March 05, 2004

Lawsuit Filed Against Multnomah County Officials

First Hearing Could Come Next Week

This morning at the Multnomah County courthouse, the newly-formed Defense of Marriage Coalition (website might not be active yet) filed a lawsuit (pdf) to halt and reverse the County's move to issue same-sex marriage licenses.

Saying the plaintiffs filed the suit "reluctantly," Kelly Clark, lead attorney for the Coalition said, "We wold much rather have had a debate."

The suit seeks: a declaration that four of the Multnomah County Commissioners acted inviolation of the Oregon Public Meetings Law and an injunction against authorizing the issuance of same-sex marriage licenses; an injunction preventing any reinstatement of the policy of issuing same-sex marriage licenses; a declaration that County Chair Diane Linn did not and does not have the authority to make such a decision; ande a declaration that the statutory definition of marriage permits only the union of one man and one woman.

"We are here reluctantly," said Tim Nashif, Chairman of the Coalition. "We feel we are defending the institution of marriage." Of the Coalition itself, Mashif said that it is growing quickly.

Clark said that they have no direct evidence that the Commissioners violated the state's law on open meetings. "We have inference. ... We have some statements from County Commissioners that are very troubling."

But even if the Commissioners did not violate open meetings law, Clark says the alternative -- that Chair Linn made the decision on her own -- itself is problematic. "It is either that [the Commissioners violated open meetings law] or the Chair made an executive decision on her own," he said. "That is also illegal [because] this is not an executive decision."

"With all due respect to these Commissioners," Clark added. "They know that." He also said that even if the Commissioners engaged in what he called "sequential meeting" -- where one Commissioner talks to another, then that Commissioner goes and talks to another -- he believes this is still actionable.

Clark also disputed that the "Tanner Decision" on which the County Attorney in part relied does not apply. "We believe this is different in legal principle than the Tanner decision." But Clark added that even if Tanner controls, the process the Coutny utilized was still improper.

"What the Commissioners really have done," Clark said, "is make a political decision, and then run to their lawyer for cover."

When questioned, Clark denied that the lawsuit was an attack on gay marriage. "It's not an attack on gayy marriage," he said. "It's a defense of traditional marriage."

"Marriage," he added, "is and has been rooted in the biological differences between men and women."

Asked about the dynamic now being about the taking away of rights which the County has granted, the plaintffs argued that this was the County's strategy all along, calling it "unfortunate" and "impersonal", and arguing that's why the County did it behind closed doors.

"Our goal is not to somehow be discriminatory or attack the gay population," Nashif added. "Our concern is about the institution of marriage. ... We do not want to attack anyone, or appear to attack anyone."

(We'll have more from this news conference, including reaction from the ACLU of oregon, as well as a layman's analysis of the filing itself, later today, after we've completed a prior commitment.)

Posted at 12:07 PM | PermalinkComments (6) | TrackBacks (1)
More In Law Enforcement & Legal Issues, Metro-Area Politics, Same-Sex Marriage

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Comments (6)

  1. Bob R. on 05 Mar 2004

    I have reviewed the PDF of the lawsuit filed today against gay marriages in Multnomah County.

    The suit can be found at:
    http://www.kgw.com/news/pdf/gaymarriagesuit.pdf

    Disclaimer: I am no lawyer. Totally not one. No sane individual should trust or make predictions based on my legal opinion. But for some bizarre reason I've been right more often than pundits in the past on these sorts of things. Just to add to the confusion.

    Here are some observations from the suit:

    1. The "Defense of Marriage" coalition is not a new organization, as stated by some local media. It is in fact, an assumed name of the Oregon Family Council, which itself an assumed name of the Oregon Family Council Education Foundation, a long-established nonprofit "family values" advocacy group.

    2. The Big One: None of their three claims for relief mention Article I, section 20 of the constitution. They don't mention the Tanner decision. They aren't trying to say that the county was incorrect in it's constitutional analysis, they are instead completely ignoring it.

    This is important. I think this is deliberate, I think they know they'd lose on the constitutional grounds. They are, in fact, conceding that battle.

    They _DO_ make the argument we've all heard that the plain reading of Oregon's marriage statutes prohibits same-sex marriages. _BUT_, the primary thrust of their suit is that the County did not follow proper procedures. The statute argument is a red herring, to disguise what they are really seeking injunctively (see below.)

