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OREGON COMMISSION ON
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JUDICIAL FITNESS AND DISABILITY
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In re:
VANCE D. DAY
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HON. VANCE D. DAY’S CLOSING
ARGUMENT
COMES NOW, Hon. Vance D. Day, by and through one of his attorneys,
Ralph C. Spooner, Spooner & Much, P.C., and submits the following closing argument in
writing as requested by the Commission.
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Case No.: 12-139
Case No.: 14-86
This closing argument will be divided into five parts: a summary of the
closing argument, motions to dismiss, an individual analysis of each count in the
Commission’s Complaint with proposed findings of fact and recommendations, a response
to the Commission’s aggravating factors and discussion of mitigating factors, and a
conclusion
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PART 1: SUMMARY OF CLOSING ARGUMENT
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The attorneys for Judge Day again want to thank the members of the
Commission for your public service. The attorneys are responsible for the statements,
opinions, analysis, and conclusions in this closing argument as advocates for Judge Day.
A transcript of the proceedings is not yet available. The references to testimony in this
closing argument are based the attorneys’ best recollection of the testimony. If the
Page 1 – HON. VANCE D. DAY’S CLOSING ARGUMENT
T
Exhibit
657
e
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1 of 106
657
xt
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Commission members have a different recollection of the testimony, they should rely on
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their own memories.
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This case is of the greatest importance to Judge Day. Not only is his
professional reputation at stake, but his personal reputation is also being judged. Whatever
the outcome is, the Commission should take into serious consideration that the principles
applied in this case, and the final decision, should have application equally to all other
judges in the State of Oregon.
This case originated from a self-report by Judge Day to the Commission
concerning an incident that occurred involving Judge Day and a participant in the
Veteran’s Treatment Court who was in the presence of a gun while on probation for a
felony DUII. When the presiding judge of the Marion County Circuit Court, Jamese
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Rhoades, received a complaint from staff and the veteran about this matter, she scheduled
a meeting with Judge Day on August 21, 2014. Judge Penn also attended the meeting.
Judge Day did not self-report the matter to the Commission at or near the time it occurred
because it did not appear to be an ethical issue at the time. Judge Day had already
promptly disclosed it, shortly after the incident occurred, to the deputy district attorney
and the defense attorney who were involved in the veteran’s case. When Judge Rhoades
and Judge Penn brought the matter to his attention during the meeting on August 21, 2014,
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he immediately said he would self-report the incident to the Commission, which he did, by
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letter dated August 23, 2014. On September 5, 2014, the Commission’s Executive
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Director sent Judge Day a form letter in response acknowledging Judge Day’s self-report.
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The Commission hired an investigator, Karen Saul, to investigate the
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complaint. As pointed out in the opening statement, Karen Saul did not conduct a
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thorough, fair, and balanced investigation. She focused her interviews on people who had
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wide ranging criticisms of Judge Day. Unbeknownst to her, many of these witnesses had
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been talking to each other about Judge Day, sharing their criticisms, long before the
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Page 2 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 2 of 106
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summer and fall of 2014. When they were interviewed, they all had similar complaints
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like: Judge Day was rude at times; Judge Day couldn’t be trusted; Judge Day would not
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accommodate breaks and flex time; Judge Day was partisan, Judge Day forced them to
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screen same sex couples after the same sex marriage law changed, and Judge Day
wouldn’t follow through on commitments. Some of the witnesses said he lied. Karen Saul
did not contact other people who worked with Judge Day on a daily basis to find out if
what she was hearing was true or whether the witnesses she interviewed had a bias against
Judge Day and were motivated to say bad things about him. The investigation took the
form of a conclusion looking for evidence of other bad acts.
There were numerous witnesses Ms. Saul could have interviewed including
other circuit court judges who worked with Judge Day, the attorneys who were involved in
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making donations to the wall hanging project, the Marion County Commissioners, other
members of the Veteran’s Treatment Court team including the defense attorneys, deputy
district attorney, the mentors, therapist, counsellor, sheriff’s representative, and probation
officer. Ms. Saul could have interviewed participants of the Veteran’s Treatment Court
who had graduated from the program.
Sometime later in the investigation, Karen Saul was asked by Susan Isaacs,
the Commission’s Executive Director, to revive an old case involving two soccer incidents
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that had been investigated by the Commission in 2012, that had been formally dismissed
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by the Commission.
