Mabon v. Wilson

• Decision Date: 13 April 2006
• Docket Number: CC 0212-12568,CA A121483,SC S52348.
• Citation: 340 Or. 385,133 P.3d 899
• Parties: Lon Thurston MABON, Petitioner on Review, v. Janice R. WILSON, Respondent on Review.
• Court: Oregon Supreme Court

Page 899

133 P.3d 899

340 Or. 385

Lon Thurston MABON, Petitioner on Review, v. Janice R. WILSON, Respondent on Review.

CC 0212-12568

CA A121483

SC S52348.

Supreme Court of Oregon.

Argued and Submitted November 1, 2005.

Decided April 13, 2006.

On review from the Court of Appeals.^*

Lon Thurston Mabon, in propria persona, argued the cause and filed the brief for himself.

Mary H. Williams, Solicitor General, Salem, argued the cause for respondent on review.

Before GILLETTE, Presiding Justice, and DURHAM, RIGGS, De MUNIZ,^** BALMER, and KISTLER, Justices.^***

GILLETTE, J.

This is a case in the nature of quo warranto brought under ORS 30.510, set out post, in which plaintiff Mabon challenges the right of defendant Wilson to sit as a judge of the Circuit Court for Multnomah County. The case was heard by another judge of that court, who dismissed it on the merits for failure to state a claim. The Court of Appeals, in a wide-ranging opinion, affirmed the judgment of the trial court, but on the ground that the trial court had no jurisdiction to try the matter because, under ORS 30.510, only the Multnomah County District Attorney could initiate such a case, and he had not done so. Mabon v. Wilson, 198 Or.App. 340, 108 P.3d 598 (2005). We allowed Mabon's petition for review and, for the reasons that follow, now affirm the decision of the Court of Appeals.

Mabon's theory on the merits is that Wilson is not qualified to sit as a circuit court judge because she has not taken the oath required of persons who would hold that office. We therefore begin by setting out the relevant oaths. The oaths of office that Supreme Court and circuit court judges must take in Oregon are virtually identical. The oath that each Supreme Court judge must take is provided for by Article VII (Amended) section 7, of the Oregon Constitution, which states:

"Every judge of the supreme court, before entering upon the duties of his office, shall take and subscribe, and transmit to the secretary of state, the following oath:

"`I, ______, do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of Oregon, and that I will faithfully, and impartially discharge the duties of a judge of the supreme court of this state, according to the best of my ability, and that I will not accept any other office, except judicial offices, during the term for which I have been elected.'"

The oath taken by circuit court judges is prescribed by Article VII (Original), section 10, of the Oregon Constitution, which provides that "* * * Circuit Judges * * * shall take the same oath as the Supreme Judges." The oath to which Judge Wilson subscribed states:

"I, Janice R. Wilson, do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the State of Oregon, and that I will faithfully and impartially discharge the duties of a judge of the circuit court of this state, according to the best of my ability, and that I will not accept any other office, except judicial offices, during the term for which I have been elected."

This case is one in a series of disputes in which Mabon has challenged the right of sitting judges to hold their offices on the ground that those judges have not taken and subscribed to the "required, qualified, original, identical, exact, true, correct, certain, and complete Oath as required by the Oregon Constitution * * *." (Mabon's words.)¹ Mabon purported to commence the action under ORS 30.510, set out post, a statute that, inter alia, provides a judicial mechanism by which to challenge the right of a person to hold a particular public office. Wilson filed a motion to dismiss for failure to state a claim, asserting that the oath that she had taken met all legal requirements. The trial court agreed and dismissed the case.

Mabon filed a timely notice of appeal from the circuit court judgment in the Court of Appeals. After he had filed his opening brief in that court, counsel for Wilson moved to dismiss the appeal on the ground that the Court of Appeals lacked jurisdiction because the case had not been initiated in the circuit court by the district attorney. Mabon requested a stay while he attempted to obtain the district attorney's participation. The Court of Appeals, however, denied Mabon's motion for a stay and dismissed the appeal.

