Clackamas County, Office of County Counsel
Myles E. Ward; Interim County Counsel
(& others) assistants
(906 Main Street, Oregon City, OR 97045)
((503) 655-8362, Fax 650-8925)
TO: Commissioner Larry Sowa
FROM: Office of County Counsel
DATE: January 4, 2000
RE: Questions posed by Charles B. Stewart regarding the existence of a "County Court" and "County Judge" in Clackamas County

            Recently, a number of questions have arisen concerning the historical roots of the Board of County Commissioners under Oregon statutes and canty Commissioners under Oregon statutes and case law. It has been suggested by Charles B. Stewart that the Board of County Commissioners is actually a "County Court" composed of three "County Judges" who could decide to exercise judicial powers and take jurisdiction over both civil and criminal cases. Mr Stewar(t) relies in large part on the provisions of Article 7, section 12 of the Oregon Constitution. It states:
           "Section 12. Jurisdiction of county courtsof county courts; county commissioners. The County Court shall have the jurisdiction pertaining to Probate Courts, and boards of County Commissioners, and such other powers, and duties, and such civil Jurisdiction, not exceeding the amount or value of five hundred dollars, and such criminal jurisdiction not extending to death or imprisonment in the penitentiary, as may be prescribed by law. But the Legislative Assembly may provide for the election of Two Commissioners to sit with the County Juhe County Judge whilst transacting County business, in any, or all of the Counties, or may provide a seperate (sic) board for transacting such business."

            Mr Stewart interprets this provision as creating at least one County Judge in Clackamas County which he believes the legislature is prevented from changing. He contends that the offices of County Judge and County Court exist today in Clackamas County. He does not suggest, howsuggest, however, which of the three current Commissioners is the County Judge, and apparently concludes that all three Commissioners are Judges, capable of convening as a County Court with the power to render judicial decisions in private civil disputes as well as in criminal cases. These conclusions are not well founded, and are directly contrary to decisions of the Oregon Supreme Court. Accordingly, our office believes there is no validity to Mr Stewart's arguments.

   &nbnbsp;          In 1901 the Oregon Supreme Court considered a legal challenge to an act of the legislature that repealed earlier legislation creating a three member Board of Commissioners for Multnomah County. The new legislation replaced the Board with a County Court and Judge. One of the incumbent Commissioners refused to relinquish his office, and a civil action (quo warranto) challenging his authority was filed in Circuit Court. The Supreme Court relme Court relied on the clear language of Article 7, Section 12, which gave the Legislature the authority to decide which of the three models should be authorized in each county. Those three options are: a County Judge, a County Judge and two Commissioners, or a Board of County Commissioners. The Court heald since the Constitution specifically authorized the legislature to decide which form should exist in each county, once the Legislature acted there could be no disagreement. And nothing preve nothing prevented the Legislature from deciding to change the form of County Government, so long as it replaced the existing body with one of the other two authorized in Article 7 Section 12. The case that reached this conclusion was State ex rel Cake v. Steele, 39 Or. 419 (1901).

            The next case is State ex inf. Evans, District Attorney v. Holman, 73 Or. 18 (1914). It arose from a 1913 act of the Legislature that abolished the abolished the office of County Judge in Multnomah County and replaced it with that of a third County Commissioner to govern as part of a Board of County Commissioners. This case is the reverse of State ex rel Cake v. Steele. The Supreme Court again relied on the express grant of Legislative power in Article 7, Section 12 for the determination of county governance, and upheld the abolishment of the office of County Judge.

            Innbsp;  In 1959 (Chapter 174, Oregon Laws 1959) the legislature abolished the office of County Judge in Clackamas County and transferred all duties of the County Court and County Judge to the Board of County Commissioners of Clackamas County. ORS 3.130 provides that all judicial jurisdiction, authority, powers, functions and duties of the county court and the judges thereof, in Clackamas County is transferred to the Circuit Court and the judges thereof, except those functions, powers and dutiers and duties exercisable in the transaction of county business. This statute is consistent with longstanding legal authority which recognizes that while a county court is both a legislative and judicial organ of government, its work is predominantly legislative and its judicial powers and duties constituted a relatively small part of its function. Ray v. Davis, 249 Or. 1 (1968).

            Mr Stewart also relies on the case of State ease of State ex rel Madden v. Crawford, 207 Or. 76 (1956). In that case a challenge was made to a statute which allowed a circuit judge to be designated by the Supreme Court to sit temporarily on that Court. The Court upheld that challenge and disqualified circuit judges from sitting as Supreme Court justices on the basis that Article 7, Section 1 of the Oregon Constitution provided for the election of judges of the Supreme Court, and did not allow for temporary appointments. Since the Constitut the Constitution made no such provision, the Legislature could not enact a statute that purported to allow for temporary assignments of circuit judges to the Supreme Court. This case has no apparent relation to the issues involved in the question of whether a County Judge or County Court exists in Clackamas County. Unlike the situation with Supreme Court Justices in the Madden case, Article 7, Section 12 expressly grants to the legislature the power to decide which of three designated forms of go forms of government will exist in a particular county. This is the exact interpretation that has been given to that provision by the Supreme Court of Oregon in at least two cases. No reported decision in Oregon supports Mr Stewart's reading of Article 7 Section 12.

            I am attaching copies of all of the cases and statutes that are referred to in this memorandum. I hope that this research will give you a basis upon which to r upon which to review and consider the arguments that have been submitted to you by Mr Stewart. If you would like any additional research, or further briefing of any of the legal issues involved, please let me know.

Thank you

Miles Ward
Asistant County Counsel dy>