[00:00:00] Speaker 01:
Good morning, everyone.

[00:00:01] Speaker 01:
Once again, I'm delighted to be sitting here with my Portland colleagues, my amazing colleagues, Judges Graber and Judge Song.

[00:00:09] Speaker 01:
This is the time and place set for argument in the case of Fenimore versus Lane County Republican Central Committee.

[00:00:16] Speaker 01:
Council for Appellants, please approach and proceed.

[00:00:30] Speaker 00:
May it please the court?

[00:00:31] Speaker 00:
I am Julie Smith, appearing on behalf of plaintiff's appellants Laura Fenimore and Brian Hubbell.

[00:00:39] Speaker 00:
And I'm going to try to reserve three minutes for a rebuttal, please.

[00:00:43] Speaker 01:
Thank you, counsel.

[00:00:43] Speaker 01:
Please be reminded that the time shown is your total time remaining.

[00:00:47] Speaker 00:
Thank you.

[00:00:48] Speaker 00:
Plaintiffs were elected in a state-run primary election to serve on the Lane County

[00:00:54] Speaker 00:
Republican Central Committee.

[00:00:56] Speaker 00:
When they tried to exercise their statutory rights to participate in and vote on Central Committee matters, they were excluded due to Ms.

[00:01:05] Speaker 00:
Fenimore's disability and then retaliated against for opposing the exclusion.

[00:01:09] Speaker 00:
This case fits squarely within the intended scope of the ADA, one of the express purposes of which is to break down the barriers to the political process.

[00:01:18] Speaker 00:
The question is, which title of the ADA does this case best fit under?

[00:01:22] Speaker 00:
Is it Title III or Title II?

[00:01:27] Speaker 01:
Could we explore those, counsel?

[00:01:29] Speaker 01:
So Title II is for a public entity?

[00:01:32] Speaker 01:
Correct.

[00:01:33] Speaker 01:
And so tell me how this gathering was of a public entity.

[00:01:39] Speaker 00:
It was a public entity because the ADA defines public entity to include a list of things and then at the end of that list includes other instrumentalities of the state.

[00:01:55] Speaker 00:
Right.

[00:01:56] Speaker 00:
And the use of the term other invokes the doctrine, the statutory construction doctrine of a Jewism generous.

[00:02:05] Speaker 00:
So that is a catch-all phrase that when that catch-all phrase appears in a statute,

[00:02:12] Speaker 00:
The court construes the term that follows based on what the commonality, the common characteristics of the terms that precede it.

[00:02:22] Speaker 00:
So the common characteristics of the terms that precede other instrumentalities is that they are all creatures of statute.

[00:02:31] Speaker 00:
That is the common characteristic.

[00:02:33] Speaker 02:
I think one of the main arguments in opposition to your position is that although the members of this entity which is a statutory entity are elected,

[00:02:50] Speaker 00:
they are elected only by members of one political party does that matter to the analysis it does not your honor it does not matter to the analysis because that would be the case of many of many uh... public bodies including like a local service district that would be only elected by the members of that's different because that's a geographic or

[00:03:13] Speaker 02:
occupational limitation and not a political party limitation?

[00:03:18] Speaker 02:
Are you aware of any other entities that are considered public entities but are voted on by reference to a non-geographic limitation?

[00:03:36] Speaker 00:
I am not aware of any that are not geographic limited.

[00:03:41] Speaker 00:
I can imagine that there are some that might be.

[00:03:44] Speaker 00:
Yeah, I think they probably most are geographic limited, but I don't see a discernible difference between what the qualifications are for the voters, whether it's based on political party or geography.

[00:03:54] Speaker 00:
I don't see a discernible difference in terms of what makes that a public entity for statutory construction purposes.

[00:04:00] Speaker 00:
Council, I have a question.

[00:04:03] Speaker 04:
So looking at Oregon law, ORS 248.0042, it says, when it talks about political parties, it says, a major or minor political party shall be treated for purposes of contractual tort or other liability of the non-profit corporation.

