Restoring Order in Linn County, Oregon

Keeping Judicial Elections Nonpartisan

Oregon’s judicial races are conducted in a nonpartisan manner, meaning that candidates don’t run as a member of any political party. This is particularly crucial at the trial court level, where justice should be administered evenly and irrespective of politics or agendas.

However, in this election cycle, there are an unprecedented number of contested races, many of which have become de facto political referendums on Governor Kate Brown, her appointees, and the national political climate.

Because of this, it was perhaps inevitable that at least a few of these local races would degenerate into miniature tableaux reflecting the severe schisms that fracture our country.

What was not expected was that one race in particular would become an awkward spectacle, a fistfight carried out mostly by proxies, rolling in and out of Facebook pages, with competing battle cries of “fake news!”

The race in which this claim-on-top-of-counterclaim is raging is that of Linn County Circuit Court Position 1, a county uniquely suited to host such a brawl.

Recently, I spoke with both candidates — plus the two others running for that court’s Position 3 — to discuss their races and campaign finances, and the discomforting allegations that each has made about one another.

Part I: the Opening

To put it mildly, things have been weird and divisive since the beginning.

On June 12, 2017 the Chief Executive Officer of the Oregon State Bar (OSB) announced the retirement of the Honorable Carol Bispham Hashagen. The deadline for “completed application forms” was set for 5:00 p.m., July 5, 2017 at Governor Kate Brown’s office. Forms sent by email by the correct time were acceptable, “so long as original signed forms postmarked by the closing date” were also received.

By the time the deadline closed, eleven had applied for the position. Among them was well-respected Deputy District Attorney Michael Wynhausen, a criminal prosecutor of 22 years. There was also Fay Stetz-Waters, previously an administrative law judge and civil rights investigator who started her career at Legal Aid in Albany, who is also well-respected.

The lengthy and presumably rigorous vetting and interviewing process commenced and concluded, and on October 19, 2017, Governor Brown announced her appointment of the Honorable Stetz-Waters to the court, effective immediately.

From the accounts of the handful of local attorneys with whom I communicate, who have appeared in front of Judge Stetz-Waters — and who obviously wish to remain anonymous — Her Honor faced a steep learning curve in the first several months, but ultimately “is doing very well” and is “fair and objective.” Another stated that she “respect(s) her rulings.”

And Linn County lived happily ever after for approximately negative fifteen minutes.

Part II: the Incumbent vs. the Deputy District Attorney

By October 12, 2017, the week before the Governor’s announcement, Mr. Wynhausen already knew that he had not been chosen to fill Judge Bispham Hashagen’s seat. He then filed paperwork with the Secretary of State necessary to launch his candidacy in opposition to the appointee. He did not know in advance who his opponent would be.

One of the attorneys with whom I regularly speak described this as a bit of a “dick move,” and one that went against the commonly understood “gentleman’s agreement” that nobody run against an elected judge.

It’s often the case that something or someone should come along and gunk up the best laid plans. But in this case, it appears to have been Judge Stetz-Waters herself.

The judicial interest application Her Honor submitted in July 2017, presumably by email, lacked a signature at the time of sending. And it did not acquire one, allegedly, until the following September at best, or just last month at worst.

Now, for those rolling their eyes about the unsigned form, just take a deep breath... This is not splitting hairs. This is not a little oversight. This is not a technicality or a loophole. A signature is what makes a piece of paper a legally binding document instead of a scrap of junk that some prankster faxed in with your information on it. A signature is one’s guarantee of the truth. It is one swearing that the above is true and real and on time and all of it. It is a thing to be protected as closely as one’s own reputation.

Therefore, it was really bad that it was emailed (or faxed) unsigned; reeeally bad that a signed hard copy was not mailed in postmarked July 5, 2017; and absolutely terrible that it was accepted by Governor Brown.

Does it invalidate the entire process? Doubtful. But Mr. Wynhausen has every right and possibly even a duty to talk about it and ask questions. And it is hypocritical to portray him as petty for expecting the same of a governor or judge that he would of a member of the public he currently serves.

