State ex rel Rosenblum v. Nisley

78

Submitted on the briefs July 10, judgment to issue that respondent currently

holds the office of Wasco County District Attorney September 24, 2020

STATE ex rel Ellen ROSENBLUM,

Attorney General of Oregon,

Petitioner,

v.

ERIC NISLEY,

Respondent.

(SC S067690)

473 P3d 46

The state, on behalf of the Attorney General, filed a petition for writ of quo

warranto, asking this court to determine whether the office of Wasco County

District Attorney became vacant when respondent, the office holder, was tempo-

rarily suspended from the practice of law for an ethics violation. Held: The brief

interruption in respondent’s ability to practice law did not cause him to “cease[ ]

to possess” a qualification for the office of Wasco County District Attorney within

the meaning of that phrase in the vacancy statute, ORS 236.010(1)(g); therefore,

the office did not become vacant and respondent remains the rightful holder of

that office until the expiration of his term of office.

Judgment to issue that respondent currently holds the office of Wasco County

District Attorney.

En Banc

On petition for writ of quo warranto.

Paul L. Smith, Assistant Attorney General, Salem, sub-

mitted 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.

Judgment to issue that respondent currently holds the

office of Wasco County District Attorney.

Cite as 367 Or 78 (2020) 79

FLYNN, J.

This court has agreed to exercise its original juris-

diction 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 P3d 529 (2019).

Following that decision, the Attorney General’s

office advised the Governor that respondent’s impending sus-

pension 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

1

ORS 180.070 permits the Attorney General, when directed by the Governor,

to take full charge of investigations and prosecutions over which the circuit court

has jurisdiction.

80 State ex rel Rosenblum v. Nisley

Meanwhile, respondent’s lawyer sent a letter urg-

ing the Attorney General to permit respondent to continue

serving as District Attorney during the period of his sus-

pension, 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 pro-

ceedings. 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

Cite as 367 Or 78 (2020) 81

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 P2d 174 (1956) (explaining that the “enact-

ment is the statutory equivalent of the common-law writ of

quo warranto”). But we generally still refer to an action com-

menced 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 ques-

tion 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

2

The writ of quo warranto has been abolished since at least 1854—before

the adoption of the constitution. See Statutes of Oregon, An Act Regulating

Proceedings to Vacate Charters and Letters Patent, and to Prevent the

Usurpation of an Office or Franchise, ch I, § 1, p 139 (1854) (“That the * * * writ

of quo warranto, and proceedings by information in the nature of quo warranto

are abolished, and the remedies heretofore obtainable under those forms may be

obtained by actions at law under the provisions of this chapter.”).

3

Strictly speaking, the procedure specified in ORS 30.510 may not describe

the petition that the Attorney General has filed here, because it is the Attorney

General’s designee—not respondent—who currently occupies the office of Wasco

County District Attorney. But respondent maintains that he is the lawful holder

of the office, and the Attorney General’s challenge to that claim is substantively

indistinguishable from the type of dispute that ORS 30.510(1) contemplates.

82 State ex rel Rosenblum v. Nisley

listed in ORS 236.010, the only potentially applicable circum-

stance is paragraph (1)(g) of that statute, which provides:

“(1) An office shall become vacant before the expira-

tion of the term if:

“* * * * *

“(g) The incumbent ceases to possess any other quali-

fication required for election or appointment to such office.”

According to the Attorney General, active member-

ship 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

P2d 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 suit-

able person to fill the vacancy until the next election[.]”).

Respondent offers alternative reasons for conclud-

ing that the office of Wasco County District Attorney did not

become vacant and that he, therefore, remains the lawful

4

This court in Fehl, 177 Or at 211, considered section 81-2003 of the Oregon

Compiled Laws Annotated, which provided:

“Every office shall become vacant on the occurring of either of the follow-

ing events before the expiration of the term of such office:

“(1) The death of the incumbent.

“(2) His resignation.

“(3) His removal.

“(4) His ceasing to be an inhabitant of the district, county, city, town or

village for which he shall have been elected or appointed, or within which the

duties of his office are required to be discharged.

