March 05, 2004

Analysis Of Lawsuit Against Multnomah County, Part II

Did County Chair Act Outside Her Authority?

Plaintiffs' second allegation is against County Chair Diane Linn. In essence, it argues that Linn acted outside her authority. This is one of the plaintiffs' fallback positions. In case the court decides that there was no violation of open meetings law, the plaintiffs want to make sure they have gone after Linn directly as Chair.

Here's what the lawsuit has to say:

Legislation is defined generally, in pertinent part as "[f]ormulation of rule for the future." Black's Law Dictionary 899 (6th ed. 1990). Under the Multnomah County Home Rule Charter (MCHRC), Section 5.10, all legislative actions of the Multnomah County Council are to occur through the passage of ordinances. Section 5.30 generally requires two readings on different days at least six days apart to enact bills into ordinances. The declaration and instruction by Defendant Linn enacted a future rule of conduct for the county, changing the longstanding county policy while enacting a decision to violate ORS Chapter 106, and declared the historical and uniform interpretation of Oregon's marriage statutes unconstitutional all without passage of an ordinance or a declaration by any court.

Fortunately, we've already done the homework we need for this one. Most of what we need to undercut the above charge is contained in the previous item, where we demonstrated that the County likely did not violate open meetings law.

The essence of the above charge is that the County's actions were legislative, and therefore could not simply be enacted administratively by Chair Diane Linn. However, as we've already demonstrated, that was not the nature of what transpired.

Examing both the County Charter and the Multnomah County Code, we find no specific provision for issuing marriage licenses of any kind. Rather, that authority comes from Chapter 106 of the Oregon Revised Statutes. Specifically, ORS 106.041(1):

All persons wishing to enter into a marriage contract shall obtain a license therefor from the county clerk upon application, directed to any person or religious organization or congregation authorized by ORS 106.120 to solemnize marriages, and authorizing such person, organization or congregation to join together as husband and wife the persons named in the license.

With such authority granted via state statute, there is no need for a specific County policy regarding the issuance of marriage licenses. Keeping this in mind, let's return to what the County says transpired.

At least two Commissioners asked the County Attorney for a legal opinion as to the issuance of same-sex marriage licenses. Here's what Chapter 7 of the County Code says, in part, about the duties of the County Attorney:

(J) Prepare formal written opinions deemed necessary by the County Attorney regarding significant interpretations of federal and state law, the Charter and ordinances and other documents. Formal opinions may be requested by any county elected official or department director. Formal opinions shall be official guidance to the county unless superseded by court or administrative decisions, or subsequent legislation or administrative rules;

So, point one: The Commissioners in question who asked the County Attorney for a legal opinion on the issuance of same-sex licenses did so under their proper authority to make such a request. This stage of the County's process is legitimate.

Now here's the thing. Because the County's authority to issue marriage licenses is governed by state statute, and not by County Code (which would imply an ordinance that would need a similar ordinance to adjust), what the Commissioners did is simply ask the County Attorney what in essence was the following question: What is the proper manner in which to discharge the County's statutory authority to issue marriage licenses.

Because this was merely a request for clarification as to the proper and lawful way in which to discharge that existing authority (this is the good bit) no new Board action was required.

What does this mean? It means that the County's action was not a "decision" as defined by ORS 192.610(1). It was not a "determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is required."

Layman's summary: Since the action was merely to discharge the County's existing statutory authority to issue marriage licenses, and since the legal opinion of the County Attorney determined that same-sex marriage licenses cannot be denied without violating Article I, section 20, of the Oregon Constitution's prohibition against discriminatory privileges, the County Chair was entirely within her rights to instruct the Clerk to obey what the County Attorney had determined to be the law.

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