The City Will Ask a Skeptical Judge to Agree with Its New Meeting Exclusion Policy

Protesters swarm City Hall in October, railing against a City Council vote on a new police contract. Dirk VanderHart

In coming weeks, the city plans to file a motion before US District Judge Michael Simon asking him to enshrine a controversial ordinance that allows people to be banned from City Council meetings for months.

The could be a tough sell. After all, Simon is the judge who in 2015 lambasted the city's practice of excluding disruptive meeting attendees for a month or more, saying it was a violation of constitutional rights to ban "prospective" disruption.

Which might be what Mayor Ted Wheeler is counting on. If Simon says the city's new ordinance is still unconstitutional, the city plans to appeal to the Ninth Circuit Court of Appeals.

"That's then a lengthy legal process," Michael Cox, Wheeler's chief spokesperson, said this morning.

The upshot: It's unlikely Portland's increasingly hectic City Council meetings will see an exclusion for some time. Rather, Wheeler's people say the mayor will likely start ejecting people who disrupt proceedings—a process which under Hales frequently led to council chambers being cleared, and sometimes involved arrest.

News of the city's plan to file a motion before Simon is the first glimpse we've had of officials' plans for moving the law forward. It passed yesterday unanimously. Wheeler conceded at the time that his proposal might not be constitutional, and said the city would get a federal court to weigh in before enforcement could begin.

That left opponents at the ACLU of Oregon scratching their heads. They didn't see a way for the city to get a court's opinion without enforcing the law, and so inciting a courting challenge. But Wheeler's folks say that's not necessary.

Cox and the mayor's deputy chief of staff, Kristin Dennis, believe the city's under an ongoing injunction not to exclude people, following Simon's December 2015 ruling in the case of Joe Walsh, who sued after Hales excluded him for disruption.

"We're asking the court to set aside the permanent injunction which is now in place," Cox says. "There’s no other way to get around the injunction and we don't want to be in contempt of court."

The city will file the motion at some point after the law goes into effect in 29 days, he says.

Dennis tells the Mercury she thinks there's a chance Simon will validate the city's ordinance, though he came out strongly against the old exclusion policy. The new ordinance largely mirrors that policy, but better codifies how a person can be ejected or excluded, and sets a ceiling of 60 days on exclusions.

“I think he left the door open for us to come back with a more narrowly tailored ordinance," Dennis says.

The ACLU, meanwhile has repeatedly said the city's ordinance flies in the face of Simon's earlier ruling.

Portland city council looks to pass ban excluding people from city council meetings based on past actions. It's unconstitutional. https://t.co/wGrcTUDtLq

— Mat dos Santos (@MatPDX) March 15, 2017