[00:04:20] Speaker 04:
And then 248.015,

[00:04:24] Speaker 04:
Sub 7 says, a precinct committee person is not considered a public officer.

[00:04:28] Speaker 04:
So that to me indicates that the state of Oregon did not intend for political parties to be instrumentalities of this state.

[00:04:36] Speaker 04:
Why isn't that controlling?

[00:04:37] Speaker 00:
It's not controlling because the statutory construction question is a statutory construction under the ADA.

[00:04:43] Speaker 00:
So the question is whether under the ADA it meets the definition of an instrumentality of the state.

[00:04:48] Speaker 01:
But don't we use state law to determine whether, because you, I

[00:04:54] Speaker 01:
Don't we have to look at state law to determine what the state has designated as its instrumentality?

[00:05:00] Speaker 00:
I don't think so, not if the ADA, not if you construe the ADA to mean that an instrumentality is a creature of statute.

[00:05:10] Speaker 00:
It doesn't matter what state law says.

[00:05:12] Speaker 00:
If the ADA is written broader.

[00:05:16] Speaker 00:
And to give you an example, if state law said that public service districts are not public bodies, they're expressly included in the definition of the ADA as a public entity.

[00:05:29] Speaker 00:
So of course, despite the state law expressly saying that a public service district is not a public body, it would fall squarely.

[00:05:37] Speaker 01:
But that's not what we have here.

[00:05:38] Speaker 00:
It isn't what we have here, but that's the example I would give as we're not looking at, we're not construing Oregon law, we're construing the ADA.

[00:05:47] Speaker 04:
So the question is, what is... That's not entirely true because you've been relying on Oregon law to say that political parties are created by the state.

[00:05:54] Speaker 04:
So I think that same Oregon law indicates that the state had no intent

[00:05:58] Speaker 04:
for political parties to be an instrument.

[00:06:01] Speaker 04:
And I think it's to me there's the political parties are in character different from, you know, a state agency, a special district where the state actually exercises some control over those entities.

[00:06:19] Speaker 04:
Do you have any indication that the state treats political parties like instruments of the state?

[00:06:25] Speaker 00:
Well, I think that circles back to what is an instrument under the ADA.

[00:06:30] Speaker 00:
And if you look at the common characteristics of the listed items, the state does not have control over public service districts either.

[00:06:39] Speaker 00:
So that is a listed item.

[00:06:41] Speaker 00:
So control is not an element of if you use a Judaism generous to interpret what instrumentality means for purposes of the ADA, not in the abstract, but for purposes of the ADA.

[00:06:54] Speaker 00:
The ADA does not incorporate a degree of control in its definition of instrumentality because otherwise public service districts would not follow under the ADA because the state doesn't have control over local public service districts either.

[00:07:07] Speaker 00:
They're autonomous.

[00:07:08] Speaker 00:
So the control is not a requirement.

[00:07:12] Speaker 00:
So I think it shouldn't matter for purposes of the ADA.

[00:07:16] Speaker 00:
what the state views the entity to be.

[00:07:21] Speaker 00:
The question is, how does the ADA define instrumentality?

[00:07:24] Speaker 01:
But how can you say that?

[00:07:26] Speaker 01:
When you said it's important that the entity was created by state law.

[00:07:31] Speaker 01:
Well, it was created by state law.

[00:07:33] Speaker 00:
It's a creature of statute.

[00:07:34] Speaker 01:
You're relying on state law to say that.

[00:07:37] Speaker 00:
But that's different.

[00:07:38] Speaker 00:
Saying that it was created by statute does not mean

[00:07:41] Speaker 00:
that is defined by statute as a public entity.

[00:07:44] Speaker 00:
Those are two different things.

[00:07:45] Speaker 04:
This still can be a creature of statute.

[00:07:54] Speaker 04:
state laws requirements for how they come into being like a nonprofit or a corporation, why wouldn't they then all be public entities under your interpretation?