“(5) His conviction of any infamous crime, or of any offense involving a

violation of his oath.

“(6) His refusal or neglect to take his oath of office, or to give or renew

his official bond, or to deposit such oath or bond within the time prescribed

by law.

“(7) The decision of a competent tribunal declaring void his election or

appointment.”

Cite as 367 Or 78 (2020) 83

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 sus-

pended from practicing law. As explained below, we reject

respondent’s contention that maintaining an active bar mem-

bership 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 qual-

ifications, have the powers, perform the duties and be sub-

ject to the restrictions provided by the Constitution for pros-

ecuting attorneys, and by the laws of this state.”

ORS 8.630. Both parties focus primarily on the first sen-

tence of that statute and offer competing grammatical

analyses of whether the text refers to a continuing require-

ment 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 P2d 1143 (1993), and

modified in State v. Gaines, 346 Or 160, 206 P3d 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 (internal

quotation marks omitted).

The Attorney General understands the first sen-

tence of ORS 8.630 to impose a continuing requirement of

84 State ex rel Rosenblum v. Nisley

“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 require-

ment 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 practice law in this

state * * * unless the person is an active member of the

Oregon State Bar.”); In re Jaffe, 331 Or 398, 401, 15 P3d 533

(2000) (a person who has been suspended from the practice

of law is not an active member of the Bar during the period

of suspension). Therefore, the Attorney General concludes,

respondent ceased to possess a qualification for the office of

district attorney when he was suspended from the practice

of law, which rendered the office vacant until a successor

can be elected or appointed.

Respondent counters that the grammatical con-

struction of the sentence refers to a circumstance—admission

to practice—that must have occurred in the past and

does not require district attorneys to maintain an active

bar membership once elected to office. Thus, according to

respondent, he meets that qualification because he “had

been admitted” to the Oregon State Bar “at the time of elec-

tion” in 2016 and did not lose that qualification when he was

briefly suspended.

While respondent may be correct that the first

sentence of ORS 8.630 is susceptible to the interpretation

that he proposes, his argument misses the mark. His focus

on the phrase “at the time of election” in the first sentence

overlooks the broader context of ORS 8.630 as a whole—

in particular the second sentence, which specifies that

“[d]istrict attorneys shall possess the qualifications, have

the powers, [and] perform the duties” specified for prose-

cuting attorneys “by the laws of this state.” That sentence

describes requirements that are not temporally limited to

“the time of election.” Moreover, the sentence directs us to

look to the duties that the legislature has required district

attorneys to perform, many of which require the practice of

law in Oregon courts that can be performed only by active

members of the Oregon State Bar. That context demon-

strates the legislature’s understanding and intention that

Cite as 367 Or 78 (2020) 85

district attorneys must possess an active membership in the

Oregon State Bar as a qualification for continuing to hold

their office.

District attorneys in Oregon are state officers. State

v. Clark, 291 Or 231, 245, 630 P2d 810, cert den, 454 US 1084

(1981). Those state officers previously were known as “pros-

ecuting attorneys,” who were “elected by districts.” Their

status was initially enshrined in the Oregon Constitution,

which until 1910 provided—as ORS 8.630 now provides—

that those state officials would “perform such duties * * * as

the Legislative Assembly may direct.” Oregon Constitution,

Article VII (Original), section 17.5 From the outset, the duties

that the Legislative Assembly has specified for district attor-

neys have included numerous tasks that required the office

holder to practice law in Oregon courts. For example, under

current law, district attorneys “shall * * * conduct, on behalf

of the state, all prosecutions” of “public offenses within the

district attorney’s county,” ORS 8.660; “shall prosecute” all

citations “if it appears that a violation has occurred,” ORS

8.665; shall, in cases of penalties and forfeitures, “prosecute

or defend all actions, suits and proceedings in the county

to which the state is a party,” ORS 8.680; and “shall, upon

request of the juvenile court, appear in the juvenile court to

assist the court in any matter within its jurisdiction,” ORS

8.685. Some of the statutes currently specifying the duties of

a district attorney are essentially identical to statutes that

have been in effect since at least 1901. See The Codes and

Statutes of Oregon, title XIV, ch I, § 992 (Bellinger & Cotton

1901) (district attorneys “shall * * * conduct, on behalf of the

state, all prosecutions” of “public offenses within” the dis-

trict); id., § 994 (in cases of penalties and forfeitures, district

attorneys shall “prosecute or defend, as the case may be,

5

The original Article VII of the Oregon Constitution, section 17, provided:

