On what basis has this judge delayed a soon-to-be CURRENT STATE LAW in order to debate whether or not there can be a FUTURE ballot initiative?

I can see the judge, if he believes there is a problem with the initiative process, sanctioning state elections officials somehow, but isn't it the case that even if the initiative were found to have sufficient signatures that it would never have been on the ballot in time to change the original implementation of the law?

If the law would have gone forward in January regardless of the outcome of the petition drive, then I don't see a reason why the law could be suspended like this.

(This is a slightly-edited rehash of my comment over on the Mercury blog.)

Four days before it was to take effect...that was low.

he's a bush nominee, republican operatives don't let pesky things like rules or laws hinder them. (see illegal pocket veto)

on a related note, Mr Mosman doesn't have any information in his wikipedia entry

Bob R.'s comment seemed very reasonable to me -- how could a referendum in November 2008 stop the January 2008 law from taking effect even if approved?

After doing some preliminary research, however, it looks to me like simply getting an approved referendum on the ballot would prevent the law in question from taking effect until 30 days after that election (as per this PDF document from the SOS web site).

Can anybody confirm or deny this?

If true, then the judge's action does make some sense -- had the referendum qualified, the law couldn't have taken effect as passed until after the referendum election.

If that's not correct, though, then it certainly seems to me that the judge was off base.

I agree with T.A. that challenges to any legislation from any direction must be allowed to play out in the system, no matter how good the cause (nor, for that matter, how flawed the challenge), for that legislation to ultimately have legitimacy.

One question about the judge's concern for the mitigating the harm that would come to people affected by the law -- I wonder if he meant the opponents, or those who wished to register under the law?

I have no way of knowing what the judge's intent was there, but it does seem to me that by blocking the law pending the process of sorting out the referendum, he is preventing a repeat of the Multnomah County debacle from a few years back. Surely it's better to wait a month or so to be able to proceed with confidence if and when the referendum is finally killed, than to register now and have an administrative nightmare when those registrations are voided if and when the referendum is allowed after all and the law is put on hold for at least a year anyway.

On what basis has this judge delayed a soon-to-be CURRENT STATE LAW in order to debate whether or not there can be a FUTURE ballot initiative?

Good question, but it's based on a misunderstanding of the difference in Oregon law between an initiative and a referendum.

An initiative is a citizen-initiated measure on any subject submitted to the voters. A referendum, on the other hand, is an effort to block a piece of legislation approved by the Legislature from taking effect. If the referendum garners enough signatures to make the ballot, the law does not take effect until after the voters have had an opportunity to vote on it.

What seems to be at issue here is a referendum opposing the domestic partnerships bill. If advocates had garnered enough signatures, the domestic partnership law would not have taken effect in January. So what the referendum's proponents seem to be arguing here is that the Secretary of State's office wrongfully invalidated signatures and thus the law should not take effect in January. Judge Mossman has said this argument has enough merit to at least warrant a hearing in February, so he has put the law on hold until then.

Although Judge Mossman is a Bush appointee, he has a reputation for being very smart and a straight-shooter.

Thanks for the information regarding initiatives vs. referendums ... I'll take a look at the details.

T.A., thank you for the good, balanced post. I am absolutely stunned by this decision, having first read about it 5 minutes ago here on Blue Oregon. But I agree with you that it's important for the legal process to play out to determine whether or not the SOS office acted appropriately. If they did, we'll win. If they didn't, we'll face a ballot fight, one that the opponents of domestic partnerships are entitled to under Oregon law. And we'll win that fight.

Other commenters are correct when they note that had the signatures been verified, the law would not have gone into effect. So the judge's decision is reasonable if he believes that the petitioners have met the preliminary threshold required for a full hearing.

I would also encourage people not to impugn the motives of the judge just because he's a Bush appointee. If you have some other evidence that he's acting inappropriately, present it, but the fact that he was appointed by a Republican has no more bearing on his decision than it does on the decisions of judges appointed by Democrats. Let's look at his legal reasoning and make an argument based on that.

As I recall, there were people in the Measure 36 debate saying "we believe marriage should be a man and a woman--civil unions are another story as they are not marriage". While waiting for this all to be sorted out, it would seem wise to spend the time documenting any and all such statements assuming my memory is right and they exist.