[00:08:04] Speaker 00:
This is different in the respect that this is something that is actually like

[00:08:11] Speaker 00:
this has a public purpose.

[00:08:15] Speaker 00:
It is not just, I guess it's more than just a creature of statute, it serves a public purpose of the orderly and fair election process.

[00:08:24] Speaker 00:
So it's not just a creature of statute, it also serves a public purpose.

[00:08:29] Speaker 00:
And I see that I'm in my rebuttal time.

[00:08:31] Speaker 01:
Let me just ask you this question.

[00:08:33] Speaker 01:
Does it matter that this event took place at someone's home?

[00:08:36] Speaker 00:
Does it matter that no it does not matter that this particular event occurred in some one's home if we're talking about if we're moving into the title three question Well now I title two or title three.

[00:08:47] Speaker 01:
I just if for title two I

[00:08:50] Speaker 01:
then the fact that it's in a private home, would that preclude coverage under ADA?

[00:08:57] Speaker 00:
No.

[00:08:58] Speaker 01:
Under Title II.

[00:08:58] Speaker 01:
Why not?

[00:09:00] Speaker 00:
Because they're still a public entity.

[00:09:01] Speaker 00:
Under Title II, they're still a public entity, regardless of whether this occurs.

[00:09:05] Speaker 02:
So if the city council had an official meeting at someone's home, it would still be a public entity.

[00:09:09] Speaker 01:
Right.

[00:09:09] Speaker 01:
It would still be a public meeting.

[00:09:11] Speaker 01:
Correct.

[00:09:12] Speaker 01:
What if the state created an art commission?

[00:09:15] Speaker 01:
to educate the public about the importance of art.

[00:09:21] Speaker 01:
And that art commission met at someone's home.

[00:09:23] Speaker 01:
Would that home have to be ADA compliant?

[00:09:26] Speaker 01:
If it's a public entity, yes.

[00:09:29] Speaker 01:
So if the state created the art commission, then you would say that's a public entity.

[00:09:36] Speaker 01:
And if they met at someone's home, that home would have to be ADA compliant.

[00:09:40] Speaker 00:
Yes.

[00:09:43] Speaker 00:
and I'll preserve the rest of my time for rain bottles if that's okay.

[00:09:46] Speaker 00:
Thank you.

[00:09:53] Speaker 03:
May it please the court, James Bukel representing the Lane County Republicans, Mr. Large, whose front yard was used, and two other people who were there and didn't like the bumper stickers on Ms.

[00:10:05] Speaker 03:
Fenimore's van.

[00:10:06] Speaker 03:
I'd like to focus on Title III.

[00:10:10] Speaker 01:
What does that have to do with this case, that they didn't like the bumper stickers?

[00:10:13] Speaker 03:
Because the plaintiffs alleged that the remarks about the bumper stickers were actually a disguised form of discrimination and retaliation.

[00:10:21] Speaker 02:
Well, counsel, for purposes of our decision, we have to take the complaint as true, because it was dismissed.

[00:10:29] Speaker 02:
So I think I'm having the same difficulty as Judge Rollinson, seeing the relevance of what people's motivations actually were.

[00:10:41] Speaker 03:
Understood.

[00:10:42] Speaker 03:
My purpose in referencing that is primarily to say that for discrimination or retaliation to occur, we have to be dealing with some type of entity that is a covered entity.

[00:10:55] Speaker 03:
And the fact that you have somebody, an individual, who's standing there and makes a remark

[00:11:00] Speaker 03:
that person cannot retaliate or discriminate as a matter of law because they have no power.

[00:11:06] Speaker 02:
Let's go to the main claim, which is that the meeting location was inaccessible and the whole home wouldn't have to be accessible, but presumably there would have to be some way for a disabled individual

[00:11:25] Speaker 02:
to attend a meeting of a public entity of which they are a part if they are a public entity.

