*1 14; August Argued en banc and submitted March resubmitted 22, 2000 affirmed November ADAMS, OREGON, Brady ex rel STATE OF Ferrioli, Fisher, Bill Derfler, Ted Gene Hannon, Hartung, Lenn L. Tom Gary George, Nelson, Lim, Miller, David Randy John Shannon, Starr, Qutub, Charles Marylin Eileen Wilde, Tarno, Timms and Thomas Eugene Veral Appellants, v. POWELL,

Michael Respondent, KITZHABER, John A.

Governor for the State of Oregon,

Intervenor-Respondent. A107123) (9905-05147; CA *3 Gregory A. Chaimov argued the cause for appellants. With him on the briefs was the of Office the Legislative Counsel.

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

Jacob Tanzer argued cause for intervenor-respondent. him With on Jr., the brief was H. Henry Lazenby, Governor’s Legal Counsel. Deits,

Before Edmonds, Muniz, Chief Judge, and De Landau, Haselton, Armstrong, Linder, Wollheim, Kistler and Brewer, Judges.

DE MUNIZ, J.

Edmonds, J., dissenting. MUNIZ,

DE J. appeal senators, Plaintiffs, all of whom are state judgment in favor of defendant Michael from a trial court quo Kitzhaber in this and intervenor Governor John Powell warranto pursuant proceeding to ORS 30.510 to initiated Powell from the Board of Commissioners of the Port remove may that Powell hold over of Portland. The trial court held prior until a successor is confirmed from his term office qualified. appeal, Plaintiffs and we affirm. and found stipulated following parties to the facts. The have four-year governor appointed as a com- The Powell to a term con- of Portland in and the senate missioner of Port governor reappointed appointment. firmed that term the senate voted not to confirm Powell to a second but governor reappointed then Powell for that second term. again, sec- the senate has taken no action on the Powell reappointment. has been ond appointed, No successor Powell qualified.

confirmed and Powell continues to serve of Portland. as a commissioner of Port quo proceeding in initiated this Plaintiff senators unlawfully alleging warranto,1 that Powell holds office rejected by reappointment the senate in because his was Port- 1997. The of commissioners of the Port of by under ORS land is to confirmation senate on the rely Plaintiffs 171.562 and ORS 171.565. 236.010(l)(h) 4(2), ORS and Article currently position support Constitution, that Powell their 236.010(1) unlawfully. provides, part: ORS holds the office expiration “Anofficeshall becomevacant beforethe the term if:

«* * * * * proceedings quo warranto as follows: ORS 30.510 codifies state, upon may in the name of the “An action at law be maintained private party attorney, upon the relation of a information of the district or *4 following against person offending, in the cases: “(1) into, unlawfully usurps, any person holds or exer- intrudes or When state, office, military, any any public within or civil or franchise this cises any or by private, corporation public or either or created or formed office authority under the of this stateM” “(h) Appointment of the incumbent to Sen- ate confirmation under section III the Oregon Constitution and the is not confirmed.” 236.010(1) That subsection was added to ORS in 1979 to implement newly enacted Article of the Constitution, Oregon provides, which part: “(1) Legislative manner Assembly provided in the by may law require appointments that all reappoint- ments to state office by made the Governor shall be subject to confirmation the Senate.

“(2) The appointee shall not be eligible to serve until confirmed the manner required by law and if not con- manner, firmed in that shall not eligible be 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 ORS 778.215(1) and Article of the Constitu- tion, because under those appointee remains in office until a successor been has appointed has qualified 778.215(1) for the position. ORS provides: “Upon expiration of the term of a [of commissioner Portland], the Port of a successor shall appointed by be Governor, subject to confirmation provided by as ORS 171.562 and Except 171.565. provided as in ORS 778.220 [concerning removal for in office] malfeasance and 778.235 [concerning vacancies created when commissioner refuses attend], serve or fails to appointees, confirmed, when shall hold office for a years term of four and until their respective successors appointed, have been confirmed and qualified.”

That statute is in accord with Article of the Oregon Constitution, which provides:

“(1) officers, All except members Legislative Assembly and incumbents who seek reelection and are defeated, shall hold their offices until their successors are elected, qualified.” below,

As discussed the Oregon Supreme Court has held that applies to appointed officers as well as to elected officers. *5 appears have believed that both to