“There shall be elected by districts comprised of one, or more counties, a

sufficient number of prosecuting Attorneys, who shall be the law officers of

the State, and of the counties within their respective districts, and shall per-

form such duties pertaining to the administration of Law, and general police

as the Legislative Assembly may direct.”

Long before Oregon voters removed that constitutional provision, the legislature

specified as a matter of statute that there would be an elected “district attorney”

for each judicial district. The Codes and General Laws of Oregon, ch VII, title IV,

§ 2301 (Hill 1887).

86 State ex rel Rosenblum v. Nisley

all actions, suits, or proceedings in any county in his dis-

trict to which the state or such county may be a party”). A

common thread running through all of those duties is that

they require the district attorney to practice law in Oregon.

And since 1935, the qualification that a person must pos-

sess to practice law in Oregon has been active membership

in the Oregon State Bar. ORS 9.160; Oregon Code (1930),

Supplement of 1935, title XXXII, ch I, § 32-132.6 Thus, when

the legislature codified the current version of ORS 8.630—

requiring that district attorneys must “possess the quali-

fications” and “perform the duties” provided by the laws of

this state—it did so in the context of statutory duties that

can only be performed by a person with an active member-

ship in the Oregon State Bar.7

Respondent acknowledges that district attorneys

are statutorily required to perform duties that require

the ability to practice law, and he recognizes that active

6

As originally adopted, the statutory requirement of state bar membership

specified that:

“No person shall practice law in this state subsequent to December 31, 1935,

unless he shall be an active member of the state bar[.]”

Oregon Code (1930), Supplement of 1935, title XXXII, ch I, § 32-132. The 1937

Legislative Assembly added the prohibition that those without an active bar

membership also may not represent themselves as qualified to practice law in

Oregon:

“[I]t shall be unlawful for any person to practice law or to represent himself

as qualified to practice law after the taking effect of this act, unless he shall

be an active member of the Oregon state bar[.]”

Or Laws 1937, ch 343, § 1.

7

Apart from a few commas and the removal of gender-limiting pronouns,

the current version of ORS 8.630 is identical to the statute that the legislature

codified in the Oregon Revised Statutes in 1953:

“A person elected district attorney must at the time of his 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 attor-

neys, and by the laws of this state.”

ORS 8.630 (1953).

The second sentence of ORS 8.630 is virtually identical to a statute that the

legislature enacted in 1913, which provided, that district attorneys:

“shall possess the same qualifications, have the same powers, perform the

same duties and be subject to the same restrictions as are now provided by

the constitution and laws of this State relating to prosecuting and District

Attorneys.”

General Laws of Oregon (1913), ch 343, § 4.

Cite as 367 Or 78 (2020) 87

membership in the Oregon State Bar is required for the

practice of law in this state “as a general matter.” He never-

theless posits that the legislature may have intended to

exempt district attorneys from that requirement as a “pol-

icy choice.” According to respondent, “[t]he legislature might

just as well have intended that a district attorney is autho-

rized to appear in court without being an active member

of the Oregon State Bar because he or she is the district

attorney.”

But statutory construction requires more than

speculation, and the only support that respondent offers

for his supposition is an inference from legislative inaction.