John ‘Tre’ Kennedy, another local attorney and a supporter of Mr. Wynhausen, sent a public records request to Governor Brown’s office dated September 27, 2018, asking for a copy of Judge Stetz-Waters’ application form. The Governor’s office provided the copy they presumably had on file: it was unsigned.

Two weeks later, on October 12, 2018, Kennedy filed another request, this time stating “You previously provided the Judicial Interest form for Fay Stetz-Waters. Please provide a copy signed by Ms. Stetz-Waters.” The Governor’s office then provided a copy that was signed by Judge Stetz-Waters and dated September 20, 2017.

This series of transactions raises more questions than it answers, most notably, if the application dated September 20, 2017 was an authentic copy on hand, why was it not sent to Mr. Kennedy to fulfill his first public records request?

Part III: Status Check

At that time of her appointment, Judge Stetz-Waters was “Inactive” at the Oregon State Bar and had been since early 2010. This status, according to the OSB’s own website, is entirely voluntary, and members that “have chosen this status… may not practice law in Oregon.” There are myriad reasons for going inactive but often it comes down to avoiding Oregon’s hefty bar dues, which I would do also, given the return on that investment.

The statutes that govern these matters state that anyone seeking “the office of judge of the circuit court” must be “a member of the Oregon State Bar.” It doesn’t say anything about a requirement of being active or even being in good standing… just a member.

On November 9, 2017, three weeks after her appointment, Judge Stetz-Waters was temporarily reinstated to the OSB under Bar Rule 8.7; and on March 7, 2018, she was formally reinstated by the Supreme Court under Bar Rule 8.1. Under section (c) of that same rule, regarding “learning and ability,” it states that:

“each applicant under this rule who…. has been enrolled voluntarily or involuntarily as an inactive or retired member for more than 5 years must show that the applicant has the requisite learning and ability to practice law in Oregon. The Bar may recommend and the Supreme Court may require as a condition precedent to reinstatement that the applicant take and pass the bar examination administered by the BBX, or successfully complete a prescribed course of continuing legal education. Factors to be considered in determining an applicant’s learning and ability include, but are not limited to: the length of time since the applicant was an active member of the Bar; whether and when the applicant has practiced law in Oregon; whether the applicant practiced law in any jurisdiction during the period of the applicant’s suspension, resignation, inactive, or retired status in Oregon; and whether the applicant has participated in continuing legal education activities during the period of suspension, inactive, or retired status in Oregon.”

According to the OSB’s most updated “Minimum Continuing Legal Education Compliance Report” for Judge Stetz-Waters, Her Honor earned 73.00 credits of CLE in starting in late 2017 until September of this year, including a “Judicial Practical Training” class. The last report received prior to that was dated December 30, 2008.

There is a letter from the Oregon State Bar that explains that an administrative error was made regarding Judge Stetz-Waters’ OSB status which caused the delay in Her Honor’s formal reinstatement.

It is also worth noting that the OSB deflected my own public records request for the paperwork related to Judge Stetz-Waters’ various status changes. Instead of responding in five business days, as they were obligated to under ORS 192.324, they finally responded in fifteen. For some reason.

Part IV: The Spreadsheetening

Sometimes, what really grabs people’s attention is the money. Not to sound too jaded, but it’s what most campaign laws and ethics rules center around, and therefore tends to attract the most scrutiny.

While there is nothing at all improper going on in either candidates’ books that I can see, each tells a dramatically distinctive story of strategy and support. In fact, the wildly different financial snapshots of all four candidates (including Teri Plagmann and Rachel Kittson-MaQatish in the race for Position 3) was what originally drew me to write about their campaigns.

Over the months Mr. Wynhausen has received numerous smaller and mostly anonymous contributions under $100 and made the more traditional types of campaign expenditures for things such as mass mailers and cable ads.

But he also received a $10,000 donation from Entek International LLC, a prominent local employer; $5,000 from T2, Inc., a logging company; and $2,500 from Linn County Republican Central Committee.

When asked about those contributions, Mr. Wynhausen stated that he “was not involved in any way in obtaining [the Entek] donation” and had not met with any of the officials involved in it. “A surrogate involved with my campaign did that all on his own.” Mr. Wynhausen went on to state that he “would not allow bias or favoritism to affect my decisions and if there was even an appearance of impropriety involved in a case I would be required to recuse myself from that matter.” Regarding the T2 donation, Mr. Wynhausen stated that he is “personal friends with the owners and they made the donation unbidden because they know me and agree with my judicial philosophy.”

