FILED: November 22, 2000
STATE OF OREGON, ex rel BRADY ADAMS,
GENE DERFLER, TED FERRIOLI,
BILL FISHER, GARY GEORGE,
LENN L. HANNON, TOM HARTUNG,
JOHN LIM, RANDY MILLER,
DAVID NELSON, EILEEN QUTUB,
MARYLIN SHANNON, CHARLES STARR,
VERAL TARNO, EUGENE TIMMS and THOMAS WILDE,
Appellants,
v.
MICHAEL POWELL,
Respondent,
and
JOHN A. KITZHABER,
Governor for the State of Oregon,
Intervenor-Respondent.
En Banc
Appeal from Circuit Court, Multnomah County.
Frank L. Bearden, Judge.
Argued and submitted March 14, 2000; resubmitted en banc August 8, 2000.
Gregory A. Chaimov argued the cause for appellants. With him on the briefs was the Office of the Legislative Counsel.
Thomas A. Balmer argued the cause for respondent. With him on the brief was Ater Wynne LLP.
Jacob Tanzer argued the cause for intervenor-respondent. With him on the brief was Henry H. Lazenby, Jr., Governor's Legal Counsel.
Before Deits, Chief Judge, and Edmonds, De Muniz, Landau, Haselton, Armstrong, Linder, Wollheim, Kistler and Brewer, Judges.
DE MUNIZ, J.
Affirmed.
Edmonds, J., dissenting.
DE 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(1)(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:
"* * * * *
"(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.
The 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(1)(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(1)(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 and Article III, section 4(2), that Powell may not continue as a commissioner of the Port of Portland.
Defendant and intervenor assert that the statutes are reconcilable. They argue that ORS 778.215(1) provides for Powell to continue in office until a successor has been appointed, confirmed and qualified and that the reference in ORS 236.010(1)(h) to "the incumbent" applies only to an officer who is a recess or interim appointee who has never previously been confirmed by the senate. Alternatively, they maintain that if there is a conflict between ORS 778.215(1) and ORS 236.010(1)(h), then the more specific provisions of ORS 778.215(1), which apply only to Port of Portland commissioners, should control over the more general provisions of ORS 236.010 that apply to all officers. Finally, they assert that, if ORS 236.010(1)(h) supports plaintiffs' position, then it conflicts with Article XV, section 1, of the Oregon Constitution and that Article XV, section 1, is not in conflict with Article III, section 4(2), which limits only the ability of unconfirmed appointees to serve but does not similarly limit the ability of unconfirmed "reappointees."
We begin by noting that we cannot give each statute its plain meaning and reconcile the two, much less reconcile them in any manner that obviates the need to address the constitutional issues. Nor is this a case in which we are obliged to consider statutory questions first, in hopes of resolving the issues without having to reach constitutional questions, because each side maintains that the statute that supports the other side's position violates a constitutional provision.
Were ORS 778.215(1) the only provision at issue here, there would be no doubt of Powell's eligibility to continue as a commissioner of the Port of Portland until his successor is "appointed, confirmed and qualified." That statute contains several exceptions--those set out in ORS 778.220 and 778.235--but does not deny commissioners the right to continue in office when the legislature fails to reconfirm them. Plaintiffs argue that the exceptions contained in the statute are not exclusive and that ORS 236.010 contains additional exceptions. Several principles of statutory interpretation cut against plaintiffs' suggested interpretation. First, a more specific statute generally controls over a general statute on the same subject, and ORS 778.215 is more specific than ORS 236.010, because it applies specifically to port commissioners. ORS 174.020. Second, under ORS 174.010, we are constrained from inserting into a statute that which the legislature has omitted; accordingly, we conclude that, where ORS 778.215 contains a list of reasons why a commissioner of the Port of Portland may not continue to serve until a successor is appointed, confirmed and qualified, and lack of reconfirmation is not on that list, lack of reconfirmation does not constitute such a reason.
