State Ex Rel Ellen Rosenblum v. Nisley

• Decision Date: 24 September 2020
• Docket Number: SC S067690
• Citation: 473 P.3d 46,367 Or. 78
• Parties: STATE EX REL Ellen ROSENBLUM, Attorney General of Oregon, Petitioner, v. Eric NISLEY, Respondent.
• Court: Oregon Supreme Court

367 Or. 78

473 P.3d 46

STATE EX REL Ellen ROSENBLUM, Attorney General of Oregon, Petitioner,

v.Eric NISLEY, Respondent.

SC S067690

Supreme Court of Oregon, En Banc.

Submitted on the briefs July 10, 2020.

September 24, 2020

Paul L. Smith, Assistant Attorney General, Salem, submitted the brief for the petitioner. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Sharon A. Rudnick, Harrang Long Gary Rudnick PC, Eugene, submitted the brief for respondent. Also on the brief were William F. Gary, Eugene, and Susan D. Marmaduke, Portland.

FLYNN, J.

This court has agreed to exercise its original jurisdiction in the nature of quo warranto to determine whether respondent, the lawyer who was elected to the office of Wasco County District Attorney in 2016, remains the lawful holder of that office. The dispute turns on whether a 60-day suspension from the practice of law caused respondent to "cease[ ] to possess" a qualification for holding office—thus creating a vacancy in the public office—as contemplated by ORS 236.010(1)(g). As we explain below, we conclude that respondent's brief suspension from the practice of law did not render the office of Wasco County District Attorney vacant.

I. FACTS AND PROCEDURAL BACKGROUND

The following facts are undisputed. Respondent was elected to the office of Wasco County District Attorney and began serving a four-year term in January 2017. After respondent's election, the Oregon State Bar charged him with several violations of the Oregon Rules of Professional Conduct. This court ultimately reviewed the case against respondent, concluded that he had committed some of the charged violations, and imposed the sanction of a 60-day suspension from the practice of law—a suspension of respondent's active membership in the Oregon State Bar—commencing in February 2020. In re Nisley , 365 Or. 793, 818, 453 P.3d 529 (2019).

Following that decision, the Attorney General's office advised the Governor that respondent's impending suspension would render the office of the Wasco County District Attorney vacant within the meaning of ORS 236.010(1)(g). In response, the Governor directed the Attorney General to "discharge the responsibilities of the Wasco County District Attorney," starting the first day of respondent's suspension and continuing until the Governor appointed "a successor or one is lawfully elected."¹

Meanwhile, respondent's lawyer sent a letter urging the Attorney General to permit respondent to continue serving as District Attorney during the period of his suspension, but to limit him to handling only administrative matters until the suspension ended. Respondent pointed out that he was not the first district attorney to be suspended while in office and that, in earlier cases, no vacancy in the office of district attorney had been declared and the office holders simply had resumed all district attorney duties at the end of the suspension period. The Attorney General rejected respondent's proposal and advised him that the Attorney General's office would discharge the duties of the Wasco County District Attorney beginning on the date of his suspension, as directed by the Governor.

When respondent's suspension expired, he secured reinstatement to active membership in the Oregon State Bar on April 15, 2020, and he claims the right to complete his term as Wasco County District Attorney. The Attorney General, however, insists that respondent is no longer the lawful Wasco County District Attorney because the office became vacant—and will remain vacant until respondent's successor is appointed or elected.

In an attempt to resolve that dispute, the state filed a petition for a writ of quo warranto on behalf of the Attorney General, in which it asked this court to determine that respondent is not the lawful holder of the office of Wasco County District Attorney, because the office became vacant upon his suspension. Respondent agrees that this court should exercise its jurisdiction to resolve the dispute, but he disagrees with the Attorney General's conclusion that he is no longer the lawful office holder.