Mabon petitioned for reconsideration. The Court of Appeals denied reconsideration but also, on its own motion, reinstated the appeal. The court took that action because it recognized that it always has jurisdiction to determine whether the trial court from which an appeal is taken itself had jurisdiction. Mabon, 198 Or.App. at 343, 108 P.3d 598. As noted, the court then went on to reach the jurisdictional question on its merits and to hold that the district attorney's participation in the type of case that Mabon wished to prosecute was mandatory. Id. at 357, 108 P.3d 598. We then allowed Mabon's petition for review.

As noted, Mabon attempted to utilize the procedure set out in ORS 30.510 in bringing this action. That statute is a statutory substitute for the common-law writ of quo warranto. It provides, in part:

"An action at law may be maintained in the name of the state, upon the information of the district attorney, or upon the relation of a private party against the person offending, in the following cases:

"(1) When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state[.]"

(Emphasis added.)

The answer in this case turns on the interpretation of the meaning and scope of the two emphasized clauses in ORS 30.510. Those clauses state that an action may be maintained "upon the information of the district attorney, or upon the relation of a private party." The first clause makes it appear that only the district attorney may bring a proceeding under ORS 30.510 and that, as a consequence, Mabon's case properly was dismissed. However, the second clause casts doubt on the foregoing interpretation because of its reference to such actions being brought "on the relation of a private party." Mabon is a private party; does the second clause authorize him to bring the present action? That is a question of statutory interpretation that, at least initially, requires examination of the words of the statute, the context in which those words appear (including the history of the evolution of the statutory wording over time), and the case law construing those words. See generally PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993) (describing template for construing statutes); see also State v. Perry, 336 Or. 49, 55, 77 P.3d 313 (2003) (noting that historical background of statutes provides further context).

In addition to the express words of ORS 30.510, quoted above, we find two contextual statutes, ORS 30.530 and ORS 30.610, that aid our analysis. We set out those statutes here, in order to facilitate our examination of the text of ORS 30.510(1).

ORS 30.530 provides:

"Whenever an action is brought against a person for any of the causes specified in ORS 30.510(1), the district attorney, in addition to the statement of the cause of action, may separately set forth in the complaint the name of the person rightfully entitled to the office or franchise, with a statement of the facts constituting the right of the person thereto. In such case, judgment may be given upon the right of the defendant, and also upon the right of the person so alleged to be entitled, or only upon the right of the defendant, as justice may require."

(Emphasis added.) ORS 30.610 provides, in part:

"The action[] provided for in ORS 30.510 * * * shall be commenced and prosecuted by the district attorney where the same [is] triable. When the action is upon the relation of a private party, as allowed in ORS 30.510, the pleadings on behalf of the state shall be signed by the relator as if the relator were the plaintiff[;] * * * in all other cases the pleadings shall be signed by the district attorney[.] * * * When an action is commenced on the information of a private person, as allowed in ORS 30.510, having an interest in the question, such person, for all the purposes of the action, * * * shall be deemed a coplaintiff with the state."

In our view, the contextual clues provided by the words of those statutes point in the same direction. First of all, ORS 30.530 makes it clear that the district attorney has control over the proceedings brought under ORS 30.510, even to the extent of being entitled to name the person whom the district attorney believes should be granted the office presently held by the defendant. There is no suggestion that the legislature intended to give any private party a similar right to advocate for a claimant to the office or any voice in determining whether the district attorney should or should not address the issue.

Second, we find the directive in ORS 30.610 that all actions of the kind involved in this case "shall be commenced and prosecuted by the district attorney" to be a strong indicator that it is the district attorney who must bring such proceedings. The statute also provides us with a hint as to the role that may be played by an interested private party:

"When an action is commenced on the information of a private person, as allowed in ORS 30.510, having an interest in the question, such person, for all the purposes of the action, * * * shall be deemed a coplaintiff with the state."

That wording indicates that the district attorney's participation cannot be dispensed with; instead, the private party only may participate with the district attorney, as a "coplaintiff."

We find no contextual statutory wording that points in the opposite direction.

In summary, and in spite...