Chenoweth Law Group

Appeals Court compels legislators to testify in protest case

Normally immune from any extenuating legal battles that may be elicited while on the Capitol floor, the Oregon Appeals Court has determined that lawmakers can be subpoenaed to testify in court on matters related to their actual governing. The appeals court ruling stems from an appeal from protesters who were arrested after conducting an overnight vigil on the Capitol steps.

When the protesters were arrested in 2008, the Capitol rules stated that the building's front steps would not be open to the public between the hours of 11 p.m. and 7 a.m. unless one had permission from a legislator to be there. The charges against the protesters were eventually dropped because their attorneys argued that there had already been exceptions made for various events.

In 2009, lawmakers changed the Capitol steps rule prohibiting anyone from occupying the steps overnight except when the legislature was in session. Again, a group of protesters decrying the deployment of soldiers to Iraq were arrested, convicted of second-degree criminal trespassing and fined $500 each. In that appeal, their lawyer argued that the new rule had been made without following proper legislative procedure and was actually an attack on their free speech rights. But those arguments could not be made in court because legislators and their staffs were immune from testifying.

This month's ruling by the Oregon Court of Appeals will allow attorneys to get to the root of the motivation behind the rule change. They can finally ask the lawmakers, under oath, if they created the new law because they were concerned about public safety, or because they wanted to quell a war protest.

Source:, "Oregon Appeals Court says lawmakers can be subpoenaed to testify in Capitol protest case," Michelle Cole, April 11, 2012

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