Oregon Measure 87: why a 1979 Oregon Supreme Court case on judges as part time teachers is on the 2014 ballot

Most state constitutions provide for one of two types of prohibition on judges activities outside of their judgeship:

  1. a prohibition on holding more than one governmental office (dual-office holding)
  2. a prohibition on getting any other salary, whether from federal/state/local government or the private sector, regardless of whether they hold an “office”. (dual-salary)

The first issue in Oregon’s Measure 87 are provisions of the state’s constitution that contend with both dual-office holding and dual-salary. Specifically, judges are presently prohibited from service in the National Guard, but may serve in the state militia (for free) and as post masters (if paid no more than $100). (Art. XV, Sec. 8)

No person holding a lucrative office, or appointment under the United States, or under this State, shall be eligible to a seat in the Legislative Assembly; nor shall any person hold more than one lucrative office at the same time, except as in this Constition [sic] expressly permitted; Provided, that Officers in the Militia, to which there is attached no annual salary, and the Office of Post Master, where the compensation does not exceed One Hundred Dollars per annum, shall not be deemed lucrative.

Also at play is a 1979 decision by the Oregon Supreme Court case of In re Sawyer (286 Ore. 369) that a judge who was regularly employed as a part-time teacher for pay by a state-funded college violated the state constitution’s separation of powers provision (Art. III, Sec. 1)

The powers of the Government shall be divided into three separate branches, the Legislative, the Executive, including the administrative, and the Judicial; and no person charged with official duties under one of these branches, shall exercise any of the functions of another, except as in this Constitution expressly provided.

In that instance, a complaint by the Commission on Judicial Fitness alleged Circuit Judge Loren Sawyer was acting in contradiction to Art. III, Sec. 1 since the school he taught at (Southern Oregon College) was a state-supported school under the executive branch.

The Oregon Supreme Court had 20 years prior to Sawyer held a state legislator could not both serve as a legislator and teach at a public school under the executive branch under Art. III, Sec. 1 (Monaghan v. School District No. 1211 Ore. 360 (1959)). After Monaghan an initiative petition in fact amended the state constitution to allow for legislator-teachers (now Art. XV, Sec. 8).

The supreme court in Sawyer extended the reasoning in Monaghan to Judge Sawyer and all judges until the constitution was amended in a similar fashion. (“Article III, § 1 has not itself been amended, however, so as to permit judges to serve as teachers.”) For the record, Judge Sawyer was given the option by the Supreme Court to either stop teaching or be suspended for his judgeship. Indications are he opted to stop the teaching and he continued to serve as a judge for decades thereafter.

A provision of Measure 87 would address both the judges-in-the-National-Guard question as well as judges-as-public-school-teachers question posed in Sawyer 35 years ago.

A person serving as a judge of any court of this state may be employed by the Oregon National Guard for the purpose of performing military service or may be employed by any public university as defined by law for the purpose of teaching, and the employment does not prevent the person from serving as a judge.

The only other state to carve out such a specific judges-may-teach exception is California. In 1988 voters approved Prop 94, allowing for part-time teaching judges (“except a judge of a court of record may accept a part-time teaching position that is outside the normal hours of his or her judicial position”.) That too was the result of a court decisions in the state (see description at page 64 here) that made a judge’s part-time teaching at a private college/university acceptable but teaching at a public school a constitutional violation.

Dual-office and dual-salary provisions for judges from all 50 states can be found below the fold.