Then, if the worst case happens and this does get on the ballot, there could be a constant refrain that the supporters of Measure 36 have changed their tune.

One thing I have noticed is how some people have not thought this through. As I recall, civil unions include the right of hospital visitation in "family only" situations.

I have diffused more than one potentially heated conversation by saying the day the Mass. court decision legalizing gay marriage came down, a relative was in the hospital and thus I was in and out of the hospital multiple times. "And as I walk by those family waiting rooms, I wonder why a committed couple wouldn't have the same rights as any other family member".

Perhaps that humanizes the situation.

It continues to be shocking, and painful, to see our lives and those of our loved ones, put on hold, pushed to yet a different corner, and be told to wait. This is a prime example of when politics are personal, and for those saying we should sit tight and wait, I've got to say, it's getting pretty hard to do that. Today's ruling was shocking, and should be a disgrace to all Oregonians. These are influencers from out of state who, at the last minute, have thrown a wrench into the lives of thousands of Oregonians.

Who's relying on "activist judges" now?

Well, one thing is for sure, after this ruling, U.S. District Judge Michael Mosman won't find it easy to obtain employment as an attorney in a law firm anywhere on the west coast upon leaving office nor will he find it easy to obtain confirmation moving up the ladder in the judicial system. I'll bet he won't find his neighbors to be too "warm" to him after this decision which clearly was a political decision made to placate the man who appointed him to office: George Bush. Reminds me of the old mafia movies in which a boss calls in a favor.

I think that the better question here is, "Why is a federal court is involved in state politics?" Basic jurisprudence would dictate that those seeking to keep this law from taking effect should have to exhaust all state level appeals before moving on to the federal court system. If I am wrong on this one, then please someone correct me. It seems to me that the judge has over-stepped his power/jurisdiction by intervening before the state courts have exhausted the issue.

Hey, folks! Let's exercise some care with our vocabularies here. The legislature was careful to phrase their legislation so that what we are being offered ARE NOT civil unions. We are being offered domestic partnerships, which don't have the standing even of civil unions (which are essentially marriages that have no religious sanctions ergo are not "marriage.") Our advocates in the legislature explained that they were going for domestic partnerships because that was less likely to provoke a retaliatory petition drive by our enemies... as if.

I also find TA's phrase: "This is heartbreaking for those who thought they were finally get treated equally before the law..." infuriating, well-intended though I'm sure it is. Domestic partnerships are the sexual orientation equivalent of "separate but equal."

Marriage is our "Whites Only" water fountain- we're allowed to drink but only if somebody of the right persuasion brings us the water in a paper cup.

Excellent news! This Bush-appointed judge made a decision for democracy and thank God for that. Let the voters decide before you just trample over the top of them.

<h2>Below are a few emails that I have recieved on the matter and I have been led to believe that these occurances are common place across Oregon and not happening just in Marion county. I am just copy and pasting what was sent to me with out any editing onmy part.</h2>

Marion County Clerk Refuses to Recognize Valid Petition Signatures October 22, 2007

The below press release was sent by email at 9:40AM this morning to Oregon's print, radio and TV media. Please notify me if your local media outlets ignore this release. The below issue is a serious matter for all Oregonians.

Lake Oswego, Oregon - When is it right to refuse to recognize a valid signature on a petition* submitted to the Secretary of State by the citizens of Oregon?

When the signer shows up at the County Elections Office to prove their signature is valid and should be recognized as such? When that same signer was in fact a registered voter at the time of signing and can prove it? When that same signer is not allowed to file anything to prove his/her claim? When county elections officials have decided amongst themselves they are not going to review any of the signatures they have rejected? When a county clerk or elections supervisor is personally opposed to the purpose of the petition signed by the rejected Signer?

The answer is clearly, "None of the above!" Yet that is precisely what is occurring in the office of Marion County Clerk Bill Burgess. On Friday, Burgess' office staff - knowing that a registered voter whose valid signature was rejected would soon arrive to request her rejected signature be validated - REFUSED her request. With two witnesses present, the petition signer was repeatedly told, "We are not required to review our work."