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Three of the main witnesses who gave statements and who testified at the
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hearing for the Commission, Elan Lambert, Christine Brown, and Megan Curry made
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false statements about Judge Day. In her statement to Karen Saul, Elan Lambert said that
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Judge Day was pursuing a professional woman even though they were both married. In
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her statement to Karen Saul, Christine Brown said that Judge Day had a profile posted on
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a dating website, farmersonly.com and she concluded he was cheating on his wife. Karen
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Page 3 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 3 of 106
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Saul did not investigate to see if these statements were true. Instead, she reported the
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information to the Commission as if it were true. At the hearing, Megan Curry testified
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that recently, while she was assisting jurors outside Judge Burton’s courtroom, Judge Day
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placed his arm around her waist, pulled her close to him, and smiled at her. Ms. Curry did
not remember the date that this allegedly occurred. She said it occurred on a day when a
“special jury protocol” was being used to select a jury for a trial. The Commission’s
attorneys did not investigate this alleged incident but offered Ms. Curry’s testimony to
surprise Judge Day’s attorneys with another attempt to discredit Judge Day during the
hearing. The evidence at hearing conclusively proved that Elan Lambert, Christina
Brown, and Megan Curry misled the Commission. Each of their claims were shown to be
untrue.
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It does not appear from the evidence that the Commission received any
formal complaint from any person concerning Judge Day. The evidence disclosed by the
veteran who was involved in the gun incident, Brian Shehan, did not file a formal
complaint with the Commission. The Commission only had Judge Day’s self-report letter.
It is appropriate then to ask the rhetorical question: who initiated all of the other
allegations that were made against Judge Day and why?
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The Complaint contains 13 Counts. Two of the Counts, Counts 3 and 4,
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contain allegations about the gun incidents. The remaining Counts contain numerous other
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allegations that appear to have been based on the Saul investigation rather than a formal
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complaint made to the Commission. There were 18 additional charges alleged in the other
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Counts:
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1. Alleged improper use of a business card at a soccer game on October 17, 2012;
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2. (Alleged lying to the Commission about being grabbed and shoved at a soccer
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game on November 7, 2012);
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Page 4 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 4 of 106
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3. (Alleged lying to the Commission about his son bringing a gun to the house and
waiving the statutory prohibition against felons having or handling a firearm);
4. (Alleged lying to Judge Rhoades and Judge Penn that he did not know Brian
Shehan was a felon);
5. (Alleged singling out Brian Shehan for special attention including requiring him to
attend a wedding the judge was performing);
6. (Alleged improper ordering of Brian Shehan to read the book Fearless);
7. (Alleged improper use of language including referring to veterans in the Veteran’s
Treatment Court as “raggedy asses”);
8. (Alleged lying to the Commission that he reassigned Brian Shehan’s case to Judge
Tracy Prall);
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9. (Alleged improper collection of money from attorneys for the wall hanging
project);
10. (Alleged lying about having permission to hang pictures and wall hangings on the
walls of the Marion County Courthouse);
11. (Alleged improper placement of placards next to the pictures and wall hangings
identifying donors);
12. (Alleged improper hanging of a wall hanging that included a portrait of Adolf
Hitler without permission);
13. (Alleged improper hanging of pictures and wall hangings in the area where staff
worked);
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14. (Alleged improper use of language with his staff);
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15. (Alleged failure to provide staff with required breaks and exasperation when staff
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took vacation);
16. (Alleged failure to timely present an employment contract for the coordinator of
the Veteran’s Treatment Court);
Page 5 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 5 of 106
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17. (Alleged discrimination by requiring staff to screen same sex couples requesting a
judge to marry them); and
18. (Alleged improper storage of pictures of select past U.S. presidents in jury room).
This “shotgun” approach resulted in overcharging, creating a daunting task
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for the defense. Then, to make matters even more challenging, new matters were allowed
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to be brought up during the hearing that were not even plead in the Complaint. Not only is
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this impermissible under the Commission’s Rules of Procedure, it required the defense
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attorneys to try to investigate and respond to these new matters while the hearing was in
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progress. The alternative would have been to leave the new allegations unanswered.
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With all due respect to the Commission members who are governed by the
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Commission’s Rules of Procedure, the rules by which the hearing was conducted do not
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afford the accused judge basic fundamental fairness or due process. The Commission has
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not adopted the Oregon Rules of Civil Procedure or the Oregon Evidence Code. An
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accused judge is afforded far less due process than a party in a civil or criminal
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proceeding. The Commission allowed, over objection, numerous hearsay statements that
could not be tested by cross-examination. The Commission members were allowed to ask
questions after the attorneys asked questions, and in many cases, these questions opened
up new matters. The attorneys were precluded from asking additional questions
concerning these new matters.
In the opening statement, the defense indicated it did investigate the matter
more fully than the Commission’s investigator. The members should ask themselves what
the evidence against Judge Day would have looked like if the defense had offered no
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evidence. A judge should not be put in the position of being subjected to a public hearing
and having to pay for the cost of defending against claims that have not been subjected to
a balanced and fair investigation.
