Oregon’s Measure 114 has been held up in court. Now, the legislature is trying to pass a bill that basically mimics the ballot initiative, apparently missing that at least some of the issues with Measure 114 were based on the substance of the law, not so much on how it was passed.
Yet there’s something interesting about the bill working its way through the legislature. It seems that Oregon wants to restrict where challenges to the law can take place.
A last-minute amendment to a state gun controlbillthat largely mimics voter-approvedMeasure 114would restrict future legal challenges to the bill to Marion County Circuit Court.
The move is aimed at avoiding so-called “forum shopping,” the practice of pursuing a legal claim in a court that is likely to treat it most favorably.
Late last year, the Virginia-based Gun Owners of America filed a lawsuit in Oregon’s rural and conservative Harney County, where a judge issued injunctions putting Measure 114 on hold as he considers whether the new gun regulations meet state constitutional muster.
In Harney County, 85% of voters opposed the measure last November.In Marion County, 58% of voters opposed the measure and 42% supported it, according to state certified results. The measure narrowly passed statewide with 50.7% support.
While the plaintiffs challenging Measure 114 in Harney County appeared to be seeking a ruling reflecting their point of view, the amendment also does “smack a bit of forum shopping,” too, even though legislatures have a fair amount of control over court jurisdiction, said Steve Kanter, dean emeritus at Lewis & Clark Law School.
Kanter is absolutely correct.
Look, forum shopping is nothing new. That’s why so many legal challenges to former President Donald Trump’s executive orders were challenged in heavily liberal courts.
By restricting challenges to one county, it’s essentially trying to forum shop in a different way.
Especially as this is a county that went for Trump by four points in 2016, but that he lost by a bit over a point in 2020.
That matters since circuit court judges are elected.
Yet the interesting thing to me isn’t just that they’re restricting it, but that they chose Marion County. In a way, that might turn out to be good news, since it’s not exactly the most liberal county in Oregon by any stretch of the imagination.
My guess–and it’s just a guess, mind you–is that they figured there would be less resistance than if they restricted them to a circuit court in Eugene or Portland. On that, they may be right.
However, this idea of restricting challenges to just one court is still problematic, even if it’s not as bad as it could be. It requires people to travel longer distances for court appearances and for filings. That drives up the costs for challenges and could have a chilling effect on people’s ability to combat what they believe to be an unconstitutional law.
This is probably more of the reason why they’re going in this direction than due to forum shopping. They know it won’t survive a legal challenge under Bruen, so they’re hoping to just make it too much of a pain to challenge.
If that’s actually what they’re thinking, they really don’t know gun rights folks very well, now do they?