473 P.3d 46
Or.2020Background:
- Eric Nisley was elected Wasco County District Attorney in 2016 and began a four‑year term in January 2017.
- This court found Nisley violated professional conduct rules and imposed a 60‑day suspension from practicing law beginning February 2020 (In re Nisley).
- The Attorney General, directed by the Governor, assumed prosecutorial duties and contended the suspension created a vacancy under ORS 236.010(1)(g) because Nisley ceased to possess a required qualification (active Oregon State Bar membership).
- Nisley sought to remain in office, was reinstated to active bar membership on April 15, 2020, and the state filed quo warranto to resolve whether the office became vacant during the suspension.
- The Supreme Court exercised original quo warranto jurisdiction and framed the legal dispute around whether (1) active bar membership is a continuing qualification for DA and (2) whether a temporary 60‑day suspension constituted “ceases to possess” under ORS 236.010(1)(g).
- The court held that active bar membership is a qualification for district attorney but that Nisley’s brief, automatically‑restitutable suspension did not amount to “ceasing to possess” that qualification; therefore no vacancy occurred and Nisley remains the officeholder.
Issues:
| Issue | State's Argument | Nisley's Argument | Held |
|---|---|---|---|
| Whether active membership in the Oregon State Bar is a continuing qualification for a district attorney | Active membership is required to practice and perform DA duties; losing it means incumbent "ceases to possess" a qualification | The statute’s phrase "at the time of election" shows only a time‑of‑election requirement; post‑election suspension does not strip the qualification | Active membership is a required, continuing qualification because DA duties necessarily require practicing law |
| Whether a 60‑day disciplinary suspension caused the incumbent to "cease to possess" that qualification under ORS 236.010(1)(g) | Suspension meant Nisley lacked the qualification and thus the office became vacant, triggering gubernatorial appointment | A temporary, automatically‑restitutable suspension is transient and not the sort of enduring change the vacancy statute contemplates | Temporary suspension did not constitute "ceases to possess"; statute contemplates a more permanent change justifying appointment — no vacancy |
Key Cases Cited
- In re Nisley, 365 Or 793 (Or. 2019) (disciplinary decision imposing 60‑day suspension)
- Fehl v. Jackson County, 177 Or 200 (Or. 1945) (vacancy doctrine and historical purpose of vacancy provisions)
- PGE v. Bureau of Labor & Industries, 317 Or 606 (Or. 1993) (statutory construction framework emphasizing text and context)
- McLaughlin v. Wilson, 365 Or 535 (Or. 2019) (application of ejusdem generis for interpreting general statutory phrases)
- Kinzua Resources v. DEQ, 366 Or 674 (Or. 2020) (use of ordinary meaning and dictionary definitions in statutory interpretation)