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Page 6 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 6 of 106
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The defense called 43 witnesses and offered 156 exhibits. This evidence
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created a much different assessment of Judge Day. Numerous witnesses testified that he
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was an honest, hard-working judge. He had sincere interest in helping veterans. He was a
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moving force dedicated to getting the veteran’s treatment court funded and started. He
acknowledged that he made mistakes in judgment concerning the gun incidents and some
of his interactions with staff, but he emphasized he did not lie and would not lie to Judge
Rhoades, Judge Penn, or the Commission. The following summary of testimony
concerning Judge Day should be given significant weight in deciding whether Judge Day
willfully violated the Oregon Code of Judicial Conduct:
1) Judge Day is honest and has a good reputation for truth and veracity. (Judge Don
Abar, Judge Dennis Graves, Judge Tracy Prall, Judge Lindsay Partridge, Judge
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Tom Hart, Joe Glover, Kevin Mannix, and Tom Sermak.)
2) Judge Day had a sincere interest in helping veterans. His language and manner of
conducting the court was appropriate for this type of court. He had a good
relationship with other members of the Veterans Treatment Court team other than
Elan Lambert. (Joe Glover, Brian Orrio, Daniel Wren, Austin Herman, Fred Ross,
Jeff Elizalde, Tim Kuenzi, Gary Grady, Alan Grizzle, Wayne Crowder, Gary
Cohen, Scott Delbridge, Dr. Craig Bryan, Tom Sermak. and Steve Cooper.)
3) The wall hangings on the 4th floor were appropriate for veterans and would not
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pose a risk of harm. (Dr. Craig Bryan, Fred Ross, Jeff Elizalde, Tim Kuenzi, Gary
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Grady, Alan Grizzle, Wayne Crowder, Gary Cohen, Steve Cooper, and Scott
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Delbridge.)
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4) Judge Day’s coordination of the military wall art project on the 4th floor did not
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involve “collecting” money from attorneys; rather, the attorneys voluntarily
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offered to make a donation. (Keith Bauer, Paul Ferder, and Kevin Mannix.)
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Page 7 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 7 of 106
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The testimony of several witnesses captured in a few words what kind of person Judge
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Day is:
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1) Judge Day is “a stand-up guy.” (Judge Susan Tripp.)
2) Judge Day did not act inappropriately at either soccer game. (Cassie Belmodis,
athletic director, Chemeketa Community College.)
3) Judge Day was a really good boss. (Jessica Andrade, former legal assistant.)
4) Judge Day saw me as a man and was willing to listen to me. (Fred Ross, mentor,
recovering drug addict.)
5) Judge Day has done more for veterans in Marion County than anyone. (Jeff
Elizalde, Veterans Treatment Court graduate.)
6) Judge Day saved my life. (Tim Kuenzi, Veterans Treatment Court graduate.)
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7) Judge Day is a good man. He is not a bad man. He was trying to help me. (Brian
Shehan, Veterans Treatment Court graduate.)
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The process by which some witnesses concluded he was lying consisted of
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comparing what his statements were to other information that they knew or found out
later. None of the witnesses who said they thought he lied ever confronted Judge Day with
the information that they knew or found.
An example of the process that was used is the alleged lie in Count 5 of the
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Complaint:
“When asked about the events, Judge Day told Marion County judges the
Hon. Jamese Rhoades and the Hon. Dale Penn that he did not know that
BAS was convicted of a felony. This was untrue, as Judge Day was BAS’s
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probation judge through the VTC and he knew that BAS was convicted of a
felony DUII.”
Judge Rhoades testified that before the meeting with Judge Day, she looked at Brian
Shehan’s file to determine his status. Both Judge Rhoades and Judge Penn could not recall
Page 8 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 8 of 106
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the precise words Judge Day used during the meeting when they were discussing whether
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Judge Day knew Brian Shehan was a felon at the time of the gun incident. Judge Penn
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acknowledged that Judge Day could have said: “I didn’t realize he was a felon at the
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time.” Neither Judge Rhoades nor Judge Penn, after hearing Judge Day’s statement,
confronted him with the fact that Judge Rhoades had checked Mr. Shehan’s status and he
was a felon at the time of the incident. Neither judge told Judge Day during the meeting
that they thought he was lying so he would have a chance to respond to the assertion.
Judge Penn testified at the hearing he did not know and still does not know that Judge Day
did anything wrong.
