Oregon Supreme Court weighs arguments from GOP senators seeking to run for re-election

By BEN BOTKIN/Oregon Capital Chronicle

SALEM — As Oregon Supreme Court justices intently listened on Thursday, lawyers parsed and dissected Measure 113, a voter-approved law that bars state legislators from serving a subsequent term after at least 10 unexcused absences.

Now, the state Supreme Court must decide how to rule on the challenge from five Republican senators who want to block Secretary of State LaVonne Griffin-Valade’s ruling that would bar them from running for reelection. The senators want to run in 2024 after participating in the GOP-led walkout during the last session. The six-week walkout forced Democratic leaders to water down bills on abortion and firearms but along the way GOP senators racked up unexcused absences.

Regardless of how the court rules, the justices will have a hand in determining the future of the Oregon Senate – and who will serve in the upper chamber in the years to come. The justices didn’t rule on Thursday, but their decision is expected before the March 12 deadline for candidates to file to run for office.

In a separate federal lawsuit about Measure 113, a federal judge rejected a request Thursday from three Republican senators for a preliminary injunction that would allow them to appear on the ballot. That case can still go forward, but U.S. District Court Judge Ann Aiken indicated she doesn’t believe the senators will successfully prove that walking out was constitutionally protected free speech.

In all, 10 senators  who participated in the six-week walkout are barred from serving another term of office under Measure 113, a constitutional amendment aimed at preventing a minor party from blocking legislative action. The measure punishes lawmakers who do not have approval to miss at least 10 days of work.

The senators are suing Griffin-Valade over her ruling, announced in August, over allowing them to run for election. Griffin-Valade said the decision was based on the explanatory statement in the voters guide, news stories and court documents. A Secretary of State attorney also told her she has the authority to reject filings from disqualified candidates.

The arguments centered on semantics: Republican senators are arguing that the text of the law, as crafted, applies not to their next term of office but the following one. If the justices rule in their favor, Senate Minority Leader Tim Knopp, R-Bend, and other Republicans up for election in 2024 could run next year and serve another four-year term. They would be barred from running in 2028, however.

Knopp and five other Republicans involved in the walkout – Brian Boquist of Dallas, Lynn Findley of Vale, Bill Hansell of Athena, Dennis Linthicum of Klamath Falls and Art Robinson of Cave Junction – are up for reelection in 2024. But Hansell is not planning to run again.

“This court has said time and time again that when the text of enactment is capable of only one meaning, the court applies the unambiguous meaning, even though the legislative history suggests a different meaning was intended,” John DiLorenzo, Jr., an attorney representing the senators, told the court.

The language in question has just 13 words: “For the term following the election after the member’s current term is completed.”  The senators argue they can run in 2024 because that election is during their term of office, not “after the member’s current term.” Their terms of office will end in January 2025.

At times, inquisitive justices quizzed the attorneys. Chief Justice Meagan Flynn agreed that words could be interpreted that way.

“I look at those words and my first reaction is exactly yours,” she said to DiLorenzo. “But then I ask myself how did so many people read it differently?”

‘It’s inelegant’

Meanwhile, Oregon Department of Justice attorneys defending the Secretary of State’s office asked the justices to weigh the information that voters had on hand when they cast ballots for Measure 113. That information, including the ballot title, was clear that legislators would be barred from the next election, not receive a reprieve of one-term, they said.

“What we all need to appreciate here is if this exercise is about effectuating the intent of voters, there really is only one answer,” said Dustin Buehler,  attorney-in-charge of civil appeals for the Oregon Department of Justice.

He said the language was not worded perfectly and is redundant, albeit with phrasing that could be interpreted to align with what voters understood.

“It’s clunky,” he said. “It’s inelegant. But it’s also a voter-approved initiative.”

But DiLorenzo, in his rebuttal, said the justices must go by the text of the law, just as they would if legislators made the mistake of relying only upon inaccurate staff-written summaries before passing bills.

Knopp, Linthicum, Findley and Sens. Suzanne Weber, R-Tillamook, and Daniel Bonham, R-The Dalles, filed the lawsuit. Weber, Bonham and Sens. Cedric Hayden, R-Fall Creek and Kim Thatcher, R-Keizer, also had more than 10 absences but their terms aren’t up until 2027.

After the hearing, Knopp spoke to reporters.

“I think the justices really only have one option here,” he said. “It’s because if you don’t support the plain language of what the constitution actually says, and what the voters voted on, then you’re left with complete interpretation of intent after the fact. And I think that’s a dangerous precedent.”

Meanwhile, Republicans are planning for a potential adverse ruling. Knopp said senators are working on a “Plan B” that would have alternative Republican candidates if necessary.

Linthicum and Robinson already have plans – Linthicum’s wife and Robinson’s son filed to run in their place. Knopp said none of his family members is interested in running.

Buehler, the state attorney, declined in a brief statement to reporters afterwards to comment when asked how confident he was in his case.

“This is obviously an issue that’s very important to the voters, voters of Oregon and to the legislative assembly,” he said. “We’re very appreciative that the court will issue a decision as soon as it can.”