II. ANALYSIS

A. The Nature of this Court's Jurisdiction

We begin by briefly describing the unusual nature of the proceedings in this court. The Oregon Constitution grants this court original jurisdiction over quo warranto proceedings. Or. Const., Art. VII (Amended), § 2. That original jurisdiction continues despite the fact that the legislature long ago replaced the common law writ of quo warranto with a statutory process.² As ORS 34.810 specifies, "the writ of quo warranto , and proceedings by information in the nature of quo warranto are abolished," but it provides that the same remedies "heretofore obtainable under those forms may be obtained by action in the mode prescribed in ORS 30.510 to ORS 30.640." See also State ex rel. Madden v. Crawford , 207 Or. 76, 80-81, 295 P.2d 174 (1956) (explaining that the "enactment is the statutory equivalent of the common-law writ of quo warranto "). But we generally still refer to an action commenced under the statutory procedures "as a proceeding in quo warranto ." Id. As relevant here, ORS 30.510(1) provides that an action may be maintained in the name of the state when a person "usurps, intrudes into, or unlawfully holds or exercises any public office." We have agreed to exercise our original jurisdiction in the nature of quo warranto to resolve whether respondent correctly claims to be the lawful holder of the office of Wasco County District Attorney.³ We turn now to that question.

B. Whether the Office of Wasco County District Attorney is Vacant

As is evident from the Attorney General's position, the dispute at the heart of this case revolves around whether respondent, although now reinstated to the active practice of law, is disqualified from serving the remainder of his term of office. Both parties agree that the answer to that question turns on whether the office became "vacant"—within the meaning of ORS 236.010 —at the onset of respondent's 60-day suspension. Further narrowing the inquiry, both parties agree that, of the vacancy-creating circumstances listed in ORS 236.010, the only potentially applicable circumstance is paragraph (1)(g) of that statute, which provides:

"(1) An office shall become vacant before the expiration of the term if:

"* * * * *

"(g) The incumbent ceases to possess any other qualification required for election or appointment to such office."

According to the Attorney General, active membership in the Oregon State Bar is a qualification for serving as a district attorney and, when respondent was suspended from practicing law, he "cease[d] to possess" a "qualification required for election or appointment" to the office of district attorney. Thus, the Attorney General contends, respondent's suspension triggered a vacancy by operation of law that the Governor is required to fill by appointment until the next election. See Fehl v. Jackson County , 177 Or. 200, 211, 161 P.2d 782 (1945) (construing the statutory predecessor to ORS 236.010 as identifying events that "automatically vacated" the office);⁴ ORS 8.640 ("When a vacancy occurs in the office of district attorney, the Governor must appoint some suitable person to fill the vacancy until the next election[.]").

Respondent offers alternative reasons for concluding that the office of Wasco County District Attorney did not become vacant and that he, therefore, remains the lawful office holder. First, respondent contends that an active bar membership is not a qualification for continuing to serve as an elected district attorney. Alternatively, he contends that he did not "cease to possess" that qualification within the meaning of the vacancy statute when he was briefly suspended from practicing law. As explained below, we reject respondent's contention that maintaining an active bar membership is not a qualification for serving as district attorney, but we agree with respondent that he did not "cease[ ] to possess" that qualification under the circumstances of this case.

1. The requirement of active membership in the Oregon State Bar

Both parties point to ORS 8.630 as the defining source of qualifications for serving as a district attorney in Oregon. That statute specifies:

"A person elected district attorney must, at the time of election, have been admitted to practice in the Supreme Court of Oregon. District attorneys shall possess the qualifications, have the powers, perform the duties and be subject to the restrictions provided by the Constitution for prosecuting attorneys, and by the laws of this state."

ORS 8.630. Both parties focus primarily on the first sentence of that statute and offer competing grammatical analyses of whether the text refers to a continuing requirement that must have been met by the time of election or only to a requirement that must exist at the time of election. As with all matters of statutory construction, we turn to the framework that we first described in PGE v. Bureau of Labor and Industries , 317 Or. 606, 859 P.2d 1143 (1993), and modified in State v. Gaines , 346 Or. 160, 206 P.3d 1042 (2009). Under that framework, we give primary weight to the text and context of the pertinent statutes, because "there is no more persuasive evidence of the intent of the legislature than the words by which the legislature undertook to give expression to its wishes." Gaines , 346 Or. at 171, 206 P.3d 1042 (internal quotation marks omitted).

The Attorney General understands the first sentence of ORS 8.630 to impose a continuing requirement of "admi[ssion] to practice in the Supreme Court of Oregon," which district attorneys must possess as of the date of the election. The Attorney General points out that the requirement of "admi[ssion] to practice," in turn, requires active membership in the Oregon State Bar and that respondent lost that qualification during the period of his suspension. See ORS 9.160(1) ("[A] person may not...