From two phone calls made to the Marion County Director of Elections announcing that the signer would be coming in, and a call to State Elections, it was clear, front office statements at Marion County were orchestrated NOT to respect citizens rights, but to avoid correcting their rejections. Burgess, a democrat, and vocal supporter of lesbian State Senator Kate Brown for Secretary of State, made it clear through his Director of Elections that under no circumstances would there be an amended report to the State Elections officials.

Why is this so important? The answer is very simple. Burgess knows that with each validated signature, the 116 signature shortfall announced earlier by the state elections division, is diminished by 20 signatures in the formula used by the elections division. All that is really needed to reverse that decision and place HB 2007 on the 2008 ballot, is six signers whose signatures were rejected on false or erroneous grounds.

In a thorough review of rejected signatures at the county level by Concerned Oregonian attorneys, Marion County rejected a significant number of valid signatures. That same review determined that numerous 'mistakes' had been made by Marion County officials that, if corrected, and an amended report filed, would by any measure of equity and justice, reverse the decision in favor of the signers of the petitions.

Burgess' actions are nothing less than malfeasance of office. He is using his position to deny the right of several citizens of Marion County to support a petition that he opposes. He has taken away their right as citizens to voice their opinion through a petition signature, and potentially, all OUR votes, for personal and political reasons, and should be removed from office for doing so.

Restore America, Concerned Oregonians, and The Defense of Marriage and Family, Again, call on all Oregonians to place calls to Mr. Burgess (503-588-5225), the Marion County Director of Elections, Sharon Riggs (503-588-5041), Secretary of State Bill Bradbury (503-986-1500), their local media, and both their State Senators and Representatives to demand that those improperly rejected signatures be restored, and their reports amended by the Friday, October 26th deadline.

Further, we urge our elected representatives to call for a full investigation of the Marion County Elections Division, Clerk Burgess' role in denying citizen's rights, and the entire process of counting petition signatures both at the County and State level in Oregon.

The Bradbury Code of Conduct Pledge On February 6, 2006, The Executive Division of the Secretary of State's Office published a Press Release on Bill Bradbury's Code of Conduct which stated in part, "When public confidence in elections suffers, our democracy suffers," said Bradbury. "It is our responsibility as Chief Elections Officials to restore that confidence and to conduct our elections with the highest level of integrity." We at Restore America believe that this applies not only to elections but those matters that directly affect the content of our ballots, including Referendum and Initiative Petition Signature Drives, and those charged with ensuring fair and honest signature validation.

• 55,179 valid signatures on petition # 303 were required in order to place HB 2007 creating marriage by another name on the November, 2008 General Election Ballot for all Oregonians to vote on. 63,000 signatures were turned in on each bill. In 2004 Oregonians expressly voted 57% to 43% to restrict marriage to a man and a woman only and was placed in the Oregon Constitution, not to be violated by word of art or the legislature. Petition # 303 is merely an effort to provide Oregonians the opportunity to weigh in on the legislature's decision to ignore their expressed will.

<hr/>

Oct. 31 2007

According to a small article in the Saturday, October 27th Oregonian, Petition 303 fell 96 signatures short of the 55,179 valid signatures, not the 116 signatures first reported by state elections officials on October 9th. Why the difference?

One Revalidated Rejected Signature Worth 20 Valid Signatures Washington County Elections Manager Micki Kawai, validated one previously rejected signature on October 26th, the last day that could be done. With only 5% of all signatures counted, each rejected and then reinstated signature counts for 20 signatures, hence the difference. This is why State Elections Officials sent misleading emails to the County Clerks, in at attempt to close the window to any review. They knew the validation of only 6 rejected signatures would place HB 2007 creating marriage by another name, on the November 2008 ballot.

The Truth Comes Out This new count demonstrates that state elections officials-inspite of their misleading and confusing emails to the county clerks-knew all along that if the clerks were to validate rejected signatures, state of Oregon Election Officials would have to recognize them, placing HB 2007 on the Ballot. County Clerks had the right, responsibility and opportunity all along to review, correct, and submit amended reports during the entire 30 day signature validation period, a fact that we repeatedly stated to them. In that they did not, along with the content of emails from the Secretary of State to state elections officials, and from the election officials on down to the clerks, discouraging review, is proof that the Voters of Oregon have been defrauded. So why did they not exercise those rights and responsibilities?

