ELLEN F. ROSENBLUM 

Attorney General 

JACQUELINE KAMINS #064972 

Assistant Attorney General 

Department of Justice 

1515 SW Fifth Ave, Suite 410 

Portland, OR 97201 

Telephone: (971) 673-1880 

Fax: (971) 673-5000 

Email: Jacqueline.Kamins@doj.state.or.us 

Attorneys for Defendant Kitzhaber 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

GALICE MINING DISTRICT; IDA LEE 

REMAN, Recorder for the Galice Mining 

District; KERBY DALE JACKSON, CEO for 

Galice Mining District; DELANT CORY 

PALMERTON, Vice Executive Officer for 

Galice Mining District; and IRVIN LEE 

ADKINS, Private Attorney General, 

Plaintiffs, 

v. 

JOHN KITZHABER, Governor; PETER 

COURTNEY, Senator; JACKIE 

DINGFELDER, Senator; and ALAN BATES, 

Senator, 

Defendants. 

Case No. 6:13-cv-00682-TC 

MEMORANDUM IN SUPPORT OF 

DEFENDANTS' MOTION TO DISMISS 

I. INTRODUCTION 

This lawsuit asks this Court to stop state lawmakers from making law. Plaintiffs assert 

that several bills in the state legislature are unconstitutional. Whether these bills will become 

law — or what that law would look like — is unknown. Because it is not clear that a law will be 

Page 1 - MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS 

JK/js9/4265307-v1 

Department of Justice 

1515 SW Fifth Ave, Suite 410 

Portland, OR 97201 

(971) 673-1880 / Fax: (971) 673-5000 

Page 1 - MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

JK/js9/4265307-v1

Department of Justice

1515 SW Fifth Ave, Suite 410

Portland, OR 97201

(971) 673-1880 / Fax: (971) 673-5000

ELLEN F. ROSENBLUM

Attorney General

JACQUELINE KAMINS #064972

Assistant Attorney General

Department of Justice

1515 SW Fifth Ave, Suite 410

Portland, OR 97201

Telephone: (971) 673-1880

Fax: (971) 673-5000

Email: Jacqueline.Kamins@doj.state.or.us

Attorneys for Defendant Kitzhaber

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

GALICE MINING DISTRICT; IDA LEE

REMAN, Recorder for the Galice Mining

District; KERBY DALE JACKSON, CEO for

Galice Mining District; DELANT CORY

PALMERTON, Vice Executive Officer for

Galice Mining District; and IRVIN LEE

ADKINS, Private Attorney General,

Plaintiffs,

v.

JOHN KITZHABER, Governor; PETER

COURTNEY, Senator; JACKIE

DINGFELDER, Senator; and ALAN BATES,

Senator,

Defendants.

Case No. 6:13-cv-00682-TC

MEMORANDUM IN SUPPORT OF

DEFENDANTS' MOTION TO DISMISS

I. INTRODUCTION

This lawsuit asks this Court to stop state lawmakers from making law. Plaintiffs assert

that several bills in the state legislature are unconstitutional. Whether these bills will become

law – or what that law would look like – is unknown. Because it is not clear that a law will be

Case 6:13-cv-00682-TC Document 20 Filed 05/28/13 Page 1 of 6 Page ID#: 175
passed at all, let alone one that would affect plaintiffs, the claim is not ripe. Moreover, the Tenth 

Amendment prevents federal courts from interrupting state legislative proceedings. This Court 

lacks subject matter jurisdiction to consider these claims, and the case should be dismissed. 

II. BACKGROUND 

Plaintiffs are mineral miners. (Complaint p. 6, ¶ C). They allege membership in the 

"Galice Mining District," which is also a named plaintiff. (Id. p. 4, ¶ 2). According to plaintiffs, 

they "and the locatable mineral miners which they were elected to represent" will face 

irreparable harm if several pieces of proposed regulatory legislation become law. (Complaint p. 

6, C). Defendants are three state senators who have a significant role in the pending legislation. 

as well as Governor Kitzhaber. (Id. p. 4, ¶ A). The bills are currently in the Oregon Senate. 

