Case interference at Oregon’s higher courts
Even though interference in Oregon court cases certainly happens — and happens more often than anyone would like to acknowledge — it is a difficult thing for a victim to show. Even harder to prove is that the interference was prejudicial and impacted the court’s decision.
It is so challenging to address because the interference is usually made by court staff or other officials, such as staff at the Oregon State Bar (i.e. an “instrumentality” of the Oregon Judicial Department).
None of those people should have any interest in the outcome of a case — but when they decide that they do, for whatever reason, they are well-situated to influence it by whispering into a judge’s ear, withholding or prejudicially describing filings, or even flat out making up false allegations about one of the parties. After the dirty work is done, they are perfectly positioned to divert scrutiny away from their own conduct.
It seems so transparent and middle-school (not to mention unethical and illegal), that it’s disturbing to think it might work, or that you might become a victim to it.
Unfortunately, it works great — even in Oregon’s highest courts.
It is rare to find evidence of case-fixing with minute-by-minute time stamps, but that is precisely what was found in a Court of Appeals case involving disgraced former attorney Megan Perry — whom the Oregon State Bar (OSB) has gone to exceptional lengths (and depths and widths) to insulate from the consequences of her misconduct.
The appeal was of a judgment in a custody case that had gone well off the rails due to Perry’s witness-tampering, withheld discovery, and various fraud; but also due to the exceptionally irregular handling by now-former Polk County Trial Court Administrator, Heidi Bittick, and now-former judge, Sally Avera.
The judgment could have been overturned at appeal for any one of the issues that affected it, but Bittick assembled the record to send up to the appellate court, and, as later discovered, she added and removed what she felt like, and even withheld audio from transcription.
As the appeal was pending, the victim of Perry and Bittick’s misconduct filed a bar complaint against Perry and another against his own attorney, James Van Ness. Believing, naïvely, that the OSB would conduct a proper investigation that would affect the appeal, the victim filed a motion to put the appeal on hold pending resolution of the bar complaints against Perry and Van Ness.
The motion was stamped received by the appellate court on February 26, 2018. That same day, Perry’s own attorney emailed the OSB, announcing that Perry was going to resign her law license, and that the official paperwork would be sent submitted later that week.
Indeed, a few days later, on March 1, at 1:10 p.m., Perry’s attorney emailed the OSB her “Form B Resignation,” the only way an attorney may resign while under disciplinary investigation by the bar. At 1:35 p.m., OSB attorney Susan Cournoyer responded, stating that she would file Perry’s Form B Resignation later that day.
That same day, at 2:07 p.m., Court of Appeals Chief Judge James C. Egan signed an order, without explanation, denying Perry’s victim’s motion to hold the appeal pending outcome of his bar complaints against Perry and Van Ness.
To underscore this: The denial of the motion came less than an hour after the Oregon State Bar received Perry’s resignation, and before the resignation was even e-filed; and most stunning, the denial of the motion came just three days after the motion was received by the Court of Appeals — well before the deadline for Perry’s client to respond or object to it.
Perry’s victim had experienced exactly this kind of exceptionally irregular handling of his motions before, but this single event shocked the conscience — especially because the victim’s bar complaint against Van Ness was also at the OSB’s disciplinary office, not just Perry’s. The victim felt “that the very fabric” of the appellate case would be affected by “the OSB’s [disciplinary] findings” regarding Perry and Van Ness.
It is clear that Cournoyer or someone else in the OSB’s Office of General Counsel picked up the phone and called staff at the Court of Appeals at almost the very moment that Perry’s resignation arrived — and incorrectly stated that the resignation somehow resolved the motion to hold the appeal.
That staff then toddled off and told Judge Egan that Perry’s resignation resolved the motion, which had probably been falsely described as solely pertaining to Perry’s misconduct; although it is also possible that staff withheld the motion entirely from Judge Egan and used his e-signature to sign an order of denial themselves. That would certainly be something to cover up.
The communication that the OSB clearly had with court staff was entirely improper, and there was no reason to have it except to prejudice the case and Perry’s victim, while protecting sacks of malpractice insurance cash or some other similarly unsuitable reason. This is the literal definition of official misconduct: abuse of duties by a public servant with the intent to obtain a benefit for themselves or to harm another.
And Perry’s victim was certainly prejudiced and his case certainly harmed. The improper communication directly affected the outcome of his appeal, and every attempt he made to correct the record or report the misconduct of court staff were of course deflected by thatvery same court staff.
Judge Egan, who as Chief Judge of the Court of Appeals is also its head administrator, should have addressed those administrative complaints from Perry’s victim. That is what administrators do: They ensure that cases in their court are administered properly.
But the complaints simply never reached Judge Egan and the problem of interference was never addressed. The appeal was dismissed without a brief even filed.
You would think that the Oregon Judicial Department (OJD) would take the problem of case interference far more seriously than they appear to, mainly because it erodes the public’s confidence in the judiciary, arguably the most important branch of government.
And you would think that OJD would tackle the problem with transparency, because it is otherwise dedicated and ethical judges who ultimately become the public face of exceptionally irregular cases such as this one. Good judges are every judiciary’s most important asset.
It would seem, from all the evidence I have seen and accounts I have heard, that the very top of OJD is oblivious to the general problem of case interference, for the very same reasons that Judge Egan was oblivious to the interference happening in this specific case: Because those busy perpetrating the official misconduct are even busier sustaining it.
Generally speaking, those who are permitted to investigate complaints involving their own misdeeds will typically report that there are none. Those people will often take the extra step to disparage the complaints and complainants so that the matter goes no higher.
Those at the top who could impose accountability rarely hear anything serious about the complaints that are failing to reach them. All they hear is the derisive laughter.
I reached out to officials at OJD regarding this case and others, but did not receive any response. The person who is responsible for taking such misconduct complaints at OJD, Internal Auditor Darrin Hotrum, has never responded to any communication I have ever made to his office.
I wonder what he thinks is so funny.