The trial court provisions statutory provisions could and both constitutional by concluding given that, under ORS full be effect 236.010(l)(h) III, 4, Powell’sofficebecame section and that, him but failed to reconfirm when the senate “vacant” 778.215(1) provisions and ORS due to the holdover “constructively only and vacant” was the office section in “vacant” officeuntil serve could continue to that Powell appointed qualified. and had been a successor argue appeal, plaintiffs the trial court erred that On concluding as a com- Powell could continue to serve in statutory citing Portland, the same Port of missioner of the they relied below. on which and constitutional Plaintiffs 778.215(1) only permits qualified ORS assert that appointed and over until a successor commissioners to hold rejected person is not has been confirmation that a whose pre- provisions qualified 236.010, which of ORS due to They qualifications assert all offices. further for scribes 4(2), “reappointee” as well as III, bars a that Article section continuing appointee if the Sen- to serve in an office from argue deny plaintiffs effect, ate has voted to confirmation. 4(2), provisions of ORS III, mandates that Article section 778.215(1) 236.010(l)(h) the extent that ORS that, As to Arti- mandate, it is unconstitutional. conflicts with that provi- plaintiffs that its holdover maintain cle section question only person applies in is not insofar as the sion holding disqualified the office under ORS Thus, from otherwise 4(2). plaintiffs main- III, and Article 236.010 tain, 4(2), pursuant III, and Article to ORS 236.010 may ofthe Port of continue as a commissioner that Powell Portland. not that the statutes and intervenor assert Defendant 778.215(1) provides They argue that ORS are reconcilable. has been until a successor office for Powell to continue qualified appointed, that the reference confirmed 236.010(l)(h) only applies to an offi- “the incumbent” ORS pre- appointee never who has or interim cer who is a recess they Alternatively, viously the senate. been confirmed 778.215(1) a conflict between ORS maintain that if there is 236.010(l)(h), specific the more then and ORS 778.215(1), only apply to Port of Portland com- ORS which general provisions missioners, should control over more Finally, they apply assert of ORS 236.010 that to all officers. 236.010(l)(h) supports plaintiffs’ position, that, if then ORS it conflicts with Article Consti- tution and that Article is not conflict with 4(2), only ability ofuncon- which limits similarly appointees firmed serve not limit the but does ability “reappointees.” of unconfirmed begin by noting give each

We we cannot statute plain meaning two, its and reconcile the much less reconcile any them in manner that the need to address the obviates constitutional obliged issues. Nor is this a case in which arewe *6 statutory questions hopes first,

to consider in of resolving having the issues without to reach constitutional questions, because each side maintains that the statute that supports position the other side’s violates a constitutional provision. 778.215(1) only provision

Were ORS at issue eligibility here, there would be no doubt of Powell’s to con tinue aas commissioner of the Port of Portland until his suc “appointed, qualified.” cessor is confirmed and That statute exceptions contains several set out ORS 778.220 —those deny and ORS 778.235—but does not commissioners the right legislature to continue officewhen the fails to recon argue exceptions firm them. Plaintiffs that the contained in the statute are not exclusive and that ORS 236.010 contains exceptions. principles statutory additional Several inter pretation against plaintiffs’ suggested interpretation. cut specific generally gen First, a more statute controls over a subject, eral statute on the same and ORS 778.215 is more specific applies specifically 236.010, than ORS because it to port Second, commissioners. ORS 174.020. under ORS inserting 174.010, we are constrained from into a statute that legislature accordingly, omitted; which the has we conclude why that, where ORS 778.215 contains a list of reasons may commissioner of the Port of Portland not continue to qualified, appointed, serve until a successor is confirmed and lack list, of reconfirmation is not on that lack of reconfir mation does not constitute such a reason. 236.010(1X1^), hand,

ORS on the other indicates that may an officesuch as officeheld Powell become vacant “[appointment the end a term if before ofthe incumbent is to Senate confirmation under section Article III of Constitution and the is not con argues may firmed.” Defendant that this statute be inter preted in a manner it such does not conflict with ORS interpret narrowly if we the term 778.215 “incumbent” only appointees mean incumbents who are interim who have problems never been confirmed with that the senate. There are two proposed First, construction. the word “incumbent” throughout is used ORS 236.010 a manner that is inconsis applies only appoint tent with the notion that it to interim 236.010(l)(b) (e) respec instance, refer, ees. For ORS tively, appointed” to “elected or incumbents and the “election appointment” clearly or apply of incumbents. The term is used to appointed officials,

to elected officials as well as to apply only appointees it therefore cannot to interim as used Generally, through in those subsections. the “use term of a meaning out a statute indicates that the term has the same throughout the PGE v. statute.” Bureau Labor and Indus tries, 606, 611, It would seem unlikely, say legislature least, that the intended the given meanings term “incumbent” to be different in different subsections of ORS 236.010. 236.010(l)(h) any merely event, ORS does not use qualifies making “incumbent”; term,

the term it it clear applies specifically that the term as used in that subsection “subject incumbents who are to Senate confirmation under *7 Oregon Constitution[.]” 4, section Article III of the ORS 236.010(l)(h). 4(1), provides leg- III, Article section that the “may require appointments reappoint- islature that all by ments to state office made the Governor shall be subject by undisputed to confirmation the Senate.” It is by the officeheld defendant Powell is to confirmation reappointment. both on and on contin- Powell’s uation office after the senate’s failure to reconfirm his 236.010(l)(h). appointment cannot be reconciled with ORS ambiguous