(Id.). 

III. ARGUMENT 

A. Standards 

A motion to dismiss based on ripeness is raised pursuant to Federal Rule of Civil 

Procedure 12(b)(1). Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th 

Cir.2010) ("Because standing and ripeness pertain to federal courts' subject matter jurisdiction, 

they are properly raised in a Rule 12(b)(1) motion to dismiss."). A motion to dismiss based on 

legislative immunity is properly raised in a Rule 12(b)(6) motion. See Kaahumanu v. County of 

Maui, 315 F.3d 1215 (9th Cir. 2003). Both types of motion, when based on the face of the 

pleadings, require the court to "accept as true the allegations of the complaint and must construe 

the complaint in favor of the complaining party." United States ex rel. Lujan v. Hughes Aircraft 

Co., 243 F.3d 1181, 1189 (9th Cir. 2001) (citations omitted). 

B. Plaintiffs' case is not ripe. 

Plaintiffs ask this court to enjoin a state legislature from creating laws that could violate 

their federal rights if enforced against them. This request is not ripe. The doctrine of ripeness 

"prevents[] the courts, through avoidance of premature adjudication, from entangling themselves 

Page 2 - MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS 

JK/js9/4265307-v1 

Department of Justice 

1515 SW Fifth Ave, Suite 410 

Portland, OR 97201 

(971) 673-1880 / Fax: (971) 673-5000 

Page 2 - MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

JK/js9/4265307-v1

Department of Justice

1515 SW Fifth Ave, Suite 410

Portland, OR 97201

(971) 673-1880 / Fax: (971) 673-5000

passed at all, let alone one that would affect plaintiffs, the claim is not ripe. Moreover, the Tenth

Amendment prevents federal courts from interrupting state legislative proceedings. This Court

lacks subject matter jurisdiction to consider these claims, and the case should be dismissed.

II. BACKGROUND

Plaintiffs are mineral miners. (Complaint p. 6, ¶ C). They allege membership in the

“Galice Mining District,” which is also a named plaintiff. (Id. p. 4, ¶ 2). According to plaintiffs,

they “and the locatable mineral miners which they were elected to represent” will face

irreparable harm if several pieces of proposed regulatory legislation become law. (Complaint p.

6, C). Defendants are three state senators who have a significant role in the pending legislation.

as well as Governor Kitzhaber. (Id. p. 4, ¶ A). The bills are currently in the Oregon Senate.

(Id.).

III. ARGUMENT

A. Standards

A motion to dismiss based on ripeness is raised pursuant to Federal Rule of Civil

Procedure 12(b)(1). Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th

Cir.2010) (“Because standing and ripeness pertain to federal courts' subject matter jurisdiction,

they are properly raised in a Rule 12(b)(1) motion to dismiss.”). A motion to dismiss based on

legislative immunity is properly raised in a Rule 12(b)(6) motion. See Kaahumanu v. County of

Maui, 315 F.3d 1215 (9th Cir. 2003). Both types of motion, when based on the face of the

pleadings, require the court to “accept as true the allegations of the complaint and must construe

the complaint in favor of the complaining party.” United States ex rel. Lujan v. Hughes Aircraft

Co., 243 F.3d 1181, 1189 (9th Cir. 2001) (citations omitted).

B. Plaintiffs’ case is not ripe.

Plaintiffs ask this court to enjoin a state legislature from creating laws that could violate

their federal rights if enforced against them. This request is not ripe. The doctrine of ripeness

“prevents[] the courts, through avoidance of premature adjudication, from entangling themselves

Case 6:13-cv-00682-TC Document 20 Filed 05/28/13 Page 2 of 6 Page ID#: 176
in abstract disagreements." Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967). The 

court's role is "neither to issue advisory opinions nor to declare rights in hypothetical cases, but 

to adjudicate live cases or controversies consistent with the powers granted the judiciary in 

Article III of the Constitution." Thomas v. Anchorage Equal Rights Com'n, 220 F.3d 1134 (9th 

Cir. 2000). 