State Dual-office/salary ban in constitution? Language
Alabama Yes (except Probate Court) Amendment 328, Section 6.08: “(a) No judge of any court of this state shall, during his continuance in office, engage in the practice of law or receive any remuneration for his judicial service except the salary and allowances authorized by law.
(b) No judge, except a judge of a probate court, shall seek or accept any nonjudicial elective office, or hold any other office of public trust, excepting service in the military forces of the state or federal governments.”
Alaska Yes (Supreme and Superior) Article IV, Section 14: “Supreme court justices and superior court judges while holding office may not practice law, hold office in a political party, or hold any other office or position of profit under the United States, the State, or its political subdivisions. Any supreme court justice or superior court judge filing for another elective public office forfeits his judicial position.”
Arizona Yes Article VI, Section 28: “Justices and judges of courts of record shall not be eligible for any other public office or for any other public employment during their term of office, except that they may assume another judicial office, and upon qualifying therefor, the office formerly held shall become vacant. No justice or judge of any court of record shall practice law during his continuance in office, nor shall he hold any office in a political party or actively take part in any political campaign other than his own for his reelection or retention in office. Any justice or judge who files nomination papers for an elective office, other than for judge of the superior court or a court of record inferior to the superior court in a county having a population of less than two hundred fifty thousand persons according to the most recent United States census, forfeits his judicial office. “
Arkansas Yes Article 19, Section 6: “No person shall hold or perform the duties of more than one office in the same department of the government at the same time, except as expressly directed or permitted by this Constitution.”
California Yes (Exception for part-time teaching position which is outside of normal hours of work) Article 6, Section 17: “A judge of a court of record may not practice law and during the term for which the judge was selected is ineligible for public employment or public office other than judicial employment or judicial office, except a judge of a court of record may accept a part-time teaching position that is outside the normal hours of his or her judicial position and that does not interfere with the regular performance of his or her judicial duties while holding office. A judge of a trial court of record may, however, become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy. Acceptance of the public office is a resignation from the office of judge. “
Colorado Yes Article 6, Section 18: “No justice or judge of a court of record shall accept designation or nomination for any public office other than judicial without first resigning from his judicial office, nor shall he hold at any other time any other public office during his term of office, nor hold office in any political party organization, nor contribute to or campaign for any political party or candidate for political office.”
Connecticut Yes (mentions only ban on serving in General Assembly) Article 3, Section 11: “No member of congress, no person holding any office under the authority of the United States and no person holding any office in the judicial or executive department of the state government or in the government of any county shall be a member of the General Assembly during his continuance in such office.”
Delaware Yes Article IV, Section 4: “The Justices of the Supreme Court, the Chancellor and the Vice-Chancellor or Vice-Chancellors, the President Judge and Associate Judges of the Superior Court, the Chief Judge and Associate Judges of the Family Court, the Chief Judge and Judges of the Court of Common Pleas and the Chief Magistrate of the Justice of the Peace Court shall respectively receive from the State for their services compensations which shall be fixed by law and paid monthly and they shall not receive any fees or perquisites in addition to their salaries fur business done by them except as provided by law. They shall hold no other office of profit.”
Florida Yes Article V, Section 13: “All justices and judges shall devote full time to their judicial duties. They shall not engage in the practice of law or hold office in any political party.”
Georgia No
Hawaii Yes Article VI, Section 3: “No justice or judge shall, during the term of office, engage in the practice of law, or run for or hold any other office or position of profit under the United States, the State or its political subdivisions.”
Idaho Yes (Supreme only) Article V, Section 7: “Justices prohibited from holding other offices. No justice of the Supreme Court shall be eligible to any other office of trust or profit under the laws of this state during the term for which he was elected.”
Illinois Yes Article VI, Section 13 (b): “Judges and Associate Judges shall devote full time to judicial duties. They shall not practice law, hold a position of profit, hold office under the United States or this State or unit of local government or school district or in a political party. Service in the State militia or armed forces of the United States for periods of time permitted by rule of the Supreme Court shall not disqualify a person from serving as a Judge or Associate Judge.”
Indiana Yes Article VII, Section 11: “No such justice or judge shall, during his term of office, engage in the practice of law, run for elective office other than a judicial office, directly or indirectly make any contribution to, or hold any office in, a political party or organization or take part in any political campaign.”
