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Sunday, March 14, 2004

When process is everything

We've been reading a fair amount from proponents of same-sex marriage lately about how the arguments over the process by which local officials decided to issue gay marriage licenses are just a distraction. As long as those officials turn out to be right about the constitutional infirmities of restricting marriage to monogamous hetero couples, they argue, the means by which they reached the right end is not important.

Au contraire. As it turns out, the California Supreme Court decision this week temporarily banning gay marriage licenses is all about process, and nothing more.

The California cases, Lockyer v. San Franciso and Lewis v. Alfaro, concern one isue and one issue only: whether San Francisco officials "are exceeding or acting outside the scope of their authority in refusing to enforce the provisions of" California statutes that restrict marriage to hetero couples. The court has ordered those officials to disregard their "personal views of the constitutionality of such provisions."

In California, the case for process may be stronger than in Oregon. For example, the California Constitution states in relevant part:

An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional;

(b) To declare a statute unconstitutional;

(c) To declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations.

The Oregon Constitution contains no comparable provision. But it does limit the power of county officials to actions on "matters of county concern." It's not clear to me without further research that a judgment on the constitutionality of a state statute of general application is indeed a "matter of county concern."

And if it isn't, we could wind up right where San Francisco is now: tied up in knots, and all because the county didn't follow proper process.

Comments (21)

Isn't it an overarching principle of law that all statutes are presumed to be constitutional unless and until a court finds otherwise? As such, persons charged with administering the statute must either comply with it or challenge its constitutionality in court.

Well, it gets a little dicier when the official is both an administrator and a legislator, which is what you have in municipal government out here. As legislator, they're free to interpret the Constitution. As administrator, it's less clear; they take an oath to uphold it, but they probably don't have the power to interpret it.

Of course, in this case the officials in question shunned the legislative process altogether, insisting that they acted in an administrative capacity only. (They had to say that, or else they violated the open meetings law.) Which makes your point stronger, and their position weaker.

A privilege granted – under whatever scheme – cannot possibly be a violation of a constitutional prohibition on denial of a privilege. It is the interests of the opponents of the Multnomah County action that are seeking vindication in the court and their rights have nothing whatsoever to do with the privileges and immunities clause. Is it not a common principle not to pry into the minds and motivations of legislators (inclusive of county administrators) when determining the validity of legislation?

If the legislature itself seeks speedy resolution through a creative grant of original jurisdiction to the Oregon Supreme Court then we will be asking them for an advisory opinion. A Statesman Journal article noted the contemplation of a PERS style tactical solution of speedy review in the Oregon Supreme Court. The only question I see is whether the Oregon Supreme Court will, sua sponte, apply the rule of law and tell the litigants in such an orchestrated affair to go back and complete their political task in the political arena.

The posture of the present Multnomah County litigation is analogous to the same-sex folks demanding the court to invalidate marriage licenses granted to different-sex couples.

Jack say: Of course, in this case the officials in question shunned the legislative process altogether, insisting that they acted in an administrative capacity only. (They had to say that, or else they violated the open meetings law.) Which makes your point stronger, and their position weaker.

Regardless of what point is made stronger or weaker here, the County didn't argue that this was an administrative/executive decision merely to escape the public meetings law. They argued it because it was the case.

Since there is no Multnomah County code governing the issuance of marriage licenses, how the County does to is a matter of interpreting its statutory authority to do so (a function of the County Attorney), and so requires no vote-oriented legislative, action.

That said, I'm still not hearing persuasive arguments from the process camp that there's something inherently wrong about how the County did this, only a questioning of how politically appropriate it was, which is another matter altogether.

As I've argued elsewhere, the County had a choice between taking the advice of the County Attorney ASAP and responding to the inevitable lawsuits from the same-sex marriage opponents, or defer taking the advice of the County Attorney and responding to the inevitable lawsuits from same-sex marriage proponents.

Either way, the entire thing would end up in the courts where it belonged.

All things being sor tof equal in that regard then, obviously there was a political calcuation involved here, in that the Commissioners in question likely believed that since they considered this to be a civil rights issue, why not go ahead and begin issuing the licenses ASAP and then let opponents try to take them away. It just seems to be that some people seem to have a problem with this, while others do not.

J.B. said, "...we could wind up right where San Francisco is now: tied up in knots, and all because the county didn't follow proper process."

Maybe "tied up in knots", though inefficient, at least means we are spending some time looking at the problem.

One year ago same-sex couples had little/no hope of ever having access to the same legal rights and protections as hetero couples. Now there is hope. And middle-America, which used to be content with their cartoon image of gays as "Will & Grace"-style tokens, have at least opened their eyes and ears to the debate.

I admit to having some residual problems with same-sex marriage, and I do think the Multnomah County Commissioners (or at least 4 of them) were wrong to just go ahead and start issuing licenses.

But it IS fun to see the religious right drooling with rage over this whole thing.

And I like how this has exposed once again (as with voter approved assisted suicide and voter-approved medical marijuana) the utter hypocrisy of George W.'s and the Republicans' "states rights" mantra.

Professor Jack,

Article VI, Section 10 of the Or. Const., applied through caselaw, prohibits a locality from ruling on the constitutionality of a statute with statewide impact, unless it impacts a matter of the locality's "political form" (i.e. the number of commissioners, schedule of meetings, etc.)

Kristian, if you are right, the party will be interrupted very soon.


what does it mean to have "residual problems" as opposed to just plain old problems?

