Whispering Campaign

Why Judge Annette Hillman violated the Oregon Code of Judicial Conduct

ne of the most sacrosanct responsibilities a judge has is the promise not to accept or consider information from a source other than the official case record. Failure to adhere to that basic directive can prejudice a matter.

Anything conveyed to a judge off-the-record is referred to as ex parte communication, and if a judge permits or considers such improper communication, they will have violated the Oregon Code of Judicial Conduct.

This type of communication is almost always made by a party to a case — either an unethical attorney or unskilled self-represented litigant not following the rules.

Which makes it all the more surprising that in a recent incident of ex parte communication, the off-the-record information came from judicial staff at Marion County Circuit Court. Even more disturbing is that the information the staffer supplied to Judge Annette Hillman was entirely fabricated — and clearly so — yet Judge Hillman acted upon it.

We know this because Judge Hillman commemorated her own misconduct in an order she herself authored and signed.

he order came in a tort case filed against Salem attorney James Van Ness by a former client of his. Because of the “informal recusal” of the entire judicial staff of Marion Court (due to their proximity to Van Ness), Judge Hillman was brought in from Jefferson as a visiting judge, two years into the conflict.

Judge Hillman was there to decide a motion for the disqualification of Judge Kathie Steele of Clackamas — another visiting judge brought in by Marion, although not through usual channels.

Rather than do what was before her, Judge Hillman instead spontaneously believed a wild claim made by a Marion judicial assistant: that Van Ness’s opponent had “moved pursuant to ORS 14.260 to disqualify Judge McIntosh, albeit not on the record but through informal communication with court staff.” Those are Judge Hillman’s own words.

This was plainly false, and there was no such email or letter requesting such a disqualification. Van Ness’s opponent certainly knew how to file motions to disqualify judges, and easily could have done so had he wished. Judge Hillman was lied to by court staff, apparently for Van Ness’s benefit.

More importantly, Judge Hillman should not have acted upon such a claim. She should have disregarded it and told the staffer to tell the party to put his motion in writing and file it.

And most significantly, Judge Hillman most definitely should not have penned such an angry and accusing order, admonishing the party “to cease all meritless communications with court staff.”

That directive applied more aptly to the judge’s own behavior, not the party’s. He was, after all, the victim of judicial misconduct and the staffer’s official misconduct — an actual crime.

Yet Judge Hillman did not see anything irregular in acting upon preposterous, off-the-record claims made by court staff, and then adding her own angry voice — in writing — into the campaign of bullying and interference against this litigant.

Which is to say, it is all in a day’s work for Judge Annette Hillman, Presiding Judge of Jefferson County Circuit Court.

his specter of this bizarre and damaging order was raised last week by Scott Kaplan, the General Counsel of the Oregon Judicial Department (OJD) — i.e. the attorney for the entire Oregon judiciary.

Kaplan attached Hillman’s order to an email threatening Van Ness’s opponent, stating that if he did not stop administrative communications with Marion staff, then Kaplan would “block email from your [email] address” “in order to protect court personnel from harassment.”

Read that again: the victim of official misconduct by Marion staff was threatened with potentially more official misconduct by an official at OJD and branded a harasser.

Kaplan cited no authority under which he could block a litigant’s email address, nor did he initiate any process to do so. It is apparent that Kaplan’s intention was to scare or get one over on a self-represented litigant. However, the fact that Kaplan threatened to block an email from OJD’s servers is both terrifying and reprehensible.

There is no specific case law that I could find, but the threat feels very much in violation of the Fifth and Fourteenth Amendments of the U.S. Constitution… very civil-rights-y and absent due process.

Scott Kaplan did not respond to a request for comments or citation of law or other authority to support his threat. But in reality, there is not much more to be said about OJD’s own attorney if he thinks it’s appropriate to ignore the ongoing official misconduct of his own staff and instead retaliate by extinguishing what little remained of the victim’s access to Oregon’s courts.

The victim recently filed a complaint with the Oregon Commission on Judicial Fitness and Disability.