Judge Rhoades testified at the hearing, in response to a question from one
of the Commission members that she thought he was lying. Judge Rhoades apparently
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reached this conclusion because she had sent an OTLA article to the Commission’s
investigator that she had received from Christine Brown who was trying to show Judge
Rhoades proof that Judge Day knew Brian Shehan was a felon. See, Ex. 654. That article
had been written months before the gun incident. When Judge Day was given an
opportunity during the hearing to explain whether he was lying to Judge Rhoades and
Judge Penn during the August 21, 2014 meeting, he explained, that in his mind he did not
categorize Brian Shehan as a felon, and when he was working on Mr. Shehan’s pellet
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stove, he wasn’t thinking about Mr. Shehan’s status as a felon. It wouldn’t be fair to
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conclude that Judge Day was lying because, months before the gun incident, he had
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written the OTLA article.
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It’s obvious from the evidence that his staff and Ms. Lambert were upset
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with him during the summer of 2014 and collectively tried to get Judge Day in trouble.
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Judge Rhoades, without confronting Judge Day directly, apparently concluded Judge Day
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was lying. However, she had her own negative interaction with Judge Day concerning the
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wall hangings just days before any of this other information was brought to her attention.
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Page 9 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 9 of 106
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She admitted to Judge Prall that she had made up her mind before ever meeting with
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Judge Day on August 21, 2014. She told Judge Prall she was going to report him to the
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Commission if he didn’t self-report.
PART 2: MOTIONS TO DISMISS
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At the conclusion of the Commission’s evidence, a request was timely
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made by the undersigned attorney on behalf of Judge Vance D. Day to make an oral
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Motion to Dismiss. This request was renewed at the close of all of the evidence. The
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attorney for the Commission objected to the oral Motion and the Commission directed the
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undersigned attorney to include the Motions to Dismiss in the closing argument.
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Accordingly, the Motions to Dismiss will be addressed first.
First Motion to Dismiss
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Judge Day moves the Commission to Dismiss all of the Counts in the
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Commission’s Complaint except for Count 4 upon the grounds and for the reason that the
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Commission lacked statutory authority to file and jurisdiction to consider the other Counts
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in its Complaint without first receiving a complaint from any person concerning the
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conduct of Judge Day. Judge Day relies upon the Memorandum of Law below:
Memorandum of Law
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ORS 1.420(1) provides:
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“Upon complaint from any person concerning the conduct of a judge…,
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and after such investigation as the Commission on Judicial Fitness and
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Disability considers necessary, the Commission may do any of the
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following:
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(a) The Commission may hold a hearing pursuant to subsection (3) of this
section to inquire into the conduct of the judge.
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Page 10 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 10 of 106
The Commission’s Complaint in this case was filed after Marion County
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Circuit Court Judge Vance D. Day self-reported an incident involving a participant in the
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Veterans Treatment Court who was shown a gun by Judge Day’s son while Judge Day
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was present at the participant’s home. Only one of the counts, Count 4, in the Complaint
contains allegations concerning this incident. There are 12 additional counts in the
Complaint which appear to have been initiated by the Commission rather than “upon
complaint from any person…” concerning Judge Day. It appears from the evidence that
the Commission refiled a case, No. 12-139, as Counts 1 and 2 in the current Complaint, on
its own, without receiving a new complaint from any person. See Ex. 655. It also
appears that the Commission initiated, on its own, based upon information provided by its
investigator, 11 additional counts without receiving a complaint from any person. The
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Commission is without statutory authority to initiate complaints on its own and thereafter
hold a hearing.
For the foregoing reasons, which raise due process concerns, see Day Tr.
Mem. at 27-28, the Commission should only consider the allegations in Count 4 of the
Commission’s Complaint.
Second Motion to Dismiss
Judge Day moves the Commission to Dismiss all of the Counts in the
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Commission’s Complaint upon the grounds and for the reason that the Commission failed
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to prove by clear and convincing evidence that Judge Day willfully violated the Oregon
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Code of Judicial Conduct as alleged in the Commission’s Complaint. Judge Day relies
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upon the Memorandum of Law below.
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Memorandum of Law
The Commission is authorized to recommend to the Supreme Court the
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discipline of the judge only if the evidence presented shows clearly and convincingly that
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the judge violated the Code of Judicial Conduct. Commission Rule of Procedure (“Rule”)
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Page 11 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 11 of 106
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16(a). The “clear and convincing” standard of proof “requires evidence that is of
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‘extraordinary persuasiveness,’ so that the fact at issue is ‘highly probable.” State v.
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N.A.P., 216 Or. App. 432, 437, 173 P.3d 1251 (2007), quoting State v. Allen, 209 Or. App.
