The Appearance of Bias
Oregon citizens depend on their local courts to be neutral and to administer justice without prejudice. The entire judicial system hinges on its own integrity, and the people‘s faith in it.
It is therefore disappointing to report that in Clackamas County Circuit Court, the system is badly broken: judges, including Presiding Judge Kathie Steele and Thomas Rastetter, were caught gossiping like middle-schoolers; and the Trial Court Administrator, Debbie Spradley, was caught trying to sow prejudice against a self-represented and disabled litigant.
This disturbing conduct may have remained hidden if it were not for public records requests. And while the judicial complaint against Rastetter may not go anywhere, we can still review the shocking receipts…
The unprofessional behavior occurred in a legal malpractice case filed by Gavin McNett against local attorney Shelly Perkins. Perkins had abandoned McNett, her disabled former client, just a month before his custody trial, and had charged him over $13,000 for two months of work.
Clackamas court did not follow the usual practice of bringing in an out-of-county judge to hear the case involving a local attorney. Ironically, Clackamas was also hearing (for Marion County Circuit Court) the second of McNett’s two malpractice cases.
Things were going okay until October 11, 2019, when Judge Jeffrey Jones bizarrely signed an order requiring that McNett attend a deposition on September 24. Sadly, McNett could not travel through time and therefore could not comply with the order.
Due to that “failure to comply,” the entire case was improperly dismissed by Judge Thomas Rastetter — a legally unsupportable outcome. McNett was stunned and felt certain that Judge Rastetter had become prejudiced against him or had succumbed to other influence.
Now, many people may feel that way when they leave court, but it is a difficult thing to prove. However, McNett knew that he might be able to obtain solid evidence of prejudice through a records request at Oregon’s Office of the State Court Administrator (OSCA).
McNett’s request for emails exchanged among court staff — about him and his case — cost a few hundred dollars, but it was money well-spent.
The mass of emails that OSCA turned over to McNett included several that were shocking: McNett and his two fairly average civil cases were quite the topic of discussion at Clackamas courthouse. The prejudice being sown, and the misinformation being spread, were alarming to say the least. Two of the email threads stood out.
On January 10, 2020, and apropos of nothing, Judge Rastetter emailed Judge Jones to tell him that he had “dismissed the McNett matter without prejudice,” and had warned McNett “that if he tries to violate the rules and court orders, it will likely be dismissed with prejudice.”
Judge Jones had spontaneously removed himself from the case a month earlier and was no longer involved, yet Judge Rastetter bizarrely felt the need to gossip with him. Worse, Judge Rastetter misrepresented the situation by stating that McNett had “violated” a court order that could not be complied with — at least not without a time machine.
Curiously, nothing at all preceded Judge Rastetter’s message to Judge Jones. If there had been an ongoing conversation between the two, OSCA would have included those emails as well. Fascinatingly, Judge Rastetter sent the email at 9:51 — just ten minutes after the hearing in the matter had ended.
But Judge Rastetter didn’t stop there. Four days later, he decided to prejudice Clackamas Presiding Judge Kathie Steele, who was hearing McNett’s Marion case. “I saw that you had one of the Gavin McNett cases this morning,” he said casually. “I have the case where he was suing Shelly Perkins. Because of Mr. McNett’s failure to appear at 3 depositions and failure to comply with an order to compel,” Judge Rastetter “dismissed the case without prejudice.”
Again, this email was apropos of absolutely nothing. Nothing preceded Judge Rastetter’s sudden pronouncement, and he approached Judge Steele clumsily by claiming that he happened to notice her schedule. But most distressingly, Judge Rastetter was circulating false information: that McNett had failed to appear at three depositions. This was not a claim that anyone had made on the record, yet Judge Rastetter was certain of its truth and was avidly disseminating it.
Judge Rastetter then went on to opine that McNett had “at least one other malpractice case out there” — meaning that in addition to the one that he was hearing, and the one that Judge Steele was hearing, there was at least one more. This was also false information, even if he couched it as a personal belief or rumor. Judge Rastetter should not have been gossiping about a litigant or trying to infect another’s judgment. It was literally none of his business.