Respondent contrasts the legislature’s failure to expressly

specify that district attorneys must maintain an active bar

membership with later-enacted statutes in which the legis-

lature has expressly specified that continuing bar member-

ship is a requirement for holding certain offices of a judicial

nature. See ORS 3.050 (requiring circuit court judges to be

“a member of the Oregon State Bar,” as amended in 1961, Or

Laws 1961, ch 724, § 3); ORS 2.540(2) (requiring judges of

the Court of Appeals “to be admitted to the practice of law

in this state,” adopted in 1969, Or Laws 1969, ch 198, § 4);

ORS 51.240(1)(e)(A) (requiring justices of the peace to be “a

member of the Oregon State Bar,” as amended in 2015, Or

Laws 2015, ch 570, § 6); ORS 221.142(1)(a) (requiring munic-

ipal court judges to be “a member of the Oregon State Bar,”

as amended in 2015, Or Laws 2015, ch 570, § 8). According to

respondent, the legislature’s failure to make a “correspond-

ing change” to ORS 8.630 at any point since 1953 should be

viewed as a “policy choice” that district attorneys need not

maintain active bar membership after the time of election.

Respondent’s negative-inference argument is unper-

suasive. First, as we have repeatedly emphasized, “negative

inferences” from the legislature’s failure to amend a statute

“are often unhelpful in statutory interpretation,” because

“legislative inaction can stem from a variety of causes, which

may or may not relate to the legislature’s intent as to a partic-

ular issue.” Lake Oswego Preservation Society v. City of Lake

Oswego, 360 Or 115, 129, 379 P3d 462 (2016). Moreover, the

lack of an explicit amendment to the requirements for hold-

ing a district attorney office is irrelevant. Whether directly

88 State ex rel Rosenblum v. Nisley

through ORS 8.630 or indirectly through other statutes, the

legislature has required active membership in the Oregon

State Bar as a qualification for performing the duties that

it requires district attorneys to perform—duties that, as

respondent acknowledges, involve practicing law in this

state. See ORS 9.160(1) (“[A] person may not practice law in

this state * * * unless the person is an active member of the

Oregon State Bar.”). Nothing more is required for the legis-

lature to demonstrate its intention that district attorneys

must possess the qualification of an active bar membership

during the term of office. We, therefore, reject respondent’s

argument that an active membership in the Oregon State

Bar is not a qualification required for serving as an Oregon

district attorney.

2. The meaning of “ceases to possess”

We are more persuaded, however, by respondent’s

alternative argument—that his brief suspension from the

practice of law did not create a vacancy in the office of Wasco

County District Attorney. As set out above, ORS 236.010(1)(g)

provides that an office becomes vacant before the expiration

of a term when, as pertinent here, “[t]he incumbent ceases

to possess any other qualification required for election or

appointment to such office.” (Emphasis added.) According

to the Attorney General, respondent “ceased” to possess a

required qualification for election to the office of district

attorney—active Bar membership—when his 60-day sus-

pension began, and the office thus became vacant by opera-

tion of law. But respondent contends that “ceases” requires

a change of circumstance that is more permanent than his

brief suspension.

Resolution of this dispute boils down to what the

legislature intended by the phrase “ceases to possess” in

ORS 236.010(1)(g). Again, that presents a question that

we resolve under the statutory-construction framework in

Gaines, looking primarily to the text and context. 346 Or at

171. Because the word “ceases” is a term of common usage

and is not specially defined for purposes of the statute, we

assume that the legislature intended to use the term in a

manner consistent with its plain, natural, and ordinary

meaning. See Kinzua Resources v. DEQ, 366 Or 674, 681,

Cite as 367 Or 78 (2020) 89

468 P3d 410 (2020) (“[W]e generally assume that the legis-

lature intended to use the term in a manner consistent with

its plain, natural, and ordinary meaning, and we often con-

sult dictionaries for guidance in determining what the leg-

islature would have understood a term to mean.” (Internal

quotation marks omitted.)). Dictionary definitions suggest

that the ordinary meaning of “cease” imports a degree of

finality to the condition or activity that is “ceasing,” support-

ing respondent’s proposed construction. See Webster’s Third

New Int’l Dictionary 358 (unabridged ed 2002) (defining the

word “cease” as “to leave off : bring to an end : discontinue,

terminate”).

Respondent argues that the legislature’s intention

to give “ceases” its ordinary meaning in ORS 236.010(1)(g)

is demonstrated by the context of the other provisions in the

same statute. In its entirety, ORS 236.010(1) provides:

“An office shall become vacant before the expiration of

the term if:

“(a) The incumbent dies, resigns or is removed.

