Measure 5-190 Exceeded Columbia County Jurisdiction and Violates Federal Law

April 13, 2009 -- St. Helens -- A Columbia County judge today overturned an anti-immigrant ballot measure approved last fall because it conflicts with federal immigration law and would have required the county to take enforcement actions beyond its authority.

The ruling on Ballot Measure 5-190 came in two cases that were filed in Columbia County Circuit Court last fall. County Commissioners had requested a ruling on the measure’s validity and a separate challenge was filed by a coalition of Columbia County business owners and voters who have been represented by attorneys for the ACLU of Oregon and the Northwest Workers’ Justice Project.

Columbia County Commissioners approved amendments to the initiative in December which were also at issue in the court challenge. Judge Ted Grove had heard oral arguments in the consolidated cases in January and had approved a preliminary injunction at that time to prevent the measure from taking effect.

The coalition challenging the measure includes Rural Organizing Project, Columbia County Citizens for Human Dignity, 28 individual residents of Columbia County, CAUSA Immigrant Rights Coalition and others.

“Columbia County has a lot of challenges ahead and Measure 5-190 wasn’t going to help,” said Columbia County business owner Gary Liao, one of the plaintiffs in the challenge. “The measure and ordinance were deeply flawed and confusing. At a time when our economy is reeling, it would have imposed additional burdens on both the county and on employers who have been following the law.”

Other members of the coalition said they hope the court decision will allow communities that have been deeply divided over the immigration issue to find common ground and work together.

“It’s time to direct our frustrations about the immigration issue where it belongs: on the federal government’s responsibility to carry out meaningful immigration reform,” said Marcy Westerling, Director of the Rural Organizing Project in Scappoose. “Having a patchwork of local laws seeking to usurp federal authority on this issue would only create more frustration with federal policy.”

In his opinion, Judge Grove addressed many portions of Measure 5-190 and held that they were either preempted by federal law or went beyond the authority of Columbia County under state laws. Among his findings were:

• The measure’s $10,000 mandatory fine “clearly violates” the preemption of immigration enforcement by federal law;
• The measure’s provision that violations would be reviewed according to state law but would be appealed to Justice Court, violated state law that requires that such appeals be heard by the Oregon Court of Appeals;
• The many enforcement provisions of the measure rose to the level of criminal or civil sanctions which are also preempted by federal law.

Finally, Judge Grove wrote that while he “recognizes the serious issue the initiative was seeking to address, existing Federal preemption and statutory provisions cannot be ignored.”

Similar measures in Hazelton, Pa.; Farmers Branch, Texas; Escondido, Calif; and other jurisdictions had previously been struck down.

Attorneys handling the case for the coalition have been: D. Michael Dale, Steven Goldberg and Meg Heaton for Northwest Workers' Justice Project; ACLU Cooperating Attorneys Bruce L. Campbell and Elisa J. Dozono, both of Miller Nash LLP; Stephen W. Manning of the Immigrant Law Group; and Chin See Ming, Legal Director for the ACLU of Oregon.

See documents related to this case here

Mayfield Patriot Act Challenge Now Awaiting Decision in 9th Circuit

Brandon Mayfield and Federal Public Defender Steven Wax
February 5, 2009 -- A three-judge panel of the 9th Circuit U.S. Court of Appeals heard arguments today in the case of Brandon Mayfield’s challenge to the constitutionality of portions of the USA-Patriot Act.

Mayfield, the Portland attorney who was wrongly suspected of involvement in the Madrid train bombing case in 2004, has challenged the government’s secret surveillance of his home and law office arguing that the Patriot Act violated his family’s Fourth Amendment’s protections against unreasonable searches and seizures. U.S. District Judge Ann Aiken ruled in Mayfield’s favor in her 2007 ruling in the case and the federal Justice Department under the Bush Administration appealed.

Briefs in the case, including one filed by the ACLU of Oregon, were filed in 2008. While President Obama was a sharp critic of the Patriot Act while he was in Congress, he voted in favor of expanding secret surveillance powers in the FISA Amendments Act last summer during the Presidential campaign. Thursday’s court proceedings at the historic Pioneer Courthouse in downtown Portland were the first time the Justice Department appeared in court to defend the Patriot Act since the new President’s inauguration.

C-SPAN videotaped the arguments and has posted the recording at.

The ACLU Foundation of Oregon’s friend of the court brief in the case urged the appeals court to uphold Judge Aiken’s ruling that the Patriot Act is unconstitutional and is available here.

Mayfield is directly represented by Portland attorney Elden Rosenthal, Wyoming attorney Gerry Spence and Newport attorney Michelle Longo Eder. Rosenthal will make Thursday’s argument on behalf of Mayfield and his family.

The ACLU brief in the 9th Circuit was filed by Ilaan Maazel and Elora Mukherjee of the New York law firm of Emery Celli Brinckerhoff & Abady LLP, and Marc Blackman and Kendra Matthews of the Portland firm of Ransom Blackman LLP.

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ACLU Challenges Medford Panhandling Ordinance

UPDATE: April 2008 -- At a hearing April 21, Judge Lorenzo A. Mejia denied the city of Medford's motion to dismiss the case. The next hearing, on an ACLU motion for summary judgment, is set for 2 p.m. June 2, 2008.

March 6, 2008 -- The ACLU of Oregon this week filed a lawsuit against the City of Medford, challenging a new anti-panhandling ordinance as unconstitutional.

Previously, the ACLU had sent a letter to the Medford Chief of Police, as well as the Medford City Attorney, asking that they suspend the ordinance. City Attorney John R. Huttl replied, saying he disagreed with ACLU’s analysis and that the ordinance remains in effect.

The Oregon Constitution prohibits laws that restrict speech based on its content. The Medford ordinance prohibits solicitation for certain purposes including for “immediate donations” while allowing solicitation for others. Described by the city as “prohibiting abusive solicitation,” the ordinance makes such activity a criminal misdemeanor.

The Medford City Council approved the ordinance in November on a 6-1 vote. Councilman John Statler, the single dissenting vote, said at the time that passing the ordinance might result in a lawsuit such as the one filed this week. The law went into effect Jan. 1.

The ACLU holds that criminal activity on public streets impeding traffic, menacing, disorderly conduct and so on are punishable by existing law. Criminalizing some types of speech and permitting others violates Article 1, section 8, of the state constitution.

 The lawsuit, filed in Jackson County Circuit Court, asks the court to declare the Medford ordinance unconstitutional and suspend its enforcement.

Justin M. Thorp of Martin, Bischoff, Templeton, Langslet & Hoffman LLP is the ACLU cooperating attorney on this case.

See related documents