City to ask U.S. judge for permission to exclude disruptive protesters
Wednesday's dramatic showdown between the City Council and many of the protesters that have repeatedly disrupted their meetings for months did not immediately resolve the dispute.
The council unanimously passed Mayor Ted Wheeler's ordinance to rein in future disruption over screams of "fascists" and "shame on you" from most of those in the Council Chambers. But the ordinance does not take effect for 30 days and Wheeler promised not to enforce the most controversial provision — excluding those who repeatedly disrupt meetings for up to 60 days — until it has been declared constitution by a federal judge.
"There is a difference of opinion among informed attorneys as to whether this is constitutional or not. It may not be constitutional," said Wheeler, explaining the proper forum to resolve the question was in a federal court.
But it is not clear how quickly the city can convince a federal judge to review the ordinance. It was passed to overcome First Amendment objections from U.S. District Court Judge Michael Simon over the 60-day exclusion of frequent council witness and heckler Joe Walsh. Simon declared the city policy and process used to proactively evict Walsh unconstitutional and issued an injunction permanently preventing the city from doing it again.
Wheeler's office says the city will now ask Simon to lift the injunction in light of the new policy and process approved last week. It include a code of conduct for those attending city meetings, gives the presiding officers of such meetings the authority to remove those who disrupt them, prohibits anyone who is evicted three times in one year from returning for 60 days, and allows appeals to city hearings officers.
According to Wheeler spokesman Michael Cox, if Simon does not lift the injunction, the city will appeal it to the U.S. 9th Circuit Court of Appeals, a potentially lengthy process that could prevent the ordinance from fully taking effect for years.
Cox says the motion to Simon is currently being drafted and will most likley be filed next month before the ordinance takes effect. In the meantime, the city will exclude disruptive protesters one meeting at a time to maintain order if it needs to, Cox says.
The ACLU of Oregon, which opposed Wheeler's ordinance, is not convinced Simon can reconsider the injunction simply because the city has created a new policy and process.
"If the order is directed only at the old ordinance, then the court will say the old ordinance doesn't exist because you passed a new ordinance, so the case is moot. If that's the outcome, and the judge does not provide them with any input on whether the new ordinance's exclusion provision is constitutional, then the city will have to determine whether to put the exclusion provision in the new ordinance into effect without the judicial opinion they promised at the meeting, and risk future litigation on exclusions," ACLU legal Director Mat dos Santos told the Portland Tribune in an email.
Even if Simon agrees to reconsider the injunction, dos Santos says the new ordinance creates additional constitution problems that were not in the previous ones.
According to a five-page memo from the ACLU submitted to the council on March 8, they include vague definitions of terms like "decorum" and "disrupt" that grant the presiding officer too much discretion. In addition, it says a prohibition against calling council members to testify at the appeal hearings violates the due process rights of those being excluded.
"So even if Judge Simon agrees that the ordinance is reviewable under the Walsh injunction, he may only be able to review the exclusion part of the injunction in order to avoid what is known as an advisory opinion," writes dos Santos.
If the city has to enforce the ordinance before its constitutionality can be determined, that could happen relatively quickly after it takes effect. Some protesters have disrupted practically every council meeting in recent months, even though they were not evicted while the new policies and procedures were being written.
If the new code of conduct had been in effect last Wednesday, numerous protester could have been evicted for violating it. Among other thing, it prohibits anyone attending such meetings shouting over or otherwise disrupting anyone recognized by the presiding officer for the purpose of speaking, engaging in conduct that substantially prevents any other person from hearing or meaningfully participating in the meeting, or substantially interferes with the conduct of city business.
All of that repeatedly happened, inlcuding when Commissioner Amanda Fritz gave up trying to explain her vote in support of the ordinance because she was shouted down by the protesters.
For a previous story on last Wednesday's council meeting, go to tinyurl.com/hateqfx.