Neither statute is on its face. We con- 778.215(1) provisions clude that the holdover of ORS and the 236.010(l)(h) vacancy provisions in conflict. Both of ORS are

89 appear apply given situation; to Powell’s both cannot be effect.2 case,

Were there no constitutional dimension to this step our next would be to determine which statute is control 778.215(1), ling. plaintiffs However, that ORS as we assert interpreted it, III, 4, Article of the have violates section Oregon Constitution; defendant and intervenor contend 236.010(l)(h), interpreted it, as we have runs afoul of ORS Oregon ques XV, 1, Article section Constitution. The then, tion, becomes whether or to what extent those consti tutional are reconcilable with each other. interpret provisions,

To constitutional we look “to specificwording [of provision], surrounding each the case law it, and the historical circumstances that led to its creation.” Pearce, 411, 415-16, Priest v. 314 Or Arti part original XV, 1, cle section was ofthe constitution of 1857. by III, 4, section was created Senate Joint Resolution (1977 session) by adopted Oregon voters in 1978. relatively III, 4, Because Article new and no case interprets it, law and because Article XV has been exis Oregon tence in some form since the Constitution was adopted, begin viewing we will with Article it in histori describing interpreting cal context and the case law it. Then question III, we will turn to the of whether Article is in conflict with Article and whether the adoption impliedly ofArticle either amended or repealed section 1. originally provided: “All offi- except assembly legislative

cers members of the shall hold qualified.” their elected, officesuntil their are successors party appeal theory No on trial advances the court’s of “constructive vacancy,” i.e., appointee may that an continue to hold over in an office that has 236.010( 1). pursuant expiration “become vacant before the the term” to ORS We adopt vacancy,” decline this notion of “constructive as it would render the term 236.010(1) “vacancy” essentially meaningless. as used in ex rel v. ORS State Cf. (1941) Tazwell, 349, 352, means, (“Vacancy 166 Or 111 P 1021 in office as said Johns, 537 [1869], Mr. Justice McArthur in v. the want of State 3 Or time.”); Minear, 315, 322, 401 an incumbent at the State ex rel Musa v. P2d (If (1965) incumbent, nobody qualified “ftlhepost is elected does or to succeed vacant, office, automatically not become but the incumbent remains locum * tenens, superseded by person until he shall be authorized law to be office.”). inducted into the

90 pertinent legislative history Although found no from we have provision convention, inter- the constitutional preted this has been by Oregon Supreme on various occasions the Court. explain The first to the in detail case was State (1891). Everding Simon, P ex rel v. 20 Or 26 170 Everding, Legislature provid- the 1885 had enacted a statute ing police appointment commissioners, for the of Portland to Leg- be after their first term. The followed elections 1889 neglected provide islature modified those but to either for or election new commissioners. Id. question presented resulting litigation at 368-69. The in the originally appointed was whether one of the continued to serve or whether a new commissioners

commissioner, elected statutory authority, replaced without him. The court con- qualified that, cluded because no had elected 1, successor been appointed existing gave law, or under appointed right to hold over. The court incumbent stated: public policy requires

“The reason of this rule is that performed, that the duties of the office be and it is better that the incumbent should continue in the office and in the performance interregnum of its duties than that an should public by preserving occur. It conserves the interests public methods and instrumentalities which alone busi- transacted; rule, ness can opposite be while the when pushed consequences, might suspension to its result in the many departments of business in service.” Id. at 378. applied

The court also in resolving dispute involving posi a a railroad commissioner biennially by tion, where the commissioner was chosen legislative assembly. Eddy Kincaid, v. Or 41 P rejected argument legis There, the court appoint vacancy lature’s a created a failure to successor that, 1, “the the office and held under Article incumbent of the office shall hold until his successor is qualified.” Implicit Eddy, elected and explicitly Id. at 560. and more Compson, case, 25, 54 v. P 349 a later State (1898), involving essentially subject matter, the same only recognized applies to court not but offi- appointed election also general elected in a officers out, to select from means simply pick “The word ‘elect’ cers. of, number, synonymous choice or make among evidently it was ‘choose,’ ‘select,’ ‘prefer,’ with words *9 Or at 33. in the constitution.” 34 in this sense used Arti- as used in That the term “elect” construction of Tazwell, v. in State ex rel 166 XV, 1, section was reiterated cle a warranto Tazwell, quo pro- 111 In 349, Or P2d 1021 had judge circuit court who against was initiated a ceeding the won person in a election. After who general been defeated office, attempted the taking governor the election died before litiga- relator to the circuit court and position, to the appoint the In determine was entitled to office. tion ensued to who matter, the its Article the court summarized deciding law, above, cases 1, including and case the cited concluding: decisions, settled in this state that

