Case-Fixing in Oregon Courts

I regret to inform you that case-fixing — on behalf of attorneys — is a problem in Oregon.

It’s such a problem, that I was in the middle of writing a detailed piece about it when a fresh and stunning instance of it arose — one that is affecting my family right now in Marion Circuit Court. I have been restrained in the past, but it has gotten too damaging and too blatant to avoid discussing it any longer.

It is also too typical to ignore: I have many, many examples of case-fixing and other interference to share with you, and my family’s case is but one. It is also important to state that I know all about the “how” and the “who,” but I must save the comprehensive treatment for the longer piece, which I have started here. The first few paragraphs there will also better answer the “why,” which is always the first question I am asked. (The short answer is money.)

As a brief aside, “Why would anyone do that?” is an entirely irrelevant question — especially when it is clear upon a record that case-fixing is actually happening. A better question would be “How can I help make this injustice and violation of civil rights stop?”

The case that is being fixed is a suit we filed against Salem attorney James Van Ness due to his conduct as my family’s attorney in our custody case. Briefly, Van Ness and his opponent in the custody case, former attorney Megan Perry, engaged in well-documented conduct that resulted in a catastrophic outcome for us. Yet the attorneys avoided any findings of actual misconduct from their licensor, the Oregon State Bar (OSB): Perry, by quickly submitting her “Form B Resignation;” and Van Ness, through unknown methods.

But the OSB never stopped taking an excessive interest in the mess, as it potentially involved malpractice insurance money or Client Security Fund money — both of which comes out of lawyers’ pockets. The OSB was also concerned about protecting the image of attorneys and promoting confidence in the judiciary.¹ Our custody case stank to high hell, and the OSB clearly felt the need to suppress widespread knowledge of it.

To ensure that we never got any relief, the OSB did exactly that: They used every resource and tool in their belt to scare away new attorneys, prejudice our cases, communicate falsehoods about us, and undermine our reports to law enforcement and agency auditors. The OSB promoted us, to anyone that would listen, as stereotypical self-represented litigants obsessed with conspiracy theories.

That promotion has unfortunately worked — court cases are very simple to fix when one of the parties is self- represented.

The clearest sign that a case is being fixed is when court procedures deviate wildly — and visibly — from usual practices. Another clear sign is when judges exhibit prejudice that could have only come from information that they received off-the-record.

That information — that never, ever benefits the self-represented party — is almost always transmitted through judicial support staff or other seemingly official channels. Their fingerprints are everywhere.

Marion County Circuit Court Case no. 18CV30522

Our lawsuit was filed in Marion County, by ourselves — and definitely not by choice (see above, re the OSB scaring away potential attorneys). Marion Judge Courtland Geyer was assigned and presided over the case for a year.

But suddenly, and without any warning or explanation, Judge Kathie Steele of Clackamas County swooped in and started hearing motions.

Records searches that we conducted through Oregon Department (OJD) and Office of State Court Administrator (OSCA) turned up no documentation of assignment to Steele; and the person at OJD who does those assignments, Kim Blanding, had never heard of the matter. It was apparently arranged off the books by former Marion Trial Court Administrator, Diane Morse. A legitimate assignment would be signed off by Marion Presiding Judge Tracy Prall, and there would be a record of it.

And it wasn’t just that a new out-of-county judge was appearing in Marion, it was that the entire case was suddenly picked up and being administered by Clackamas Court staff, as though one of the parties had moved for a change of venue. Again, to be legitimate, there would have been a record of this type of venue change, including a motion to do so.

A letter from Judge Geyer to Judge Steele, received several months later, explained the change through the breathtaking claim that “all the judges on the Marion County Circuit Court” had “informally recused” themselves from the case. This was insubordinate: Geyer had no authority to recuse other judges, or speak for them. Of greater concern: Did every judge in Marion sit down and have a discussion about our case?