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647, 652, 149 P.3d 289 (2006). “The evidence cannot be speculative or equivocal.”
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N.A.P., 216 Or. App. at 437 (internal citations omitted).
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In the context of this proceeding, the Commission must find “clear and
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convincing evidence of a willful violation” of a rule of judicial conduct in order to
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recommend discipline. In Conduct of Schenck, 318 Or. 402, 405, 870 P.2d 185 (1994). In
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In re Gustafson, 305 Or. 655, 688, 756 P.2d 21 (1988), the Supreme Court held:
“[A] judge’s conduct is ‘willful’ within the meaning of Article
VII (Amended), section 8, if the judge intends to cause a result or take
an action contrary to the applicable rule and if he is aware of the
circumstances that in fact make the rule applicable, whether or not the
judge knows that he violates the rule.”
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Accordingly, in considering the Commission’s attorneys’ evidence offered in support of
violations of particular Cannons under the Oregon Code of Judicial Conduct, this
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Commission must find no violation unless it can conclude that the evidence was
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“extraordinarily persuasive” that Judge Day consciously intended to cause a result or take
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an action contrary to a particular Canon. See In Conduct of Schenck, 318 Or. at 414
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(finding no violation concluding that “there is no clear and convincing evidence that the
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Judge consciously intended to cause a result or take an action contrary to Canon 3 C(1).”).
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The evidence offered in support of the charges against Judge Day does not
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clearly and convincingly show that Judge Day consciously intended to cause a result or
take an action contrary to a specific Cannon of Oregon’s Code of Judicial Conduct. This
Commission should recommend dismissal of this case.
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Page 12 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 12 of 106
For the above-stated reasons, the Commission’s Complaint should be
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dismissed.
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Third Motion to Dismiss
Judge Day alternatively moves to dismiss Counts 1 and 2 of the Complaint
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in this matter which both assert “soccer official” allegations. Judge Day relies upon the
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Memorandum of Law below.
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Memorandum of Law
In June of 2015, the Commission filed its Complaint in this action
including two Counts arising from the previously dismissed “Complaint No. 12-139”
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concerning Judge Day’s alleged interactions with soccer officials in October and
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November of 2012. Count 1 alleges that Judge Day engaged in improper conduct by
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“produc[ing] his business card which identified him as a circuit court judge” to a soccer
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official following his son’s soccer game on October 17, 2012. Comp. ¶¶ 2, 3. Count 2
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alleges that Judge Day provided a false statement to the Commission in explanation to the
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allegation that after a game on November 7, 2012, Judge Day approached the soccer
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officials’ table. Comp. ¶ 6. Count 2 partly reproduces Judge Day’s letter explanation on
this point. Id. Not reproduced in Count 2, however, was Judge Day’s explanation that he
did not know who the man was that initiated physical contact with him but was later told
that the man was some sort of self-proclaimed official.
For clarification, it is important to note that the Commission’s attorneys’
Hearing Memorandum in this matter improperly broadens the scope of the allegation
stated in Count 2 by suggesting that Judge Day engaged in inappropriate conduct both by
approaching the soccer referees’ table which “[w]itnesses will be called to testify that
spectators are not allowed where the Judge was seeking to enter” and by falsely recounting
the events in his January 31, 2013 letter to the Commission. Hearing Memo at 3. Count 2
Page 13 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 13 of 106
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does not allege that Judge Day committed any violation of his judicial position by
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impermissibly “seeking to enter” and area allegedly reserved for officials only.
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By letter dated January 7, 2013 identifying the subject as “Case No. 12-
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139-Judge Vance D. Day,” the Commission’s Executive Director, Ms. Isaacs, informed
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Judge Day that the Commission had received a complaint “concerning your actions with
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respect to your interactions with soccer officials at soccer games” and that it was
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conducting an investigation pursuant to its Rule of Procedure 7(b). The allegations then
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under investigation were summarized as follows:
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“The complaint alleges that, on October 17, 2012, you demanded the
name of a soccer official due to his failure to manage player safety at
your son’s soccer game. You told the official that you had watched
his poor performance over the past year. You told the official that you
were going to report him to higher authorities and then gave him your
business card that identifies you as a Circuit Court Judge. In
November 2102, you attempted to enter the officials’ area despite lack
of authorization to be there.”
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Id.
Ms. Isaacs informed Judge Day that his “response to this inquiry will assist
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the Commission in evaluating the allegations of this complaint.” Id. Further, Ms. Isaacs
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represented to Judge Day that the Commission would review his response “and all other
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materials available to it at its next regularly scheduled meeting on February 15, 2013.” Id.