Judge Stetz-Waters’ financial snapshot is more of a photo album, and entirely impressive in terms of genuine enthusiasm for her candidacy and incumbency — and that energy translating into actual donations. She clearly has broad and willing support in Linn County and elsewhere.

In expenditures, however, Judge Stetz-Waters has taken a very different and possibly more modern approach, hiring California-based campaign consultant Jennifer Webber right out of the gate. Webber has thusfar invoiced Her Honor for over 68% of the nearly $70,000 in campaign contributions taken in. Those contributions were predominantly raised by the efforts of Polity Group, LLC, a Portland-based fundraising company, who billed for 19% of those funds. Judge Stetz-Waters also hired a campaign field manager, and paid him $8,000.

“Since I am full time on the bench, and often on-call, I knew I needed someone experienced working on Oregon judicial campaigns to help me, which is why I asked Ms. Webber to be my campaign consultant,” Judge Stetz-Waters told me. “She came on board in December since we expected a May election and were preparing for that with a voter outreach plan, printed materials, etc. In terms of what Ms. Webber has been paid, that is for her time and for our advertising and voter outreach materials. This is standard of most campaigns.”

Part V: This Barfight May Roll into a Courtroom

When asked to make a concise statement about the competing allegations and counterclaims of false allegations, Judge Stetz-Waters stated that Mr. Wynhausen “has repeatedly mischaracterized my experience, including my Bar membership.” When asked for more specific details, and links if possible, Judge Stetz-Waters stated that Mr. Wynhausen “has been mischaracterizing my experience for months, including lying at public forums and on radio programs. This has been his campaign strategy, which is why my efforts have gone to telling the people of Linn County about the experience I bring to the bench.”

I asked Mr. Wynhausen about Judge Stetz-Waters’ hesitation or unwillingness or inability to link me to any specific examples of his “mischaracterizations.” His response was that it was “because I wasn’t lying and she knows it.” I asked him how comfortable he felt regarding the laws that deter false statements during campaigns, to which he replied “I have been very careful that when I make specific and unequivocal statements I have the records to back it up, so I am very comfortable.”

There is a law that outlines the civil action, damages, and other remedies a candidate may pursue if “a false statement of material fact” is made about them. Further, there is a pathway for essentially undoing the election results if it is found “that the false statement reversed” the election’s outcome.

The bottom line is that there’s a lot at stake in this race, and not just for the judge and attorney running in it. Linn County’s legal community cannot afford to have a judge who doesn’t strictly follow rules and procedures or understand what it means to back up claims with evidence.

No trial court should be expected to shoulder that burden, and neither should the public served by it. Confidence in the judiciary is something that is earned.

And while this race may feel like a referendum on “fake news” and other things that we personally and politically and ideiologically care about, it is also about fairness, objectivity, ethics, and truth… no matter what form those qualities take.

Post Script: Position 3, Teri Plagmann and Rachel Kittson-MaQatish

Ms. Plagmann told me that she is “concerned about a judicial race where [her opponent and Mr. Wyhnausen] are campaigning together as a team. Our judges should be unbiased and independent, even from other judges or candidates.” She also expressed her belief that “this election has the potential to shape the future of our court system in Linn County for many years to come. This is why our bench needs to be independent and represent a broad group of attorneys with varying experience.”

Her opponent, Ms. Kittson-MaQatish — who had also thrown her hat in the ring for Judge Bispham Hashagen’s position — shared with me some deeply moving personal stories regarding the pathway that lead her to becoming an attorney, and ultimately seek a judgeship. She stated that her “early experience of being a litigant… though personally painful, has equipped me with great understanding, empathy, and wisdom.” She also stated that she felt it was important to serve her community by running for judge.

Both women are experienced, capable, dynamic, thoughtful, and apparently well-respected attorneys with strong ties to the community. My interviews with them both ended up in very different places than where they started and were quickly overtaken by the other race. Due to this, I was unable to reach any conclusion about whether Ms. Plagmann or Ms. Kittson-MaQatish would make a finer judge.