In this case, plaintiffs challenge four bills that have allegedly been introduced in the 

legislature. (Complaint pp. 7-13, I 1, 6, 14, 17). These bills may remain in committee 

indefinitely, may come up for a vote and be rejected, may pass one house and not the other, or 

may pass through the legislature but be vetoed by the governor. There are so many 

contingencies between these bills and the rights of the plaintiffs that any court opinion on the 

bills would be merely advisory. Because this case rests entirely upon 'contingent future events 

that may not occur as anticipated, or indeed may not occur at all," it is not ripe for review. Texas 

v. United States, 523 U.S. 296, 300 (1998). Plaintiffs' case must be dismissed. 

C. All defendants are immune. 

Plaintiffs have sued lawmakers for making law. All allegations in the complaint relate to 

the legislators' introduction or support of various bills in the legislature. Plaintiffs' effort is flatly 

prohibited by the doctrine of legislative immunity. Legislators are absolutely immune from civil 

suit for actions taken in their official lawmaking capacity. Bogan v. Scott—Harris, 523 U.S. 44, 

48-49, (1998). Government officials are entitled to legislative immunity for their legislative 

actions, whether those officials are members of the legislative or the executive branch. Id. at 54-

55 (1998). This immunity extends both to claims for damages and claims for injunctive relief. 

Supreme Ct. of Va. v. Consumers Union of the United States, Inc., 446 U.S. 719, 732-33 (1980). 

Plaintiffs' claims against defendants for exercising their legislative duties are barred. 

D. The Tenth Amendment prevents federal intervention in the state legislature 

The Tenth Amendment provides that "[t]he powers not delegated to the United States by 

the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to 

Page 3 - MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS 

JK/js9/4265307-v1 

Department of Justice 

1515 SW Fifth Ave, Suite 410 

Portland, OR 97201 

(971) 673-1880 / Fax: (971) 673-5000 

Page 3 - MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

JK/js9/4265307-v1

Department of Justice

1515 SW Fifth Ave, Suite 410

Portland, OR 97201

(971) 673-1880 / Fax: (971) 673-5000

in abstract disagreements.” Abbott Laboratories v. Gardner, 387 U.S. 136, 148 (1967). The

court’s role is “neither to issue advisory opinions nor to declare rights in hypothetical cases, but

to adjudicate live cases or controversies consistent with the powers granted the judiciary in

Article III of the Constitution.” Thomas v. Anchorage Equal Rights Com'n, 220 F.3d 1134 (9th

Cir. 2000).

In this case, plaintiffs challenge four bills that have allegedly been introduced in the

legislature. (Complaint pp. 7-13, ¶¶ 1, 6, 14, 17). These bills may remain in committee

indefinitely, may come up for a vote and be rejected, may pass one house and not the other, or

may pass through the legislature but be vetoed by the governor. There are so many

contingencies between these bills and the rights of the plaintiffs that any court opinion on the

bills would be merely advisory. Because this case rests entirely upon ‘contingent future events

that may not occur as anticipated, or indeed may not occur at all,” it is not ripe for review. Texas

v. United States, 523 U.S. 296, 300 (1998). Plaintiffs’ case must be dismissed.

C. All defendants are immune.

Plaintiffs have sued lawmakers for making law. All allegations in the complaint relate to

the legislators’ introduction or support of various bills in the legislature. Plaintiffs’ effort is flatly

prohibited by the doctrine of legislative immunity. Legislators are absolutely immune from civil

suit for actions taken in their official lawmaking capacity. Bogan v. Scott–Harris, 523 U.S. 44,

48-49, (1998). Government officials are entitled to legislative immunity for their legislative

actions, whether those officials are members of the legislative or the executive branch. Id. at 54-

55 (1998). This immunity extends both to claims for damages and claims for injunctive relief.

Supreme Ct. of Va. v. Consumers Union of the United States, Inc., 446 U.S. 719, 732-33 (1980).

Plaintiffs’ claims against defendants for exercising their legislative duties are barred.

