dissenting on the appeal; concurring on the cross-appeal.
I agree that the trial court erred in awarding attorney fees to defendant.
I dissent with respect to affirming the judgment that says that the Court Reorganization Act “preempted” the Multnomah County Home Rule Charter provision for election of a district court clerk and that defendant was not, therefore, entitled to a salary for that position. The majority correctly decides that the 1981 statute preempted the functions of that Multnomah County Charter official and then incorrectly treats the charter as having been amended and the effecting ordinances as having been repealed by the state legislature by Or Laws 1981 (Special Session), ch 3.
On May 18, 1982, the county’s voters, in a towering act of illogic and unwisdom, amended the county charter to provide for the election of a county district court clerk. The measure did not fix the specific functions of the office, although the Voters’ Pamphlet explanation specified that the functions were to be those “presently performed by the District Court Administrator * * *.” The Board of County Commissioners subsequently appointed defendant to the office and by ordinance defined, more or less, what the functions of the office would be. Still later, the voters elected defendant to the office and fixed his salary.
*731It is perfectly clear that the legislature had the power to, and did, take away from the office, and defendant as the officer, all state court functions. What the legislature could not do, and could never have intended to do, was to amend the Multnomah County charter. Moreover, the legislature did not have the power to amend a Multnomah County ordinance and, in 1981, before the ordinance was enacted, could not have intended to amend it, let alone void defendant’s 1982 election or the voters’ act of fixing his salary. Therefore, when the Court Reorganization Act became effective, defendant occupied a charter-created office at a salary that the voters of the county in their infinite wisdom said he was entitled to and to which were assigned functions that he could not lawfully perform under preemptive state law. Aside from questions that are not raised in this litigation (such as defendant’s holding two lucrative positions at the same time), I can see no state law or constitutional reason how or why the 1981 law could have amended the charter and ordinances to destroy the position and to have repealed the voters’ fixing of his salary. The majority thinks that the voters’ intentions in respect to a problem they never knew about are known to it and are controlling. Unfortunately, that shows that the majority simply does not understand what the issues are.1
I dissent.
Although I do not wish to comment on the matter at any length, I do not necessarily agree that LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204, aff’d on rehearing, 284 Or 173, 586 P2d 765 (1978), has anything to do with a county home rule charter under Article VI, section 10.