Marion County Clerk As Example If you read emails from Marion County Clerk Bill Burgess, a democrat and admirer of lesbian State Senator Kate Brown, a vehement opponent of Measure 36 in 2004, and outspoken proponent of domestic partnerships (HB 2007) in the 2007 legislative session, and so called 'same sex marriage', you would think he was duty bound by law, administrative rule, an email from the Secretary of State and his county attorneys to ignore the outcry of falsely rejected 303 signers. Not true! Through emails from elections officials, the county clerks parroted the same party line, except one courageous dissenter, Micki Kawai of Washington County! Kawai had the integrity and political courage to go against the will and obfuscation of her peers and sent an amended report to state elections officials, a report that required those same officials, by law, to amend the count!

Collusion, Obfuscation, and Misinformation, Disenfranchised Voters Clearly, state and county elected officials who were unsympathetic to HB 2007 and SB 2 made sure these petitions would not meet the required number of signatures and HB 2007 would never darken the November 08 ballot!

So what does that mean to the citizens of Oregon? It means every Oregonian has purposely, willfully and intentionally been disenfranchised and defrauded of their right to vote, and specifically, to vote on this bill, by elected and non elected state and local officials for political and ideological reasons. If Oregonians value their Constitutionally protected rights from this type of malfeasance, there should be an outcry by all Oregonians that demands an investigation, whether they favor this bill or not.

<h2>If a state agency can make a big deal over whether Multnomah County Sheriff Bernie Giusto told the truth about former Governor Neil Goldschmidt's trysts with an underage female, why can't the appropriate state agency investigate the facts about a conspiracy to defraud the voters of Oregon?</h2>

November 1, 2007

Lake Oswego, Oregon - According to a small article in the Saturday, October 27th Oregonian, Petition 303 fell 96 signatures short of the 55,179 valid signatures, not the 116 signatures first reported by state elections officials on October 9th.

Why the difference? Tampering with our Signatures to deny our Right to VOTE! Washington County Elections Manager Micki Kawai, validated one previously rejected signature on October 26th, the last day that could be done within the 30 day window for corrections. With only 5% of all signatures counted, each rejected and then reinstated signature counts for 20 signatures, hence the difference. State Elections Officials wished to avoid this, sending misleading emails to the County Clerks, in a bold faced and dishonest attempt to close the window to any review. They knew the validation of only 6 rejected signatures would place HB 2007 creating marriage by another name, on the November 2008 ballot. And there is proof they did not want that to happen! No matter the validity of the Signors signatures! The interests of Oregon's liberal left government officials at both state and county levels trumps our rights . . . and our VOTES!

If this is not 'discrimination' what is it? If this is not malfeasance of office, then what is? If it is not tampering with our right to VOTE, then . . . what is it?

The Truth Comes Out This new count demonstrates that state elections officials - in spite of their misleading emails to the county clerks - knew all along that if the clerks were to validate rejected signatures, state of Oregon Election Officials would have to recognize them, placing HB 2007 on the Ballot. County Clerks had the right, responsibility and opportunity to review, correct, and submit amended reports during the entire 30 day signature validation period, a fact that we repeatedly reminded them of. But they refused, quoting state election officials, even when the signors presented themselves in person with proof they were the signer and the signature was theirs.

So why did the county clerks choose not to exercise those rights and responsibilities within the 30 window provided for them to do so?

The proof of their collusion to defraud the voters is not only in the face-to-face testimony of the signors in the presence of witnesses, but in the content of emails from the Secretary of State to state elections officials, and from the election officials to the clerks, discouraging review.

Marion County Clerk As Example In reading emails from Marion County Clerk Bill Burgess, a democrat and admirer of lesbian State Senator Kate Brown, a vehement opponent of Measure 36 in 2004, and outspoken proponent of domestic partnerships (HB 2007) in the 2007 legislative session, you would think he was duty bound by law, and administrative rule, to disallow a review of rejected (and proven valid) signatures. He points to an email from the Secretary of State and his county attorneys, to justify ignoring the vastly disproportionate number of rejected signatures and their outcry. Through emails from elections officials, the county clerks parroted the same party line, except one courageous dissenter, Micki Kawai of Washington County! Kawai had the integrity and political courage to go against the will and obfuscation of her peers and sent an amended report to state elections officials, a report that required those same officials, by law, to amend the count!

