STATE, EX REL. ADAMS v. Powell

Citation171 Or. App. 81,15 P.3d 54
PartiesSTATE 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.
Decision Date22 November 2000
CourtCourt of Appeals of Oregon

Gregory A. Chaimov, Salem, argued the cause for appellants. With him on the briefs was the Office of the Legislative Counsel.

Thomas A. Balmer, Portland, argued the cause for respondent. With him on the brief was Ater Wynne LLP.

Jacob Tanzer, Portland, 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.

Resubmitted En Banc August 8, 2000.

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...

To continue reading

Request your trial
6 cases
  • Mabon v. Wilson
    • United States
    • Court of Appeals of Oregon
    • March 16, 2005
    ...... 1 Defendant filed a motion to dismiss 108 P.3d 600 for failure to state ultimate facts sufficient to constitute a claim, arguing that the oath ...8 In fact, the court essentially acknowledged in 1896 in State ex rel. v. Stevens, 29 Or. 464, 472, 44 P. 898 (1896), that it had not addressed ...Curnutt, 317 Or. 92, 853 P.2d 1312 (1993) ; State ex rel. Adams v. Powell, 171 Or.App. 81, 15 P.3d 54 (2000), rev. dismissed, 334 Or. ......
  • State v. Sagdal, 100545212
    • United States
    • Court of Appeals of Oregon
    • October 9, 2013
    ...provisions potentially conflict, our function is to interpret them in a way that “harmonizes” them. State ex rel. Adams v. Powell, 171 Or.App. 81, 95–96, 15 P.3d 54 (2000), rev. dismissed,334 Or. 693, 56 P.3d 405 (2002) (citing In re Fadeley, 310 Or. 548, 560, 802 P.2d 31 (1990)). Both part......
  • STATE EX REL. PODDAR v. Lee
    • United States
    • Court of Appeals of Oregon
    • October 27, 2004
    ...from exercising authority over school district on the ground that the school district was invalidly formed); State ex rel Adams v. Powell, 171 Or.App. 81, 84, 15 P.3d. 54 (2000), rev. dismissed, 334 Or. 693, 56 P.3d 405 (2002) (action to oust port commissioner from office to which he had be......
  • State v. Moore
    • United States
    • Court of Appeals of Oregon
    • May 9, 2001
    ...v. Sawyer, 324 Or. 597, 604, 932 P.2d 1145, cert. den. 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997); State ex rel. Adams v. Powell, 171 Or.App. 81, 15 P.3d 54 (2000). The doctrine is employed sparingly, Powell, 171 Or. App. at 97, 15 P.3d 54, and can apply only where the prior and su......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT