March 08, 2004

Update

This story of course was reported well ahead of our being able to make it back to PORTLAND COMMUNIQUE headquarters. For the time being, we will direct readers to the normal press accounts -- such as this KGW report -- and limit ourselves to analysis unless there's something in the press reports that appears to be missing.

Ultimately, Kelly Clark, lead attorney for the plaintiffs, in many ways seemed to be his own undoing. By not arguing for any sort of relief from harm done by the nearly 1300 licenses granted thus far, Clark opened the door for Judge Koch then to ask how an additional similar number of licenses would create any harm. The reasoning here is simple: If the existing licenses don't constitute a harm great enough to address them in the request for relief, then how can additional such licenses suddenly constitute an irreperable harm?

Clark also displayed either a remarkable lack of legal literacy or a cynical belief that he could bamboozle the court, when he misrepresented the statutory definition of "decision" as give in the state's Open Meetings Law. Readers will recall that we argued in our analysis of the lawsuit that since the Open Meetings Law definition of a "decision" specifically related only to actions that require a Board vote, and since the County Chair was acting in an administrative (or executive) capacity rather than a legislative one and therefore no such vote was required, then the Open Meetings Law does not control here.

Fortunately, the ACLU responded by properly representing the defintion of "decision" as presented in that law.

Clark also tried to make hay out of public statements by members of the Board of Commissioners in which they used the word "policy." He attempted to argue that the court should not read the use of that word in the general everyday sense, but rather in some specific (and not specifically defined by Clark) manner which somehow proved the Coutny had done something wrong.

We'll have more as the afternoon and evening progresses, and as further reports surfaces, and as we begin to cull through our notes.

Update

Readers might also recall that we mentioned the curious absence in the lawsuit as filed of any mention of the constitutional question regarding the statutory definition of marriage, despite the fact that the County's legal opinion turned on the constitutional and not the statutory argument.

Kelly Clark tried to skirt the constitutional issue during this hearing as well, repeatedly mentioning that the plaintiffs do not raise any constitutional issues -- as if to assert that the constitutional was irrelevant and should not be considered.

Defense attorneys would have none of this, and repeatedly countered with the proper explanation of why the constitutional issues matter to the case at hand.

And that appears to have had an impact upon Judge Koch's ruling on the TRO. Specifically, Koch stated that on the statutory issue, it's likely (and it seems to him) that the intent was to define marriage as between one man and one woman. But, he added, the constitutional question raised by the County -- indeed the one upon which their decision rested -- is a far more open question. In essence, he said that the plaintiffs were likely to succeed on the merits when it came to interpretation of the statutory definition of marriage. On the surface, that would seem like a victory for the plaintiffs.

But, said the judge, the court cannot entirely sever the statutory question from what the Coutny claims is a superceding constitutional authority -- no matter how much the plaintiffs and their attorneys have tried to make it so.

Update

What happens now? Parties to the case are expected to meet Friday with Judge Frank Bearden, who will preside over the case itself, to work out the scheduling. In the meantime, the County is free to continue issuing same-sex marriage licenses -- unless, of course, there is any direct and specific action taken by Attorney General Hardy Myers.

In addition, Judge Koch indicated that any potential additional lawsuits on the same matter likely would be consolidated so that there was a single trial, and said that the court would be "generous" when it came to amicus curiae ("friend of the court") briefs by interested outside parties.

Update

The KATU story pulls a relevant quote from Judge Koch: "I am not satisfied by the standard of clear and convincing evidence that the plaintiffs would prevail under Oregon public meeting law considerations."

Update

The other asinine tactic by Kelly Clark was to reference all of the public statements from County Commissioners in which they used the word "we" in reference to a decision being made. Clark seemed to think he was pulling some sort of television courtroom drama "gotcha!" with this. It was at this particular argument that County Attorney Agnes Sowle got a quizzical look on her face, as if she were thinking, "Where the Hell does he come up with this stuff?"

Update

Further random observations. The vast majority of people who came down to watch the hearing were unable to get into the courtroom. Once seats were filled, no more people were allowed to enter and had to mill about in the hallway instead. Incidentally, this is the first time since we made a press badge that anyone official took any real interest in examining it. Fortunately, we had one at all, because it allowed us to bypass the regular seating and sit in the jury box with the rest of the press. Otherwise, we ourselves might not have gotten a seat anywhere.

Update

Another amusing example of Kelly Clark's seeming indifference to his profession. Speaking about the issues involved, especially as they regard the open meetings question, Clark at one point opined: "This is so fundamental that we have a hard time articulating why it can't be done this way."

In case Clark needs someone to point it out: His job as lead attorney for the plaintiffs is to do just that. Problem, of course, is that the plaintiffs don't actually have a case as it regards the open meetings law, so he had to resort to the above fuzzy-headed claim. As if it were meant somehow to convince the judge that the fact Clark is incapable of explaining just how and why the County violated the open meetings law, that itself somehow proves that they must have done something wrong.

The man's performance is truly boggling to watch.

Another example: There was a disagreement between Clark and Ken Choe of the ACLU about the burden of proof the plaintiffs were required to meet in order to wrangle a TRO out of the court. Clark made a rather pointed deal out of the fact that the ACLU's paperwork talked about "prliminary injunction" and not "temporary restraining order" than that this was simply inapplicable because the burdens of proff were different.

"That may be how they do things in New York, but in Oregon we do it differently," Clark snapped (again thinking he was in some sort of television courtroom drama where he would win favor by putting the out-of-towner in their proper place).

Problem was, as Choe pointed out for the court, the burden of proof for a TRO is actuallyhigher than that required for a preliminary injunction, and so the ACLU's arguments in their "memorandum of law" as regards a prelininary injunction actually reflect "the floor" of the burden of proof. Point being: If the plaintiffs could not meet the burden of proof that would be required for a preliminary injunction than they inherently fail to meet the burden required for a TRO as well.

We really can't wait at this point to watch Clark's bizarrely-uninformed antics once the trial itself is underway.