Geyer also claimed that he was “administering the case with the agreement of the parties that assistance will be sought for discretionary decisions.” This is false. If it were true, it would have been timely memorialized in an order, not a letter.

Despite these falsehoods, Steele sat through a few hearings and made increasingly biased and legally unsupportable decisions. For example, our Motion to Compel discovery from Van Ness was verbally granted in part, and the hearing notes reflected that — but when Steele’s letter opinion was issued, it wrongly said that Steele denied the motion its entirety. Another example was that our Motion for a Protective Order (to prevent abusive disclosure of sensitive records) was granted… to protect Van Ness.

A third example is that Steele ordered an in camera review of our Van Ness-compiled client file to ensure that none of the file should be withheld from us due to “attorney-client privilege.” Given that we were the client, and that the file is our property, this was astonishing. A second judge completed the in camera review and determined that there was no protected material, and authorized our own property’s release to us. Predictably, when we went through the file, there were numerous missing items, including all of the items that would have been relevant to proving misconduct. Documents and emails that we already had copies of had been removed. We filed a Motion for Contempt and even provided copies of some of the missing documents — and yet Steele decided that we had “failed to demonstrate” that Van Ness had withheld our property, and denied the Motion for Contempt.

Steele was becoming increasingly prejudiced, but we continued to brave her hostile presence for a few months — until we conducted a search, through OJD, of emails sent or received by judges and court staff in the matter.

The emails we got back from OJD were jaw-dropping: Judges — including Geyer, long after his recusal — gossiping about the case, and us personally, like middle schoolers. There was even an email from Steele saying, “I expect to dismiss” the above-mentioned Motion for Contempt … weeks before she even heard the matter.

Also evident in the unconscionable emails were the grubby fingerprints of others trying to affect the outcome of the case or perpetuate a negative impression of us. Those emails, from judicial staff and others from OJD and OSCA, all came with the pretext of official or usual court business as cover for their dirty work. As an example, Clackamas Trial Court Administrator Debbie Spradley sent Steele an email asking a laughable question (that she certainly knew the answer to) simply as cover to sow prejudice against us. Steele identified it as a stupid question, but was apparently oblivious to the fact that the stupid question was a pretext.

We then moved to recuse Steele and filed some of these shocking emails into the case — there were dozens and dozens to choose from. We asked for the case to be paused and reviewed.

That is when things got even weirder.

Upon receiving the Motion to Recuse, Steele and another Clackamas judge (Thomas Rastetter) apparently picked up the phone and engaged a Department of Justice (DOJ) attorney, Seth Karpinski, to appear and oppose their recusal. Karpinski then “respectfully submitted” a response in opposition to the recusal, under the certification of Attorney General Ellen Rosenblum. The filing made Steele a party in the case. She is listed as a party in the case’s docket.

I have spoken about this with dozens of attorneys and judges who I use as sources: None of them can believe it is even possible for a DOJ attorney to represent a sitting judge against a Motion to Recuse, or that a judge would even ask for that representation.

Karpinski would not return my calls or answer my questions regarding his specific authority or assignment to represent judges, nor would he indicate whether DOJ or A.G. Rosenblum has ever appeared in this capacity before.

Indeed, records searches that we conducted through both DOJ and OJD show that there is no record of any official request made for Karpinksi’s appearance. What we found instead was a backchannel “informal” request by OSCA Assistant General Counsel Lori DePaulis, to help a judge against a difficult pro se litigant.²

In the real world, if a judge wanted to remain sitting in a case so badly that they would call the Attorney General, the DOJ, or their own branch of government (the Oregon Judicial Department) to parachute in on their behalf and defeat a Motion to Recuse… by definition that judge has an interest in the case. Cf. “Nemo judex in causa sua.” That means, no man shall be the judge in their own cause.

