House Republicans hiding out of state to block climate change legislation are likely not exempt from subpoenas Democrats issued this week, according to legislative lawyers.
Despite a provision in the Oregon Constitution that says lawmakers “shall not be subject to any civil process” while the Legislature is in session, an opinion from the Office of the Legislative Counsel says the 21 absent Republicans aren’t shielded.
That’s because the exemption was written in order to help the legislative process work, wrote senior deputy legislative counsel Marisa James — not to help lawmakers obstruct it.
“The Oregon Supreme Court has recognized that the privilege against civil process is a protection afforded to legislators only to the extent necessary to perform legislative functions,” James wrote in the Feb. 28 opinion requested by House Speaker Tina Kotek, D-Portland.
“The privilege to be free from civil process is unlikely to be able to be asserted in order to avoid performing legislative functions.”
That rationale follows conclusions reached in other states, the opinion says.
House Democrats voted Thursday to issue the subpoenas in a long-shot attempt to force the absent Republicans back to the Capitol before the clock runs out on the 2020 legislative session. The documents "require" the 21 lawmakers to appear before the House Rules Committee on March 5, and to come ready to explain themselves.
Under state law, people who fail to abide such subpoenas can be compelled by a judge’s order.
But with Republicans dismissing the documents as “strong-arm tactics,” it appears unlikely the legislative counsel opinion, which does not carry the force of law, will have much impact.
Not long after the subpoenas were approved Thursday, Kotek told reporters she was “not optimistic this will be resolved” in time for the session’s mandatory March 8 adjournment.
Democrats have hired a Salem process server to deliver the subpoenas to each of the 21 missing representatives at a cost of $105 per subpoena. The $2,205 cost will be paid from the Legislature’s budget, according to Danny Moran, a spokesman for Kotek.
With House Republicans apparently biding their time out of state in undisclosed locations, it wasn’t initially clear how they could be served the subpoenas. But according to an invoice obtained by OPB, the subpoena to House Minority Leader Christine Drazan, R-Canby, was served to her chief of staff on Feb. 27, and sent via mail.
In a statement issued following the announcement of the subpoenas Thursday, Drazan said: “We will not be intimidated. We remain resolved to serve the hardworking families of Oregon who have asked for the abuse of power to end and for cap and trade to be referred to the people.”
But it appears Drazan has been on the other side of a similar tactic before.
In 2001, when Drazan was serving as chief of staff to then-House Speaker Mark Simmons, House Democrats fled the Capitol for five days in a dispute over redrawing legislative districts. Republicans responded by issuing summonses to the truant Democrats, with the legislative counsel saying they could be arrested if they refused to comply.
Democrats had not fled the state and largely shrugged off the move, according to news coverage.
One Democrat told the Oregonian at the time that if a process server came to his door he would “save the paper for posterity's sake."
The current Legislative standoff is not constrained to the House. On Monday, Republican senators fled the Capitol shortly after Democrats' signature climate change proposal, Senate Bill 1530, advanced toward a vote on the Senate floor. House Republicans followed suit a day later.
Democrats hold supermajorities in both chambers, but without at least two Republicans present, they can't achieve the two-thirds quorum needed to conduct business. In the six days since the walkout began, action in the Capitol has ground to a halt, and a wide array of budget and policy priorities are at risk of dying. The biennial short session must end March 8.
Senate Bill 1530 would institute a cap-and-trade system designed to sharply reduce greenhouse gas emissions by regulating polluters. The bill is similar to last year’s House Bill 2020 — for which Senate Republicans also left the legislature in June 2019 — but has been amended in meaningful ways in an attempt to assuage critics.
That has not been enough to satisfy Republicans, who are demanding the bill be either killed or referred to the November 2020 ballot.