Can an Oregon district attorney run for reelection while their disbarment is on appeal to the Oregon Supreme Court?
Plain-English summary
Representative Dan Gardner asked two questions about a hypothetical (but pointed) scenario: a sitting district attorney facing a Bar disciplinary trial panel's decision to disbar, with that decision pending Supreme Court review. Could the DA still run for reelection? And if reelected, could the DA continue serving if the Supreme Court adopted the disbarment?
Attorney General Hardy Myers answered yes to candidacy, no to continued service after disbarment. ORS 8.630 required that a person elected DA had been admitted to practice in the Oregon Supreme Court "at the time of election." Until the Supreme Court actually issued a disbarment order, the trial panel's decision had no legal effect, so the candidate remained an active Bar member and qualified to run. But ORS 236.010(1)(g) automatically creates a vacancy when an incumbent "ceases to possess any qualification required for election." If the Supreme Court later adopted the trial panel's disbarment, the reelected DA would lose Bar membership, lose the qualification for office, and the office would become vacant. The Governor would fill the vacancy by appointment.
Currency note
This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: Why isn't a trial-panel disbarment effective immediately?
A: Under ORS 9.536(2), the trial panel's decision to disbar is automatically reviewed by the Oregon Supreme Court. ORS 9.536(3) makes that review de novo, the Supreme Court considers the case anew and may adopt, modify, or reject the trial panel. ORS 9.527 and the Bar Rules of Procedure (Rule 10.1) confirm that disbarment is not effective until the Supreme Court acts. Until then, the lawyer remains an active Bar member.
Q: Doesn't ORS 8.630 only require Bar admission "at the time of election"?
A: That phrasing is the heart of the second question. The AG read it together with ORS 236.010(1)(g), which creates a vacancy when an incumbent "ceases to possess any … qualification required for election." Read together, an officeholder must satisfy the election-qualification continuously, not just on Election Day.
Q: Couldn't the "at the time of election" phrasing be read as a one-time-only requirement?
A: The AG acknowledged this argument and noted there could be rare cases (the example given is an age requirement) where the qualification cannot be lost after the election. But Bar membership is not such a case. The "at the time of election" phrase in ORS 8.630 was treated as substantively indistinguishable from ORS 236.010(1)(g)'s "qualification required for election."
Q: What happens to the vacant DA's office?
A: Article V, section 16 of the Oregon Constitution gives the Governor authority to fill vacancies in state elective offices by appointment. Article XV, section 1's "until their successors are elected, and qualified" hold-over rule does not apply when there is a "vacancy," as Fehl v. Jackson County (1945) made clear.
Q: What about the assistants and ongoing prosecutions?
A: The opinion didn't address staffing or pending cases. It resolved only the candidacy question and the vacancy that disbarment would create.
Background and statutory framework
ORS 8.630 says: "A person elected district attorney must, at the time of election, have been admitted to practice in the Supreme Court of Oregon." A 1924 opinion read this to require Bar admission by the general election date. Subsequent changes to ORS 249.088 (allowing nonpartisan candidates to be elected at the primary if they got a majority) shifted the relevant "election" to the primary in some cases.
The disciplinary structure under ORS 9.534(1) puts the Supreme Court at the top: a trial panel of three Bar members holds the formal hearing, but disbarment is not effective until the Supreme Court issues an order. The court reviews de novo and can adopt, modify, or reject the trial panel's recommendation. This procedural posture lets the AG draw a bright line: while the disbarment is on review, the lawyer is still admitted.
ORS 236.010 enumerates the events that create a public-office vacancy, with subsection (1)(g) covering loss of an election qualification. Article V, section 16 then directs that the Governor fill state elective vacancies by appointment.
Citations and references
Statutes and constitutional provisions:
- ORS 8.630, qualification of district attorney
- ORS 9.527, ORS 9.534, ORS 9.536, attorney discipline procedure
- ORS 9.160, prohibition on practicing without active Bar membership
- ORS 236.010(1)(g), vacancy upon loss of election qualification
- ORS 249.088(1), nonpartisan candidate election at primary
- Article V, section 16, Oregon Constitution, gubernatorial vacancy appointments
- Article XV, section 1, Oregon Constitution, holdover provision
Cases:
- Fehl v. Jackson County, 177 Or 200, 161 P2d 782 (1945), vacancy terminates incumbent's tenure, holdover provision does not apply
Source
- Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
- Original PDF: https://www.doj.state.or.us/wp-content/uploads/2001/01/op8275.pdf
Original opinion text
January 23, 2001
No. 8275
This opinion is issued in response to questions from The Honorable Dan Gardner, State
Representative, regarding the candidacy of a district attorney for reelection.
FIRST QUESTION PRESENTED
May an incumbent district attorney be a candidate for reelection when a
trial panel of the Oregon State Bar's disciplinary board has issued a decision to
disbar the individual and that decision is before the Supreme Court of Oregon for
review?
ANSWER GIVEN
Unless and until the disbarment decision of the trial panel is adopted by the Supreme
Court, the incumbent district attorney remains an active member of the Oregon State Bar (state
bar) and nothing in state law prohibits that individual from running for reelection or, if reelected,
serving a second term as district attorney.
