If (and probably when) Portland City Council passes a new policy tomorrow enabling Mayor Ted Wheeler to exclude disruptive audience members for months, those exclusions aren't on the way any time soon.

In a glimpse of legal strategy larger than any we've seen around the controversial ordinance, Wheeler's office revealed today that the city's not 100 percent sure the ordinance will pass legal muster. Instead, it will have to put the matter before the same court that, in 2015, ruled the city can't exclude people from future council meetings for being disruptive [PDF].

"I want to be clear," reads a message posted to Wheeler's Facebook page this evening. "If the Council approves the ordinance tomorrow, the courts will decide its legality. I will not enforce the prospective exclusion elements of the ordinance until the courts provides an answer."


This is the first time we've heard as much from Wheeler, who had previously acknowledged that legal questions exist around the exclusion policy. Under the language of the ordinance and attached code changes, people who are ejected from City Council or other city meetings for being disruptive could be excluded for 30 days. If they're disruptive after the first exclusion is up, they could be bounced for 60 days.

On Twitter this evening, a spokesman for Wheeler suggested the city needs to put the matter back before US District Judge Michael Simon, who fairly forcefully ruled that it's illegal for the city to ban people from its City Council meetings for "prospective" disruptions.

In that ruling, Simon suggested the city had invited him to be "the first federal court in the nation to uphold such a broad prospective exclusion ordinance" and granted injunctive relief banning the city from excluding attendees from future meetings (the mayor was still free to bounce people from meetings where they're being disruptive). Here's what Michael Cox, Wheeler's chief spokesperson, said on Twitter today:

As we reported yesterday, Wheeler had planned to meet with the ACLU of Oregon before tomorrow's vote, saying he hoped to hash out potential changes the organization felt would bolster the policy. But when the group's legal director couldn't make a meeting scheduled for today, Wheeler's office announced it would press forward with a vote anyway.

As of now, the proposal appears to have broad support in a City Council that's been beset by disruption of late. If it passes in its current form, it would not take effect for 30 days.