In a unanimous decision, the court rejected arguments from five Republican senators that Measure 113, a voter-approved 2022 law meant to dissuade lawmakers from walking out and shutting down the legislative process, was poorly worded and would give them another term in office. Instead, the court agreed with state attorneys, who urged justices to consider voters’ intent with the 2022 law, which bars any lawmaker with 10 or more unexcused absences from serving another term.
“Because the text is capable of supporting the secretary’s interpretation, and considering the clear import of the ballot title and explanatory statement in this case, we agree with the secretary that voters would have understood the amendment to mean that a legislator with 10 or more unexcused absences during a legislative session would be disqualified from holding legislative office during the immediate next term, rather than the term after that,” the ruling said.
The ruling means 10 Republican senators – one-third of the Senate – are ineligible for reelection. Two of the 10, Sens. Bill Hansell of Athena and Lynn Findley of Vale, already planned to retire. Four others – Sens. Daniel Bonham of The Dalles, Cedric Hayden of Fall Creek, Kim Thatcher of Keizer and Suzanne Weber of Tillamook – were elected to four-year terms in 2022 and will serve until January 2027.
And four, including Senate Minority Leader Tim Knopp, R-Bend, must end their Senate careers – at least temporarily – in January. Knopp and Sens. Brian Boquist of Dallas, Dennis Linthicum of Klamath Falls and Art Robinson of Cave Junction all tried to file for reelection last year and were waiting on the outcome of the court case.
Each previously designated a successor if they were barred from running. Robinson and Linthicum chose family members: Robinson’s son Noah and Linthicum’s wife, Diane, both filed for office last year. Dundee City Councilor and former Republican lawmaker Bruce Starr, a Boquist supporter, filed to run for Boquist’s seat. And Knopp earlier this month endorsed Shannon Monihan, executive director of the Downtown Bend Business Association, to run in his stead.
The ruling has immediate implications for the upcoming legislative session, which begins Monday. Democrats need at least three Republican senators to show up each day to conduct business because of the Legislature’s two-thirds quorum requirement, and Knopp told reporters Wednesday that Democrats would need to entice lame-duck Republicans to participate if the Supreme Court ruled against them.
“If the court sides with us, it’s a clear victory,” Knopp said. “If it doesn’t, I think we still win because our members literally have no reason to show up, and so in order for them to show up, they’re going to want to see that they’re going to be able to make a difference.”
Thirteen Words
The lawsuit depended on how justices would interpret just 13 words of the 2022 law, which stated that lawmakers with 10 or more unexcused absences would be ineligible for office “for the term following the election after the member’s current term is completed.” Legislative terms end the January following a November election, so the Republican senators who sued argued that the six senators who participated in the walkout and were up for election in 2024 would be allowed to run in 2024. Their current terms end in January 2025, so they argued that they would be ineligible to run in 2028.
“The text of the amendment does not unambiguously support either interpretation,” the court’s opinion said. “The text would more clearly support petitioners’ reading – and weaken the secretary’s reading – if it referred to ‘the term following the election [that occurs] after the member’s current term is completed.’”
With ambiguous language, the Supreme Court looked at the materials voters saw when they made their decision in 2022: the ballot title and state-issued voters’ pamphlet.
The attorney general drafts a ballot title, including a 15-word caption and summary of what a “yes” and “no” vote will mean, for each initiative that goes before voters. Ballots have to include that summary, not the actual text of a proposed law or constitutional amendment.
For the walkout measure, the caption read: “Legislators with 10 unexcused absences from floor sessions disqualified from holding next term of office.” And it described the results of a “yes” vote as disqualifying legislators with 10 unexcused absences “from holding office for term following current term of office.”
The voters’ pamphlet similarly described the measure similarly, as did contemporary news coverage. Linthicum, one of the senators involved in the lawsuit, was part of a bipartisan committee that crafted a 500-word explanatory statement for the voters’ pamphlet.
“Reading the text of the amendment in light of the ballot title and the voters’ pamphlet, voters would have understood the disqualification to apply to the term of office immediately following the term in which a legislator accrued or more unexcused absences,” the justices wrote.
Secretary of State LaVonne Griffin-Valade thanked the court for providing clarity.
“I’ve said from the beginning my intention was to support the will of the voters,” she said in a statement. “It was clear to me that voters intended for legislators with a certain number of absences in a legislative session to be immediately disqualified from seeking reelection.”
Republicans Slam Decision, Others Celebrate
Knopp and fellow senators were quick to criticize the decision, and slam the Supreme Court as “Democrat-stacked.” Every justice who participated in the decision was appointed by former Democratic Gov. Kate Brown. (Justice Aruna Masih, appointed by Democratic Gov. Tina Kotek, sat out the decision.)
“I’m disappointed but can’t say I’m surprised that a court of judges appointed solely by Governor Brown and Governor Kotek would rule in favor of political rhetoric rather than their own precedent,” Weber said. “The only winners in this case are Democrat politicians and their union backers.”
Knopp said senators obviously disagree with the ruling, adding “But more importantly, we are deeply disturbed by the chilling impact this decision will have to crush dissent.”
And Bonham said every lawyer he’s heard from, regardless of political leanings, agreed with the senators’ position.
“The language incorporated into the Oregon constitution was clear and yet the Supreme Court ruled that voter intent, which cannot be determined by any metric, supersedes the constitution,” he said. “There is no justice in a political court.”
The union leaders who backed Measure 113 praised the ruling. Andrea Kennedy-Smith, the former vice president of Service Employees International Union Local 503, described the lawsuit as a “frivolous legal challenge.
“This ruling upholds the intent of Oregon voters; politicians need to do their jobs or lose their jobs,” she said. “They need to play by the same rules as everyone else. We appreciate the Oregon Supreme Court’s justices for taking up and resolving this frivolous legal challenge.”
Reed Scott-Schwalbach, president of the Oregon Education Association, added that voters across the political spectrum supported Measure 113.
“These senators didn’t just walk away from their jobs, they walked away from Oregon students who rely on the Legislature to function and the thousands of Oregonians who clearly said that we expect politicians to show up and keep our state moving forward,” Scott-Schwalbach said.
A separate federal court challenge is continuing, though a federal judge in December denied a preliminary injunction that would have allowed Boquist, Linthicum and Hayden to run for reelection.
“We expect a ruling from the Ninth Circuit Court of Appeals in the federal case in February,” Boquist wrote in a Thursday email to fellow Republicans “The court has committed to rule before the primary election cutoff date. We appear to be the last remaining effort for which I will start looking for assistance to aid in the defense of constitutional rights.”
Hayden, a Seventh-day Adventist who doesn’t work Saturdays because of his religious beliefs, has also filed a workplace complaint with the Oregon Bureau of Labor and Industries. That investigation will conclude by May.
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This article was first published by theOregon Capital Chronicleand it was republished under Creative Commons license CC BY-NC-ND 4.0.
