U.S. District Court Judge Ann Aiken’s ruling denying a preliminary injunction came less than a day before the Oregon Supreme Court was scheduled to hear oral arguments in a separate state case involving senators who want to run for reelection despite a voter-approved law that sought to punish lawmakers who participate in walkouts. Oregon’s unusually high quorum requirements – two-thirds of representatives or senators must be present for the House or Senate to do business – give Republicans in the minority power to stop, or at least delay, bills supported by Democrats.
“The court cannot conclude that it would be in the public interest to grant the requested injunction to allow the senator plaintiffs to effectively negate a lawfully enacted measure,” Aiken wrote.
An attorney for state Sens. Brian Boquist, Cedric Hayden, Dennis Linthicum and the Republican voters and county central committees who filed the case wasn’t immediately available for comment.
The federal case can move forward despite Aiken’s ruling denying a preliminary injunction, but she indicated that she doesn’t believe the plaintiffs will succeed in proving their claim that walking out was constitutionally protected free speech.
The state Supreme Court case rests on how the court interprets the text of Measure 113, the constitutional amendment approved by voters in 2022 that disqualifies legislators from serving a subsequent term following more than nine unexcused absences in a session. Senators who sued in state court contend that they’re ineligible for the term after their next term because the measure wasn’t worded clearly.
Arguments in that case are scheduled before the Oregon Supreme Court in Salem on Thursday afternoon, with a decision following.
The First Amendment blocks government officials from targeting individuals – including elected officials – for engaging in free speech. The Ninth Circuit Court of Appeals last year affirmed Boquist’s complaint, stemming from a 2019 walkout, that a rule requiring him to give 12 hours notice before entering the Capitol was retaliation for his comments. He had told then-Senate President Peter Courtney that “Hell’s coming to visit you personally” if Courtney sent state police after him to compel his attendance and told reporters he told the state police superintendent to “send bachelors and come heavily armed” if they tried to arrest him.
Aiken acknowledged the prior Boquist ruling, but said the senators didn’t prove that the walkouts themselves were protected political speech.
“However, these walkouts were not simply protests – they were an exercise of the senator plaintiffs’ official power and were meant to deprive the Legislature of the power to conduct business,” she wrote. “Whether the legislator is present in the chamber to debate and vote on a bill or absents themselves from the chamber to deny a quorum, both actions are alike in that they are an exercise of the power of the legislator’s office. The Supreme Court has held that performing the functions of a legislator are not a personal prerogative but are instead a public trust.”
She cited a 2011 U.S. Supreme Court ruling in Nevada Commission on Ethics v. Carrigan, which revolved around the ethics commission censuring a city councilman who voted for a land project that had his campaign manager as a paid consultant. The court upheld the state’s ethics law, which required elected officials to recuse themselves if they had conflicts of interest, and determined that a legislator’s vote belonged to the people who elected him, not the lawmaker.
“In consequence, the Supreme Court ‘rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message’ and held that ‘a legislator has no right to use official powers for expressive purposes,’” Aiken wrote, quoting from the Carrigan case.
She also noted that Congress has the power to force attendance, with the threat of arrest and incarceration.
“If no less a body than the United States Congress may compel the attendance of its members by imprisonment without running afoul of the First Amendment, then the court cannot see how a lesser penalty, such as temporary disqualification, or the threat of temporary disqualification, for the same conduct would constitute a violation of the free speech rights of the senator plaintiffs,” Aiken wrote.
The deadline to file for office is March 12.
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