It is a fundamental tenant of Western jurisprudence that, for Kathie Steele to appear as a party — by her own choice! — in a case in which she was serving in capacity as a judge, she is absolutely and forever prohibited from sitting as judge in that case, ever again.³

Steele is still listed as a party in the docket. And Steele has recently directed her judicial assistants (Mary Tongel and Dawn Janz) and the Trial Court Administrator, Linda Hukari, to forcibly schedule every pending motion in the case in one final, blowout, lightning round hearing — one in which Steele will sit, as judge, no matter what we say about it, or how many laws, principals, and standards it violates. In short, it is clear that Steele has, yet again, decided in advance how she will rule, literally pre-judging the matter. It will be a blowout.

Incredibly, one of those pending motions includes a Motion to Show Cause (challenging Van Ness’s attorney’s appearance) — the kind of ex parte motion that judges hand out like candy, usually before brunch the same day they are filed, without a hearing, so long as they are justiciable and there is a valid question before the court that they can decide.

The fact that we have to have a hearing (a month later!) just to decide if we can get the free daily brunch candy, is quite literally insane — especially when that hearing is being scheduled for the same time as a Motion for Summary Judgment. It means that there is a legal dispute on the record to determine if we have the same rights as everyone else who walks into an Oregon courtroom.

When asked about Steele’s authority to appear as both a judge and a party in the matter, her judicial assistants and Hukari simply respond that Steele is no longer a party.

But she is a party.

To date, nether Steele nor her staff have returned my emails and requests for a citation of law that would allow Her Honor to circumvent the most boldfaced of black-letter law encoded in the United States Constitution, Oregon Statute, Oregon Trial Court Rules, the Oregon Judicial Code of Conduct, the Magna Carta, and possibly even the Code of Hammurabi. Maybe there is a Clackamas SLR which negates the entirety of Western jurisprudence that I somehow missed.

But, according to the dozens of attorneys and judges with whom I regularly speak, there is nothing that I missed. And that means that two entire county courts are trying to get one over on a pro se litigant in favor of an Oregon attorney, and have done such a catastrophically inept job at it that they are reduced to violating the very rule of law, in broad daylight.

It seems there should be nothing else to say about this, but Steele is so deep in the weeds that she won’t even sign a simple Order to Show Cause that we filed, asking Van Ness’s OSB-fielded attorney, John Pollino, to establish his authority to appear in the case. The OSB’s mandatory insurance branch, the Professional Liability Fund (PLF), is prohibited by statute to defend against claims it does not cover. The PLF specifically and categorically forbids coverage against acts of intentional tort, fraud, conversion, and other knowing misconduct — as opposed to malpractice. There is lawyer money at stake.

Again, the OSB’s jammy handprints are everywhere on this case — and on every other case I have found in which a litigant is being abused by the courts.

This is not about people being “unhappy” with the results they got in court: It is about case-fixing.

After he made his appearance, we called Seth Karpinski at the DOJ to ask where he’d come from and why. Karpinski was surprised to hear from us. And soon became defensive and almost hostile. He said archly, “If you’re unhappy with your results [in the case], it was your own decision not to hire an attorney.”

There seemed nothing more to say to him, or his client.

Check back soon for the full story.

¹ What the OSB should have been concerned about is actually protecting clients who are being victimized by unscrupulous attorneys, and helping to restore their actual confidence in Oregon’s judicial branch. But no, that wouldn’t be on brand for the OSB.

² There is an OJD employee, a middle-management attorney in their General Counsel’s Office, who shows up in every single case I have found in which someone is trying to fix the result in favor of a disgraced attorney or government actor. This will be covered in greater detail in the longer article.

³ ORS 14.210 (1)(a) states that a “judge shall not act as judge if the judge is a party to or directly interested in the action, suit or proceeding, except that the judge shall not be disqualified from acting as such in a case in which the judge is added as a party after taking any official action as a judge in the action, suit or proceeding, and in that case the judge shall be dismissed as a party without prejudice.” Keep in mind that Kathie Steele added herself.