D. The Tenth Amendment prevents federal intervention in the state legislature

The Tenth Amendment provides that “[t]he powers not delegated to the United States by

the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to

Case 6:13-cv-00682-TC Document 20 Filed 05/28/13 Page 3 of 6 Page ID#: 177
the people." U.S. Const. amend. X. In essence, the Tenth Amendment limits federal power, 

preventing the federal government from "commandeering" a state's legislative or executive 

departments . New York v. United States, 505 U.S. at 161 (holding Congress may not 

commandeer the state legislative process by requiring a state legislature to enact a particular kind 

of law). Plaintiffs ask this Court to intervene in an area reserved to the states — legislating state 

law. Because the Tenth Amendment does not allow this form of federal intervention, this case 

must be dismissed. 

IV. CONCLUSION 

For the foregoing reasons, this Court lacks subject matter jurisdiction over plaintiffs' 

case, and all defendants are immune from suit. The complaint must be dismissed. 

DATED May 28 , 2013. 

Respectfully submitted, 

ELLEN F. ROSENBLUM 

Attorney General 

s/ Jacqueline Kamins 

JACQUELINE KAMINS #064972 

Assistant Attorney General 

Trial Attorney 

Tel (971) 673-1880 

Fax (971) 673-5000 

Jacqueline.Kamins@doj.state.or.us 

Of Attorneys for Defendants 

Page 4 - MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS 

JK/js9/4265307-v1 

Department of Justice 

1515 SW Fifth Ave, Suite 410 

Portland, OR 97201 

(971) 673-1880 / Fax: (971) 673-5000 

Page 4 - MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS

JK/js9/4265307-v1

Department of Justice

1515 SW Fifth Ave, Suite 410

Portland, OR 97201

(971) 673-1880 / Fax: (971) 673-5000

the people.” U.S. Const. amend. X. In essence, the Tenth Amendment limits federal power,

preventing the federal government from “commandeering” a state's legislative or executive

departments . New York v. United States, 505 U.S. at 161 (holding Congress may not

commandeer the state legislative process by requiring a state legislature to enact a particular kind

of law). Plaintiffs ask this Court to intervene in an area reserved to the states – legislating state

law. Because the Tenth Amendment does not allow this form of federal intervention, this case

must be dismissed.

IV. CONCLUSION

For the foregoing reasons, this Court lacks subject matter jurisdiction over plaintiffs’

case, and all defendants are immune from suit. The complaint must be dismissed.

DATED May 28 , 2013.

Respectfully submitted,

ELLEN F. ROSENBLUM

Attorney General

s/ Jacqueline Kamins

JACQUELINE KAMINS #064972

Assistant Attorney General

Trial Attorney

Tel (971) 673-1880

Fax (971) 673-5000

Jacqueline.Kamins@doj.state.or.us

Of Attorneys for Defendants

Case 6:13-cv-00682-TC Document 20 Filed 05/28/13 Page 4 of 6 Page ID#: 178
CERTIFICATE OF SERVICE 

I certify that on May 28 , 2013, I served the foregoing MEMORANDUM IN 

SUPPORT OF DEFENDANTS' MOTION TO DISMISS upon the parties hereto by the method 

indicated below, and addressed to the following: 

Galice Mining District HAND DELIVERY 

[1525] Plat I X MAIL DELIVERY 

Sutherlin OR [97479] OVERNIGHT MAIL 

(971) 221-9066 TELECOPY (FAX) 

Pro Se E-MAIL 

E-FILE 

Ida Lee Reman HAND DELIVERY 

:ida-lee: [reman] X MAIL DELIVERY 

[1525] Plat I OVERNIGHT MAIL 

Sutherlin OR [97479] TELECOPY (FAX) 

(971) 221-9066 E-MAIL 

Pro Se E-FILE 

Kerby Dale Jackson 

:kerby-dale : [jackson] 

[1525] Plat I 

Sutherlin OR [97479] 

(971) 221-9066 

Pro Se 

Delant Cory Palmerton 

:delant-cory: [Palmerton] 

[1525] Plat I 

Sutherlin OR [97479] 

(971) 221-9066 

Pro Se 

HAND DELIVERY 

X MAIL DELIVERY 

OVERNIGHT MAIL 

TELECOPY (FAX) 