“From these it is law expiration after the oftheir public officers continue office duly qualified, until their are official terms successors applicable that this of the constitution is to all state, appointive.” of this elective or public officers whether Id. at 355. to that to explain governor’s power

The court went on an officer to an office was limited the constitution appoint Id. in the “vacancy” to situations in which there was a office. that, at because there was no 357. court concluded “vacancy” the office at due to the hold over of issue incumbent under the of Article judge fill the 1, by appointment. had no office governor power Id. at 357-59. ex rel v. Appling, State O’Hara 303,

In (1959), the court was again required interpret P2d of 1, purpose determining for apply a office. In November properly occupied who of for a term of four secretary Mark Hatfield was elected state office, he was years. holding November while 7, 1959, the governor. January outgoing governor, elected On as of On Holmes, secretary state. appointed Robert O’Hara of resignation Hatfield submitted a letter January state. Governor Holmes the office of of secretary from responded by purporting accept letter, to decline to the res- ignation. morning January 12, 1959, On the of Holmes’ appointee, secretary O’Hara, of took oath officeas of state required and filed the bond. On the afternoon of same day, governor took and, Hatfield the oath of office as after taking appointed Appling secretary office, to the of office of Appling state. then took the oath office and filed the required Id. bond. at 305-07. quo proceeding,

O’Hara initiated a warranto assert- ing that, under Article section Hatfield continued to secretary his as hold the oath office of state at the time he took governor, officeas because at that his time succes- secretary appointed quali- sor as fied; that, had been state not provi- result,

as a Hatfield violated constitutional prohibiting holding “incompatible” sions of more one than prohibiting person at office the same time and who holds filling governor; another office from the office of and that gubernatorial authority appoint Hatfield therefore lacked Appling secretary as of state. at Id. 307-09. *10 Supreme question

The Court determined that the of governor authority appoint secretary which had the to a of depended vacancy when, all, state on if at a arose in the latter Oregon applies Id. at office. 307. court concluded that the “implied resignation,” whereby person doctrine of a who impliedly resigns assumes an office a theretofore-held incom- patible principle, resigned, office. Under that Hatfield vacancy secretary in, a created time the office of of state at the governor.3 he the took oath of as Therefore, office attempt appoint secretary Holmes’s to a state of before that legal time was effect, without because the office was not vacant. Id. at 310-12. deciding, necessarily

In so the court also considered requirement XV, whether the in Article section 1—that offi- quali- cers hold office until their elected successors are applies despite resignation. an Id. officer’s at 312-13. In fied— holding, rejected expressly argument In so the court that a officer resign appointing power. cannot his or her office without the consent of the State ex 303, 316, time, Appling, rel v. O’Hara 215 Or At the same any express opinion regarding court declined to the effectiveness of Hatfield’s writ resignation. ten Id. 318. at of a decision from quoted the court question, that analyzing Court, provision interpreting Supreme the Indiana 1, is which from Constitution Indiana is to the of purpose that derived, the effect death, “except by in office of vacancies the occurrence prevent also Id. at 314. The court the like.” removal resignation, at now codified the statute 1854 of since noted the existence before vacant an office becomes 236.010, providing ORS dies, if “the incumbent office the term of of the expiration reached the court Id. Finally, at 316. or is removed.” resigns, in Fehl v. Jackson it reached the same conclusion “the word (1945), that P2d 782 200, 161 County, in the finality the same imports 236.010] in [ORS ‘vacant’ of death or in the event as it does resignation event ‘holding no felony. a There is the commission of removal for Appling, of these events.” any over’ after the occurrence XTV, that Article The court concluded 215 Or at 316. his or her office. resigned an officer has

does not when apply cases, that Article we conclude with those Consistent incumbent to hold office on an “right” confers relevant circum office, one or more the term of unless beyond pres or death —is resignation stances —such as officer’s is here. Accord present circumstances ent. None of those 1, defendant Powell under ingly, of the Port as a commissioner position entitled to retain his Portland. Fehl, that, under argue nevertheless

Plaintiffs over” IV, section to “hold under Article right incumbent’s statutory quali- maintains if the incumbent only applies problems There are several office. particular fications for Fehl First, made no reference argument. plaintiffs’ with when a 1. It concerned whatsoever judge. the office of felony occupy of a ceased convicted judge *11 statutory pro- and constitutional at 204-05. Pertinent to eligible was judge longer clear that the no made it visions was whether conviction; the question the as after judge serve from office judge the necessary to remove suit was a removal law. Id. at by operation occurred the event or whether for standing can be read as nor Appling Fehl 206-11. Neither ORS as such statutory provisions that the proposition 94 the

