March 18, 2004
County Attorney Begins Referencing 'Cooper' Precedent
Reveals That Hardy Myers Himself Has Made Use Of It
Earlier this week, we examined a potential legal precedent for the argument that County officials are permitted (if not required) to defy statutory provisions if they conflict with the Oregon Constitution. Our research was prompted by a statement by Commissioner Serena Cruz which mentioned a 1986 decision in a case called Cooper v. Eugene School District No. 41.
In doing some checking, we discovered that the Oregon Supreme Court itself cited the concept advanced in Cooper in a later case called Employment Division v. Rogue Valley Youth for Christ, in which the Court wrote that an agency "[m]ust administer the law in accordance with constitutional principles, and must enforce its statutory obligations. If a statute tells an agency to do something that a constitution forbids, the agency should not do it."
What amused us the most about the Employment Division case was that both Kelly Clark and Hardy Myers had filed amicus curiae briefs in this case, which means it's fairly certain that they are familiar with the argument, since presumably they read the Court's decision.
Towards the end of a story in today's Oregonian, it seems that Hardy Myers' familiarity with the argument goes a little deeper:
While he is figuring out what to do, Kulongoski has urged counties to voluntarily wait until the courts can resolve the issue of whether the state's marriage statute unconstitutionally discriminates against gays and lesbians. But Multnomah County officials have said they have little choice but to ignore him.
Multnomah County Attorney Agnes Sowle said constitutional questions are not left solely to the courts. A 1986 Oregon Supreme Court decision says that all public officials must tackle constitutional questions that have been raised about statutes that they enforce.
...
Sowle also pointed out that Myers has used the same 1986 ruling in justifying the state's decision not to enforce a law it deemed unconstitutional. For example, Myers in 2001 did not ask a court about the constitutionality of a law banning campaign contributions to legislators during a session. He simply stated that it was and recommended that the secretary of state stop enforcing it.
On the other side of this, Peter Shepherd, Oregon's assistant attorney general, argues that these are not comparable uses of the 1986 precedent because "the campaign finance law was clearly unconstitutional while the state marriage law is less so."
This is a somewhat flimsy, hairsplitting argument, since it still inherently concedes the argument that officials other than judges in fact are allowed (if not duty-bound) to interpret the constitutionality of statutory provisions.
Whether or not the County Attorney's assessment in this particular instance was correct is something that the courts will decide.
But the revelation in this Oregonian story, although the paper utterly glosses over its significance, is not only that Hardy Myers himself knows of -- and in fact has used -- the precedent of the Cooper decision, but that the office of the Attorney General has now conceded that officials other than judges have the right to interpret the constitutionality of the statutory laws they are meant to be executing.
In essence, the combination of Hardy Myers' legal opinion that Oregon's stautory definition of marriage likely will be declared unconstitutional and this new admission that officials other than judges can interpret the Oregon Constitution almost entirely vindicates what Multnomah County has been arguing all along.