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Oregon Measure 114 remains temporarily blocked by Harney County judge; state Supreme Court won’t intervene

Dec. 7, 2022 Updated Wed., Dec. 7, 2022 at 9:10 p.m.

By Maxine Bernstein Oregonian

The Oregon Supreme Court late Wednesday let stand a Harney County judge’s ruling that temporarily blocks the voter-approved gun control Measure 114 from taking effect as planned Thursday morning.

At 4:52 p.m, state Supreme Court Presiding Justice Martha L. Walters issued a two-paragraph decision, denying the state attorney general’s petition to intervene to throw out the county judge’s temporary restraining order.

Earlier Wednesday, the state attorney general filed a petition urging the state Supreme Court’s intervention to allow two of three provisions of the measure to take effect as planned.

Measure 114, which passed by 50.7% of votes, requires Oregonians to acquire a permit to buy a gun, and it bans the sale, transfer and manufacture of magazines holding more than 10 rounds. It also requires a background check of the buyer be completed before any sale or transfer of a gun can occur.

The state has acknowledged that a permitting process is not in place, with key requirements unable to be met by the measure’s effective date on Thursday.

Assistant Attorney General Robert Koch had argued to the state’s high court that Harney County Circuit Judge Robert S. Raschio exceeded his authority and that the state Supreme Court needed to immediately step in to correct the error.

The attorney general’s filings suggested any delay in the measure had “life-and-death” stakes, creating a greater threat to public safety. The attorney general also argued that the Harney County judge had exceeded his authority.

On Tuesday morning, Raschio granted a temporary restraining order against all provisions of the gun-control measure. His order came from a case brought by Gun Owners of America, a Virginia-based nonprofit, its legal defense fund and two Harney County gun owners, who argued the measure violated the state’s constitution.

His order was binding and separate from a federal judge’s decision three hours earlier on Tuesday that allowed the measure’s regulations to take effect as planned, with only a 30-day delay in the requirement to obtain a permit to buy a gun.

Raschio has scheduled a more in-depth hearing for next Tuesday on whether to grant a preliminary injunction against the gun control measure.

Koch, the assistant attorney general, had urged the state Supreme Court to issue what’s called a “peremptory writ of mandamus,” directing the Harney Circuit Court to throw out its temporary restraining order. If not, he offered an alternative, suggesting the state Supreme Court put an immediate hold on that restraining order and direct the Harney County judge to either dismiss it or show why there’s cause not to do so.

Walters, on behalf of the state Supreme Court, denied both steps.

The state’s high court denied the attorney general’s petition to intervene, and said the attorney general’s motion to put a hold on Raschio’s order therefore was dismissed as “moot.”

Steve Kanter, dean emeritus of Lewis & Clark Law School, anticipated such an outcome. He said Tuesday that Raschio’s temporary restraining order maintained “the status quo” and noted that might cut against the attorney general’s push for immediate state Supreme Court intervention.

Kanter had suggested that “the state Supreme Court might say, ‘It’s been going on for 150 years like it is today, and well, it took voters 150 years to come up with this, why would 10 more days matter?’”

Walter’s brief order does not explain the state Supreme Court’s reasoning. It only said the decision resulted from “consideration by the court.”

The chief justice did issue the order without prejudice, meaning the attorney general or any other party to the case could file another petition or motion in the future to the state’s high court regarding any other ruling in the ongoing Harney County case.

Attorney Tyler D. Smith, the lawyer for Gun Owners of America and two Harney County gun owners, said Wednesday night he believes the state Supreme Court acted appropriately.

He argued in court papers that the measure equated to a “functional ban” on dozens, if not thousands of popular firearms that come from manufacturers with magazines that hold more than 10 rounds. He also argued that the permit-to-purchase scheme would extract “a hefty fee, paid to the government, merely to obtain the state’s permission to exercise an enumerated right.” The estimated fee was to be $65.

In a filing opposing the state attorney general’s petition, Smith called the measure “poorly conceived and badly drafted,” with no historical precedent in Oregon or elsewhere.

“In spite of this,” Smith wrote, the state’s attorney general and governor “ask this Court to decide – in a period of fewer than eight hours – to overrule a trial court’s factual findings and legal conclusions, altering a status quo that has existed for more than 163 years.”

Nine states and Washington, D.C. have adopted laws banning large-capacity magazines, though such bans are now under court review in California and Washington states. More than a dozen other states have enacted similar permit-to-purchase gun laws.

Tung Yin, a professor at Lewis & Clark Law School, also had predicted that the state’s high court wouldn’t get involved at this stage. “The optimistic take for the State is that the Oregon Supreme Court solely decided that this was not an imminent matter of life or death (as the state attorney general’s office argued),” Yin said by email. “If anything, it would be more disruptive to let M114 go into effect now, only to be struck down later.”

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