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Judge Day timely responded with a thorough explanation of both alleged interactions in his
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January 31, 2013, letter to Ms. Isaacs, including a copy of the complaint he filed with the
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Oregon Referee Committee on October 17, 2012.
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By letter dated February 18, 2013, Ms. Isaacs informed Judge Day that “the
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Commission reviewed your letter and other materials available to it and concluded that the
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complaint should be dismissed.” The letter did not qualify the Commission’s dismissal by
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suggesting that the “soccer official” complaint could be subject to reconsideration at a later
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Page 14 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 14 of 106
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date. Indeed, the Commission’s Rules of Procedure do not provide for “reconsideration”
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of a dismissed complaint at any time, let alone two and a half years later.
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Despite the Commission’s formal dismissal of Case No. 12-139, the
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Commission’s attorneys now improperly attempt to revive the “soccer official” complaint
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it deemed meritless in February of 2013. By letter dated March 17, 2015, the
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Commission’s attorneys rejected Judge Day’s request to dismiss Counts 1 and 2 in this
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matter stating that Case No. 12-139 “was not dismissed with prejudice, so the Commission
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went back to reconsider it after the newer issues with Judge Day came to light.” The
Commission’s attorneys cited no Commission Rule of Procedure or any legal authority to
support her position because none exists.
Despite Judge Day’s request to dismiss Counts 1 and 2, the Commissions
attorneys’ Hearing Memorandum entirely ignores the issue, making no attempt whatsoever
to justify the Commission’s attorneys’ unauthorized revival of the dismissed complaint.
Hearing Memo at 2-3. The Commission’s attorneys’ suggestion under Count 2 that Judge
Day’s deposition testimony in this matter was not consistent with his January 31, 2013
letter explanation in Case No. 12-139, is a thinly-veiled attempt to lure the Commission
into improperly reconsidering the dismissed “soccer official” complaint. Hearing Memo at
3. By the terms of its own Rules of Procedure, the Commission was obligated to
adequately investigate the “soccer allegation” complaint in Case No. 12-139 and it, in fact,
represented that it had done so and “concluded that the complaint should be dismissed.”
The Commission’s attorneys’ current pursuit of a previously investigated matter that was
dismissed for lack of sufficient cause in 2013, not only offends well-recognized principles
of finality; it is not permitted by the Commission’s Rules of Procedure.
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It is important to recognize that Case No. 12-139 was a Commission
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“proceeding” that was formally dismissed under Rule 7(e) and that the Commission was
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1
charged with the duty to conduct a sufficient investigation back in 2013 prior to making its
2
dismissal determination. Rule 7(a). Commission’s Rule 2(i) establishes that a
3
Commission “proceeding” includes “all phases of consideration of a complaint by the
4
Commission or its staff including receipt, investigation, and discussion at Commission
5
meetings and public meetings.” The Commission’s letters to Judge Day in January and
6
February of 2012, demonstrate that the “soccer official” complaint was the subject of a
7
Commission “proceeding.”
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Rule 7 charges the Commission with the duty to investigate complaints
against a judge to “evaluat[e] the merits of the complaint” (Rule 7(b)) “to determine
whether formal proceedings should be instituted and a hearing held.” Rule 7(a). This duty
is mandatory and not permissive. Rule 7(a) (“The Commission * * * shall make such
investigation * * *.”); see Rule 2(j)(confirming that the term ““shall” is mandatory and
“may” is permissive.).
The Commission’s Rule 7 recognizes the possibility of several outcomes of
the Commission’s investigation. It provides for “Informal Disposition,” “Formal
Disposition: Notice,” and “Dismissal.” Rule 7(c), (d), (e). Informal Disposition results
“[i]f the investigation reveals a departure by the judge from the Code of Judicial Conduct
which is not sufficiently serious to warrant a public hearing under Rule 8 * * *.” Rule
7(c). An Informal Disposition essentially reprimands the judge for objectionable conduct
that constitutes a minor violation not worthy of discipline and dismisses the complaint. Id.
