March 11, 2004
So Just What Did Happen In The Multnomah County Lawsuit Today?
Some Confirmation Of Our Earlier Report (And Additional Infomation)
In a news release announcing its intention once again to intervene in the local same-sex marriage legal wrangling, the ACLU of Oregon spells out what went down today -- and what didn't:
Opponents of the County's action filed a Petition for an Alternative Writ of Mandamus in Multnomah County Circuit Court today. At a brief hearing before Circuit Court Judge Dale Koch, a county attorney argued that the court should reject the petition on procedural grounds because a separate lawsuit filed last Friday is still pending before Judge Frank Bearden.
Instead, Judge Koch took the issue under advisement, but Judge Bearden is expected Friday to issue an alternative writ that will require the County to appear at a future hearing to explain its legal authority for issuing marriage licenses to same-sex couples. A date for that hearing and further proceedings on the first lawsuit is expected to be announced following a scheduling conference to be held by attorneys with Judge Bearden Friday morning.
So there was a hearing today regarding plaintiff's petition for a writ of mandamus, but Judge Koch neither accept nor rejected it, choosing instead to consider it. As you can see above however, it seems that the trial judge at some point will issue such a writ.
ACLU's release also hits on the related matter of the misreported news:
The Alliance Defense Fund, which has provided financial support to the attorneys challenging Multnomah County, had issued a news release earlier Thursday that mistakenly reported the court had ordered a halt to the issuance of licenses to same-sex couples.
To be fair (and further confusing the matter), that's not quite what the ADF release said either. While it did claim -- wrongly -- that the petition had been acted upon by Judge Koch, it didn't claim that Koch had ordered a halt to the issuance of licenses. It merely explained that under such a writ, the County would have to cease its actions or adequately explain to the court why it should not be required to do so.
So, the piece we were missing was that there was indeed a hearing on the matter. But we did have it correct that the judge "allowed" (sort of) the petition for a writ of mandamus without yet taking any action on it.
As for the ADF news release, and to round out the story, we know from earlier today that it sparked an inaccurate press report and a hurried conference call involving counsel for both sides and the judge to sort out why an organization involved in supporting the plaintiffs' was running around spreading misinformation.
After tomorrow morning's scheduling conference, it's expected that we will have dates for the writ of mandamus hearing before Judge Beardon (as opposed to the writ before Judge Koch which was the one that caused the mistaken information to float around today) as well as dates for further proceedings.
For what it's worth, Judge Beardon currently is presiding over a murder trial, and for the foreseeable future will be available for other matters only on Fridays.
Before we leave this behind, a bit of background on writs of mandamus, as seen in ORS 34.150:
The writ shall be either alternative or peremptory; when in the alternative, it shall state concisely the facts, according to the petition, showing the obligation of the defendant to perform the act, and the omission of the defendant to perform it, and command the defendant, that immediately after the receipt of the writ, or at some other specified time, the defendant do the act required to be performed, or show cause before the court or judge thereof, by whom the writ was allowed, at a time and place therein specified, why the defendant has not done so; and that the defendant then and there return the writ, with the certificate of the defendant annexed, of having done as the defendant is commanded, or the cause of omission thereof. When peremptory, the writ shall be in a similar form, except that the words requiring the defendant to show cause why the defendant has not done as commanded, and to return the cause therefor, shall be omitted.
In other words, the fact that we are dealing here with alternative and not peremptory writs is what gives the County the chance to make its case before the court. A peremptory writ of mandamus is issued "[w]hen the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it." In this case, the "performance of the act" would mean the cessation of the issuance of marriage licenses.