Most state constitutions provide for one of two types of prohibition on judges activities outside of their judgeship:
- a prohibition on holding more than one governmental office (dual-office holding)
- 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. 1, 211 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.
Continue reading Oregon Measure 87: why a 1979 Oregon Supreme Court case on judges as part time teachers is on the 2014 ballot