“Formal Disposition: Notice” occurs [i]f the investigation reveals a departure by the judge
from the Code of Judicial Conduct which may warrant censure, suspension or removal * *
*.” Rule 7(d). “Dismissal” occurs “[a]t any stage in the proceedings, if the investigation
23
discloses that there is not sufficient cause to warrant further proceedings.” Rule 7(e). If
24
the investigation discloses that there is not sufficient cause to warrant further proceedings,
25
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1
the Commission “shall” dismiss the complaint and notify the judge if the judge was
2
previously notified of the pendency of the complaint. Id. The Commission dismissed
3
Case No. 12-139 under Rule 7(e) and not under Rule 7(c) because the dismissal letter
4
informed Judge Day that the investigation “concluded that the complaint should be
5
dismissed” and it did not identify any objectionable conduct nor inform Judge Day that he
6
had committed a minor violation of the Code of Judicial Conduct.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Under its Rules, the Commission was required to conduct a sufficient
investigation and evaluate the merits of the “soccer official” complaint to determine
whether formal proceedings should be held and was charged with the duty to initiate
“formal proceedings” if “the investigation reveal[ed] a departure by the judge from the
Code of Judicial Conduct which may warrant censure, suspension or removal.” Rule 7(a),
(b), (d). Accordingly, absent an admission from the Commission that it did not adequately
perform its duties under Rule 7, it must be presumed that back in 2013 the Commission
conducted a thorough investigation and determined then that the “soccer official”
allegations did not warrant “formal proceedings.” As such, the 2013 dismissal of Case No.
12-139 precludes consideration of Counts 1 and 2 in this formal proceeding.
There is no provision in the Commission’s Rules of Procedure allowing for
the “reconsideration” of a dismissed complaint. In fact, the Commission’s Rule 20(a)
providing a retention period of two-years for all documents related to complaints against
judges in matters that do not proceed to a public hearing, conflicts with the Commission’s
attorneys’ attempt to simply choose to reopen a dismissed complaint two and a half years
later merely because different allegations are made against the same judge.
Additionally, the Commission’s attorneys’ unsupported statement that
23
Counts 1 and 2 are permissible in this action because the Commission did not dismiss the
24
complaint in Case No. 12-139 “with prejudice” must be rejected. The Commission’s
25
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Exhibit 657
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1
Rules of Procedure provide no authority to dismiss a complaint without prejudice except in
2
one identified circumstance. Rule 17(g) provides that the resignation or retirement of a
3
judge during the pendency of prosecution before the Commission requires dismissal
4
“without prejudice, which means that it may be revived if the judge resumes a judgeship.”
5
Rule 17(g) shows that the Commission’s Rules expressly provide when revival of a
6
dismissed case is permitted. There is no similar language for Rule 7(c) or (e) dismissals.
7
The Commission’s attorneys’ attempt to borrow the concept of dismissal
8
9
10
11
12
13
14
15
without prejudice from Oregon’s Rules of Civil Procedure flies in the face of the
Commission’s attorneys’ own position in this matter and Oregon case law which is that the
Oregon Rules of Civil Procedure do not apply to Commission proceedings. See Hearing
Memo at 15-16; State ex rel. Currin v. Commission on Judicial Fitness and Disability, 311
Or. 530, 534, 815 P.2d 212 (1991) (“The Oregon Rules of Civil Procedure do not apply to
proceedings before the Commission.”). The Commission’s attorneys cannot choose to rely
on principles of Oregon’s Rules of Civil Procedure when it might be advantageous to its
interests yet deny judges the same opportunity.
The principles of claim preclusion may apply to administrative
16
17
18
19
20
21
22
proceedings. Drews v. EBI Companies, 310 Or. 134, 142, 795 P.2d 531 (1990). The
Oregon Supreme Court has instructed that “the point at which finality attaches to a
statutory administrative proceeding for preclusion purposes will usually be governed by
statutory provisions.” Id. The court continued “the statutory scheme will usually spell out
where a second proceeding is not precluded by finality of a first proceeding.” Id. Here,
the Commission’s Rules spell out one instance when a second proceeding on the same
matter is not precluded by a dismissal of the first proceeding. Rule 17(g). Dismissals
23
under Rule 7 are final.
24
///
25
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Exhibit 657
Page 18 of 106
1
The Commission’s attorneys’ explanation for “reconsidering” the
2
dismissed case does not provide a legitimate basis to do so. Merely because Judge Day
3
currently faces new and unrelated charges does not justify “reconsideration” of an old
4
dismissed complaint deemed meritless. A meritless complaint does not gain merit with the
5
passage time. Additionally, the Commission’s Rules provided the Commission every
6
opportunity to conduct a comprehensive investigation and proceed with a formal
7
complaint under Rule 8 if it deemed it appropriate to do so back in 2013. Rule 7 (a), (b),
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ps
(d). It did not. Instead, the Commission’s dismissal absolved Judge Day of any
wrongdoing. That dismissal must not be reconsidered.
For all the above-stated reasons, which raise due process concerns, see Day
Tr. Mem. at 27-28, Counts 1 and 2 of the complaint in this matter must be dismissed.
Judge Day is entitled to finality in the favorable resolution of the “soccer official”
allegations resulting from the formal dismissal of Case No. 12-139 in 2013. The
Commission’s attorneys are without authority to reopen a case that was dismissed over
two years ago for lack of sufficient cause to proceed. The Commission was charged with
the duty to conduct a sufficient investigation of the merits of the “soccer official”
allegations in the 2013 proceeding. It must be presumed to have done so.