236.010 control over holdover of Article section 1. summary, present as it to case, relates the interpreting 1,

case Article XV, law establishes provision applies appointees the holdover in the circumstance to as such Powell presented here. general In the election of Oregon by was to the added Constitution referendum. As quoted provision provides above, this constitutional for sen gubernatorial appointments reap ate confirmation of and pointments. concerning Pamphlet Materials contained the Voters’ provide

a referendum some historical context for generally an initiated or referred See measure. Ecumenical Oregon Lottery v. Comm., Ministries State Or 560 n explanatory 8, 871 P2d 106 statement contained Pamphlet in the 1978 Voters’ stated: “This measure would amend the Constitution to part. part add a new That Legislative would allow the Assembly to require the Governor’s appointments to approved state office be disapproved or the Sen- person ate. A not approved could serve until and if not could at approved part applies not serve all. The new also appointments Governor’s to fill vacancies in state elec- tive offices but not apply judges, does United States Sen- district, Representatives county precinct ators and offices. procedure. Presently, the Senate has statu-

“Present tory authority approve disapprove or of the Governor’s appointments required by sessions, where law. Between through session, During Senate acts a committee. approves entire Senate or disapproves appointments. person may A while awaiting approval. However, serve general In the election of section was amended refer language provision: endum. amendment That added italicized to the officers, except Assembly Legislative “All members of the and incumbents defeated,

who seek reelection and are shall hold their their offices until succes- elected, qualified.” sors are provided only An that a additional section defeated incumbent would hold office term, and, until the end in the case of an election an incum- contest between challenger qualified, appointee bent been and a where no successor had could party appeal suggests serve until the resolution of the election contest. No to this analysis present any way. that that amendment affects the case in

95 must be made if either the committee another Sen- appointment. the The disapproves full Senate of or the appointments authority not cover the Governor’s does ate’s state elective offices. to vacant change place The proposed would

“Proposed change. Consti authority Oregon in the confirmation the Senate’s Assembly Legislative the statutes. The tution instead of governing spe the enact new statutes then have to would during and the manner of confirmation appointments cific 5 sessions.” the interim between adopted gover- proposed and after That referendum was Nursing appointee Home the Board of Examiners nor’s rejected by appointee senate, Administrators was the and the Op despite generally See 39 took office lack confirmation. (1979).6 Atty 608 Gen interpreting From our review of case law appears 4, 1, III, it certain that before Article have in of com was enacted Powell could held over the office appointed qualified. until missioner Indeed, a successor was plaintiffs dispute point. parties also do not that agree expressly III, 4, that not amend or does question repeal presented section 1. The narrow III, 4, here is whether Article amends Article sec by implication, making inapplicable 1, tion who are it to incumbents following reappoint

not confirmed the Senate question ment. For reasons discussed below we answer that negative. in the specific wording, law, the case

We have examined surrounding provision. and the historical circumstances each Defendant Powell and intervenor Priest, 314 Or at 415-16. governor correctly to inter assert that the court’s function is language way pret that “harmonizes” constitutional in a Fadeley, potentially conflicting provisions. re See (1990). give possible, must 548, 560, 802 P2d When we 31 5 Pamphlet refer Although contained a statement in favor Voters’ it, nothing opposition those state to we find either of endum and a statement might resolving presented in this case. issue ments assist 6 through system, but attempted court The senate to resolve matter wrong type Supreme that the senate had initiated the Court concluded Straub, 282 proceeding on merits. State ex rel Boe v. and did not decide the case 387, P2d 1247 Or 578 every part every “to

effect of a word Constitution and contrary, por- that unless there is some clear reason to the no superfluous.” tion of the fundamental law shall be treated as Lonergan, See State ex rel Gladden v. Or (1954), quoting P2d 491 11 Am Law, Jur Constitutional §5. suggest possible

Defendant and intervenor it is give meaning parts to all ofArticle section and Arti- by distinguishing appoint- cle between “all * * * reappointments ments shall be to confir- *13 4(1), III, mation” as stated in Article section the “appointee eligible shall not be to serve until confirmed” as 4(2). They agree III, that, stated Article section under sec- 4(1), reappointment tion Powell’s is to confirmation by 4(2) They argue, that, the however, senate. because section only “appointee”

refers to an rather than to an “appointee reappointee,” imposes or it no on limitation ability “reappointee” of a such as Powell to to continue serve despite respond the senate’s refusal to confirm him. Plaintiffs ineligible that Powell “appointee” is to serve because the word 4(2) “reap- in section must be read to include a pointee” such as Powell.

