02:46 PM PST on Friday, March 5, 2004

By ABE ESTIMADA, kgw.com Staff

Multnomah County commissioners must show they complied with Oregon public meetings after a lawsuit was filed against them by pastors and others seeking to end the issuance of marriage licenses to same-sex couples, say two attorneys who specialize in open meetings laws.

Multnomah County commissioner Lisa Naito, left, and commissioner Serena Cruz. (KGW Photo)

The commissioners’ means of reaching a decision to grant marriage certificates to gays and lesbians is one of the main issues underlying a suit for an injunction that the Defense of Marriage Coalition filed on Friday.

“We will seek an order to overturn the decision of the county commissioners or at least some of the county commissioners on the first grounds being simply that they ran roughshod over the public meetings law in Oregon," coalition lawyer Kelly Clark told KGW on Thursday.

“We have notice. We have public hearings. We have public input. We have open government in Oregon. This is not how we do things.”

The commissioners’ surprise – critics have labeled it backroom – decision to issue the licenses has come under fire from several newspapers and some members of the community.

Commissioners Diane Linn, Serena Cruz, Maria Rojo de Steffey and Lisa Naito took no vote when a decision was made to grant marriage licenses to gays and lesbians. At least two of the commissioners were approached by gay rights activists about a month ago on the question of marriage licenses.

The four commissioners say they were sworn to uphold the Oregon Constitution that grants equal protection for all citizens under the law. The commissioners acted immediately because their legal counsel and another law firm found that the county denying marriage licenses to same-sex couples would be in violation of the state Constitution.

But Linn, Cruz, Rojo de Steffey and Naito intentionally left out fellow commissioner Lonnie Roberts, who opposes same-sex marriage, from the discussions. The four commissioners also insist they complied with open meetings laws.

If a suit is filed against the commissioners, it will be up to the county commission to show step by step how they complied with Oregon meetings laws, said Jack Orchard, a lawyer for Ball Janik LLP law firm in Portland. Orchard represents the Oregon Newspaper Publishers Association.

“It’s always the burden of the public agency to justify how it met the standards of the law,” Orchard said. “It’s not the task for somebody like you or for me to point out where the law hasn’t been met. The burden is on the public agency.”

Any time a quorum of elected officials meets or even deliberates policy in person or by phone, they must give notification to the public. Orchard believes that e-mail exchanges between a quorum of the commissioners – a quorum would be three of the five commissioners – counts as public deliberation.

Oregon statutes are specific about a quorum of elected officials giving notice to the public and the media about the location, time and the subject of meetings, said Duane Bosworth, a lawyer with the Davis Wright Tremaine law firm in Portland and legal counsel for KGW.

Media outlets weren’t told of discussions among some commissioners regarding marriage licenses to same-sex couples until Tuesday -- the day before the licenses for gay and lesbian couples were first sold.

But under Oregon statutes, if only two of the commissioners ever met or discussed public policy, that does not constitute a quorum and therefore does not fall under public meetings laws, Orchard said.

Bosworth agreed with Orchard that if a suit is filed against the commission for violating public meetings laws, “then there is no question that the commissioners will be required to prove that they did not violate the public meetings law, including that they did not actually meet to even consider a decision.”

If a court finds the commission violated the open meetings statutes, does that mean the decision to grant marriage licenses to gays and lesbians is null and void?

“The bottom line is maybe so, maybe not,” Orchard said.

That’s a penalty left up to the courts, if indeed a violation of the open meetings states is found, Orchard said. In determining the severity of the penalty for violating meetings laws, the court will probably consider if there was “willful misconduct” and “intentional disregard of the law” on the part of public officials, he said.

The other question that Orchard has is when did the four commissioners come to a decision to grant the new licenses?

“The question is when was this done, and was it done in accordance with open meetings laws?” Orchard said. “I think there are a lot of questions that people are going to take a hard look at.”