STATE, EX REL. ADAMS v. Powell

15 P.3d 54, 171 Or. App. 81, 2000 Ore. App. LEXIS 1919
CourtCourt of Appeals of Oregon
DecidedNovember 22, 2000
Docket9905-05147; CA A107123
StatusPublished
Cited by8 cases

This text of 15 P.3d 54 (STATE, EX REL. ADAMS v. Powell) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
STATE, EX REL. ADAMS v. Powell, 15 P.3d 54, 171 Or. App. 81, 2000 Ore. App. LEXIS 1919 (Or. Ct. App. 2000).

Opinions

[84]*84DE MUNIZ, J.

Plaintiffs, all of whom are state senators, appeal from a trial court judgment in favor of defendant Michael Powell and intervenor Governor John Kitzhaber in this quo warranto proceeding initiated pursuant to ORS 30.510 to remove Powell from the Board of Commissioners of the Port of Portland. The trial court held that Powell may hold over from his prior term in office until a successor is confirmed and found qualified. Plaintiffs appeal, and we affirm.

The parties have stipulated to the following facts. The governor appointed Powell to a four-year term as a commissioner of the Port of Portland in 1993, and the senate confirmed that appointment. In 1997, the governor reappointed Powell to a second term but the senate voted not to confirm Powell for that second term. The governor then reappointed Powell again, and the senate has taken no action on the second reappointment. No successor to Powell has been appointed, confirmed and qualified. Powell continues to serve as a commissioner of the Port of Portland.

Plaintiff senators initiated this proceeding in quo warranto,1 alleging that Powell holds office unlawfully because his reappointment was rejected by the senate in 1997. The appointment of commissioners of the Port of Portland is subject to confirmation by the senate under ORS 171.562 and ORS 171.565. Plaintiffs rely on the provisions of ORS 236.010(l)(h) and Article III, section 4(2), of the Oregon Constitution, to support their position that Powell currently holds the office unlawfully. ORS 236.010(1) provides, in part:

“An office shall become vacant before the expiration of the term if:
«* * * * *
[85]*85“(h) Appointment of the incumbent is subject to Senate confirmation under section 4, Article III of the Oregon Constitution and the appointment is not confirmed.”

That subsection was added to ORS 236.010(1) in 1979 to implement the newly enacted Article III, section 4, of the Oregon Constitution, which provides, in part:

“(1) The Legislative Assembly in the manner provided by law may require that all appointments and reappointments to state public office made by the Governor shall be subject to confirmation by the Senate.
“(2) The appointee shall not be eligible to serve until confirmed in the manner required by law and if not confirmed in that manner, shall not be eligible to serve in the public office.”

In their answers, defendant Powell and intervenor Kitzhaber asserted that Powell’s continuation in the office of commissioner of the Port of Portland is authorized by ORS 778.215(1) and Article XV, section 1, of the Oregon Constitution, because under those provisions an appointee remains in office until a successor has been appointed and has qualified for the position. ORS 778.215(1) provides:

“Upon the expiration of the term of a commissioner [of the Port of Portland], a successor shall be appointed by the Governor, subject to confirmation as provided by ORS 171.562 and 171.565. Except as provided in ORS 778.220 [concerning removal for malfeasance in office] and 778.235 [concerning vacancies created when commissioner refuses to serve or fails to attend], appointees, when confirmed, shall hold office for a term of four years and until their respective successors have been appointed, confirmed and qualified.”

That statute is in accord with Article XV, section 1, of the Oregon Constitution, which provides:

“(1) All officers, except members of the Legislative Assembly and incumbents who seek reelection and are defeated, shall hold their offices until their successors are elected, and qualified.”

As discussed below, the Oregon Supreme Court has held that Article XV, section 1, applies to appointed officers as well as to elected officers.

[86]*86The trial court appears to have believed that both statutory provisions and both constitutional provisions could be given full effect by concluding that, under ORS 236.010(l)(h) and Article III, section 4, Powell’s office became “vacant” when the senate failed to reconfirm him but that, due to the holdover provisions ORS 778.215(1) and Article XV, section 1, the office was only “constructively vacant” and that Powell could continue to serve in the “vacant” office until a successor had been appointed and qualified.

On appeal, plaintiffs argue that the trial court erred in concluding that Powell could continue to serve as a commissioner of the Port of Portland, citing the same statutory and constitutional provision on which they relied below. Plaintiffs assert that ORS 778.215(1) permits only qualified commissioners to hold over until a successor is appointed and that a person whose confirmation has been rejected is not qualified due to the provisions of ORS 236.010, which prescribes the qualifications for all offices. They further assert that Article III, section 4(2), bars a “reappointee” as well as an appointee from continuing to serve in an office if the Senate has voted to deny confirmation. In effect, plaintiffs argue that Article III, section 4(2), mandates the provisions of ORS 236.010(l)(h) and that, to the extent that ORS 778.215(1) conflicts with that mandate, it is unconstitutional. As to Article XV, section 1, plaintiffs maintain that its holdover provision applies only insofar as the person in question is not otherwise disqualified from holding the office under ORS 236.010 and Article III, section 4(2). Thus, plaintiffs maintain, pursuant to ORS 236.010

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STATE, EX REL. ADAMS v. Powell
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Cite This Page — Counsel Stack

Bluebook (online)
15 P.3d 54, 171 Or. App. 81, 2000 Ore. App. LEXIS 1919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-adams-v-powell-orctapp-2000.