Iowa Yes (Supreme and District only) Article V, Section 18: “Judges of the supreme court and district court shall be ineligible to any other office of the state while serving on said court and for two years thereafter, except that district judges shall be eligible to the office of supreme court judge.”
Kansas Yes (Supreme and District only) Article III, Section 13: …”The justices of the supreme court and judges of the district courts shall receive for their services such compensation as may be provided by law, which shall not be diminished during their terms of office, unless by general law applicable to all salaried officers of the state. Such justices or judges shall receive no fees or perquisites nor hold any other office of profit or trust under the authority of the state, or the United States except as may be provided by law, or practice law during their continuance in office.”
Kentucky Yes Section 123: “During his term of office, no justice of the Supreme Court or judge of the Court of Appeals, Circuit Court or District Court shall engage in the practice of law, or run for elective office other than judicial office, or hold any office in a political party or organization.”
Louisiana No, but legislature specifically authorized to adopt such a statute Article X, Section 22: “The legislature shall enact laws defining and regulating dual employment and defining, regulating, and prohibiting dual officeholding in state and local government.”
Maine Yes Article VI, Section 5: “No Justice of the Supreme Judicial Court or any other court shall hold office under the United States or any other state, nor under this State, except as justice of the peace or as member of the Judicial Council.”
Maryland Yes (Exception for reserve of military) Article 33 “…No Judge shall hold any other office, civil, or military or political trust, or employment of any kind, whatsoever, under the Constitution or Laws of this State, or of the United States, or any of them; except that a judge may be a member of a reserve component of the armed forces of the United States or a member of the militia of the United States or this State; or receive fees, or perquisites of any kind, for the discharge of his official duties.”
Massachusetts Yes (Supreme Judicial Court only) Chapter VI, Article 2: “No governor, lieutenant governor, or judge of the supreme judicial court, shall hold any other office or place, under the authority of this commonwealth, except such as by this constitution they are admitted to hold saving that the judges of the said court may hold the offices of justices of the peace through the state; nor shall they hold any other place or office, or receive any pension or salary from any other state or government or power whatever.”
Michigan Yes (Supreme and Circuit only) Article VI, Section 9: “Each of the judges of the circuit courts shall receive a salary, payable quarterly. They shall be ineligible to any other than a judicial office during the term for which they are elected, and for one year thereafter. All votes for any person elected such judge for any office other than judicial, given either by the legislature or the people, shall be void.”Article VI, Section 10: “…but no judge of the supreme court, or circuit court, shall exercise any other power or appointment to public office.”
Minnesota Yes (Exception for reserve of military) Article VI, Section 6: “A judge of the supreme court, the court of appeals or the district court shall not hold any office under the United States except a commission in a reserve component of the military forces of the United States and shall not hold any other office under this state. His term of office shall terminate at the time he files as a candidate for an elective office of the United States or for a nonjudicial office of this state.”
Mississippi No
Missouri No
Montana Yes (Supreme and District only) Article VII, Section 9: “Except as otherwise provided in this constitution, no supreme court justice or district court judge shall practice law during his term of office, engage in any other employment for which salary or fee is paid, or hold office in a political party.”
Nebraska No
Nevada Yes Article VI, Section 11: “The justices of the Supreme Court and the district judges are ineligible to any office, other than a judicial office, during the term for which they have been elected or appointed. All elections or appointments of any such judges by the people, Legislature or otherwise during said period to any office other than judicial are void.”
New Hampshire Yes Article 93: “No governor, or judge of the supreme judicial court, shall hold any office or place under the authority of this state, except such as by this constitution they are admitted to hold, saving that the judges of the said court may hold the offices of justice of the peace throughout the state; nor shall they hold any place or office, or receive any pension or salary, from any other state, government, or power, whatever.”Article 94: “No person shall be capable of exercising, at the same time more than one of the following offices within this state, viz. judge of probate, sheriff, register of deeds; and never more than two offices of profit, which may be held by appointment of the governor, or governor and council, or senate and house of representatives, or superior or inferior courts; military offices, and offices of justice of the peace excepted.”Article 95: “No person holding the office of judge of any court, (except special judges) secretary, treasurer of the state, attorney-general, register of deeds, sheriff, collectors of state and federal taxes, members of Congress or any person holding any office under the United States, including any person in active military service, shall at the same time hold the office of governor, or have a seat in the senate, or house of representatives, or council; but his being chosen and appointed to, and accepting the same, shall operate as a resignation of his seat in the chair, senate, or house of representatives, or council; and the place so vacated shall be filled up. No member of the council shall have a seat in the senate or house of representatives.”