Jyah13: It just takes getting used to, that's all.

I think Serena Cruz' and b!x's research into Eugene v Cooper puts a big dent in the theory that the MC4 overstepped their bounds. Not only are the commissioners charged with upholding the OC, it is expected that they may have to actually interpret it in service of it. Further, Oregon's SC has been explicit in directing agencies to give the OC precedence over statute. So far all four lawyers who have addressed the issue have reached the same conclusion: the law does not meet muster.

I hate to disagree with such distinguished legal scholars as Serena Cruz and Bix, but I haven't heard anyone address the argument raised in this post and these comments -- that the county overstepped its powers over "matters of county concern," as specified in Art. IV, sec. 10 of the Oregon Constitution.

Regarding Article 6, section 10 of the Oregon Constitution.

The Cooper case cannot apply here because of Article 6, Section 10, combined with the fact that the county is not an arm of the state (unlike the adminstrative agency in Rogue Valley and Cooper). Home rule prevents counties from making judicial determinations of the constitutionality of statewide statutes for this very reason. Otherwise, county officials could say they got an opinion (or just thought themselves) that any of Oregon's laws were unconstitutional.

Marriage licenses are granted by county officials. A lawsuit filed by Person X who was desirous of a same-sex marriage but was denied would be captioned Person X v. County Clerk. How is marriage not a matter of county concern?

I don't see how you distinguish Cooper here. The "adminstrative agency" you refer to is School District No. 4J in Eugene. A local school district is an arm of the state, and a county is not?

There is a long and somewhat torturous discussion of the legislative history of the "county concern" phrase in Gte Northwest v. Or. Puc, 179 Ore. App. 46. Ultimately, the Court seems to helpfully conclude that whether a matter is a county concern turns on whether it's "a matter of predominantly statewide or predominantly local concern." Gee, thanks.

Seems like there's a good argument to be made on both sides. But let's remember the context. This discussion ultimately won't matter to the resolution of the issue of whether gay marriage is legal or not.

If the legislature set uniform requirements for issuing marriage licenses, then it would seem to follow that it is a matter of statewide concern.

I'm beginning to think the "Sisters of Hawthorne" are gonna be hosed on the process argument.

I wonder...

How many more fans will they have if the county has to pony up for the legal fees of the Defense of Marriage folks?


I'm mildy disappointed in your legal research. When a county is given the duty to do something by the legislature (see Chapt 106), isn't legally fulfilling that duty a matter of "county concern"?

Additionally, you should know better than most that a local government, or the public for that matter, can't vote on whether or not to follow the law. It's the law. B!X's cites to Cooper & Rouge Valley indicate that, regardless, a government official always has the reponsibility to ensure his or her actions are constitutional. That's why we make them take an oath to uphold the Constitution. (Art. XV, Sec. 3)

And process -- I'll give you and Kelly Clark a big, fat, wet kiss if you can explain to me how in the world deciding, as a CEO, to follow the law is a "decision" under 192.610(1)(Public Meetings Law), which reads: "'Decision' means any determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is required, at any meeting at which a quorum is present." (emphasis mine)

Isn't it the role of a CEO to ensure her organization is law abiding? Especially if the Supreme Court, in dicta or otherwise, has stated as much?

I know you don't like Linn at all, but sometimes even the bad politicians take good actions.



How can a vote be required on a vote?

"'Decision' means any determination, action, vote or final disposition upon a motion, proposal, resolution, order, ordinance or measure on which a vote of a governing body is required, at any meeting at which a quorum is present."

Talk about poor research.

"First we look at the text..." PGE v BOLI

I'm mildy disappointed in your legal research. When a county is given the duty to do something by the legislature (see Chapt 106), isn't legally fulfilling that duty a matter of "county concern"?

Actually, no.

hob -- are you disagreeing with the statute's definition or my reading that the phrase "on which a vote of the governing body is required" qualifies the definition? just curious.

Jack -- what, in legal terms, is ensuring county practices comport with Oregon law? If it's not a concern of the county under the Constiution, is the county ever allowed to act when it believes its practices may be in violation of the law?

A "decision" under ORS 192.610 does not mean only something on which a vote is required. It's a facile and patently false reading of the statute to suggest as much.

Further, k, only matters that affect the County's form of governent (i.e. how many Commissioners, how often they meet, what their rules of taking testimony are, etc.) are matters of "county concern" within the meaning of Art 6, sec 10. Redefining marriage, and/or ruling on the constitutionality of a state statute (or changing longstanding county policy to comport with some hired gun's view of the law) is NOT "county concern" within the meaning of the constitutional provision.

Look at the Multnomah County court clerk case from the late 1980s.


Listed below are links to weblogs that reference When process is everything:

» The Night Before The Next Stage from The One True b!X's PORTLAND COMMUNIQUE
Tomorrow at noon, Multnomah County will announce what it tends to do, or not do, as a result of Attorney General Hardy Myers releasing his opinion, and Myers and Governor Ted Kulongski urging the County to stop issuing same-sex marriage licenses until ... [Read More]

» The Night Before The Next Stage from The One True b!X's PORTLAND COMMUNIQUE
Note: This post has been updated. Any and all updates appear at the end of the original post. Tomorrow at noon, Multnomah County will announce what it tends to do, or not do, as a result of Attorney General Hardy Myers releasing his opinion, and Myers ... [Read More]


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