Judge Steele responded by saying “Yep,” implying she was well-aware of McNett and his cases. Judge Steele then called Marion County Circuit Court “wimps” for doing the right thing in sending their malpractice case (against local attorney James Van Ness) to Clackamas.
A few minutes later, Judge Steele emailed Judge Courtland Geyer, one of the “wimps” in Marion. Judge Steele stated (regarding a contempt action that McNett had filed 10 days earlier) “I expect to dismiss it.” In other words, Judge Steele had pre-decided the matter and had done so just a few days after McNett’s opponent had responded to that contempt action.
Judge Geyer responded to Judge Steele’s prejudice with his own, apologizing “that [the case] has not been an easy matter to preside over. MANY thanks for your continuing assistance.” Again, McNett’s malpractice matters were fairly unremarkable and well-evidenced, yet, at nearly every turn, judges broadcasted their disdain for him to each other, unabashedly.
The second thread of emails involved Clackamas court staff Debbie Spradley, who emailed Judge Steele out of left field to “innocently” ask her if Shelly Perkins had ever “appeared before [her].”
Now, it’s important to reiterate that Shelly Perkins is a local attorney who maintains an allegedly thriving practice in Clackamas County, where Judge Steele presides, and where Spradley has been the Trial Court Administrator for at least three years. So yes, Debbie, of course Shelly Perkins has appeared before Judge Steele. She’s appeared there a lot.
The pretense of this clearly disingenuous email was that “Bruce Miller [UTCR Committee] is looking for people who might be able to give him a reference on [Perkins].” Spradley continued, “I recognize her name because of the McNett case, which is not necessarily a reflection on her.”
There was literally no reason for Spradley to invoke McNett’s name in that context, and to do so disparagingly. Her email was about as subtle as a buzzsaw.
Judge Steele, to her credit, recognized the sheer stupidity of Spradley’s question, snapping back “of course she has appeared in front of me. She’s appeared in front of all of us I’m sure.” However, Judge Steele, very much not to her credit, did not appear to reflect upon why her trial court administrator would ask such a clearly stupid question.
Spradley then directed her campaign of prejudice at Judge Jones. She repeated the stuff about Perkins and the UTCR committee and stated “as I type this I’m remembering that [Perkins] is also part of that McNett case.”
However, Spradley sent that email almost four hours after the one she sent to Judge Steele. There was no sudden lightbulb. Even if there had been, it was not appropriate to raise a self-represented litigant’s name disparagingly, especially in an unrelated matter. The purposefulness of her conduct calls into question her motives.
It is possible that Clackamas County Circuit Court Judges Kathie Steele and Thomas Rastetter and Trial Court Administrator Debbie Spradley are ignorant of public records laws and how their email communications are subject to those laws. It is clear that none of them ever imagined a litigant would discover the emails or sift through them painstakingly. It is certain that Spradley didn’t expect that the disabled litigant she was bullying — who read the emails — would identify her clumsy and pathetic attempts to prejudice the court against him, or that he would know what to do about her misconduct.
But he did know what to do: McNett filed a Petition for a Writ of Mandamus with the Oregon Supreme Court. In layperson’s terms, a mandamus petition is a big hammer one can use to compel a judge to do something that they refuse to do — in this instance, administer McNett’s case properly and by removing Judge Thomas Rastetter. In other words, make Clackamas court treat McNett the same as it treats everyone else.
The optics are terrible that this court — which serves the third most populous county in Oregon — felt it acceptable to push around an unrepresented and disabled litigant. The optics are worse that it might take a mandamus to get Judge Rastetter to exit the case after his atrocious emails were discovered. A Portland attorney said this of the emails: “You know that judges gossip about people — even lawyers — that appear in front of them, but you never expect them to be foolish enough to put it in writing.” That attorney also said that any publicity of the emails would be “chilling.”
If you’ve had a similar inexplicable outcome in an Oregon circuit court, or felt a disturbing familiarity while reading this, consider spending a hundred bucks at OSCA to see how judges or court staff are handling your case. Even if you’re an attorney. Your results may vary.
Postscript: read the Mandamus Petition (and excerpt of record) for additional information about the sudden “appearance” by the Attorney General in the matter, “representing” Judge Rastetter against McNett’s motion to disqualify — and literally making Judge Rastetter a party to the case… yet he still refuses to disqualify himself.