Oregon Advisory Opinions January 16, 1968: OAG 68-6 (January 16, 1968)

Oregon Attorney General Opinions

1968.

OAG 68-6.

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Although the provisions of chapter 533, Oregon Laws 1967, creating additional circuit judgeships for the nineteenth and twenty-first judicial districts first become operative on July 1, 1968, the clear legislative intent that persons be elected to hold such judgeships at the 1968 general election authorizes the Secretary of State to certify such positions for the May primary ballot.

You refer us to §§ 5 and 6, chapter 533, Oregon Laws 1967, which provide for additional circuit court judges in the nineteenth and

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twenty-first judicial districts effective July 1, 1968, and ask whether candidates

for these positions may be certified for the ballot for the primary election in May 1968.

Section 1, chapter 533, Oregon Laws 1967, amends ORS 3.011 to provide an additional circuit court position for the nineteenth judicial district (Clatsop, Columbia and Tillamook Counties) and for the twenty-first judicial district (Benton, Lincoln and Linn Counties).

Section 5, chapter 533, Oregon Laws 1967, provides:

"As soon as practicable after the operative date of this section, the Governor shall appoint a person as the third circuit court judge for the nineteenth judicial district, to occupy Position No. 3 as provided in ORS 3.011, and to hold office until his successor is elected at the regular biennial general election in 1968 and qualifies. " (Emphasis supplied)

Section 6, chapter 533, Oregon Laws 1967, provides:

"As soon as practicable after the operative date of this section, the Governor shall appoint a person as the fourth circuit court judge for the twenty-first judicial district to occupy Position No. 4 as provided in ORS 3.011, and to hold office until his successor is elected at the regular biennial general election in 1968 and qualifies. " (Emphasis supplied)

Section 18, chapter 533, Oregon Laws 1967, provides in part:

"The following parts of this Act shall first become operative July 1, 1968:

"(1) The amendments of ORS 3.011 by section 1 of this Act relating to the nineteenth and twenty-first judicial districts.

"(2) Sections 5 and 6 of this Act."

The provision in both §§ 5 and 6, supra, that the person appointed by the Governor shall serve as circuit judge only "until his successor is elected at the regular biennial general election in 1968 and qualifies" expresses beyond doubt, of course, the legislative intent that persons would be elected to the respective positions in that election. The problem here presented is that by virtue of § 18, supra, the judicial positions will not exist until July 1, 1968---at least in the sense that the law creating those positions will not be operative until that date---and the procedure for election of circuit judges (ORS 252.010 to 252.130) provides for the nomination of candidates for judicial positions in the primary election in May.

The provision in § 18 that those parts of chapter 533 with which we are here dealing shall not take effect until July 1, 1968, is a "suspension clause." Although it has been said that such a clause may have the effect of requiring that a law be read as if it were initially effective as of the day stated in the suspension clause, it is nevertheless true, as the United States Supreme Court, Holmes, J., has said:

"* * * Such statutes are to be read in that way for the purposes of the operation which is suspended, but not for all. * * *" Diamond Glue Co. v. United States Glue Co., (1903) 187 U.S. 611, 616, 47 L. Ed. 328, 332.

Here, the purpose for which the law creating the new judicial positions is suspended is solely that they not be filled until the beginning of the 1968-1969 fiscal year. The clear intention of the legislature that there be an election to fill the positions in November 1968 indicates a further purpose of the legislation, and to construe the statute as meaning that the positions would be nonexistent prior to July 1, 1968, in the sense of not permitting the ordinary nominating procedure to take place in the May election, would be to stretch the effect of the suspension clause distinctly beyond the purpose for which it was included in the legislation.

In the situation presented here we are dealing with terms of office which will begin as a legal certainty on the first Monday in January for the candidates elected in the 1968 general election (Article II, § 14, Oregon Constitution). (Therefore, this is unlike the situation presented to the Oregon court in State ex rel. McCormick v. Appling, (1964) 236 Or. 485, 389 P. (2d) 677, where it was held that a person was not entitled to be placed on the ballot as a candidate for a circuit judge position where the incumbent thereof faced retirement at the end of the year because of his impending age, the ruling being based on the reasoning that the judge, whose retirement would not be mandatory until after the election, could resign at a time when his successor, appointed by the Governor, would legally be entitled to hold over until the next succeeding election.)

The only statute which could possibly apply so as not to render the primary ballot available to candidates for the additional circuit court positions in the nineteenth and twenty-first judicial districts would be ORS 252.060 which provides:

"If a candidate nominated under the provisions of ORS 252.020 to 252.050 dies, withdraws or becomes ineligible, or if a vacancy occurs by death, resignation or otherwise in the office of judge of any of the courts enumerated in ORS 252.010 on or after the day set for holding primary elections, or if a vacancy occurs before the primary election but within such time that a candidate for the vacancy could not be nominated at the election, candidates for such judicial office shall be nominated in the manner provided for the nomination of independent candidates. * * *" (Emphasis supplied)

However, the provision for filling "vacancies" was obviously intended to provide for cases where a "vacancy" occurs which was unexpected, and in enacting the 1967 law the legislature could not have intended that ORS 252.060, supra, would apply here (on the theory that a "vacancy" has occurred in the office

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"after the day set for holding primary elections") so as to require candidates for those positions to follow the unusual procedure provided for independent candidacies under ORS 249.710 to 249.850.

The legislature, having clearly intended that there be an election to fill the newly created positions in the nineteenth and twenty-first judicial districts, must also be taken to have intended that the entire legal procedure for the election of judges as provided in ORS 252.010 to 252.130 be available to persons seeking those positions.

We therefore answer your question in the affirmative.

NOTE: This opinion was overruled by the Oregon Supreme Court on April 11, 1968, in case entitled: Robert L. Geiser v. Clay Myers, Secretary of State, and Robert Y. Thornton, Attorney General.