“(b) The incumbent ceases to be an inhabitant of the

district, county or city for which the incumbent was elected

or appointed, or within which the duties of the office of the

incumbent are required to be discharged.

“(c) The incumbent is convicted of an infamous crime,

or any offense involving the violation of the oath of the

incumbent.

“(d) The incumbent refuses or neglects to take the oath

of office, or to give or renew the official bond of the incum-

bent, or to deposit such oath or bond within the time pre-

scribed by law.

“(e) The election or appointment of the incumbent is

declared void by a competent tribunal.

“(f) The incumbent is found to be a person with a men-

tal illness by the decision of a competent tribunal.

“(g) The incumbent ceases to possess any other quali-

fication required for election or appointment to such office.

“(h) Appointment of the incumbent is subject to Senate

confirmation under section 4, Article III of the Oregon

Constitution, and the appointment is not confirmed.”

90 State ex rel Rosenblum v. Nisley

As respondent points out, the statute consists primarily of

a list of specific circumstances that will create a vacancy

in public office. In contrast, the reference in paragraph (g)

to the office holder ceasing to possess “any other qualifica-

tion” suggests that paragraph (g) is a catch-all provision,

intended to cover situations that are not covered by the

other provisions.

Given that structure, respondent urges us to employ

the principle of ejusdem generis to ORS 236.010(1) and con-

clude that the legislature intended the phrase “ceases to pos-

sess any other qualification” to describe a more significant

event than his brief suspension for a disciplinary violation.

Under the interpretive principle of ejusdem generis, “ ‘a non-

specific or general phrase that appears at the end of a list

of items in a statute is to be read as referring only to other

items of the same kind.’ ” McLaughlin v. Wilson, 365 Or 535,

551, 449 P3d 492 (2019) (quoting Vannatta v. Keisling, 324

Or 514, 533, 931 P2d 770 (1997), overruled on other grounds

by Multnomah County v. Mehrwein, 366 Or 295, 462 P3d 706

(2020)).8

We agree with respondent that the structure of the

statute as a whole suggests that the legislature intended

the other circumstances listed in ORS 236.010(1) to describe

more specific situations in which an office holder “ceases to

possess” a qualification for the office. However, the other cir-

cumstances are not as helpful as respondent suggests to our

understanding of the meaning of the word “ceases” in ORS

236.010(1)(g).

As noted above, the legislature added the catch-all

provision of paragraph (g) in 1969. Or Laws 1969, ch 669,

§ 3. With the exception of paragraphs (g) and (h), the pro-

visions contained in ORS 236.010(1) date to an act adopted

8

As this court’s statement in McLaughlin, 365 Or at 551, suggests, gen-

eral catch-all provisions normally appear at the end of a list of specific items.

That is, in fact, how ORS 236.010(1) appeared when paragraph (g) was origi-

nally enacted. Or Laws 1969, ch 669, § 3. At that time, ORS 236.010(1) listed

only seven circumstances creating a vacancy, with paragraph (g) being the last.

ORS 236.010(1) (1969). The final paragraph (h), dealing with the situation in

which an appointee is subject to Senate confirmation under Article III, section 4,

of the Oregon Constitution was added a decade later. Or Laws 1979, ch 351,

§ 3.

Cite as 367 Or 78 (2020) 91

in 1870. Fehl, 177 Or at 205-06. We explained in Fehl that,

“[m]anifestly, the 1870 act was not penal in nature”; rather

“[i]ts purpose was the proper administration of the pub-

lic business.” Id. at 206.9 Some of the paragraphs in ORS

236.010(1) describe events that would disqualify the per-

son from validly taking office in the first place: failure to

take the required oath or post the required bond within

the time allowed, failure to obtain Senate confirmation for

an appointment, or voiding of the election. ORS 236.010

(1)(d), (e), (h). Others describe events that will disqualify

an office holder from completing the term of office: death,

resignation, or recall; or conviction of an infamous crime.