Collusion, Obfuscation, and Misinformation, Disenfranchised Oregon Voters Clearly, state and county elected officials who were unsympathetic to HB 2007 and SB 2 were determined these petitions would not meet the required number of signatures and HB 2007 would never darken the November 08 ballot!

So what does that mean to the Citizens of Oregon? It means every Oregonian has purposely, willfully and intentionally been disenfranchised and defrauded of their right to vote, and specifically, to vote on this bill, by elected and non elected state and local officials for political and ideological reasons. If Oregonians value their Constitutionally protected rights from this type of malfeasance, there should be an outcry by all Oregonians (including the press) that demands an investigation, whether they favor this bill or not.

If a state agency can make a big deal over whether Multnomah County Sheriff Bernie Giusto told the truth about former Governor Neil Goldschmidt's trysts with an underage female, why can't the appropriate state agencies investigate the facts around a conspiracy to defraud the voters of Oregon?

Recertify and Restore There are more than enough valid but wrongly rejected signatures to recertify Petition 303 for the November 08 ballot. It should be done. Restore America, Concerned Oregonians, and The Defense of Marriage and Family, Again CALL for the immediate restoration and validation of valid signatures that have been rejected, the petition certified, and an investigation of state and county officials who have colluded in this attempt to defraud Oregon voters, commenced. Restoring our right to VOTE is the first step in ensuring Oregon civil government is once again government of, by, and for the people.

<hr/>

Now you know what I have been told on the matter. I believe that no matter which side you are on this should be alarming to all. Showing corruption in our voting system which no one in state goverment seems to want to correct.

Does anyone know why the legislature did not assign an e-clause to SB2?

A lot of people may not know this, but no one was paid to gather signatures for this petition. There would have been more signatures if people were paid to gather signatures.

How many of the commenters impugninn Mosman's motives on this thread read the briefs in this case?

How many attended the hearing?

[sound of birds chirping]

I was there and Mosman was clearly concerned with the issues presented in the case. He allowed BRO to file as an amicus and expressed great concern for potential the harm to same sex couples who would be protected by HB2007 should it be necessary to delay it.

He appeared ready to rule against the plaintiffs until presented with binding 9th Circuit caselaw holding that the right to participate in the initiative and referendum process is on par with the right to vote (a fundamental right).

He also pressured both parties to accept a very tight timeline for the follow up hearing in order to prevent the delay from continuing more than a month (should defendants prevail in the full hearing).

Mosman was thoughtful and explained every step of his decisionmaking process in a way that was instructive to the audience.

Two points: 1) This is the kind of act that the right wing usually decries as the work of an "activist judge". Isn't this judicial activism? I guess that only exists when judges do crazy things like enforcing environmental laws. 2) This is the same state elections division and bumbling Secretary of State who fined Sizemore a whopping $250 a few weeks ago as "punishment" for fraud. The initiative system is flawed and corrupt, aided by the incompetent leadership of the elections division - progressives continue to pay the price. Usually Bradbury lets fraud slide for Sizemore and Freedomworks, but now they crack down on apparently lawful signers.
Bradbury should resign.

I was at the hearing.

What I don't understand is how the plaintiff was allowed to introduce the case at the very last minute. It seemed totally unfair that the state was allowed only 15 minutes to analyze a case that appeared to be the deciding point. I am not a trial lawyer but the whole process seemed fixed - like the judge is looking for ANYTHING to justify his decision.

That's the biggest issue I have with the hearing.

Sorry, Doretta. Fact is I know a heterosexual couple here in Oregon who have a Civil Union (done legally in Europe and recognized as such here in Oregon) and it enjoys a category distinct from what will someday maybe be known as Domestic Partnerships.

Civil Unions (until recently only between heterosexual couples) have a long history of legal standing in several European countries where real walls have been built between church and state.

Domestic Partnerships have carefully delineated rights and responsibilities, defined in law. Civil Unions, as I wrote earlier, don't need those definitions.

I've been domestic partnered in California and it's so far short of true Civil Union and/or marriage that it's barely second class citizenship. That's why I wasn't one of those people weeping with gratitude at the Oregon legislature's action. I was happy but not naive enough to think this is more than another step in the long march toward equality.

