Federal judge: Oregon Senate panel violated Boquist’s free speech rights

Sen. Brian Boquist, the maverick Oregon lawmaker who said state police should “send bachelors and come heavily armed” if they wanted to drag him back to the Capitol in a 2019 Republican-led Senate walkout, has prevailed in a First Amendment federal lawsuit tied to that statement and others.

In a Monday ruling, U.S. District Judge Michael McShane found that the Senate Conduct Committee retaliated against Boquist, I-Dallas, and violated his First Amendment rights when it required him to give a 12-hour notice prior to entering the Capitol.  The conduct committee’s action followed Boquist’s statement to a television reporter about the state police and a separate comment on the Senate floor to then-Senate President Peter Courtney: “If you send the state police to get me, hell’s coming to visit you personally.”

In response, Boquist filed a federal lawsuit in 2019 against Courtney and conduct committee members Floyd Prozanski and James Manning, both Eugene Democrats. Prozanski is still the committee’s chair.

McShane rejected arguments from state Department of Justice attorneys representing the three Democrats  that the 12-hour notice was necessary because Boquist was deemed a threat.

“Because the 12-hour notice rule served no legitimate purpose other than to retaliate against (Boquist) after he engaged in protected speech, defendants’ actions violated plaintiff’s First Amendment rights to free speech and association,” McShane wrote in his ruling. 

The committee lifted the 12-hour notice requirement last November, with Prozanski saying it was no longer needed to provide a safe workplace. 

McShane’s ruling marks the potential end of a legal saga that began when Boquist first filed the lawsuit without an attorney. The defendants have 30 days to decide whether to appeal the case. Courtney, a Salem Democrat who retired at the start of the year, declined to comment on the ruling, saying attorneys advised him not to comment as the case may continue.

Boquist said he hopes the case’s outcome will benefit all Oregonians and preserve their right to speak freely.

“When someone like me says something that the Democrats in power don’t like, or an enthusiastic moment is used as an opportunity to push their agenda, free speech must be protected,” Boquist said.

For nearly three years, Boquist represented himself in court against state attorneys assigned to defend the case. Initially, defendants won a motion to get the case dismissed. But Boquist successfully appealed the ruling on First Amendment grounds and the lawsuit stayed alive. 

In an interview, Boquist said the experience was enlightening.

“It’s the damn paperwork,” he said when asked about the biggest challenge. “It’s not preparing the case. It’s not pleading the case. It’s not finding the facts. It’s just you have all these paperwork, hurdles and formats you’ve got to go through.” 

Eventually, Boquist hired former Marion County judge Vance Day and Salem attorney Elizabeth Jones to represent him in court in June 2022.

In an interview, Day said the ruling showed the strength of Boquist’s case. 

“From a legal perspective, to originally be dismissed because no claims were deemed valid to then three years later winning on a motion for summary judgment – that’s like an earthquake going off in the capital,” said Day, also a former chairman of the Oregon Republican Party.

Judge: ‘Publicity stunt’

Capitol security never increased in anticipation of Boquist’s arrival, McShane noted in his ruling.

“This entire process appears to be a publicity stunt by a committee with no authorization seeking to impose a sanction against a member that it never intended to enforce,” he wrote.

To convince him, Boquist and his attorneys dug deep, obtaining hundreds of emails and conducting depositions of former and current legislators – including Gov. Tina Kotek, who sat for a deposition on Dec. 8, a month after her election. Kotek was speaker of the Oregon House during the 2019 walkout.

Kotek described  Boquist’s comments as threats, according to records obtained by the Capital Chronicle. At another point, Day pressed Kotek about Boquist’s free speech and constitutional rights.

“I am not a constitutional scholar,” Kotek responded. “All I can say is people took his threat seriously.”

Boquist left the Republican Party in 2021 and is a registered Independent. He joined Senate Republicans in their six-week walkout in this year’s legislative session, running afoul of a voter-approved constitutional amendment that aims to block lawmakers with 10 or more unexcused absences from running for re-election. He intends to challenge that new law and seek re-election in 2024. 

Next steps

It’s unclear if the defendants will appeal the case. Manning couldn’t be reached for comment.

In an interview, Prozanski said the 12-hour notification was a way to accommodate Boquist’s rights as a legislator and assure workers in the Capitol that they were free from threats and intimidation. 

Prozanski said his personal opinion is that the “court missed the mark and it should be appealed.”

Prozanski also noted Boquist only filed the lawsuit against Democratic senators, even though two Republicans – Sen. Tim Knopp of Bend and then-Sen. Alan Olsen of Canby – also voted on the action. 

Boquist said the committee was otherwise split on its vote and the Republicans feared a worse penalty if they voted against it. Courtney served as the tie-breaker on the committee but wasn’t present at that meeting.

Oregon Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Oregon Capital Chronicle maintains editorial independence. Contact Editor Lynne Terry for questions: [email protected]. Follow Oregon Capital Chronicle on Facebook and Twitter.

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Ben Botkin - Oregon Capital Chronicle

Ben Botkin covers justice, health and social services issues for the Oregon Capital Chronicle. He has been a reporter since 2003, when he drove from his Midwest locale to Idaho for his first journalism job. He has written extensively about politics and state agencies in Idaho, Nevada and Oregon. Most recently, he covered health care and the Oregon Legislature for The Lund Report. Botkin has won multiple journalism awards for his investigative and enterprise reporting, including on education, state budgets and criminal justice.