New Jersey Yes (Supreme and Superior only) Article VI, Section 6: “The Justices of the Supreme Court and the Judges of the Superior Court shall hold no other office or position, of profit, under this State or the United States. Any such justice or judge who shall become a candidate for an elective public office shall thereby forfeit his judicial office.”
New Mexico Yes Article VI, Section 19: “No justice of the supreme court, judge of the court of appeals, judge of the district court or judge of a metropolitan court, while serving, shall be nominated, appointed or elected to any other office in this state except a judicial office.”
New York Yes Article VI, Section 20: “(b) A judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate’s court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article who is elected or appointed after the effective date of this article may not: (1) hold any other public office or trust except an office in relation to the administration of the courts, member of a constitutional convention or member of the armed forces of the United States or of the state of New York in which latter event the legislature may enact such legislation as it deems appropriate to provide for a temporary judge or justice to serve during the period of the absence of such judge or justice in the armed forces; (2) be eligible to be a candidate for any public office other than judicial office or member of a constitutional convention, unless he or she resigns from judicial office; in the event a judge or justice does not so resign from judicial office within ten days after his or her acceptance of the nomination of such other office, his or her judicial office shall become vacant and the vacancy shall be filled in the manner provided in this article; (3) hold any office or assume the duties or exercise the powers of any office of any political organization or be a member of any governing or executive agency thereof”
North Carolina Yes (Exceptions for military officers not on active duty, notary public, and delegates to a Convention of the People) Article VI, Section 9: (1) It is salutary that the responsibilities of self-government be widely shared among the citizens of the State and that the potential abuse of authority inherent in the holding of multiple offices by an individual be avoided. Therefore, no person who holds any office or place of trust or profit under the United States or any department thereof, or under any other state or government, shall be eligible to hold any office in this State that is filled by election by the people. No person shall hold concurrently any two offices in this State that are filled by election of the people. No person shall hold concurrently any two or more appointive offices or places of trust or profit, or any combination of elective and appointive offices or places of trust or profit, except as the General Assembly shall provide by general law.
(2) Exceptions. The provisions of this Section shall not prohibit any officer of the military forces of the State or of the United States not on active duty for an extensive period of time, any notary public, or any delegate to a Convention of the People from holding concurrently another office or place of trust or profit under this State or the United States or any department thereof.
North Dakota Yes (Supreme and District only) Article VI, Section 10: “…No justice of the supreme court or judge of the district court of this state shall engage in the practice of law, or hold any public office, elective or appointive, not judicial in nature. No duties shall be imposed by law upon the supreme court or any of the justices thereof, except such as are judicial, nor shall any of the justices exercise any power of appointment except as herein provided. No judge of any court of this state shall be paid from the fees of his office, nor shall the amount of his compensation be measured by fees, other moneys received, or the amount of judicial activity of his office.”
Ohio Yes Ohio Constitution, Article IV, Section 6: “(B)…Judges shall receive no fees or perquisites, nor hold any other office of profit or trust, under the authority of this state, or of the United States…”
Oklahoma No
Oregon Yes (Exception for militia & Office of Post Master) Article II, Section 10: “No person holding a lucrative office, or appointment under the United States, or under this State, shall be eligible to a seat in the Legislative Assembly; nor shall any person hold more than one lucrative office at the same time, except as in this Constition [sic] expressly permitted; Provided, that Officers in the Militia, to which there is attached no annual salary, and the Office of Post Master, where the compensation does not exceed One Hundred Dollars per annum, shall not be deemed lucrative.”
Pennsylvania Yes Article V, Section 17: “(a) Justices and judges shall devote full time to their judicial duties, and shall not engage in the practice of law, hold office in a political party or political organization, or hold an office or position of profit in the government of the United States, the Commonwealth or any municipal corporation or political subdivision thereof, except in the armed service of the United States or the Commonwealth.”
