Oregon Advisory Opinions January 12, 1977: OAG 77-3 (January 12, 1977)

OAG 77-3.

Under present law, county officers are elected under partisan labels. Major party candidates are selected in the primary election by members of their parties; minor party and independent candidates, nominated by petition or convention, may join the major party candidates in the November election. Each candidate runs and one of them is elected as a "Republican," "Democrat," or occasionally "Independent"

or (e.g.) "People's Party" candidate. The rules for such election are specified in ORS chapter 248.

We are asked whether a law providing instead for election of the named county officers on a non-partisan basis would be valid. The proposal is to amend ORS 252.610 - 252.670, providing for the non-partisan nomination and election of district attorneys, to make them also applicable to such county officers.

The first issue is whether such a law would unconstitutionally change the constitutionally specified qualifications for constitutional offices. We note, however, that the legislature is specifically authorized to prescribe additional requirements for the offices of county assessor, sheriff, coroner and surveyor. Or Const art VI, § 8. The issue therefor is relevant only to the offices of county clerk and treasurer. These offices are specified in Or Const art VI, § 6, and they (and other county officers) are required by art VI, § 8 to be electors of the county in which they are elected. No other requirements are specified by the Constitution, and the legislature is not authorized to add additional requirements. State ex rel Powers v. Welch , 198 Or 670, 259 P2d 112 (1953).

But this issue, in our opinion, does not arise in the case before us. The existing legislation does not establish requirements or prescribe qualifications for the holding of county offices, nor could it constitutionally do so for county clerks or treasurers. It merely prescribes procedures

for their nomination and election. A law prescribing a different procedure, such as the proposal under consideration here, is within the authority of the legislature and would not be unconstitutional.

However, such a law could not be made applicable to officers of home-rule counties.(fn1) We note initially that a county charter " . . . may provide for the exercise by the county of authority over matters of county concern." Or Const art VI, § 8. Although there is no Oregon case directly in point, qualification and manner of election of home rule county officers would be a matter of primary county concern, beyond the power of the legislature to dictate. As was said in Strode v. Sullivan , 72 Ariz 360, 236 P2d 48, 54 (1951):

"We can conceive of no essentials more inherently aware of local interest or concern to the electors of a city than who shall be its governing officers and how they shall be selected."

The officers named in the question are, of course, those of a county rather than city, but the same rule would apply in Oregon to counties having adopted a charter under the

Constitution.

Article VI, § 10, of the Oregon Constitution, however, goes on to specifically reserve to home rule counties authority over the manner of election of county officers. It provides: "A county charter shall prescribe the organization of the county government and shall provide directly, or by its authority, for the number, election or appointment, qualifications , tenure, compensation, powers and duties of such officers as the county deems necessary." (Emphasis added).

We accordingly conclude that the proposed law would be within the power of the legislature to enact, but that if enacted it would not be applicable, and could not constitutionally be made applicable, to counties having adopted a home rule charter.