SECOND QUESTION PRESENTED
If the Supreme Court adopts the trial panel's disbarment decision after the
incumbent district attorney wins reelection, may the incumbent district attorney
serve the remainder of the term in office?
ANSWER GIVEN
No. The Supreme Court's order of disbarment would create a vacancy in the office as a
matter of law.
DISCUSSION
I.
Candidacy Pending Supreme Court Review
ORS 8.630 requires, in part, that a person elected to the office of district attorney, "at the
time of election, have been admitted to practice in the Supreme Court of Oregon."1/ We have
interpreted this requirement to mean that the person must be an active member of the state bar at
the time of the general election. See 11 Op Atty Gen 640, 642 (1924).2/ Changes in state law
require us to modify this conclusion.3/ For a nonpartisan office such as district attorney, ORS
249.088(1) now provides that a candidate may be elected to office at the primary election if he or
she receives a majority of the primary votes cast for that office. Hence, we interpret ORS 8.630
to require that a person be an active member of the state bar by the date of the election in which
he or she is elected to office.
ORS 9.534(1) provides for the Supreme Court to appoint a disciplinary board to conduct
attorney disciplinary proceedings. Rules of procedure approved by the Supreme Court provide
for trial panels, each consisting of three disciplinary board members, to hear and decide formal
charges brought by the state bar against attorneys licensed to practice in Oregon. State Bar Rule
of Procedure 2.4. When a trial panel orders an attorney to be disbarred, the trial panel's decision
is subject to automatic review by the Supreme Court. ORS 9.536(2). The court's review is de
novo, meaning that the court considers the case anew and may adopt, modify or reject, in whole
or in part, the trial panel's decision. ORS 9.536(3). The trial panel's decision to disbar an
attorney is not effective until acted upon by the Supreme Court. See ORS 9.527 and State Bar
Rule of Procedure 10.1. Therefore, until the Supreme Court issues a disbarment order, an
attorney remains an active member of the state bar and is qualified for election, or reelection, as
a district attorney under ORS 8.630.
II.
Disbarment After Reelection to Office
We are also asked whether, if reelected, a district attorney could continue to serve in
office if the Supreme Court adopts a trial panel's decision for the district attorney's disbarment.
ORS 8.630 does not specifically state that a district attorney must remain an active member of
the state bar during his or her tenure in office. The statute requires that "[a] person elected
district attorney must, at the time of election, have been admitted to practice in the Supreme
Court of Oregon" (emphasis added.)
A second statute, ORS 236.010, speaks generally to the causes for vacancies in public
office before the expiration of an office holder's term. The statute provides that a vacancy is
created if "[t]he incumbent ceases to possess any * * * qualification required for election." ORS
236.010(1)(g). Applying ORS 236.010 to the office of district attorney in light of the
qualifications for election stated in ORS 8.630, a person must be an active member of the state
bar not only at the time of election but throughout the person's tenure in office.4/
If the Supreme Court adopts the decision of the trial panel and disbars a district attorney,
that person would no longer be an active member of the state bar. A disbarred district attorney,
therefore, would not possess a statutory qualification for election to office and a vacancy would
be created under ORS 236.010.5/
HARDY MYERS
Attorney General
HM:KBC:AV/GEN60880
1/
Under ORS 9.160, a person is prohibited from practicing law in Oregon unless that person is an
active member of the state bar. Thus, we refer interchangeably to active members of the state bar and
persons admitted to practice law in Oregon.
2/
Our 1924 opinion dealt with a person who wanted to file as a candidate for district attorney in a
primary election but was in the process of being admitted to the state bar and would not attain
membership until shortly before the general election. The opinion concluded that a candidate was not
required to be a member of the state bar until the date of the general election. 11 Op Atty Gen at 642.
Implicitly, the opinion concluded that the "election" referred to in the statute was the general election,
with the primary election being for purpose of nomination.
3/
See Or Laws 1989, ch 218, § 1 (amending ORS 249.088 to permit election by majority at
nominating election).
4/
In context, a statutory qualification for office that must exist "at the time of election" could suggest
that the subsequent loss of that qualification will not result in a vacancy under ORS 236.010(1)(g). For
example, a statutory qualification that is a personal characteristic subject to inevitable change over time,
such as an age requirement, may signify that loss of the qualification by an officerholder will not result in
a vacancy under ORS 236.010(1)(g). See 40 Op Atty Gen 353 (1980). Given that a qualification
required "at the time of election" is substantively indistinguishable from the phrase "qualification required
for election" used in ORS 236.010(1)(g), such instances will be rare. We do not find ORS 8.630 to be
such an instance.
5/
Article XV, section 1, of the Oregon Constitution provides that, with certain exceptions, "[a]ll
officers * * * shall hold their offices until their successors are elected, and qualified." This provision does
not apply in the case of a "vacancy" in office. Upon the occurrence of any of the events enumerated in
ORS 236.010, the incumbent's tenure in office is terminated and the office becomes vacant. See Fehl v.
Jackson County, 177 Or 200, 209, 161 P2d 782 (1945). When a vacancy occurs in a state elective office,
"the governor shall fill such vacancy by appointment." Or Const Art V, § 16.