Republican lawmakers failed in court Thursday, 4, May 2023, when they tried to stop a controversial abortion bill by saying that Democrats had not done things right when they brought it up.
Marion County Circuit Judge David Leith turned down a request from two Republicans in the legislature and the Oregon Right to Life group to temporarily stop Senate Democrats from passing House Bill 2002.
The request came from two GOP lawmakers and the group. By doing this, Leith showed he had doubts that the case would succeed. He did this by agreeing with government lawyers who said that the court didn’t have the power to stop the Legislature from doing its job.
“I don’t see any likelihood of success in persuading the court … to enjoin that legislative function,” Leith said.
Thursday night, it was still unclear if Republicans would keep going to court over the issue. The party also made it clear that it has other ways to stop the Democrats from making progress.
For the second day in a row, only two Republican senators came to a floor session when they were supposed to. Ten Republicans and one Independent did not show up, and many of them did so to protest the Democrats’ plans for this year. With 20 members, the chamber could do business.
The issue in the court case, which was filed on Wednesday by state Sen. Suzanne Weber, R-Tillamook, state Rep. Emily McIntire, R-Eagle Point, and Oregon Right To Life, is a state law that lawmakers say has yet to be followed for decades.
Under ORS 171.134, legislative attorneys who write outlines of bills before the Legislature must make sure that the general public can easily understand them. In particular, the law, which was passed by Democrats in 1979, says that these summaries must get a score of 60 or better on the Flesch-Kincaid readability test or a similar test.
The Flesch test looks at how easy reading a piece of writing is—a score of 60 means that a person can read at about an eighth-grade level.
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The summary of HB 2002 and almost every other piece of law needs to meet that standard. Republicans have tried to force Democrats to change the document so that it follows the law, but the ruling party has not let them. This is why they are suing.
Vance Day, a former Marion County judge who caused trouble by, among other things, not marrying same-sex couples, defended the GOP in court on Thursday. The day was removed from the bench for ethical violations.
Day said to Leith, his former partner on the Marion County bench, “This is a very unusual case.” “In many ways, you’re probably being asked to step into a different branch of government with a very heavy foot.”
But Day argued that the Legislature had broken the law and that when that happens, someone needs to be held responsible.
He asked, “If Democrats could just not follow the law, what was the point of the law?” Is there no way to fix this under the law?” Day said that a restraining order wouldn’t stop Democrats from passing HB 2002 in the end; it would just make them obey the law.
Lawyers from the Oregon Department of Justice told Leith that’s not how the state’s law works.
They said that because of the separation of powers in the state, the court couldn’t tell politicians how to make laws. Assistant Attorney General Alex Jones said, “That goes right to the heart of what the legislature does and what it means to be independent.”
The DOJ said that the law in question was a rule that members could decide to follow or not follow as they saw fit. They also said that the state constitution says that politicians can’t be forced to court for civil process while the legislature is in session.
The suit names as defendants Senate President Rob Wagner, House Speaker Dan Rayfield, and three other people who work in the legislature. Assistant Attorney General Brian Simmonds Marshall said, “President Wagner can’t be sued today because the Legislature is in session.” “He couldn’t be served a summons if he was the most important witness in a car crash case… I have no idea why any of them think they can stop the Legislature from making laws.”