Republican senators sue Oregon Senate president, secretary of state over absences

Three Oregon Republican senators sued Democratic Senate President Rob Wagner and Secretary of State LaVonne Griffin-Valade in federal court on Monday, marking the latest in a series of attempts by Republicans who shut down the Legislature for six weeks to subvert a voter-approved law and run for reelection. 

The federal lawsuit filed by Sens. Brian Boquist, Cedric Hayden and Dennis Linthicum, along with three county Republican central committees and two voters, joins a state lawsuit filed by Linthicum and four other senators to block a ruling from Secretary of State LaVonne Griffin-Valade that disqualified several senators from filing for reelection based on Measure 113. 

The state case rests on how the court interprets the text of Measure 113, a constitutional amendment approved by voters in 2022 to prevent any lawmakers with 10 or more unexcused absences from serving another term. The senators who sued in state court contend that they’re ineligible for the term after their next term because the measure wasn’t worded clearly.

But the federal lawsuit, filed in U.S. District Court in Eugene, is based on the U.S. Constitution, with Boquist, Hayden and Linthicum arguing that Wagner and Griffin-Valade infringed on their First Amendment right to free expression and Fourteenth Amendment guarantee of equal protection under the law. 

“Senator plaintiffs were punished for exercising their First Amendment rights and their punishment snowballed into additional constitutional violations,” the plaintiffs’ attorneys wrote in their complaint. 

They’re seeking a court ruling clearing them to run for reelection and declaring that exercising a constitutional right to protest is a valid reason to miss Senate floor sessions. 

Spokespeople for Griffin-Valade and Wagner did not immediately provide comments responding to the lawsuit Monday evening. 

Boquist, Hayden and Linthicum are three of the 10 Republican senators – a third of the Senate – who skipped six weeks of Senate floor sessions as part of a protest over controversial bills on abortion, guns and transgender health care. Because Oregon’s unusual quorum rules require two-thirds of lawmakers to be present to conduct any business, the protesting Republican senators stopped the Senate from passing any bills during the walkout. 

Republicans in the minority in the House and Senate have increasingly relied on walkouts to block Democrats from passing bills in recent years, leading a coalition of unions and progressive groups to put Measure 113 on the ballot. Some Democratic lawmakers are now looking at a different constitutional amendment to change the quorum requirement and eliminate walkouts altogether. 

Measure 113 amended the state constitution to declare that any lawmaker who misses 10 or more legislative floor sessions “without permission or excuse” is ineligible to serve another term. The senators contend that they had excuses, but Wagner didn’t acknowledge them.

“Only the defendant Senate President Rob Wagner determines if an absent member has permission to be absent or not,” the complaint said. “There are no laws or rules putting legislators on notice of what category of absence is ‘unexcused.’ There are no historical indicators. There is no hearing process. There are no provisions for an appeal process.”

As a matter of practice, senators turn in forms requesting an excused absence and providing a reason, and Wagner checks a box indicating whether they’re excused or not excused. Historically, the Senate president and House speaker excuse absences – a notable exception in 2022 was former Republican state Sen. Dallas Heard, who was marked as absent most days after he refused to comply with the Senate’s COVID mask policy. 

When Republican senators began their walkout on May 3, Wagner marked some senators as excused and others as absent, depending on the language of their requests. For instance, Sen. Bill Hansell, R-Athena, was excused to accompany Gov. Tina Kotek on a tour, and Hayden was marked absent when he requested an excused absence to protest. 

On May 5, Wagner announced that he would only excuse absences for an “extraordinary circumstance.” Two lawmakers, one Democrat and one Republican, continued receiving excused absences for ongoing medical treatment, and Boquist received excused absences when a waterline burst on his rural property.

But most senators, Democrats and Republicans, were marked “absent” when they missed floor sessions for reasons including illness, family health issues, attending religious services, officiating a family member’s out-of-state wedding, visiting out-of-state family and attending a child’s graduation, according to an independent report from an attorney investigating workplace harassment complaints Hayden and Sen. Lynn Findley, R-Vale, filed against Wagner earlier this year.  

The Senate Committee on Conduct, composed equally of Democrats and Republicans, unanimously dismissed those complaints in October. Hayden has a separate complaint with the Oregon Bureau of Labor and Industries, and that investigation must be wrapped up by May 8, 2024. 

Hayden, who is a Seventh-day Adventist and observes the Sabbath on Saturdays, and Boquist, a Catholic who attends Mass on Sundays and other Catholic feast days, also argued in the federal lawsuit that they were punished for exercising their religion because Wagner denied their requests to miss work for religious reasons. 

The Lane, Klamath and Polk county Republican central committees joined the lawsuit, as did former Republican candidate John Swanson, who resides in Boquist’s district, and Klamath County Republican Party Chair Rejeana Jackson, who lives in Linthicum’s district. The plaintiffs are represented by conservative attorneys Elizabeth Jones of Salem-based Capitol Legal Services, Vance Day of Powell Butte and Indiana attorney James Bopp. 

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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Julia Shumway is deputy editor of Oregon Capital Chronicle and has reported on government and politics in Iowa and Nebraska, spent time at the Bend Bulletin and most recently was a legislative reporter for the Arizona Capitol Times in Phoenix. An award-winning journalist, Julia most recently reported on the tangled efforts to audit the presidential results in Arizona.