[00:11:34] Speaker 02:
So why isn't this a public entity?

[00:11:38] Speaker 02:
It's not the Republican Party.

[00:11:40] Speaker 02:
It's the committee that is formed pursuant to state law.

[00:11:47] Speaker 02:
So why doesn't that have the same or similar character to other public entities that are listed in the ADA?

[00:11:56] Speaker 03:
Because the word instrumentality is in the APA.

[00:11:59] Speaker 03:
And the essential character of an instrumentality is something that is controlled by the overlord state, so to speak, and furthers the state purposes and is created by the state for those purposes.

[00:12:11] Speaker 03:
The Republican Party was not created by the state of Oregon.

[00:12:14] Speaker 03:
County Republican parties were not created by the state of Oregon.

[00:12:16] Speaker 03:
It is a form of regulation of statutes.

[00:12:19] Speaker 02:
So, Council, if there's an independent body created by state law, let's say a state analogy to the National Labor Relations Board, which is independent, it's not overseeing its decisions or its decisions, would that be a public entity even though it operates independently?

[00:12:43] Speaker 03:
I don't know what independently means in this context.

[00:12:45] Speaker 02:
These commissions are... Well, you said that they had to be the overlord.

[00:12:50] Speaker 02:
And beyond the selection process, there are many state instrumentalities that are independent of the type of regulation that you're talking about.

[00:13:04] Speaker 02:
Are there not?

[00:13:05] Speaker 03:
There are many state entities, like the Irrigation District, that's created under state law.

[00:13:10] Speaker 03:
directly controlled by the governor, although there are many statutes relating to control of special purpose districts.

[00:13:17] Speaker 03:
But these things are created under state law to advance particular public purposes.

[00:13:22] Speaker 03:
Parties are fundamentally different in character because they are created entirely outside of the state.

[00:13:27] Speaker 02:
Of course they are, but this is not against the party.

[00:13:31] Speaker 02:
It's against the committee, which is not per se the party.

[00:13:35] Speaker 03:
I can't see that distinction because this court's precedents in the, I don't know how to pronounce it, EU case and others established that all of these statutes, which are entirely optional and adopted as a matter of convenience so that the party can get the elections run through the election, all of these statutes are a form of regulation.

[00:13:56] Speaker 02:
What is more central to the operation of government than elections, which are specifically mentioned in the ADA as one of the purposes?

[00:14:06] Speaker 03:
Elections are clearly central, and election places and where people go to vote has to be open to the public and has to be ADA compliant.

[00:14:14] Speaker 03:
Parties are private entities, and they exist outside the government to attempt to control the government.

[00:14:22] Speaker 03:
And so they are not in any sense instrumentalities of state, even if the state passes.

[00:14:27] Speaker 02:
So what is the difference between the party and this committee?

[00:14:30] Speaker 02:
The party is not a defendant here.

[00:14:32] Speaker 02:
The committee is a defendant here.

[00:14:35] Speaker 03:
The committee is a piece of the party.

[00:14:38] Speaker 03:
It is the county level organization of the party.

[00:14:41] Speaker 02:
It's made up of elected individuals who happen all to be members of the same political party.

[00:14:47] Speaker 03:
It's not a matter of happens to.

[00:14:49] Speaker 03:
They have to be in order.

[00:14:50] Speaker 02:
Well, yes, that's right.

[00:14:52] Speaker 02:
But they're elected by all the voters in Lane County.

[00:14:55] Speaker 02:
All the Republican voters in Lane County who choose to show up elect these individuals in their respective geographic locations.

[00:15:05] Speaker 02:
Correct.

[00:15:06] Speaker 02:
And the party is a voluntary organization.

[00:15:10] Speaker 02:
There are no elections.

[00:15:11] Speaker 02:
There's nothing on the ballot.

[00:15:12] Speaker 02:
We just had ballots with precinct committee persons listed in them.

[00:15:17] Speaker 02:
You can be a member of a political party without being elected to do so, correct?