ORS 236.010(1)(a), (c). Each of those circumstance results

in an enduring change in the office holder’s status that

would preclude the “proper administration of the public

business.”

However, the determination when an incumbent

“ceases” to reside in the district, ORS 236.010(1)(b), or when

an incumbent “ceases” to possess a required qualification,

ORS 236.010(1)(g), necessarily is less clear cut. Depending

on the circumstances, a temporary relocation to a home out-

side the district or a temporary suspension from the practice

of law may or may not preclude the proper administration

of public business. Thus, we are unable to determine, from

the context of ORS 236.010(1) alone, whether the legislature

intended that even a temporary change in an office holder’s

qualifications would cause a vacancy in the office.

The context provided by other statutes, however,

persuades us that the legislature intended the phrase

“ceases to possess any other qualification” in ORS 236.010

(1)(g) to capture an event carrying a greater degree of per-

manence than respondent’s brief inability to practice law

in this case. First, we discern significance in the context of

what a vacancy means for a public office. As the Attorney

General’s position in this case reflects, events sufficient to

9

In discussing the circumstance of conviction for an “infamous crime,” the

court explained that the authors of the 1870 act simply “did not believe that the

public business should be transacted by any official against whom a judgment

was entered during his term of office, which found him guilty of an infamous

crime.” Id.

92 State ex rel Rosenblum v. Nisley

cause a vacancy in public office are events of sufficient sig-

nificance that the office holder must be replaced. That is the

result contemplated by both the constitution and the legis-

lature when there is a vacancy in public office. See Or Const,

Art V, § 16 (providing that the Governor shall fill vacancies

in state office “by appointment, which shall expire when

a successor has been elected and qualified”); 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 and qualification of a suc-

cessor at the next general election.”); ORS 236.210 (describ-

ing a similar process for a vacancy in most elective county

offices). Given that context, we understand the legislature

to have intended that circumstances capable of rendering a

public office vacant would be circumstances that change the

office holder’s status with a degree of permanence that is

sufficient to justify requiring the Governor to appoint a suc-

cessor for “the proper administration of the public business.”

Fehl, 177 Or at 206.

Second, and particular to the question of what cir-

cumstances will cause a district attorney to “cease[ ] to pos-

sess” a qualification for office, ORS 236.010(1)(g), we draw

significant guidance from statutes that permit district

attorney offices to continue the proper administration of the

public business despite limited interruptions of the office

holder’s ability to practice law. The first statute of signifi-

cance specifically contemplates that there can be gaps in

the district attorney’s ability to perform the duty of pros-

ecuting cases. That provision, which is currently codified

at ORS 8.710, specifies that, if “a district attorney fails to

attend any court at which the district attorney is required

to be” or is disqualified by an ethical conflict from prosecut-

ing a particular case, then “the court shall appoint a regu-

larly licensed and practicing attorney of this state * * * to

perform the duties of district attorney during the district

attorney’s absence or inability to serve.” In addition, respon-

dent emphasizes ORS 8.780, which directs district attorneys

to appoint deputies who will have the authority to perform

“the same functions as the district attorney.” Those statutes

indicate that the legislature would not have understood a

district attorney’s limited inability to practice law to be a

Cite as 367 Or 78 (2020) 93

change in status sufficient to trigger a vacancy under ORS

236.010(1)(g).10

The Attorney General, nevertheless, offers one con-

textual counter-argument that we briefly address. She points

to ORS 1.425(6), which provides that when the Supreme

Court suspends a judge from office, the suspension “does not

create a vacancy in the office of judge during the period of

suspension.” That provision was adopted in 1987 as part of a

more comprehensive act governing complaints that a judge

has a physical or mental disability that interferes with the

judge’s performance of judicial duties. Or Laws 1987, ch 520,

§ 3. By negative implication, the Attorney General contends,

the legislature’s failure to adopt a similarly explicit caveat

for suspended district attorneys indicates that the legisla-

ture intended the suspension of a district attorney from the

practice of law would create a vacancy in the office. Again,

we emphasize that such negative-inference arguments “are

often unhelpful in statutory interpretation,” because “leg-

islative inaction can stem from a variety of causes.” Lake

Oswego Preservation Society, 360 Or at 129. And we conclude

that the Attorney General’s argument is unhelpful, here. It

is possible that the legislature’s failure to adopt a similar

provision addressing district attorneys stems from an inten-

tional decision that a district attorney’s suspension from the

practice of law could give rise to a vacancy in the office. Given

the broader context that we have discussed above, however,

we are persuaded that the legislature did not intend that

every suspension of a district attorney’s ability to practice

law would create a vacancy in the office.

