Marion County judge denies Republican effort to waylay abortion, gender-affirming health care bill

By Dirk VanderHart (OPB)
May 4, 2023 8:39 p.m. Updated: May 4, 2023 10:44 p.m.

Republicans failed to win a temporary restraining order delaying House Bill 2002. The party’s Senate walkout continues.

The Oregon Senate in session at the state Capitol in Salem on March 20. Many Republican Senators have walked away from the legislative session to block Democrats from conducting business.

The Oregon Senate in session at the state Capitol in Salem on March 20. Many Republican Senators have walked away from the legislative session to block Democrats from conducting business.

Kristyna Wentz-Graff / OPB


Click the player above to hear OPB politics reporter Lauren Dake discuss the history of legislative walkouts, why Senate Republicans say they are boycotting the Capitol and much more.

Republican lawmakers stumbled Thursday in their legal effort to delay a contentious abortion bill by insisting Democrats had not followed proper procedure when putting it forward.

Marion County Circuit Judge David Leith denied a petition on behalf of two GOP legislators and the advocacy group Oregon Right To Life, requesting the court temporarily block Senate Democrats from passing House Bill 2002. In doing so, Leith signaled serious misgivings that the case would ultimately succeed, nodding to arguments from government lawyers that the court had no authority to block 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.

It was not ultimately clear Thursday whether Republicans would continue to pursue the matter in court. Meanwhile, the party made clear it has other options to block Democrats’ progress.

For the second day in a row, just two Republican lawmakers showed up in Senate chambers for a scheduled floor session. Ten Republicans and one Independent were absent — many in protest to Democrats’ agenda this year — meaning the chamber did not have a 20-member quorum and could not conduct business.

At issue in the court case — filed Wednesday by state Sen. Suzanne Weber, R-Tillamook, state Rep. Emily McIntire, R-Eagle Point, and Oregon Right To Life — is a state statute that legislative officials say hasn’t been followed in decades.

Under ORS 171.134, legislative attorneys that write summaries of bills before the Legislature need to ensure they are readily understandable by the general public. Specifically, the law, enacted by Democrats in 1979, says those summaries need to score a 60 or higher on something called the Flesch-Kincaid readability test, or something comparable. The Flesch test analyzes text for how easy it is to read, and a score of 60 connotes a reading level of about eighth grade.


HB 2002′s bill summary — and breakdowns of pretty much every other piece of legislation — don’t meet that threshold. Republicans have attempted to force Democrats to revise the document to comply with the law, but have been overruled by the majority party, hence the lawsuit.

The GOP was represented in court Thursday by Vance Day, a former Marion County judge who has seen controversy over refusing to marry same-sex couples, among other things, and was suspended from the bench for ethical violations.

“This is obviously an unusual case,” Day told Leith, his former colleague on the Marion County bench. “You’re being asked to step into a different branch [of government] with, in many ways, probably a very heavy foot.”

But Day made the case that the Legislature had failed to comply with the law, and that there had to be some form of accountability when that happens.

If Democrats could simply fail to follow the law, he asked, “then what is the use of the statute. Is there no remedy under the statute?” Day argued that a restraining order would not block Democrats from ultimately passing HB 2002, just force them to follow the law.

Lawyers with the Oregon Department of Justice told Leith that’s not how the state’s constitution works.

Under the state’s separation of powers, they said, the court could not step in to dictate the manner in which lawmakers legislate. “That strikes right at the core of legislative functions and at the core of legislative independence,” said Assistant Attorney General Alex Jones.

The DOJ likened the statute in question to a legislative rule that lawmakers could choose to obey as they saw fit. And they pointed out that, under the state constitution, lawmakers cannot be forced to come to court for civil process during legislative session.

Senate President Rob Wagner, House Speaker Dan Rayfield, and three legislative officials are named as defendants in the suit. “President Wagner can’t be sued today, because the Legislature is in session,” said Assistant Attorney General Brian Simmonds Marshall. “If he was the key witness in an automobile accident case, he could not be subject to a summons … I honestly have no idea why any of them think they can stop the Legislature from legislating.”

Day argued that Democrats could easily repeal ORS 171.134 if they want, but noted they have made no move to do so. But the DOJ said that, by passing HB 2002 in its current form, lawmakers would effectively be choosing to nullify the law — at least as it applies to that bill.

In the end, Leith seemed to agree that there’s a high likelihood he ultimately could not block Democrats from acting. And since the argument was not likely to fly in the case, he denied the restraining order.

But Leith also made clear he did not believe Democrats complied with the readability statute.

“If it was mine to decide, I would say that the summary doesn’t meet that standard,” Leith said. “I am also not at all sure that it’s possible to accurately convey the information that would summarize this bill without exceeding the threshold that the statute provides.”