Eight Republican lawmakers in the Oregon Senate will be blocked from running for reelection, after refusing to attend Senate floor sessions for six weeks last year, the Oregon Supreme Court ruled Thursday.
In a unanimous opinion that could have reverberations for the upcoming legislative session, the court sided with Secretary of State LaVonne Griffin-Valade’s interpretation of Measure 113, the 2022 ballot measure that voters approved with an eye toward ending legislative walkouts.
In doing so, the court embraced a reading of the law that even the state acknowledged is difficult to square with its actual language – in effect ruling that the clear intent of voters in passing the measure was more important than the plain wording inserted into the state Constitution.
“While petitioners’ interpretation of the text may be the more grammatical reading,” the court wrote, “the text is capable of supporting the secretary’s interpretation.”
The ruling was hailed by Griffin-Valade, and by the public-sector unions that pushed the anti-walkout law in the first place. Andrea Kennedy-Smith, former vice president of Service Employees International Union Local 503, said in a statement the ruling “upholds the intent of Oregon voters; politicians need to do their jobs or lose their jobs.”
But the result drew immediate outcry from Republicans, who suggested the court’s liberal leanings had trumped a legally sound outcome.
“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,” state Sen. Suzanne Weber, R-Tillamook, said in a statement.
While Oregon Supreme Court justices must stand for election, six of the court’s seven justices were initially appointed by Gov. Kate Brown. The seventh, Justice Aruna Masih, was appointed by Gov. Tina Kotek but did not participate in the decision.
Measure 113 was an attempt by unions and their allies to create stiff consequences for lawmakers who engage in walkouts, which deny a legislative chamber the two-thirds quorum of members present to conduct business. While both parties have used the strategy, minority Republicans have been using walkouts increasingly since 2019.
The law got its first test not long after voters passed it in November 2022. Raising objections over a raft of Democratic proposals, 10 Senate Republicans walked away from the 2023 session for more than 40 days, returning only after they’d secured concessions. Eight of those lawmakers have signaled they plan to run for reelection either this year or in 2026, creating a question of how, precisely, the measure works.
As sold to voters, Measure 113 blocked lawmakers from running for another term if they acquired 10 or more unexcused absences in a legislative session. But while explanatory statements, ballot language and news articles depicted those consequences as immediate, the actual language of the law was far more muddled.
It said that lawmakers who hit the 10-absence threshold can’t hold office “for the term following the election after the member’s current term is completed.” Since elections are held prior to the end of a legislative term, not after, Republicans zeroed in on the wording, contending the law clearly grants them another term before being blocked from running.
After Griffin-Valade announced in August she would bar walkout participants from seeking re-election this year, five Republican senators filed suit. The petitioners in the case were Sens. Tim Knopp of Bend, Daniel Bonham of The Dalles, Suzanne Weber of Tillamook, Dennis Linthicum of Beatty, and Lynn Findley of Vale.
In their suit and during oral arguments, the Republican lawmakers argued that the sloppy language had slipped through unnoticed, partly because the measure got no serious opposition. Nevertheless, they said, the plain reading of the law is clear.
“This became an emperor-has-no-clothes situation,” John DiLorenzo, the attorney representing the Republican lawmakers, told Supreme Court justices in December. “After it was passed, someone took a look at this and said, ‘If you read what was put into the Constitution – the actual words – there is no other way to read this.’”
The Oregon Department of Justice, defending Griffin-Valade, acknowledged the wording was not ideal. But the state put forward a novel reading of the language, suggesting justices should insert imaginary commas to indicate Republicans couldn’t hold office “for the term, following the election, after the member’s current term is completed.”
This awkward reading, the state said, would ensure that lawmakers be blocked from seeking reelection immediately, and was the only way to square the law with how voters intended it to play out.
“The text here can be read – albeit in a redundant way – as effectuating voter intent,” Oregon DOJ attorney Dustin Buehler told justice during oral arguments. “It’s clunky. It’s inelegant. But this is also a voter-approved initiative.”
Public-employee unions that wrote and bankrolled Measure 113 weighed in to support that argument, along with advocacy organizations like Planned Parenthood, Basic Rights Oregon and the ACLU of Oregon.
In the end, the justices opted to side with what appeared to be voters’ clear intent, finding that the state’s reading of the Constitutional language was plausible—albeit not pretty.
“If we were required to choose between petitioners’ and the secretary’s interpretations based on the text alone, petitioners would have a strong argument that their reading is the better one,” the opinion said. “But we do not review the text in a void. We instead seek to understand how voters would have understood the text in the light of the other materials that accompanied it. And those other materials expressly and uniformly informed voters that the amendment would apply to a legislator’s immediate next terms of office, indicating that the voters so understood and intended that meaning.”
That interpretation, the court said, squared with past instances where justices have had to parse unclear legal language for meaning.
DiLorenzo had warned justices in oral arguments against interpreting the law in a way that contradicts the plain language in the Constitution, saying such a ruling would open up wider swaths of the document to reinterpretation. He repeated the sentiment Thursday.
“Although time will tell, I think this is a decision that will open a Pandora’s box,” DiLorenzo said in an email Thursday. “The court missed a great opportunity to let initiative sponsors know that they should be careful how they draft their text. I would not be surprised if this decision comes back to haunt those who today will rely on it.”
The Supreme Court decision has been a matter of curiosity and debate in Oregon political circles. It landed four days before the Legislature is scheduled to convene for a 35-day short session.
Knopp, the Senate Republican leader now officially blocked from seeking reelection this year, suggested Wednesday that the outcome of the case could have a bearing on how that session plays out.
“I think we win either way, quite frankly,” he said. “If the court sides with us, it’s a clear victory. 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.”
Knopp offered a more measured reaction Thursday morning.
“We obviously disagree with the Supreme Court’s ruling,” he said in a statement. “But more importantly, we are deeply disturbed by the chilling impact this decision will have to crush dissent.”
Kotek, meanwhile, suggested in a statement that the ruling should not preclude a progressive session in which both parties have said they want to focus on boosting housing and addressing drug addiction.
“Oregonians are looking for elected leaders to work together to solve our state’s most pressing problems,” she said. “I appreciate the clarity the court has provided on this issue, and I’m looking forward to a productive legislative session that focuses on getting things done for the people of Oregon.”
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