March 05, 2004
On The Matter Of Standing
Are The Plaintiffs Being Harmed?
In the comments to part three of our analysis of today's lawsuit against Multnomah County, a reader asks, "How are these plaintiffs here going to obtain standing?"
Here's what the lawsuit itself has to say on the matter of standing:
Plaintiff DOMC is a coalition of membership organizations, churches, and individuals united to promote traditional moral values, and has a significant interest in the proper and and consistent interpretation of marriage laws of the state of Oregon. Plaintiffs Cecil Michael Thomas, Nancy Jo Thomas, and Dick Jordon Osborne are Oregon citizens and electors in Multnomah County who have an interest in the proper enforcement of the public meetings law. Plaintiffs Cecil Michael Thomas and Nancy Jo Thomas are also a married couple of 38 years with a significant interest in the proper and consistent interpretation of marriage laws of the State of Oregon. Plaintiffs Cecil Michael Thomas, Nancy Jo Thomas, and Dick Jordon Osborne are also Multnomah County taxpayers with an interest in limiting fiscal expenditures in the County.
Most of those arguments for standing are fairly clear, regardless of whether one thinks they will be accepted by the court.
In the first case, plaintiffs argue that their defense of traditional values gives them standing to file suit against what they perceive to be an assault on traditional values.
In the second case, plaintiffs argue that as citizens they have standing to file suit because they are harmed by violations of the state's open meetings law.
In the third case, plaintiffs argue a different-sex couple has standing to file suit because their marriage is harmed by the very existence of same-sex marriages. In the third case, plaintiffs argue that
However, we've noticed that it's the fourth case that tends to make people, ourselves included, scratch their heads. What is that one about? Accordign to the lawsuit, it's about the extension of "marriage benefits and attendant costs to the taxpayers of the County to the same-sex partners of Multnomah County employees."
Notice how that last item would also be an issue in civil unions. Remember it clearly when plaintiffs argue that they are not against or attacking homosexuals. If the fiscal argument holds water on same-sex marriage, it also holds water for civil unions. Granted, it's really almost a kind of technicality being used here simply as a way to argue for standing, and doesn't necessarily mean that plaintiffs also oppose civil unions. But keep an eye on it anyway.
Speaking of technicalities, perhaps someone with actual experience with how the courts operate could examine this bit from the lawsuit:
Plaintiff Defense of Marriage Coalition (hereinafter "DOMC") is an assumed business name of the Oregon Family Council Education Foundation is an Oregon non-profit corporation operating under the assumed business name of Oregon Family Council.
There's clearly no evidence of proper sentence structure there. Are the courts sticklers enough for dotting every I and crossing every T that they might toss this out on the technicality that part of the suit is written in a way as to be incomprehensible? Or is that just wishful thinking on my part?
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More In Law Enforcement & Legal Issues, Metro-Area Politics, Same-Sex Marriage, State of Oregon
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The lawsuit against Multnomah County concerning asame sex marriage on 07 Mar 2004
Man, the decision of some of the Multnomah County, Oregon commissioners to effect almost immediately the county counsel's opinion that not issuing licenses for same sex marriages is not a good thing under Oregon's constitution sure has upset some peopl...
Comments (1)
Ron on 06 Mar 2004
State v. Clark offers guidance on closed classes. Particularly, in dictum, the ability to bring oneself within a closed class serves to legitimize an otherwise invalid rational basis scrutinized grant of a privilege. Whereas an individual person that is not a tier-one public employee entitled to make future contributions cannot bring oneself within the class a person through marriage (same or different sex) could become a beneficiary and it might alter the benefit calculation of the now-married person who is already tier-one. I had argued, in a letter to Professor (you know who), that any Oregon attorney could have gone to court representing a class of non-tier-one public employees and demanded to make a deposit of say $10,000 each and demand an 8% return on that deposit under the equal privileges and immunities clause and State v. Clark. Senate Bill 258, dealing with about 50,000 inactive public employees, offers a 50% boost in the withdrawal calculation if they pull out or the system completely from July 1, 2004 through some time in 2006. Otherwise they could continue to inject additional contributions at the 8% guaranteed return for another couple decades. People who might be able to obtain those benefits (through marriage) would surely like to resolve, through judicial precedence, whether those rights are as secure to the same sex crowd as the different sex crowd – before the expiration of SB 258. Tactically, the opponents may not get standing to reach the merits, as I was not in my individual case challenging advanced funding, and thus the new licensees may also not get their desired certainty. (This is what I note as the selective power of a judge to either hear or not hear the merits of a case on unstated grounds of political desirability or undesirability. Citing Posner.) The point of the privileges and immunities constitutional argument is that the right existed all along, regardless of statutory changes in definitions of marriage and all-things-public-pension-related. The July 1, 2004, retirements of newly married couples (same of different sex) will translate to a bigger check beyond the 50% boosted amount for the inactive parties not planning on retaining tier-one status. The previous allowance of a mere temporary five-year departure from covered employment ended via 2003 legislation. The time to make a decision is fast approaching for both active and inactive public employees; same applies for different-sex marriages. (There was clearly more tactical discussions that are not revealed in the published opinions so as to assure a narrow issue before the Oregon Supreme Court.)
I like to say that if PERS did not give public employees a special right for their post employment trust accounts then the sex issue before Dian Linn would not have even come up for discussion.
Go read Utsey (still on the back-shelf of the Oregon Supreme Court) and Powell v. Bunn (the boy scout case). Should the ultimate resolution on a strict scrutiny basis versus an ultimate resolution on a rational basis basis (pardon the twist) have any effect on the standing determination before reaching the merits?
There remains an actual (not apparent) conflict of interest between Professor (you know who) who is on the team representing the state against the PERS coalition and his efforts to further expand the pool of persons covered by PERS, to the financial detriment of taxpayers who themselves cannot get guaranteed 8% returns on future deposits.
(I could be all wrong. But I think the "policy decision" will stand; even against the Attorney General and the State.)