[00:15:22] Speaker 03:
Yes.

[00:15:23] Speaker 02:
But you can't be a member of this committee or a similar committee without having been elected as a precinct committee person by voters, correct?

[00:15:31] Speaker 03:
I would deny that in the sense that the party acquiesces in these forms of regulation for convenience, but there are fundamental limits on the power of the state dealing with the First Amendment and rights of association, which are dealt with in this EU case and the others, that say the state can't get in

[00:15:50] Speaker 03:
and control internal party operations because a party is something fundamentally different in character.

[00:15:57] Speaker 03:
The state can set up a special purpose district any way it wants.

[00:16:00] Speaker 03:
The state cannot regulate parties any way it wants because they are different and they are not instrumentalities.

[00:16:05] Speaker 02:
And the party is not a defendant in this case.

[00:16:09] Speaker 02:
The Republican Party is not a defendant in this case.

[00:16:12] Speaker 02:
The committee is a defendant in this case.

[00:16:15] Speaker 03:
The committee is a piece of the party.

[00:16:17] Speaker 03:
I mean, that's who goes to the conventions.

[00:16:19] Speaker 01:
But it's a separate entity, correct?

[00:16:22] Speaker 03:
It's a separate entity.

[00:16:24] Speaker 04:
What should I make of ORS Council?

[00:16:26] Speaker 04:
What should I make of ORS 248031, which says, the precinct committee persons of the county shall constitute the county central committee of their party.

[00:16:35] Speaker 04:
The county central committee of each major political party is the highest party authority in county party matters and may adopt rules or resolutions for any matter of party government within the county which is not controlled by the laws of this state.

[00:16:48] Speaker 03:
I see that as a statute that was passed to essentially ratify what the parties were doing and it's entirely optional.

[00:16:56] Speaker 03:
If the parties decide that they want to have one guy who is the Republican super chairman who can appoint all these county committees, the party can do that and there's nothing the state can do about it because the party is a different kind of thing.

[00:17:11] Speaker 04:
You're talking about the opt-out provision, right?

[00:17:14] Speaker ?:
Yeah, yeah.

[00:17:14] Speaker 04:
Okay, I guess this one is different from the opt-out provision, which I think it seems to me that they're saying that the

[00:17:25] Speaker 04:
Precinct committee persons form the central committee and county central committee is essentially an authority of a political party.

[00:17:33] Speaker 04:
And what I'm not sure what to do with is the last clause of may adopt rules or resolutions within the county which is not controlled by the laws of this state.

[00:17:45] Speaker 04:
I guess I'm not sure what part is

[00:17:48] Speaker 04:
The last clause is modifying.

[00:17:50] Speaker 04:
Is it the county?

[00:17:53] Speaker 04:
Well, I get county is not controlled by the laws of the state, or is it the party matters that are not controlled by the laws of the state?

[00:18:01] Speaker 04:
I'm not sure if that's all significant for the purposes of the conversation we're having about what the difference is between the committee and the party itself.

[00:18:10] Speaker 04:
But if the committee persons are the authority of the party, I'm not sure there is a lot of difference in my mind between the two.

[00:18:18] Speaker 03:
We would focus on basically the statutory language here.

[00:18:23] Speaker 03:
And the statutory language talks about departments, special purpose districts, and instrumentalities.

[00:18:29] Speaker 03:
And instrumentality is a word that has a long and definite

[00:18:33] Speaker 03:
meaning in terms of something that is controlled by and is used by.

[00:18:40] Speaker 03:
And the state is not using the Republican Party.

[00:18:44] Speaker 03:
The Republican Party is something different in character from all these other things.

[00:18:49] Speaker 03:
And so that's why it's not properly seen as a public entity.

[00:18:53] Speaker 02:
What is your response to the argument that it is being used for the purpose of

[00:19:02] Speaker 02:
rationally organizing general elections and primary elections in the state.

[00:19:09] Speaker 03:
I would say that it is not being used.