Interpreting III, 4, text Article section harmoniously require XV, 1, Article section does not us to any parties’ principal adopt argument. 1, Article section interregnum pub assures that no occurs when a to successor appointed, office, lic whether elected or to is unable take Specifically, may office. the incumbent hold over and no vacancy Tazwell, 352; results. See 166 Or at Minear, Or at 322. The constitutional holdover no makes dis reap incumbents, Powell, tinction between like who are pointed who be incumbents are to succeeded another. applies equally Thus, we conclude it in both circumstances. 4(1) things. permits III, 4, Article section does two Section legislature require appointees to new as well confirmation 4(2) reappointed. specifies as incumbents who are Section any appointee that required is who not confirmed the manner eligible key law shall be to har not serve. monizing interpret III, is Article two section prospectively, looking 4, to the term new for which the most contrast, recent been has made. Article past retrospectively applies term. Under to the 1, section appointee 4(2), is unable unconfirmed III, Article appointed to fill. that he or she was the term officefor to take term, he or the new to serve incumbent is unable Where the past until may, term nevertheless, to serve continue she qualified. appointee can be new such time as a Article plaintiffs in their assertion are correct If impliedly 1, then it XV, section Article 4, amends III, section when confir- never hold over incumbent would that an follows mation is appointee regardless for denied, ofwhether plaintiffs’ Under or someone else. is the incumbent new term interpretation, III, denied, Article is whenever confirmation vacancy, 1, XV, section and Article 4, creates a prevent purpose vacancies its is to without effect because cannot be filled. when a office says nothing 4, about

However, III, creating Thus, if it amends vacancies. entirely by implication, plaintiffs urge, a doctrine

as it does so Oregon Liquor Oregon. Falls v. Klamath that is disfavored (1934). By amending Arti- Comm., 146 Or plaintiffs’ interpretation sec- cle every every give part and word of not effect “to tion would Lonergan, 177; State v. 201 Or at see also a Constitution.” (1995) (refusing Guzek, 245, 266-67, 906 P2d 272 *14 by applying implication maxim of con- and amend statute struction at the first level of textual conflicting gives potentially statutes that effect to analysis). Accordingly, we decline interpretation giving interpretation. adopt plaintiffs’ of Arti- Our word full 4, text, the each III, is true to cle section amending XV, Article sec- the historical role of effect without l.7 tion analysis is flawed because view,

In the dissent’s our “reappointments” III, section in Article the word it renders 4(1) disagree App meaningless. n at 105 4. We give analysis III, 4. to Article full effect our fails III, harmonizing by sec quo warranto action is resolved Because this 1, unnecessary specifically address the it for us to and Article is tion constitutionality 236.010(l)(h). note, however, the extent the We that to ORS by lawfully occupied public purports are vacancies in offices that to create statute over, section 1. it conflict with Article who hold direct incumbents Specifically, 4(2), appointees under section unconfirmed can- they appointed. not serve the term to which were That result applies equally “appointments” “reappointments.” and The may fact that incumbents hold over under another constitu- change analysis. tional does not the It is a mistake practical consequences to conclude that there are no when appointee consequences unconfirmed political holds over. Those are ultimately, question because, the of who succeeds political Powell as commissioner the Port of Portland ais by governor one that must be resolved and the senate. recognizes Our III, construction ofArticle that real- ity; gives III, full effect to Article permits public’s 1; business to continue until political impasse express opinion the what the is resolved. We no about

parties might required be to do toward that end or might proceeding quo what issues be relevant in a other than warranto.8 quo

We reiterate that this case is decided under war answering only question usurps ranto, whether Powell quo remedy his office. A writ warranto, 30.510, ORS sought provided by per here, is statute for the removal of a public unlawfully. son who holds office State ex rel Boe v. Straub, 282 387, 390, Or Here, Powell may not serve the new term because he was not confirmed on reappointment. lawfully However, incumbent, as the Powell holds over as a commissioner of the Port of Portland under authority provision, of the constitutional holdover appointed section until a successor is and confirmed.

Affirmed. dissenting. EDMONDS, J., determinative issue this case is whether the people Oregon appointments of the State of intended that reappointments by gover- to state officemade nor would become to confirmation the senate when they enacted Article section ofthe Constitution note, however, We do the Senate is not without alternatives. ORS 171.565(1), example, provides, part: for Senate,

“If an is not confirmed the Governor shall make *15 appointment, subject by another to confirmation the Senate.” they did, as an initiative measure in authority, If 1978. we have no statutory, constitutional or to do other than declare and honor their intent. The intent theof measure on its face could not be more clear. That intent is further con- history underlying firmed when the the measure is exam- III, ined. Article was intended to amend Article Oregon by repealing section of the Constitution, section l’s provision apply holdover to the extent it would otherwise reappointments subject to senate confirmation. majority contrary

The a reaches conclusion as the result of its resort to a maxim of constitutional construction determining by in lieu of the usual means. That the intent of Article III,

methodology is flawed because it uses principle probable intended to aid courts to discern the unnecessary intent of a constitutional when it is majority’s analysis this case. The result of the is that the ini- process people by tiative reserved to the IV, section 1 (21(a)1 effectively well-recognized is nullified and the doctrine repeal by implication longer efficacy of amendment or no has Oregon jurisprudence, even when it is clear that amend- by ment was intended the electorate. provides, pertinent part: “(1) Legislative Assembly in the provided manner

by may require law appointments that all and reappoint- ments to state office made the Governor shall be subject to confirmation the Senate.

