March 11, 2004
(Updated) Exclusive: County Has Not Been Ordered To Justify Its Actions
OPB News Gets It Wrong
Note: This post has been updated. Any and all updates appear at the end of the original post.
OPB's report on Judge Koch ordering Multnomah County to explain itself at the prompting of a motion by the plaintiffs in Defense of Marriage Coalition v. Multnomah County is wrong.
Having just finished a round of telephone conversations which included a call to the office of the County Attorney, we can explain to you a little bit of what actually occured. It all reportedly began with this press release from the Arizona-based Alliance Defense Fund.
Reporters began calling Judge Dale Koch, one of whom apparently sent Koch a copy of the press release. Koch then held a conference call which included representatives both of the County and of the plaintiffs in the case to discuss what was happening.
It seems that lead attorney for the plaintiffs suggested that the press release was the responsibility of someone from co-counsel for the plaintiffs, and reportedly apologized to Judge Koch for the bizarrely-spiralling sequence of events surrounding the press release and its immediate aftermath.
It is true, it seems, that that Judge did allow a petition for a writ of mandamus -- but that appears to be all that has actually occured thus far: Allowing the petition, but no ruling on anything other than allowing the petition to be filed.
In other words, the County has not been ordered to cease issuing same-sex marriage licenses, nor (as reported by OPB) has it been ordered to explain its actions.
Update
Readers should be sure to click through to the comments if they haven't already for discussion on some lignering confusion on this matter.
Update
Let's make it even more confusing, shall we? According to the current KGW story, the one writ of mandamus known to exist at the moment is what was filed by the Liberty Counsel and the American Family Association (using John Belgarde of the Christian Coalition of Oregon as their local hook), asking the Oregon Supreme Court to intervene in Multnomah County.
So what's going on here in Multnomah?
Gay rights advocates staved off one challenge on Monday when a Multnomah County Circuit Court judge Dale Koch refused to issue a temporary restraining order stopping the issuance of the marriage certificates. The Defense of Marriage Coalition then filed for a cease-and-desist order later in the week, and Koch has taken the matter under advisement. A county court hearing on a request for a possible injunction is also set for Friday.
So now we have a report on a cease-and-desist order being filed with Judge Koch, while nothing in this story mentions a local writ of mandamus, reserving that particular filing for the story about the Oregon Supreme Court.
Comments (10)
Bob R. on 11 Mar 2004
B!x - Thanks for the scoop!
- Bob
The One True b!X on 11 Mar 2004
It should be noted that the only way I discovered the OPB report was inaccurate was that I was calling around to find out when the hearing in question was going to be held. As it turned out, there was no hearing, just a sequence of misinformations. Heh.
Nice to see that the seemingly entire legal team for plaintiffs does not appear to quite understand what it is doing, though.
Isaac Laquedem on 11 Mar 2004
The press release is actually technically correct about what Judge Koch did, but it's misleading about what the judge meant.
The judge did issue a writ (an order) telling the county to either (a) stop issuing SSM licenses, or (b) explain why it should not be ordered to stop issuing SSM licenses. That's the usual form of the alternative writ of mandamus.
Contrary to the implication of the press release, the order doesn't have anything to do with how Judge Koch feels about the SSM question. It's simply the form in which this sort of writ is issued.
Put differently: someone sues the county and asserts that the county is doing something unlawful and should be ordered to stop. The judge issues a writ telling the county to stop or explain itself. If the county stops, then it doesn't need to explain itself. If the county explains itself, then the court may accept the explanation (and in this case not order the county to stop issuing SSM licenses) or reject the explanation (and order the county to stop issuing SSM licenses). So -- the press release was technically correct but misleading.
The One True b!X on 11 Mar 2004
The judge did issue a writ (an order) telling the county to either (a) stop issuing SSM licenses, or (b) explain why it should not be ordered to stop issuing SSM licenses.
No, he did not do this. He allowed the attorneys to petition for a writ of mandamus, but has not actually issued such a writ.
Isaac Laquedem on 11 Mar 2004
I haven't read the court papers themselves, but the process outlined in Chapter 34, Oregon Revised Statutes, is that the person who seeks the writ files a petition for the writ to be issued. The writ is then allowed (issued) (ORS 34.130(3)). The defendant (here, the county) may then move to dismiss the writ (ORS 34.170) or may file an answer to the writ (ditto).
My only point on the procedure is that the law required Judge Koch to issue the writ (or whatever he issued) if he found that the petition was in the proper form. He didn't look at the question of whether the county can issue SSM licenses, and the Alliance Defense Fund shouldn't have suggested that the judge's order means that he thinks that the state can ban SSM.
The One True b!X on 11 Mar 2004
Well, I'll ask tomorrow morning, because that's itneresting and is not what was conveyed to me this afternoon. I was told only that the plaintiffs filed a petition for a writ of mandamus but that's all that happened.
The One True b!X on 11 Mar 2004
It's possible, actually, that all that has happened thus far is that the plaintiffs have officially stated that they would petition for a writ of mandamus but perhaps has not actually done so yet.
At the Monday TRO hearing, there was some dispute between the opposing parties as to whether or not there had been proper notification about the plaintiffs' intent to petition for such a writ, so there may have been some further back and forth on the matter. I don't know.
But as it was communicated to me today, there was no writ actually in motion today.
As I said, though, I will try to find out more tomorrow after the scheduling hearing.
Isaac Laquedem on 11 Mar 2004
It's certainly possible that the plaintiffs announced they were going to petition for a writ of mandamus, and then ADF misinterpreted what it got/heard and assumed that they had petitioned already.
If the judge has a sense of humor (and it's usually bad for a judge to show it) he could issue an injunction prohibiting the plaintiffs from marrying *anybody* until the law is sorted out, just to be on the safe side.
The One True b!X on 11 Mar 2004
Heh. I find it more likely that the County will be able to satisfactorily demonstrate why it did what it did, at least enough to stave off any order from the judge to cease. But of course that opinion might be tainted by my obvious bias towards wanting that to be the case.
Isaac Laquedem on 11 Mar 2004
Alternatively (since I feel waggish today), the judge could (a) agree with the plaintiffs about the sanctity and importance of marriage, (b) recognize that Oregon case law has a strong public policy (not quite as strong as 20 years ago, but still there) against common-law marriage, and from this conclude that the county must issue SSM licenses so that people who are living in a condition akin to common-law marriage can be lawfully married, all in conformance to the long-standing public policy of the state.