State ex rel Rosenblum v. Nisley

Under ORS 236.010 (1)(g), an office becomes vacant if the “incumbent ceases to possess any other qualification required for election or appointment to such office.” Under ORS 8.630, a district attorney must be admitted to practice law in Oregon.

Respondent, the elected District Attorney of Wasco County, was suspended by the Court from the practice of law for 60 days due to violations of ethics rules.  The Governor directed the Attorney General to fill the Wasco County District Attorney position until the next election.  After Respondent objected, the State filed this petition for a writ of quo warranto, requesting that the Court determine whether Respondent was the lawful office holder.  The Attorney General argued that Respondent’s suspension meant he ceased “to possess a qualification required” to serve as a district attorney and therefore the Governor’s appointment was appropriate.  In response, Respondent argued that he did not vacate his position as district attorney due to his suspension.  Under ORS 236.010 (1)(g), an office becomes vacant if the “incumbent ceases to possess any other qualification required for election or appointment to such office.” Under ORS 8.630, a district attorney must be admitted to practice law in Oregon.  Applying statutory interpretation, the Court found that Respondent’s suspension did not constitute a vacancy, because it was a brief interruption in his ability to practice law.  Since the legislature has provided accommodation mechanisms for brief “interruptions in a district attorney’s ability to perform the duties of office,” Respondent remains the lawful office holder.  Judgment issued that Respondent “currently holds the office of Wasco County District Attorney.”