ORS 236.010(1)(h), on the other hand, indicates that an office such as the office held by Powell may become vacant before the end of a term if "[a]ppointment of the incumbent is subject to Senate confirmation under section 4, Article III of the Oregon Constitution and the appointment is not confirmed." Defendant argues that this statute may be interpreted in such a manner that it does not conflict with ORS 778.215 if we interpret the term "incumbent" narrowly to mean only incumbents who are interim appointees who have never been confirmed by the senate. There are two problems with that proposed construction. First, the word "incumbent" is used throughout ORS 236.010 in a manner that is inconsistent with the notion that it applies only to interim appointees. For instance, ORS 236.010(1)(b) and (e) refer, respectively, to "elected or appointed" incumbents and the "election or appointment" of incumbents. The term clearly is used to apply to elected officials as well as to appointed officials, and it therefore cannot apply only to interim appointees as used in those subsections. Generally, the "use of a term throughout a statute indicates that the term has the same meaning throughout the statute." PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). It would seem unlikely, to say the least, that the legislature intended the term "incumbent" to be given different meanings in different subsections of ORS 236.010.
In any event, ORS 236.010(1)(h) does not merely use the term "incumbent"; it qualifies the term, making it clear that the term as used in that subsection applies specifically to incumbents who are "subject to Senate confirmation under section 4, Article III of the Oregon Constitution[.]" ORS 236.010(1)(h). Article III, section 4(1), provides that the legislature "may require that all appointments and reappointments to state public office made by the Governor shall be subject to confirmation by the Senate." It is undisputed that the office held by defendant Powell is subject to confirmation both on appointment and on reappointment. Powell's continuation in office after the senate's failure to reconfirm his appointment cannot be reconciled with ORS 236.010(1)(h).
Neither statute is ambiguous on its face. We conclude that the holdover provisions of ORS 778.215(1) and the vacancy provisions of ORS 236.010(1)(h) are in conflict. Both appear to apply to Powell's situation; both cannot be given effect. (2)
Were there no constitutional dimension to this case, our next step would be to determine which statute is controlling. However, plaintiffs assert that ORS 778.215(1), as we have interpreted it, violates Article III, section 4, of the Oregon Constitution; defendant and intervenor contend that ORS 236.010(1)(h), as we have interpreted it, runs afoul of Article XV, section 1, of the Oregon Constitution. The question, then, becomes whether or to what extent those constitutional provisions are reconcilable with each other.
To interpret constitutional provisions, we look "to the specific wording [of each provision], the case law surrounding it, and the historical circumstances that led to its creation." Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992). Article XV, section 1, was part of the original constitution of 1857. Article III, section 4, was created by Senate Joint Resolution 20 (1977 session) and adopted by Oregon voters in 1978. Because Article III, section 4, is relatively new and no case law interprets it, and because Article XV has been in existence in some form since the Oregon Constitution was adopted, we will begin with Article XV, viewing it in historical context and describing the case law interpreting it. Then we will turn to the question of whether Article III, section 4, is in conflict with Article XV, section 1, and whether the adoption of Article III, section 4, impliedly either amended or repealed Article XV, section 1.
Article XV, section 1, originally provided: "All officers except members of the legislative assembly shall hold their offices until their successors are elected, and qualified." Although we have found no pertinent legislative history from the constitutional convention, this provision has been interpreted on various occasions by the Oregon Supreme Court. The first case to explain the provision in detail was State ex rel Everding v. Simon, 20 Or 365, 26 P 170 (1891). In Everding, the 1885 legislature had enacted a statute providing for the appointment of Portland police commissioners, to be followed by elections after their first term. The 1889 Legislature modified those provisions but neglected to provide either for election or appointment of new commissioners. Id. at 368-69. The question presented in the resulting litigation was whether one of the originally appointed commissioners continued to serve or whether a new commissioner, elected without statutory authority, replaced him. The court concluded that, because no qualified successor had been elected or appointed under existing law, Article XV, section 1, gave the appointed incumbent the right to hold over. The court stated:
"The reason of this rule is that public policy requires that the duties of the office be performed, and it is better that the incumbent should continue in the office and in the performance of its duties than that an interregnum should occur. It conserves the public interests by preserving the methods and instrumentalities by which alone public business can be transacted; while the opposite rule, when pushed to its consequences, might result in the suspension of business in many of the departments of public service." Id. at 378.