3. The significance of respondent’s suspension

Under the circumstances of this case, we conclude

that respondent’s 60-day suspension did not cause the office

10

Respondent illustrates the alternative to declaring a vacancy by citing

examples of other district attorneys who were suspended from the practice of

law during their terms of office but, as the Attorney General does not dispute,

continued to serve in those offices for some period of time. See In re Leonhardt,

324 Or 498, 504, 930 P2d 844 (1997) (Clatsop County District Attorney, sus-

pended before being disbarred); In re Glass, 308 Or 297, 779 P2d 612 (1989),

reh’g den, 309 Or 218, 784 P2d 1094 (1990) (Grant County District Attorney),

and In re Gustafson, 327 Or 636, 968 P2d 367 (1998) (Clackamas County District

Attorney).

94 State ex rel Rosenblum v. Nisley

of Wasco County District Attorney to become vacant. Our

conclusion depends in significant part on the nature of

respondent’s suspension. In disciplinary cases generally,

the potential sanction for an attorney who has violated the

rules of professional conduct range from a public reprimand

to disbarment and include a suspension as short as 30 days

or as long as five years. BR 6.1. Some suspended attorneys

must submit a formal application, or at least an informal

application, for reinstatement to active membership in

the Oregon State Bar. Both processes require affirmative

showings by the applicant and denial of reinstatement as

a potential outcome. See BR 8.1 (listing circumstances that

require a formal application for reinstatement and describ-

ing the process); BR 8.2 (listing circumstances that require

an informal application for reinstatement and describing

the process); BR 8.3 (specifying that court or Disciplinary

Board may direct in other circumstances that reinstatement

is not automatic). However, respondent’s right to be rein-

stated was not conditional, because he was suspended for

less than six months and because this court did not direct

otherwise in the suspension decision. BR 8.3; Nisley, 365 Or

at 818. For a suspension like respondent’s, the Bar rules of

procedure specify that the person “shall be reinstated” upon

the filing of a declaration that the lawyer complied with the

requirements of the suspension and the payment of a $250

fee. Id. (requiring reinstatement upon the filing of a com-

pliance declaration and payment of fee, “unless the court

or Disciplinary Board in any suspension order or decision

shall have directed otherwise”); BR 13.9 (describing the

Compliance Declaration filed to satisfy BR 8.3).11

Considering all of the circumstances, we conclude

that respondent’s suspension did not create a vacancy. We

emphasize: Respondent’s change of status with respect to

his ability to practice law was transient, because his right

to be reinstated to active membership in the Oregon State

Bar was assured, and the interruption of his ability to prac-

tice law was brief—not only in absolute duration but also in

relation to the range of potential disciplinary suspensions.

11

That right to reinstatement without an application is not available if the

person, although given a disciplinary suspension of less than six months, waits

more than six months to seek reinstatement. BR 8.1(a)(5).

Cite as 367 Or 78 (2020) 95

Moreover, respondent’s suspension was scheduled from the

outset to end many months before the expiration of his term

of office. Given the alternative mechanisms that the legis-

lature has provided to accommodate that kind of limited

interruption of a district attorney’s ability to perform the

duties of office, we are persuaded that respondent’s brief and

transient inability to practice law was not what the legis-

lature intended to describe with the phrase “ceases to pos-

sess” a qualification for holding office, within the meaning of

ORS 236.010(1)(g). Accordingly, the office of Wasco County

District Attorney did not become “vacant,” and respondent

remains the rightful holder of the office until the expiration

of his term of office.

Judgment to issue that respondent currently holds

the office of Wasco County District Attorney.