The controversial decision to close the Capitol during the 2021 legislative session has been questioned by some lawmakers since the beginning of the session. Legislative leadership, in the hands of Democrats has been unwilling to let the public in the building, a decision which some have noted, has the effect of letting them make laws without having to actually face the citizens of the State. Indeed, Representative Mike Nearman (R-Independence) is under fire for exiting a door, which allegedly permitted several people to temporarily enter the Capitol, leading to safety measures being imposed on him and restricting his ability to enter the building.

In light of these restrictions, State Representative Mark Owens (R-Crane) asked for a legal opinion from Legislative Counsel -- the official lawyers for the Legislative Branch -- on the question of the legality of closing the Capitol. In their analysis, Legislative Counsel offered a decision based in part on their understanding of how the disease is transmitted.

Because the virus that causes COVID-19 is transmitted through the air and between people who are in close proximity, the Legislative Assembly’s decision to keep the Capitol physically closed to the public while requiring contemporaneous broadcast of all legislative proceedings is not an arbitrary or unreasonable decision, and does not go beyond what is reasonably necessary to enable the legislature to make urgent policy decisions pertaining to the state’s response to the virus and other urgent matters.

In their conclusion, they answered several specific questions asked by Representative Owens, including "Is it legal to close off physical access by the public to the Capitol building for committee meetings and floor sessions? How does that impact public participation?"

Answer: We conclude that it is legal to limit physical access to the Capitol building during the COVID-19 pandemic, for the reasons described in “Overview” above. Public participation in the legislative process is preserved because House and Senate rules require the public to be able to observe legislative proceedings as the proceedings are occurring, and to be allowed to testify, using electronic means, when legislative committees conduct public hearings.

Interestingly, Legislative Counsel uses "transmitted through the air and between people who are in close proximity" as much of the justification for closing the Capitol -- more a biological and medical analysis than a legal one -- a justification which almost comically flies in the face of currently allowed practices throughout the state. It would be interesting to see how many Legislators who support the closure of the Capitol based on the transmissibility of the disease, frequent Costco, Fred Meyer, Wal-Mart or other places in which people are in even closer proximity than they are in the Capitol. Legislative Counsel seems to be at peace with this double standard.

Additionally, the Legislative Counsel opinion doesn't really address the second part of Representative Owens' question, "How does this impact public participation?" and leave a critical issue on the table, which is, what is the value of live public participation?

In State v. Jackson the Oregon Court of Appeals heard a case in which a defendant who committed a crime inside a prison, was tried inside a prison, as the trial was simulcast to a publicly accessible courtroom outside the prison -- a circumstance that significantly mirrors the "open to the public" standard of the current rules in place at the Legislature. In this case, the conviction was remanded, interestingly, because of some of the psychological aspects of how actual live presence can impact the outcome of the proceedings. The Appeals Court listed three examples:

First, it noted that the exclusion of the public "tends to impress the jury with the enormity of the offense for which the accused is to be tried." Second, it noted that a spectator at a trial might hear testimony that would cause the spectator to "recall facts to which he will call attention, and thus aid in establishing the innocence of the accused." Third, the court concluded that the presence of friends and supporters of a criminal defendant could serve to offset the prejudice incident to being charged with a crime. Finally, the court noted that the presence of friends and supporters of witnesses could "enable the court and jury to elicit from that witness the testimony to which the defense or prosecution is entitled."

Amazingly, Legislative Counsel failed to consider this case, which bears on Representative Owens' point that live public participation does have an impact on the process. Instead, Legislative Counsel rests on how they think the disease is transmitted.


--Staff Reports

Post Date: 2021-01-30 17:27:13

Last Update: 2021-01-30 18:34:50