From Linthicum v. Wagner, decided Wednesday (correctly, I think) by Judge Ann Aiken (D. Ore.):
The Oregon Constitution requires that each chamber of the Oregon legislature have a quorum of two-thirds of the members to conduct business. Or. Const. art IV, § 12. In recent years, the legislature has been intermittently paralyzed by walkouts in which members of the minority party absent themselves to deny the legislature a quorum.
In response to these walkouts, Oregon voters overwhelmingly approved Measure 113 in 2022 to amend the Oregon Constitution to penalize excessive absences by legislators. Following the passage of Measure 113, Article IV, section 15 of the Oregon Constitution was amended to read as follows:
Either house may punish its members for disorderly behavior, and may with the concurrence of two thirds, expel a member; but not a second time for the same cause. Failure to attend, without permission or excuse, ten or more legislative floor sessions called to transact business during a regular or special legislative session shall be deemed disorderly behavior and shall disqualify the member from holding office as a Senator or Representative for the term following the election after the member's current term is completed.
Beginning on May 3, 2023, a group of Oregon state senators belonging to the minority party staged a walkout which deprived the chamber of a quorum…. The walkout lasted until late June 2023 and, by the time it came to an end, ten state senators, including the Senator Plaintiffs, had accrued more than ten unexcused absences. The state senators were disqualified from running for reelection based on Measure 113 and a challenge to that determination is currently pending before the Oregon Supreme Court….
For purposes of this motion [for a preliminary injunction, the parties focus their dispute on … whether participation in the legislative walkout by the Senator Plaintiffs is constitutionally protected activity. The First Amendment "has no application when what is restricted is not protected speech." … [T]hese walkouts were not simply protests—they were an exercise of the Senator Plaintiffs' official power and were meant to deprive the legislature of the power to conduct business.
