Oregon Advisory Opinions April 24, 1967: OAG 67-71 (April 24, 1967)

Oregon Attorney General Opinions

1967.

OAG 67-71.

---

233

Oregon law does not provide for the recall of a party precinct committeeman.

You ask our opinion on whether or not elected precinct committeemen are subject to recall.

Article II, § 18, Oregon Constitution, provides in part:

"Every public officer in Oregon is subject, as herein provided, to recall by the legal voters of the state or of the electoral district from which he is elected. There may be required 25 per cent, but not more, of the number of electors who voted in his dictrict at the preceding election for justice of the supreme court to file their petition demanding his recall by the people. They shall set forth in said petition the reasons for said demand. If he shall offer his resignation, it shall be accepted and take effect on the day it is offered, and the vacancy shall be filled as may be provided by law. If he shall not resign with five days after the petition is filed, a special election shall be ordered to be held within twenty days in his said electoral district to determine whether the people will recall said officer. * * *" (Emphasis supplied)

The Oregon legislature has not extended the application of the recall beyond the provisions of Article II, § 18, supra, and the question which must therefore be determined is whether or not a precinct committeeman is a "public officer."

In Recall Bennett Committee v. Bennett et al., (1952) 196 Or. 299, 325, 249 P. (2d) 479, the Oregon court said:

"* * * Public office has been defined as follows:

" 'In general, the term "public office" embraces the ideas of tenure, duration, emolument, powers, and duties; and it has been defined as a public station or employment conferred by the appointment of government, or the right, authority, and duty created and conferred by law, by which for a given period an individual is invested with part of the sovereign functions of the government.' 67 CJS, Officers, § 2, p 97."

This office said in Opinions of the Attorney General, 1930-1932, pp. 602, 603:

"An office is generally understood to be a position created by law, wherein the person occupying the same is vested with the exercise of some of the sovereign powers of the state; in other words, a state, county, or municipal office, the incumbent of which has some duty to perform under the laws of the state or municipality. Precinct committeemen of political parties are only officers or representatives of their respective political parties, and have no powers conferred on them by way of administering the laws. * * *"

In McCombs v. Stevenson, (Tex. Civ. App. 1946) 195 S.W. (2d) 566, 570, the court held:

"* * * Officers of a political party, although provided for by election laws, e.g., Chairman of the County Executive Committee and precinct committeemen, are not to be regarded as public or governmental officers. * * *"

And it was said in the early case of Attorney General v. Drohan et al., (1897) 169 Mass. 534, 48 N.E. 279, 281:

"* * * Without attempting an exhaustive definition of what constitutes a 'public office,' we think that it is one whose duties are in their nature public; that is, involving in their performance the exercise of some portion of the sovereign power, whether great or small, and in whose proper performance all citizens, irrespective of party, are interested, either as members of the entire body politic or of some duly-established division of it. * * * Manifestly, membership in a political committee belonging to one party or another does not come within the above description of what constitutes public office. The fact that the legislature has deemed it expedient to regulate by statute the election and conduct of political committees does not make the office a public one. * * *"

The case of People v. Kramer, (1928) 328 III. 512, 160 N.E. 60, 65, holding that political party committeemen are not public officers, pointed out that they do not "represent the public at large" but rather "represent the members of the political parties, and are accountable to them alone."

See also 25 Am. Jur. (2d) Elections, p. 810, § 124, and Opinion of the Justices, (1964) 347 Mass. 797, 197 N.E. (2d) 691, citing many cases of like effect.

Oregon statutory law itself makes a distinction between a public and a party office, referring in ORS 248.045 (3) to a "Person who holds a public office or an office of a political party."

As said in Kenneck et al. v. Pennock et al., (1931) 305 Pa. 288, 157 A. 613, 614:

"* * * A reading of the [uniform primaries] act clearly reveals that the familiar distinction between party officers and the public officers is expressly observed. * * *"

---

234

We find the reasoning in the above cited authorities highly persuasive. But no cases have been found involving the attempted recall of a precinct committeeman, so let us assume, arguendo, that a precinct committeeman is a "public officer."

As noted, Article II, § 18, provides that a recall election shall be held after petition therefor by "25 per cent, but not more, of the number of electors who voted in his district at the preceding election for justice of the supreme court * * *" (hereafter referred to as "such 25 percent"). This maximum of 25 percent is required by ORS 254.450.

How could this provision be construed in authorizing the recall of a precinct committeeman? We find three possibilities:

1. The election could be required on petition of such 25 percent of all of the electors of the precinct, no matter what their political registration may be. Thus, an election for the recall of a precinct committeeman of party "A" could be required by a petition signed exclusively by members of other parties and independent voters, none of whom it is his responsibility to serve. This result would be absurd and patently in violation of the will of the people of Oregon expressed in the preamble to the Oregon primary election law adopted by the voters in 1904 (only four years before their adoption of Article II, § 18) and which said in part:

"* * * It is as great a wrong to the people, as well as to the members of a political party, for one who is not known to be one of its members to vote or take any part at any election or other proceedings of such political party, as it is for one who is not a qualified and registered elector to vote at any State election or take any part in the business of the State. Every political party and voluntary political organization is rightfully entitled to the sole and exclusive use of every word of its official name. The people of the State and the members of every political party and voluntary political organization are rightfully entitled to know that every person who offers to take any part in the affairs or business of any political party or voluntary political organization in the State is in good faith a member of such party. * * *"

2. The election could be required on petition of such 25 percent of all electors of the precinct, but the only ones qualified to sign the petition must also be registered members of the same party as the precinct committeeman sought to be recalled. The result here would be that if less than the necessary 25 percent of the electors in the precinct were members of party "A", the precinct committeeman of party "A" would be immune to recall, while those precinct committeemen in precincts with a larger percentage of party membership would be subject to recall. The availability of recall was obviously not intended to depend upon such happenstance, because Article II, § 18, specifically refers to "Every public officer in Oregon * * *."

3. The election could be required on petition of such 25 percent of only those electors in the precinct who are registered as members of the same political party as that of the precinct committeeman sought to be recalled. The result here is that the necessary number of signers would be impossible to determine. An examination of the election returns in the precinct could not determine how many members of party "A" voted for justice of the supreme court at the preceding election.

None of these alternatives could have been intended by the people to result from their adoption of Article II, § 18, as a constitutional amendment.

We have here dealt only with problems regarding the petition for recall. A further problem would arise from the provision in Article II, § 18, that the "public officer" shall be recalled "by the legal voters * * * of the electoral district from which he is elected." "Legal voter" would seem to mean any person meeting the voting qualifications of Article II, § 2. Oregon Constitution, which makes no distinction as to party. This raises again the question of absurdity discussed under point 1, above.

It is thus seen that even if the case authority cited above were rejected and a precinct committeeman were to be considered a "public officer," such a party officer could not have been intended to be included within the scope of the provisions of Article II, § 18.

In any event, the many cases holding that a precinct committeeman is not a "public officer" cannot be ignored. "Public officer" has a definite meaning, which does not include a party officer. As the Oregon Supreme Court said of Article II, § 18, in State ex rel. v. Harris, (1914) 74 Or. 573, 584, 144 P. 109:

"This section should be so construed as to give effect to the intention of its framers, and the electors who adopted it, and they should be taken to have intended what the language used means."

Such construction excludes precinct committeemen from the recall provisions of Article II, § 18.

Nothing hereinabove said is intended to express an opinion that the legislature could not necessarily, by proper legislation, provide for the recall of a precinct committeeman. but our analysis compels us to conclude that no such

---

235

recall can be instituted under present Oregon law.