The Oregon State Capitol. (Saphara Harrell/Salem Reporter)
UPDATE: This story has been updated to include late developments regarding a new legal opinion.
SALEM — The Oregon Constitution likely doesn’t protect House Republicans from subpoenas issued by their Democratic colleagues to force their return to the Capitol, the legislature’s top lawyer said Friday.
Twenty-one House Republicans disappeared Tuesday to avoid taking a vote on a bill to cut down on the state’s greenhouse gas emissions. Their absence means the House doesn’t have enough people to vote on bills.
On Thursday afternoon, legislators on the House Rules Committee voted to subpoena the missing House Republicans.
Democrats want to make Republican lawmakers return to the Capitol — and testify about their absence.
Republicans have been quick to point out that legislators “shall not be subject to any civil process” during the legislative session under the Oregon Constitution. The current session will automatically end March 8.
But Legislative Counsel Dexter Johnson told House Speaker Tina Kotek, D-Portland, in a letter on Friday that it was unlikely that lawmakers could assert that privilege “in order to avoid performing legislative functions.”
The letter was provided to the Oregon Capital Bureau Friday evening.
“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,” Johnson wrote to Kotek on Friday. “It follows that the privilege to be free from civil process is unlikely to be able to be asserted in order to avoid performing legislative functions.”
DOCUMENT: Legislative counsel opinion
Democrats, fielding questions from reporters on Thursday, acknowledged that they could be wading into muddy legal waters. But they were outwardly optimistic that process servers could track down Republicans, who so far have declined to disclose where they’ve gone.
“Process servers have their own methodologies and I’m not familiar with them,” said Rep. Paul Holvey, D-Eugene, chair of the House Rules Committee, said at a press conference Thursday evening. “They do a professional job and we just rely on that professionalism.”
But a spokesman for Kotek said process servers won’t be tracking down Republicans in person. Democrats have hired Malstrom’s Process Serving Company to serve the subpoenas.
The company mailed copies to each of the missing Republicans’ last known home address and copies of all 21 subpoenas to the House Republican Office in the Capitol in the care of Bruce Anderson, chief of staff to Rep. Christine Drazan, R-Canby.
Republicans tried to issue subpoenas to missing Democrats nearly two decades ago. In 2001, House Democrats escaped the Capitol to protest a House Republican proposal to redraw legislative districts that would have circumvented then-Gov. John Kitzhaber, a Democrat.
But it ended up being a road to nowhere — Democrats avoided the subpoenas and eventually returned to the Capitol to finish the session after the Senate quashed the proposal.
Mark Henkels, a political science professor at Western Oregon University, said what tools the majority party has to compel minority lawmakers to return is “uncharted territory.”
He said that he’s not aware of subpoenas, or other tools, being used successfully and it’s likely an issue for the courts.
“You can never really be sure what the courts will say,” he said.
Subpoenas are legal orders usually used by courts and attorneys to require people to appear in person and answer questions. While subpoenas can be challenged in court, those who ignore them risk jail time and fines.
Link: https://www.osbar.org/public/legalinfo/1062_Subpoena.htm
But what that constitutional provision means isn’t entirely clear.
Mary Beth Herkert, a former state archivist and current director of civics education in the Oregon secretary of state’s office, said the state archives contains a book of notes from conversations between authors of the state’s constitution as they debated and drafted.
But the book is “helter skelter,” written by multiple people, all in cursive and not in order, Herkert said. She said finding where that part of the constitution was referenced could take days.
“I don’t even know if there is a conversation about it,” she said.
Kimberly Jensen, a history professor at Western Oregon University, said in an email that her searches of historical sources didn’t yield any context about that section of the constitution. She said it’s similar to a provision in the U.S. Constitution guarding against arrest from civil suits that’s functionally obsolete.
Herkert said it’s possible that the section came from a similar provision from the U.S. or another state constitution.
The Oregon Capital Bureau reached out to all three of Oregon’s law schools. No legal experts there could be reached for comment on the situation Friday.
Process servers deliver legal documents, including court summons and subpoenas, said Michael Santos, owner of Superior Process Servers in Salem.
Santos compares himself to a “legal courier version” of FedEx.
Santos, who has been a process server for 30 years, said that in some states, process servers can cross state lines. In most states, though, servers have to be licensed in the state where they are working.
As a result, process servers sometimes hand off documents to another process server in the state where they believe the person is. Subpoenas have to be delivered directly to the person named to be legally effective.
If the person a server is looking for owns a second home in Idaho, for example, it’s pretty straightforward to find them through searching property records, Santos said.
“But if a legislator decides to just go book a hotel somewhere, you know, just at random…you’ll never find him,” Santos said.
Drazan couldn’t be reached for an interview Friday, but left a voicemail for a reporter about the legislative subpoenas.
Drazan was chief of staff to then-Speaker Mark Simmons, R-Elgin, during Democrats’ 2001 disappearance.
Drazan said “the constitution provides for immunity for legislators for these exact set of circumstances, where civil actions are used in a manner that is chiefly political.”
She said that immunity, “as we understand it from our attorney, is in fact, applicable to this case.” She said legislative subpoenas would apply only to those who “are not legislators protected by the Constitution.”
“I would absolutely, absolutely accept any subpoena that was delivered to me,” Drazan said. “I respect the courts and I respect the rule of law. In this case, I do think that we would have a secondary conversation about whether or not this subpoena is valid and enforceable. But absolutely, if someone were to present a subpoena to me, I would accept it.”
Rep. Mike Nearman, R-Independence, said in an email that he would not accept service and that he “can’t be served” in the first place.
“I am immune from any service during the session, according to the Oregon Constitution,” Nearman wrote.
Speaking by phone from an undisclosed location out of state, Rep. Ron Noble, R-McMinnville, said he’s aware the subpoenas have been issued but isn’t worried about a process server knocking on his door.
Noble, who served as McMinnville’s police chief, said that subpoenas apply to a legislator just like anyone else. He said that it’s not out of the ordinary for someone who receives a subpoena to consult with a lawyer who might question or challenge it. He said he would likely do the same if served with a subpoena.
However, he said that there was question of if the Oregon Constitution exempts lawmakers from subpoenas while the Legislature is in session.
“It’s kind of an untested area right now,” he said.
