Republicans plan to challenge the constitutional amendment in court that voters approved last year to prevent walkouts from halting legislative work

By Ben Botkin, Oregon Capital Chronicle 

The GOP-led Senate walkout is the first round of a fight that likely will continue in court when the session concludes by June 25.

The political futures of senators who have racked up 10 or more unexcused absences is on the line: They’re disqualified from serving another term of office under a constitutional amendment approved in November.

But the senators — 10 are now barred from serving another term of office — hope to overturn the amendment. 

“There will be legal action,” Senate Minority Leader Tim Knopp, R-Bend, said in an interview with the Capital Chronicle. “I don’t think anybody can predict what the courts will do.”

Separately, a Republican Oregon senator is considering a federal lawsuit over Senate President Rob Wagner’s denial of his requests for excused absences for a religious observance and to help his wife care for their disabled daughter.

A spokesman for Wagner, D-Lake Oswego, declined to comment on the prospect of lawsuits.

A legal challenge would require a judge to weigh in on the amendment — Measure 113 — and how it should be applied. It was intended to prevent a walkout from shutting down legislative activity because of a lack of a quorum, as is happening now. 

Republican senators believe they have grounds to challenge Measure 113. Sen. Daniel Bonham of The Dalles has said it’s unconstitutional based on the First Amendment, which protects free speech in the U.S. Constitution, and provisions in the Oregon constitution. Others say they could sue based on a linguistic interpretation. The amendment bars legislators with at least 10 unexcused absences from serving another term “for the term following the election after the member’s current term is completed.”

“The actual language would lead one to believe that then it would be the election after the term expires,” Knopp said.

Terms of office don’t end until the January after a November election.

Under Knopp’s interpretation, senators would be able to serve the next term, but potentially could be barred from the one after that. The amendment says nothing about being barred from running for re-election.

Knopp noted lawyers have different interpretations of the language, as reported in a Willamette Week article. But Knopp said the meaning is clear. “It’s a fascinating argument for the court, and we’ll see what they come up with,” Knopp said.

Differing opinions

Steve Kanter, emeritus dean and a constitutional law professor at Lewis & Clark Law School in Portland, said the constitutional measure was poorly drafted and that Knopp’s legal argument is one of several that could sway a judge. For example, a senator who is reelected after 10 or more unexcused absences could have grounds to argue that voters get to pick who they want and therefore, Measure 113 is unconstitutional, he said.

Measure 113 doesn’t bar someone from running for election, and it’s unclear at this point how it would be enforced.

“If I were representing the Republicans if they got barred, I would feel like I had pretty strong arguments,” Kanter said. “I’m not saying I would win, but I would have no trouble making credible, good arguments. If people really take it to the mat, there will be some pretty serious court decisions and delay and uncertainty.”

But Kelly Simon, legal director of the American Civil Liberties Union of Oregon, the ACLU, said a legal challenge would end with a decision that reaffirmed the “crystal clear” intent of voters when they passed Measure 113.

”The ACLU of Oregon continues to be disappointed in Republican legislators’ efforts to undermine democracy,” Simon said in a statement. “Their latest legal theory on why they should not face accountability for refusing to work continues to reveal their utter disregard for Oregonians’ voices. Even if a court entertained the notion that the Oregon constitution’s wording could be read to have a second meaning as Republicans now posit, that would only invite the court to resolve any ambiguity based on what the voters intended.”

A separate challenge 

Sen. Cedric Hayden, R-Fall Creek, is considering a separate lawsuit based in part on religious grounds. Records show that he’s often been excused for religious reasons when legislative activity takes place on a Saturday, as it did earlier this month. Besides helping his wife, Wagner also would not excuse him for federal inspections of his heavy equipment used for contracted wildland firefighting, which includes an airplane that spots smoke.

He recently asked the Oregon Government Ethics Commission for advice on how to legally solicit funds to cover attorney costs without violating ethics laws. He has pending complaints filed with the Oregon Bureau of Labor and Industries and with the Senate about the denials.

“I seek to file a federal lawsuit against the Oregon Legislature,” Hayden wrote in the request.

In an interview, Hayden said he hasn’t filed a lawsuit and would still like to see the issue resolved without one, such as through the Senate complaint process. Hayden said he is facing discrimination because of his religious beliefs and alleges Wagner acted in a retaliatory manner without taking into account his Seventh-day Adventist faith, which holds services on Saturdays, or family’s medical needs.

“I want that addressed for myself and for anybody else that has kids they need to take care of,” Hayden said. “I want that defined and addressed in this session.”

The ethics commission told Hayden he could raise money, provided the donations follow existing limits of $50 per person annually. 

The Republican walkout has shut down the Senate for three weeks, preventing votes on dozens of bills. 

The next regular Senate floor session is on Tuesday after the Memorial Day weekend.

Ben Botkin covers justice, health and social services issues for the Oregon Capital Chronicle.