The court also applied Article XV, section 1, in resolving a dispute involving a railroad commissioner position, where the commissioner was chosen biennially by the legislative assembly. Eddy v. Kincaid, 28 Or 537, 41 P 157 (1895). There, the court rejected an argument that the legislature's failure to appoint a successor created a vacancy in the office and held that, under Article XV, section 1, "the incumbent of the office shall hold until his successor is elected and qualified." Id. at 560. Implicit in Eddy, and more explicitly in a later case, State v. Compson, 34 Or 25, 54 P 349 (1898), involving essentially the same subject matter, the court recognized that Article XV, section 1, applies not only to officers elected in a general election but also to appointed officers. "The word 'elect' simply means to pick out, to select from among a number, or to make choice of, and is synonymous with the words 'choose,' 'prefer,' 'select,' and it was evidently used in this sense in the constitution." 34 Or at 33.
That construction of the term "elect" as used in Article XV, section 1, was reiterated in State ex rel v. Tazwell, 166 Or 349, 111 P2d 1021 (1941). In Tazwell, a quo warranto proceeding was initiated against a circuit court judge who had been defeated in a general election. After the person who won the election died before taking office, the governor attempted to appoint the relator to the circuit court position, and litigation ensued to determine who was entitled to the office. In deciding the matter, the court summarized its Article XV, section 1, and case law, including the cases cited above, concluding:
"From these decisions, it is settled law in this state that public officers continue in office after the expiration of their official terms until their successors are duly qualified, and that this provision of the constitution is applicable to all public officers of this state, whether elective or appointive." Id. at 355.
The court went on to explain that the governor's power to appoint an officer to an office was limited by the constitution to situations in which there was a "vacancy" in the office. Id. at 357. The court concluded that, because there was no "vacancy" in the office at issue due to the hold over of the incumbent judge under the provisions of Article XV, section 1, the governor had no power to fill the office by appointment. Id. at 357-59.
In State ex rel O'Hara v. Appling, 215 Or 303, 334 P2d 482 (1959), the court again was required to interpret and apply Article XV, section 1, for the purpose of determining who properly occupied a public office. In November 1956, Mark Hatfield was elected secretary of state for a term of four years. In November 1958, while holding that office, he was elected governor. On January 7, 1959, the outgoing governor, Robert Holmes, appointed O'Hara as secretary of state. On January 8, 1959, Hatfield submitted a letter of resignation from the office of secretary of state. Governor Holmes responded by letter, purporting to decline to accept the resignation. On the morning of January 12, 1959, Holmes' appointee, O'Hara, took the oath of office as secretary of state and filed the required bond. On the afternoon of the same day, Hatfield took the oath of office as governor and, after taking office, appointed Appling to the office of secretary of state. Appling then took the oath of office and filed the required bond. Id. at 305-07.
O'Hara initiated a quo warranto proceeding, asserting that, under Article XV, section 1, Hatfield continued to hold his office as secretary of state at the time that he took the oath of office as governor, because at that time his successor as secretary of state had not been appointed and qualified; that, as a result, Hatfield violated constitutional provisions prohibiting the holding of more than one "incompatible" office at the same time and prohibiting a person who holds another office from filling the office of governor; and that Hatfield therefore lacked gubernatorial authority to appoint Appling as secretary of state. Id. at 307-09.
The Supreme Court determined that the question of which governor had the authority to appoint a secretary of state depended on when, if at all, a vacancy arose in the latter office. Id. at 307. The court concluded that Oregon applies the doctrine of "implied resignation," whereby a person who assumes an office impliedly resigns a theretofore-held incompatible office. Under that principle, Hatfield resigned, and created a vacancy in, the office of secretary of state at the time he took the oath of office as governor. (3) Therefore, Holmes's attempt to appoint a secretary of state before that time was without legal effect, because the office was not vacant. Id. at 310-12.
In so deciding, the court also necessarily considered whether the requirement in Article XV, section 1--that officers hold office until their successors are elected and qualified--applies despite an officer's resignation. Id. at 312-13. In analyzing that question, the court quoted from a decision of the Indiana Supreme Court, interpreting the provision of the Indiana Constitution from which Article XV, section 1, is derived, to the effect that the purpose of the provision is to prevent the occurrence of vacancies in office "except by death, resignation, removal and the like." Id. at 314. The court also noted the existence since 1854 of the statute now codified at ORS 236.010, providing that an office becomes vacant before the expiration of the term of office if "the incumbent dies, resigns, or is removed." Id. at 316. Finally, the court reached the same conclusion that it reached in Fehl v. Jackson County, 177 Or 200, 161 P2d 782 (1945), that "the word 'vacant' in [ORS 236.010] imports the same finality in the event of resignation as it does in the event of death or removal for the commission of a felony. There is no 'holding over' after the occurrence of any of these events." Appling, 215 Or at 316. The court concluded that Article XV, section 1, does not apply when an officer has resigned his or her office.