The thing that worries me most is that the establishment will look at step up to the second class status and say "What are you whining about? We let you ride on the damn bus, what's wrong with sitting in the back?"

Just wondering about something re: signatures on initiatives. Is there a legal basis for the Secretary of State's office in Oregon to use a statistical technique for deciding whether there are enough valid signatures? My understanding is that a sample of signatures is analyzed and the percentage of valid signatures within that sample is then applied to all of them.

Is it plausible that the court couold decide that a statistical technique is invalid and that the only acceptable methods are (1) examine EVERY signature, or (2)just accept all signatures with no inspection at all....?

The argument a county or counties are refusing to allow petitioner signers to demonstrate their signatures are valid is at best incomplete, and maybe even irrelevant as a basis for an injunction. Can anyone detail the record keeping a county actually does that would provide the information needed for a voter to convert a supposedly rejected signature into a verified signature? The county doesn't check every signature so a particular petitioner may not have their signature checked. Then if a signature is checked and rejected the county really has no valid basis for associating a rejected signature with a specific voter. Essentially, as the sampling approach to signature verification is typically described, there is no logically or legally sound theory of how a voter could convert a supposedly rejected signature into an accepted signature.

Similarly any argument that 6 additional verified signatures should be recognized as overcoming the 120 vote deficit is irrelevant as the basis for an injunction, the sampling system not withstanding. Even if a county uses that formula, it could not be required to tally 120 additional valid signatures if just because it found 6 additional verified signatures. Those six could be anywhere from the only 6 in 120, to just 6 of the 120 in 120 that are valid. The county examiners would be well within their legal right to exam as many more signatures as they chose and only tally the actual number of verified signatures.

The judge is only supposed to grant an injunction if there is a HIGH likelihood the plaintiff would prevail and that the state does not have a more important competing interest here. So what is the specific evidence and logically sound theory the judge gave why the plaintiff has a HIGH likelihood of prevailing? This has nothing to do with the briefs, this is the statement the judge is required to make in justifying the injunction. Is this guy actually an activist judge who is really out to strike down the sampling system, perhaps because he doesn't like the outcome in this case?

Two asides: As every lawyer knows, there is a way for same sex couples, or any two people, to deal with the infamous "hospital visitation" issue and many similar issues. Until we get it right and have sex-blind partnership contracts, committed couples should be executing as many "Power of Attorney" documents as they feel they need to deal with whatever situation in which they want their partner to have rights - like making sure a same-sex partner has visitation rights and the authority to determine treatment for an incapacitated partner. It's not a perfect solution, but it will get the job done in a lot of important situations (and drive the right wing nuts.)

And by the way, we should not forget Wyden actually recommended this guy to the administration. He has no excuse for not being out there and either explaining why the injunction is appropriate (ie. the specific evidence and reason there is a high likelihood the plaintiffs would prevail in a hearing), or decrying the fact the judge got it wrong.

The problem with power of attorney documents is you have to present them to be taken seriously. Many banks require a statement of indemnity be filled out as well to not require the physical documents be present.

Has any hetero-married person reading this board ever had to present proof of their marriage at a life critical moment in a hospital?

doesn't the process of obtaining POA documents cost more than a marriage license?

James, most of the things you say is quite not accurate. Power of Attorney documents can be written up by anybody at any time for any purpose. There are suggested forms, of course, for different situations. Also, if one is concerned about a POA being accepted, have a notary public notarize it. (If you don't know a notary personally who'll do it for free that would cost $5.00 in Oregon, but many notaries I know are just plain decent folk who would do this for free.)

As far as whether a business/hospital/etc. will or must accept a POA. Well, if they are smart, they will not refuse to abide by one no more or less than any other properly executed legal document assigning legal rights. Frankly, I have never had a problem with POAs in medical settings involving family or non-family members. If the person is not unconscious, the patient and POA can make the POA known at check-in. In fact, hospitals generally ask who will be responsible for making decisions if the patient is incapacitated. If the patient is incapacitated, the hospital administration risks significant civil and possibly criminal consequences if they refuse to honor a properly executed POA and take any contrary actions.