“(2) The appointee eligible shall not be to serve until confirmed in the required by manner law and if not con- firmed in manner, eligible shall not be to serve in the public office.” majority agree “appointee”

The 4 and I that the word in newly appointees. refers to incumbents and named It fol- governor’s appointee, defendant, lows that its as the provisions. (2)(a) provides: Section 1 people power,

“The propose reserve to themselves the initiative which is to reject laws and amendments to the Constitution and enact or them at an elec- independently Legislative Assembly.” tion of the Constitution, *16 provides: officers, except Legislative Assembly

“All members of the defeated, who seek reelection and are shall incumbents elected, hold their offices until their successors are qualified.”

Section officers as well as elected offi- applies appointed in at the time that the enacted people cers and was existence III, Article 4. section

The resolution of the issue is determined ascer- the intent of the voters in 1978 the contin- taining regarding XV, 1, Article enacted Arti- uing validity they of section when III, cle section 4.

“In interpreting provision adopted through a constitutional process, the initiative our task is to discern the intent ofthe voters. The best evidence of the voter’s intent is the text of the provision language itself. The context ofthe ofthe ballot considered; however, may measure also be if the intent is pro- clear based on the text and context of the constitutional vision, Roseburg the court does not look further.” School 374, 378, City Roseburg, Dist. v. 316 Or of (citations (1993) omitted). and footnotes XV, 1, provision providing of Article section for vacancy the hold over incumbent when a appointed III, occurs is inconsistent with the of Article clearly provision 4, section expressly “[t]he which provides appointee confirmed shall not be in eligible to serve until the manner manner, law and if in that provided by not confirmed shall not be to serve in the the failure eligible public Only office.” III, 4, XV, Article section amend Article section expressly 1, any for debate. The seizes on provides ground majority that omission. It says, plaintiffs interpretation,

“[u]nder whenever confirmation is denied, III, 4, vacancy, Article section creates a and Article 1, pre- purpose section is without effect because its is to vent vacancies when a officecannot filled. be “However, III, 4, says nothing about cre- Thus, 1, ating if as vacancies. it amends Article entirely by plaintiffs urge, that implication, it does so a doctrine * * * By amending Oregon. is disfavored plaintiffs’ III, interpretation of Article give every would not effect ‘to part every word a Con- ” stitution.’ App 171 Or at 99 (emphasis original; cita- omitted). tions Guzek, In State v. 266-68, 906 P2d 272 (1995), rejected argument the court that the voters had (1985) by implication intended to amend ORS 163.150 before attempted majority it to harmonize two Here, statutes. principle uses a of constitutional construction lieu of inter- preting considering the voters’ intent and before whether they repeal majority’s explanation intended to section 4. The understanding says nothing for its creating is that “section 4 about App argu-

vacancies.” 1710r at 99. However, that begs question. ment If Article section was intended to amend the holdover as applied appointees, necessarily, it was intended to create *17 giv- vacancies when no confirmation occurred. That maxim of ing possible every every effect part where word and of a constitutional is a maxim to aid the court in deter- mining meaning. probable language disputed intent of that has a give The maxim, which is intended to effect to all language presupposes in provi- the constitution, that both sions are intended to be included the constitution at the play same time. Thus, the maxim can no role in the situation interpret where the issue is not to both so as to give meaning, both original but to ascertain whether the lan- guage provision.2 repealed by was intended the voters to be the new majority Oregon

Also, the cites Klamath Falls v. (1934) Liquor support Comm., 146 Or of its analysis. However, the court in Klamath Falls held that an repeal by implication initiative did the constitutional author- ity municipalities regulate of to control and the sale of alco- beverages, thereby making very holic use ofthe doctrine that 2 interpretation legislative intention, the context Supreme of Court language sufficiently has held that when “the of a statute is clear so as to reveal the legislature’s intent, unnecessary improper it is both to resort to such ‘rules’ or statutory Howser, Whipple 475, 487, ‘maxims’ of construction.” v. 291 Or 632 P2d (1981). Simplistic applications 782 statutory interpretation may of the maxims of decision, they specific be useful tool for analysis but do not substitute for in the first 5, 9, Wagner, instance.” v. State 786 P2d cert den 498 US 111 S Ct 212, 112 L Ed 2d 171

102 denigrates majority its maxim of consti- in deference to City interpretation. stands for Klamath Falls tutional proposition implied amendment is alive that the doctrine necessary jurisprudence Oregon it when and well carry of the voters. out the intent from the is not clear if the intent of voters Even measure, resort to max we need not text and context of to ascertain the voters’ construction ims of constitutional Supreme in Ecumenical Court stated intent. As the Lottery Comm., 551, 559-60 Or Ministries v. State (1994), understanding public’s of a 8,n P2d 106 avail from materials that were is to be ascertained measure voting adoption. In on the the time of its able to the voters at following adoption had the the voters of Article appeared title as follows: them. The ballot materials before TITLE BALLOT person Explanation statement, “A included the