Consistent with those cases, we conclude that Article XV, section 1, confers a "right" on an incumbent to hold office beyond the term of office, unless one or more relevant circumstances--such as the officer's resignation or death--is present. None of those circumstances is present here. Accordingly, under Article XV, section 1, defendant Powell is entitled to retain his position as a commissioner of the Port of Portland.
Plaintiffs nevertheless argue that, under Fehl, an incumbent's right under Article IV, section 1, to "hold over" applies only if the incumbent maintains the statutory qualifications for the particular office. There are several problems with plaintiffs' argument. First, Fehl made no reference whatsoever to Article XV, section 1. It concerned when a judge convicted of a felony ceased to occupy the office of judge. 177 Or at 204-05. Pertinent constitutional and statutory provisions made it clear that the judge no longer was eligible to serve as judge after the conviction; the question was whether a removal suit was necessary to remove the judge from office or whether the event occurred by operation of law. Id. at 206-11. Neither Fehl nor Appling can be read as standing for the proposition that statutory provisions such as ORS 236.010 control over the holdover provisions of Article XV, section 1.
In summary, as it relates to the present case, the case law interpreting Article XV, section 1, establishes that the holdover provision applies to appointees such as Powell in the circumstance presented here. (4)
In the general election of 1978, Article III, section 4, was added to the Oregon Constitution by referendum. As quoted above, this constitutional provision provides for senate confirmation of gubernatorial appointments and reappointments. Materials contained in the voters' pamphlet concerning a referendum provide some historical context for an initiated or referred measure. See generally Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 560 n 8, 871 P2d 106 (1994). The explanatory statement contained in the 1978 voters' pamphlet stated:
"This measure would amend the Oregon Constitution to add a new part. That part would allow the Legislative Assembly to require that the Governor's appointments to state public office be approved or disapproved by the Senate. A person could not serve until approved and if not approved could not serve at all. The new part also applies to the Governor's appointments to fill vacancies in state elective offices but does not apply to judges, United States Senators and Representatives and district, county and precinct offices.
"Present procedure. Presently, the Senate has statutory authority to approve or disapprove of the Governor's appointments where required by law. Between sessions, the Senate acts through a committee. During a session, the entire Senate approves or disapproves of the appointments. A person may serve while awaiting approval. However, another appointment must be made if either the committee or the full Senate disapproves of the appointment. The Senate's authority does not cover the Governor's appointments to vacant state elective offices.
"Proposed change. The proposed change would place the Senate's confirmation authority in the Oregon Constitution instead of the statutes. The Legislative Assembly would then have to enact new statutes governing the specific appointments and the manner of confirmation during the interim between sessions." (5)
This referendum was proposed and adopted after a governor's appointee to the Board of Examiners of Nursing Home Administrators was rejected by the senate, and the appointee took office despite lack of confirmation. See generally 39 Op Atty Gen 608 (1979). (6)
From our review of case law interpreting Article XV, section 1, it appears certain that before Article III, section 4, was enacted Powell could have held over in the office of commissioner until a successor was appointed and qualified. Indeed, plaintiffs do not dispute that point. The parties also agree that Article III, section 4, does not expressly amend or repeal Article XV, section 1. The narrow question presented here is whether Article III, section 4, amends Article XV, section 1, by implication, making it inapplicable to incumbents who are not confirmed by the Senate following reappointment. For reasons discussed below we answer that question in the negative.
We have examined the specific wording, the case law, and the historical circumstances surrounding each provision. Priest, 314 Or at 415-16. Defendant Powell and intervenor governor correctly assert that the court's function is to interpret constitutional language in a way that "harmonizes" potentially conflicting provisions. See In re Fadeley, 310 Or 548, 560, 802 P2d 31 (1990). When possible, we must give effect "to every part and every word of a Constitution and that unless there is some clear reason to the contrary, no portion of the fundamental law shall be treated as superfluous." See State ex rel Gladden v. Lonergan, 201 Or 163, 177, 269 P2d 491 (1954), quoting 11 Am Jur 665, Constitutional Law,