[00:19:12] Speaker 03:
It has, as a private entity, elected to

[00:19:16] Speaker 03:
except something from the state.

[00:19:19] Speaker 03:
Free elections, essentially.

[00:19:21] Speaker 03:
The state will run its elections for it.

[00:19:23] Speaker 03:
And so because the state will run its elections for it, there's some state rules describing how that works.

[00:19:30] Speaker 03:
But the party could also have its elections entirely

[00:19:33] Speaker 03:
There's a lot of litigation on this now, actually, in connection with the current election, because there are parties that didn't manage to comply with the state laws.

[00:19:41] Speaker 03:
And so they're going out, and they're holding, here's a new party rule.

[00:19:43] Speaker 03:
We're going to pick our candidates this way, state law this way or not.

[00:19:47] Speaker 03:
And the answer is, as a matter of the First Amendment, they have this power.

[00:19:51] Speaker 03:
They are separate.

[00:19:52] Speaker 03:
and distinct from the state and this power that they have.

[00:19:56] Speaker 02:
I understand your answer, but I don't think it actually responds to my question, which is when a party does not opt out, but has its precinct committee persons elected on the ballot that we just got a few weeks ago.

[00:20:15] Speaker 02:
and creates this committee, isn't there a public purpose to having the committee structure in order to rationalize elections within the state?

[00:20:29] Speaker 02:
Not that it's required, but that it has that as a purpose.

[00:20:32] Speaker 03:
I can't argue that there's a public purpose there.

[00:20:34] Speaker 03:
I can only kick you back to the Justice Department manual which says,

[00:20:37] Speaker 03:
Are these people in this entity, does the government pay their salaries?

[00:20:42] Speaker 03:
No.

[00:20:42] Speaker 03:
Does it provide any cash or equipment to these?

[00:20:46] Speaker 03:
No.

[00:20:47] Speaker 03:
Can it hire or fire them?

[00:20:48] Speaker 03:
No.

[00:20:48] Speaker 03:
Every factor in the Justice Department's guidelines for how to determine a public entity is just not established here.

[00:20:56] Speaker 02:
OK.

[00:20:56] Speaker 02:
You don't have to answer my question.

[00:20:58] Speaker 02:
That's fine.

[00:21:00] Speaker 01:
All right.

[00:21:00] Speaker 01:
Thank you.

[00:21:01] Speaker 01:
Thank you.

[00:21:03] Speaker 01:
Let's give two minutes for report.

[00:21:09] Speaker 00:
Thank you.

[00:21:10] Speaker 00:
I just want to circle back to my opening remarks, which are that this is really about protecting voting rights, and it's about protecting voting rights in two ways.

[00:21:18] Speaker 00:
The first is that that's why Oregon enacted these local committee statutes.

[00:21:26] Speaker 00:
And that's actually even recognized by the US Supreme Court in the U.K.'

[00:21:30] Speaker ?:
's

[00:21:30] Speaker 00:
where the court recognized that the public benefits from these local central committees that these committees are there to preserve the integrity of the election process and sure fair honest and orderly elections and then I want to say that the other

[00:21:45] Speaker 00:
The other point I want to make about voting rights is that the ADA was enacted to protect voting rights.

[00:21:51] Speaker 00:
And to the extent this court finds that the meaning of instrumentality is ambiguous, I think the court can rely on the overall intent of Congress in enacting the ADA in resolving that ambiguity in this case and in protecting plaintiff's voting rights.

[00:22:13] Speaker 00:
Thank you.

[00:22:14] Speaker 01:
All right.

[00:22:14] Speaker 01:
Thank you, counsel.

[00:22:15] Speaker 01:
Thank you to both counsel for your helpful argument.

[00:22:17] Speaker 01:
The case is argued is submitted for decision by the court.

[00:22:21] Speaker 01:
We will be in recess for 10 minutes.

[00:22:23] Speaker 02:
All rise.