Ninth Circuit Judges Deny First Amendment Motion In Appeal By Oregon Senators Who Walked Out

The Federal Appeal Courts ruled on Thursday that the state senators who walked out in protest for six weeks are not protected by the First Amendment in their bid to run for reelection. The decision confirms the earlier Oregon Supreme Court ruling that barred them from running for reelection.

Some of the affected senators argued in the Oregon Supreme Court earlier this year that they should be eligible to run for reelection because the law that banned them from doing so was badly written. The argument was rejected unanimously. The senators- Sens. Dennis Linthicum, R-Klamath Falls, and Brian Boquist, R-Dallas, argued that they were engaged in constitutionally protected protests by walking out, and had hoped that federal judges would agree.

Six of the ten Republican senators who were banned from standing for reelection would have stood for reelection this year,  but grounding the Senate to a halt for six weeks in 2023- the longest walkout in state history, was not protected under the First Amendment in the opinion of U.S. District Court Judge Ann Aiken who rejected this argument in December, confirmed by a three-judge panel of the Ninth Circuit Court of Appeals who affirmed her decision this week.

The Ninth Circuit judges- Ronald Gould, Jay Bybee, and Daniel Bress indicated that Linthicum and Boquist could not show that their walkout was a constitutionally protected activity. The judges wrote that they were exercising their power as legislators in depriving the Legislature of its quorum.

Highlighting that no private citizen has the privilege to frustrate or advance legislative action directly in the Legislature, the judges underlined the fact that senators alone can stymie legislation by absenting themselves from a meeting of the Oregon Senate. Judge Bybee- in a separate but concurring opinion, wrote that the senators did not give any reason why they should be treated differently than any other public employees. Public employees- for example, teachers, are not excused from work if they elect to attend political rallies.

The decision that was handed down on leap day may be the final nail in the coffin for several state senators who have been seeking ways to evade a voter-approved constitutional amendment that punishes lawmakers who miss ten or more days of work. The amendment is intended to discourage quorum-denying walkouts.

With the filing deadline of March 12 for the May primary looming, Linthicum and Boquist don’t have enough time to appeal the case further and then also expect a decision before the filing deadline. Boquist’s seat is being contested by former state lawmaker Bruce Starr, while Linthicum’s wife, Diane, has filed to run in his stead for his seat.

The Ninth Circuit Judges wrote that actions have consequences, and the First Amendment sometimes protects us from the repercussions that follow when those actions could be described as expressive in nature. They said, “This is not one of those instances.”