The official approved approved if could not and not could not serve until *18 serve at all.” 3 411, 416-17, Pearce, correctly majority 314 Or cites Priest v. The (1992) interpretation (holding three levels at which constitutional that there are law; provision). context; history underlying the Mistak occurs: text and enly, case dealing with the principle without to a of constitutional construction it resorts III, 4, See also history Ecumenical Ministries instructs. as (2000). 38, 57, 11 authority Inc., its Meyer, As for Or P3d 228 v.Fred 331

Stranahan 163,177,269 Lonergan, P2d methodology, it exrel Gladden v. relies on State quotation majority Lonergan language is a which the relies in The on 491 template purport constitutional establish a for It does not from 11 Am Jur 665. interpretation.

103 evaluating import materials, of these we apply analysis the same method of that we use to ascertain legislature interpret the intent of the when we a statute. usage given plain, Words of common are their natural and ordinary meaning. Ministries, Ecumenical 318 Or at 560. history III, There are three 4, words Article section and its ordinary meanings important whose are to the issue before They “appointments,” “reappointments,” are, us. “appointees.” According to Webster’sThird NewInternational 1993), Dictionary, (unabridged “appoint 105 ed the word “designation person ment” includes the of a to hold a nonelec perform “appointee” tive officeor a function.” The word refers (as office).” appointed “reap to “onethat is to an Id. The word pointment” appointment.” connotes a “second or fresh Id. at 4 ordinary meanings “appointment,” 1891. The words, “reappointment,” “appointee” III, language create an obvious conflict with the section when it is of Article given ordinary meaning. its Section plainly requires except legis that all officers members of the assembly lative and incumbents “shall hold their officesuntil qualified.” their successors are elected and Before the enact appointed public ment III, of Article officers had a qualified right to serve until their successors were confirmed place to take their under Article section l.5 Under the III, later-enacted Article section those officerswhose reappointments depend eligi on senate confirmation are not ble to continue to serve until confirmation occurs. The two constitutional are in conflict, irreconcilable but easily by viewing subsequent that conflict is resolved impliedly amending amendment as the earlier constitutional provision. person reappointed If a posited who is is not to confirmation as defendant, “reappoint then there would have been no need to have used the word “ 4(1). “appointments ments” in in addition to the word in Article The 4(1) “appointment” only

word in section would have been the word needed. 4(1) panel’s analysis “reappointments” meaningless. renders the word in section It (2) “appointee” appointments follows that the word in section refer to must initial reappointments. and to majority indicates, resignation As the there are circumstances such as or the felony commission of a obviously to which the holdover of Article apply. does not *19 104 sup- implied argument amendment is an for

The by language title and the ported explanatory 4, its ballot of section the by Pamphlet, and also in the Voters’

statement adopted. In was the measure under which the circumstances legislature 20 to Joint Resolution referred Senate 1977, the general appeared 1978 on the November voters, and it the legislature after the measure referred election ballot. authority challenged theof the McCall and Straub Governors notwithstanding reject appointments, a cen- their Senate requirement tury history of confirmation the of senate Atty Op gubernatorial appointees. 608 Gen certain prompted precise was described the resolution issue that The by Attorney Redden: General recently by action of again more

“The issue was raised rejecting confir- Appointments on the Senate Committee the Board of appointee to of Governor Straub’s mation Asserting Home Administrators. Nursing Examiners of Const, violated Or. of confirmation requirement take Ill, appointee sec. the Governor directed art. subsequently A mandamus suit was and he did so. office make the Governor to require Court to Supreme filed the writ without The court dismissed appointment. a new it question, grounds on considering the constitutional quo nature of war- an action in the have been filed as should rantor 20, proposing

“Meanwhile, passed SJR legislature provision relating to confirma- a constitutional adoption of people tion, approved it was and November II Constitution.” 4 Article as a new section Id. at 609. by implication implied is amendment

The doctrine of applied recognized constitutional when two rule oflaw to be It is a doctrine are in irreconcilable conflict.6 existing people’s an intent to amend should be used when clear, from the above-described constitutional Pamphlet explanation in the Voters’ materials. As the official person until not serve 1978, “A could told the voters in public govern officials and elected continues appointments to senate are not officers whose of those confirmation. approved approved if not could not serve at all.” Defen- appointee approved dant Powell is an who has not been for a plainly new term the senate, and applies overwhelming to him. In the face of the evidence people’s majority about the intent, the errs rules, when it authority, implied without citation to that the doctrine of trumped by inapplicable amendment is rule of constitu- tional construction.

For these reasons, I dissent. joins

Landau, J., in this dissent.