    3. They don't argue against the home rule authority of the County. Rather, they are trying to argue two things: A) Just about any email communications, taken in totality, amongst a quorum of commissioners, is a true quorum and is thus subject to public meeting rules. B) Just about any action taken by the Commission equates Legislation.

    I think this is shaky:
    A) The statute referenced, I believe, is set up to allow for _simultaneous_ teleconferencing, electronic chat, or video conferencing of Commissioners in distant locations to count as a quorum, so business can get done. I don't think it was intended to extend to cover a series of sequential meetings by less than a quorum adds up to a quorum. That would turn every series of emails on any topic into a public meeting, or even water-cooler conversation into a public meeting.
    B) They are reaching to a law dictionary to get the definition of what constitutes "legislation", rather than referring to an Oregon statute. They also don't reference the definition of executive action, or try to explain why what the County did does not fit into another better definition.

    4. Injunctive Relief: Not only are they asking for a reversal of the county's decision, they are asking for an injunction against ANY future decision by the county to support same-sex marriage. That would mean that, even after extensive public hearings, even with a public, unanimous commission vote, they would be barred by court-order from making the decision again in any way.

    This is what I think they are really after: Get a judge to halt the process, to put a finger in the dike, and delay for as long as possible the inevitable constitutional outcome.

    - Bob

  2. Bob R. on 05 Mar 2004

    Insult to injury:

    On the Defense of Marriage Coalition's web site, at the bottom of the solicitation form, they state:

    "Gifts to the Defense of Marriage Coalition qualify as a Political Tax Credit. The Political Tax Credit allows a married couple to give up to $100, single people up to $50, and receive the entire amount back on their Oregon tax return"

    I suggest that recently-married gay couples chip in their two cents, literally, and deduct it jointly on next year's tax form. Plus, you'll get their mailings and be appraised of what they're up to, and legally, they have to acknowledge and track your donation, AFAIK.

  3. brett on 05 Mar 2004

    Well, I am a lawyer, but that doesn't mean I'm right, so don't give my interpretation any more weight than Bob's. But, some thoughts:

    1. Wouldn't it be great if the court ruled that the plaintiffs have no standing, because the decision to allow gay marriages doesn't harm them in any way? That's essentially the proponents' argumetn anyway, and it does have legal merit. But the problem is the open meetings law - I believe that any citizen has standing to assert a violation thereof, but I can't be sure. And I'm not going to research it unless I can bill for it.

    2. I don't think they have a claim under the open meetings law - the commissioners have specifically stated that they only met in groups of 2 to discuss this issue for that very purpose. Sneaky but legal. And you can't redress a violation of the policy, as they allege in par. 9.

    3. Second claim for relief - I'm not an admin law expert, but I'm fairly sure the action can be classified as adminstrative and not legislative, in which case it does not require an ordinance.

    4. Third claim for relief - They may well have something here. As has been discussed elsewhere, PGE v. BOLI requires a court to look at the text of a statute, then its context, then legislative intent. I think we can all agree the text of ORS 106.010 is unclear. But as the plaintiffs point out, the context is not -- reference is made to "husband and wife". Thus a court may well construe 106.010 to require marriage to be between a man and a woman.

    5. I really doubt they will be able to obtain a preliminary injunction - they have to show "irreparable harm", which I think they will have trouble doing.

    6. Check out the signatures at the end - they've got national help, probably from conservative action groups.

    I'd love to see some of these hearings. Anyone know when the prelim. injunction will be heard?

  4. brett on 05 Mar 2004

    Also, I really, really doubt they'll concede the constitutional issue. This is merely an opening salvo - they can amend their complaint later, or someone else can file one. I really think this complaint is more for public consumption than for the court. Note some of the language referring to "150 years of Oregon social, political, cultural and legal heritage" and other grandstanding.

  5. sennoma on 05 Mar 2004

    > Wouldn't it be great if the court ruled
    > that the plaintiffs have no standing,
    > because the decision to allow gay
    > marriages doesn't harm them in any way?

    Would it be possible for the court to rule "no standing" on their request for injunctions (temporary and then permanent) against SSM licenses and the declaration regarding statutory definition of marriage? That would leave just the (much smaller, and IMO totally unrelated) issue of whether the Multnomah County Four violated the Open Meetings law.

  6. Robert Erickson on 12 Mar 2004

    it's "recall" time.....
    This "decision" by Ms. Linn is not within her "job description". She's completely out of control..she must be replaced.

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