Rhode Island Yes Article III, Section 6: “…and if any general officer, senator, representative, or judge shall, after election and engagement, accept any appointment under any other government, the office under this shall be immediately vacated; but this restriction shall not apply to any person appointed to take deposition or acknowledgment of deeds, or other legal instruments, by the authority of any other state or country.”
South Carolina Yes (Supreme Court, Court of Appeals, and Circuit Court; exception for militia) Article V, Section 16: “The Justices of the Supreme Court and the judges of the Court of Appeals and Circuit Court shall each receive compensation for their services to be fixed by law, which shall not be diminished during the term. They shall not, while in office, engage in the practice of law, hold office in a political party, or hold any other office or position of profit under the United States, the State, or its political subdivisions except in the militia, nor shall they be allowed any fees or perquisites of office. Any such Justice or judge who shall become a candidate for a popularly elected office shall thereby forfeit his judicial office.”
South Dakota Yes Article V, Section 10: “Restrictions. During his term of office no Supreme Court justice or circuit court judge shall engage in the practice of law. Any Supreme Court justice or circuit court judge who becomes a candidate for an elective nonjudicial office shall thereby forfeit his judicial office.”
Tennessee Yes Article VI, Section 7: “The judges of the Supreme or Inferior Courts, shall, at stated times, receive a compensation for their services, to be ascertained by law, which shall not be increased or diminished during the time for which they are elected. They shall not be allowed any fees or perquisites of office nor hold any other office of trust or profit under this state or the United States.”
Texas Yes Article XVI, Section 65: “(a)This section applies to the following offices: District Clerks; County Clerks; County Judges; Judges of the County Courts at Law, County Criminal Courts, County Probate Courts and County Domestic Relations Courts; County Treasurers; Criminal District Attorneys; County Surveyors; County Commissioners; Justices of the Peace; Sheriffs; Assessors and Collectors of Taxes; District Attorneys; County Attorneys; Public Weighers; and Constables.(b) If any of the officers named herein shall announce their candidacy, or shall in fact become a candidate, in any General, Special or Primary Election, for any office of profit or trust under the laws of this State or the United States other than the office then held, at any time when the unexpired term of the office then held shall exceed one year and 30 days, such announcement or such candidacy shall constitute an automatic resignation of the office then held, and the vacancy thereby created shall be filled pursuant to law in the same manner as other vacancies for such office are filled.”
Utah Yes Article VIII, Section 10: “Supreme court justices, district court judges, and judges of all other courts of record while holding office may not practice law, hold any elective nonjudicial public office, or hold office in a political party.”
Vermont Yes (Supreme only) Chapter 2, Section 54: “No person in this State shall be capable of holding or exercising more than one of the following offices at the same time: Governor, Lieutenant-Governor, Justice of the Supreme Court, Treasurer of the State, member of the Senate, member of the House of Representatives, Surveyor-General, or Sheriff. Nor shall any person holding any office of profit or trust under the authority of Congress, other than a member of the commissioned or enlisted personnel in the reserve components of the armed forces of the United States while not on extended active duty, be eligible to any appointment in the Legislature, or to any executive or judiciary office under this State.”
Virginia Yes Article VI, Section 11: “No justice or judge of a court of record shall, during his continuance in office, engage in the practice of law within or without the Commonwealth, or seek or accept any nonjudicial elective office, or hold any other office of public trust, or engage in any other incompatible activity.”
Washington Yes (Supreme and Superior only) Article IV, Section 15: “The judges of the supreme court and the judges of the superior court shall be ineligible to any other office or public employment than a judicial office, or employment, during the term for which they shall have been elected.”
West Virginia Yes Article VIII, Section 8-7: “…No justice, judge or magistrate shall hold any other office, or accept any appointment or public trust, under this or any other government; nor shall he become a candidate for any elective public office or nomination thereto, except a judicial office; and the violation of any of these provisions shall vacate his judicial office.”
Wisconsin Yes Article VII, Section 10: “(1) No justice of the supreme court or judge of any court of record shall hold any other office of public trust, except a judicial office, during the term for which elected. No person shall be eligible to the office of judge who shall not, at the time of election or appointment, be a qualified elector within the jurisdiction for which chosen.”
Wyoming Yes (Supreme and District only) Article V, Section 27: “No judge of the supreme or district court shall be elected or appointed to any other than judicial offices or be eligible thereto during the term for which he was elected or appointed such judge.”

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