E-MAIL 

E-FILE 

HAND DELIVERY 

X MAIL DELIVERY 

OVERNIGHT MAIL 

TELECOPY (FAX) 

E-MAIL 

E-FILE 

Page 1 - CERTIFICATE OF SERVICE 

JK/js9/4167705-v1 

Department of Justice 

1515 SW Fifth Ave, Suite 410 

Portland, OR 97201 

(971) 673-1880 / Fax: (971) 673-5000 

Page 1 - CERTIFICATE OF SERVICE

JK/js9/4167705-v1

Department of Justice

1515 SW Fifth Ave, Suite 410

Portland, OR 97201

(971) 673-1880 / Fax: (971) 673-5000

CERTIFICATE OF SERVICE

I certify that on May 28 , 2013, I served the foregoing MEMORANDUM IN

SUPPORT OF DEFENDANTS' MOTION TO DISMISS upon the parties hereto by the method

indicated below, and addressed to the following:

Galice Mining District

[1525] Plat I

Sutherlin OR [97479]

(971) 221-9066

Pro Se

HAND DELIVERY

X MAIL DELIVERY

OVERNIGHT MAIL

TELECOPY (FAX)

E-MAIL

E-FILE

Ida Lee Reman

:ida-lee: [reman]

[1525] Plat I

Sutherlin OR [97479]

(971) 221-9066

Pro Se

HAND DELIVERY

X MAIL DELIVERY

OVERNIGHT MAIL

TELECOPY (FAX)

E-MAIL

E-FILE

Kerby Dale Jackson

:kerby-dale: [jackson]

[1525] Plat I

Sutherlin OR [97479]

(971) 221-9066

Pro Se

HAND DELIVERY

X MAIL DELIVERY

OVERNIGHT MAIL

TELECOPY (FAX)

E-MAIL

E-FILE

Delant Cory Palmerton

:delant-cory: [Palmerton]

[1525] Plat I

Sutherlin OR [97479]

(971) 221-9066

Pro Se

HAND DELIVERY

X MAIL DELIVERY

OVERNIGHT MAIL

TELECOPY (FAX)

E-MAIL

E-FILE

Case 6:13-cv-00682-TC Document 20 Filed 05/28/13 Page 5 of 6 Page ID#: 179
Irvin Lee Adkins 

:Irvin-lee: [adkins] 

[1525] Plat I 

Sutherlin OR [97479] 

(971) 221-9066 

Pro Se 

HAND DELIVERY 

X MAIL DELIVERY 

OVERNIGHT MAIL 

TELECOPY (FAX) 

E-MAIL 

E-FILE 

s/ Jacqueline Kamins 

JACQUELINE KAMINS #064972 

Assistant Attorney General 

Trial Attorney 

Tel (971) 673-1880 

Fax (971) 673-5000 

Jacqueline.Kamins@doj . state. or. us 

Of Attorneys for Defendant Governor Kitzhaber 

Page 2 - CERTIFICATE OF SERVICE 

JK/js9/4167705-v1 

Department of Justice 

1515 SW Fifth Ave, Suite 410 

Portland, OR 97201 

(971) 673-1880 / Fax: (971) 673-5000 

Page 2 - CERTIFICATE OF SERVICE

JK/js9/4167705-v1

Department of Justice

1515 SW Fifth Ave, Suite 410

Portland, OR 97201

(971) 673-1880 / Fax: (971) 673-5000

Irvin Lee Adkins

:Irvin-lee: [adkins]

[1525] Plat I

Sutherlin OR [97479]

(971) 221-9066

Pro Se

HAND DELIVERY

X MAIL DELIVERY

OVERNIGHT MAIL

TELECOPY (FAX)

E-MAIL

E-FILE

s/ Jacqueline Kamins

JACQUELINE KAMINS #064972

Assistant Attorney General

Trial Attorney

Tel (971) 673-1880

Fax (971) 673-5000

Jacqueline.Kamins@doj.state.or.us

Of Attorneys for Defendant Governor Kitzhaber

Case 6:13-cv-00682-TC Document 20 Filed 05/28/13 Page 6 of 6 Page ID#: 180