
FILED:  December 30, 2004
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE ex rel THE HONORABLE SIDNEY A. GALTON,
Plaintiff-Relator,
v.
OREGON COMMISSION ON JUDICIAL FITNESS AND DISABILITY,
Defendant.
(CJFD 03-054; SC S52032)
En Banc
Original proceeding in mandamus.*
Submitted on the record December 22, 2004.
James H. Gidley, Perkins Coie, Portland, filed the petition
for peremptory or alternative writ of mandamus and Motion for
Emergency Stay for plaintiff-relator.
No appearance contra.
CARSON, C.J.
Petition for peremptory or alternative writ of mandamus
denied.  Emergency motion for stay dismissed as moot.
*On petition for a writ of mandamus from a denial by the
Commission on Judicial Fitness and Disability of a motion to
dismiss.
CARSON, C.J.
The Honorable Sidney A. Galton, judge of the Multnomah
County Circuit Court (relator), petitions this court for a writ
of mandamus directing the Commission on Judicial Fitness and
Disability (Commission) to dismiss its pending judicial
discipline proceeding against him for lack of subject matter
jurisdiction.  He also seeks an emergency stay of the
Commission's proceeding pending the outcome of this mandamus
proceeding.  For the reasons set forth below, we deny the
petition and dismiss the motion for a stay as moot.
Relator argues that the Commission lacks jurisdiction
under Article VII (Amended), section 8, of the Oregon
Constitution, as interpreted in State ex rel Kaino v. Commission
on Judicial Fitness, 335 Or 633, 74 P3d 1080  (holding that Commission lacked jurisdiction over municipal court judges). 
Relator relies on the following sentence in Kaino:

"Voters thus would have understood the words 'judge of
any court' [as used in Article VII (Amended),
section8] to refer only to those courts created by and
defined in Article VII (Amended)."

Id. at 637.  He argues that the Supreme Court is the only court
"created by" Article VII (Amended).  See Or Const, Art VII
(Amended), §1 (vesting judicial power of state in "one supreme
court and in such other courts as may from time to time be
created by law").  Accordingly, he argues, the Commission lacks
jurisdiction over circuit court judges.
That argument takes the quoted sentence out of context. 
Kaino holds that the Commission lacks jurisdiction over municipal
court judges because they do not serve on an Article VII
(Amended) court.
Kaino explained that the jurisdiction of the Commission
turned on the meaning of the words "judge of any court" as used
in the judicial discipline provisions of Article VII (Amended),
section 8.  335 Or at 636-37.  Kaino noted that the words "judge
of any court," standing alone, would sweep very broadly.  Id. at
637.  However, Kaino interpreted those words in their context as
part of an amendment to Article VII (Amended).  Id.
Then comes the sentence on which relator relies.  That
sentence draws a conclusion from the stated premises-- that
because the voters added section 8 to Article VII (Amended), the
"[v]oters thus would have understood" something about the meaning
of the words "judge of any court."  Id. (emphasis added). 
According to Kaino, the voters would have understood the words
"judge of any court" to refer to those courts described by
Article VII (Amended).  Kaino conveyed that concept by referring
to courts "created by and defined in" Article VII (Amended).  Id.
(emphasis added).  In context, "created by" refers not just to
the Supreme Court-- the one court specifically named in Article
VII (Amended), section 1-- but also to "such other courts as may
from time to time be created by law."  Or Const, Art VII
(Amended), §1.
The next sentence of Kaino, which applies that
conclusion to the facts, leaves no doubt about the correct
reading.  "At the time that the voters adopted section 8, this
court already had held that municipal court judges are not
Article VII (Amended) judges."  Id. at 637-38 (emphasis added). 
Kaino went on to discuss a case holding that Article VII
(Amended), section 1, did not require municipal court judges to
be elected to six-year terms.  Id. at 638.  That discussion would
have been superfluous if relator's reading of Kaino were correct.
Properly interpreted, Kaino leaves no doubt that the
voters understood the phrase "judge of any court" to mean a judge
of any court that exercises the state's judicial power under
Article VII (Amended).  That was why it mattered that the voters
adopted section 8 as part of Article VII (Amended), and that was
why the court went on to consider whether Article VII (Amended)
governed municipal courts.
The only remaining question is whether the courts
described by Article VII (Amended) include circuit courts.  We
hold that they do.  Article VII (Amended) itself continued the
circuit courts in existence.  Or Const, Art VII (Amended), §2
(continuing court system as constituted under Article VII
(Original) "until otherwise provided by law"); see Or Const, Art
VII (Original), §1 (vesting judicial power of state in circuit
courts, among others).  The legislature, too, expressly
authorized circuit courts as an exercise of its Article VII
(Amended) power to create courts.  See ORS chapter 3 (statutory
provisions relating to circuit courts).  When the voters adopted
Article VII (Amended), section 8, they would have understood
"judge of any court" to include a circuit court judge. 
Accordingly, the Commission has subject matter jurisdiction over
the disciplinary proceeding against relator.  We deny the
petition for writ of mandamus and dismiss as moot the emergency
motion for a stay.
Petition for peremptory or alternative writ of mandamus
denied.  Emergency motion for stay dismissed as moot.
