to the first question is affirmative, for what term does he run?

The constitutional provisions applicable to the above questions are:

Article VII, § 1, Oregon Constitution, as amended in 1910, which is as follows:

"The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. The judges of the supreme and other courts shall be elected by the

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legal voters of the state or of their respective districts for a term of six years, and shall receive such compensation as may be provided by law, which compensation shall not be diminished during the term for which they are elected."

A county court is a court and a county judge is a judge within the meaning of Amended Article VII, § 1, of the Constitution: Opinion of the Attorney General No. 3880, dated December 19, 1957.

Article V, § 16, in so far as applicable, is as follows:

"* * * when at any time a vacancy shall have occurred in * * * the office of judge of any court, the governor shall fill such vacancy by appointment, which shall shall expire when a successor shall have been elected and qualified; if any vacancy occur * * * in any elective office of the state or of any district, county or precinct thereof, the same shall be filled at the next general election, provided such vacancy occur more than twenty (20) days prior to such general election."

The case of Howell v. Bain, 176 Or. 187, appears to be controlling as to the construction to be placed upon the last quoted constitutional provision. In interpreting Article V, § 16, of the Constitution, the court stated:

"* * * In this provision of the constitution, the intention of the people is clearly manifested that the vacancy in an elective office must be filled at the next general election if the vacancy occurs more than 20 days prior to such election. There is nothing uncertain or ambiguous about this constitutional mandate. There is no need of construction. It speaks in no uncertain terms. * * *"

The first question is therefore answered in the affirmative.

Under Amended Article VII, § 1, judges of the courts of the State of Oregon are elected for a full term of six years. This is a constitutional right reserved to the people. There is no authority under this provision of the Constitution for a judge to be elected to fill the unexpired term where a vacancy occurs in the office of judge of a court: State ex rel. Smith v. Kozer, 112 Or. 286, 291, 292; State v. Ware, 13 Or. 380, 391. Opinions of the Attorney General, 1922-1924, p. 808.

It is my opinion that a county judge who has been appointed to fill a vacancy must stand for election at the general election next succeeding the appointment, and that, if elected, he shall serve for a full term of six years.