PART 3: ANALYSIS OF INDIVIDUAL COUNTS
Count 1
Summary of Key Points in the Evidence
Count 1 of the Commission’s Complaint arises out of an incident that
occurred on October 17, 2012 and that was the subject of a previously dismissed
Commission proceeding. The following facts in this paragraph are not in dispute. Judge
Day attended a college soccer game on that date in which his son, Daniel, sustained a
concussion. Daniel had to leave the game due to his injury. At the conclusion of the
Page 19 – HON. VANCE D. DAY’S CLOSING ARGUMENT
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Page 19 of 106
1
game, Judge Day wanted to get information so he could register a complaint concerning
2
the officiating during the game which Judge Day believed was, in part, a contributing
3
factor to his son’s injury. Judge Day approached the official’s table to get the
4
information. There are factual differences in the evidence about what transpired at this
5
point.
6
The Commission’s only witness who had a current recollection
7
concerning this incident was Andrew Deuker, a soccer referee who officiated at the
8
game. The Commission also called Shayla Sharp Green, another soccer referee. She
9
acknowledged on cross-examination that she didn’t remember the game.
10
Mr. Deuker admitted that he refused to come to Salem for a deposition
11
before the hearing despite having received a subpoena issued by the Commission. Mr.
12
Deuker remembered the incident in which Daniel Day was injured. He testified that
13
Daniel Day “blacked out.” Mr. Deuker recalled Judge Day coming to the referee’s table
14
where he was seated and asking for the information about where a complaint about the
15
officiating could be made. Judge Day asked for Mr. Deuker’s name, but Mr. Deuker
16
refused to give him his name. He explained that he was not at liberty to give out this
17
information. Mr. Deuker testified that Judge Day then “forcefully pushed” his business
18
card at him. He did not testify that he asked for the card. Mr. Deuker said he felt
19
intimidated because the card identified Judge Day as a judge. Later, when Mr. Deuker
20
was driving away from the game, he observed Judge Day and his son walking in front
21
of his car and it appeared to him that they were taking down his license plate
22
information. Mr. Deuker reported the incident involving Judge Day to a board member,
23
Michael Allen. Mr. Deuker testified that he was still afraid, even to this day, for
24
himself and his parents because he is not sure what Judge Day could do to them. Mr.
25
Deuker gave no evidence that his fear had any rational basis.
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Exhibit 657
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1
Judge Day, Daniel Day, Cassie Belmodis (athletic director, Chemeketa
2
Community College), Marty Limbird (Head soccer coach, Chemeketa Community
3
College) and Elizabeth Mansell all testified as part of Judge Day’s case.
4
Judge Day testified he was at the October 17, 2012, game. He saw his
5
son get hurt and was concerned about the officiating and the lack of player safety.
6
Judge Day regularly attended his son’s college soccer games. He had concerns about
7
Mr. Deuker’s officiating at prior games as it related to player safety. After the game,
8
Judge Day wanted to get the information on the process for filing a complaint. He went
9
over to talk to Mr. Deuker. Judge Day asked Mr. Deuker his name, but Mr. Deuker
10
refused to give it to him. Judge Day asked Mr. Deuker for the name of his organization,
11
but Mr. Deuker refused to give him the information. Judge Day asked Mr. Deuker if he
12
had a card which had any information relating to the organization or who to contact.
13
Mr. Deuker said he did not, but then asked Judge Day for his name and whether he had
14
a card. Judge Day got out his business card and put it on the table. He did not
15
“forcefully push it at Mr. Deuker.” Judge Day then walked away. He did not intend to
16
intimidate Mr. Deuker.
17
Daniel Day testified about the incident that caused his concussion. He
18
did not witness the events involving his father and Mr. Deuker following the game.
19
When he was leaving the area with his father where the game had taken place, they saw
20
Mr. Deuker’s car leaving and took down his license plate number. There was no
21
evidence that this was done with intent to intimidate Mr. Deuker; rather it was a simply
22
a way to potentially obtain the name of the official through the DMV.
23
Cassie Belmodis, the athletic director for Chemeketa Community
24
College, attended most of the men’s soccer games. She was present for the October 17,
25
2012 game. She was concerned about the officiating. She thought the game was
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Exhibit 657
Page 21 of 106
1
getting out of hand. She knew Daniel Day was injured. After the game, she saw Judge
2
Day approach the referee’s table. This was the first time she had seen him do this. She
3
had observed Judge Day go over to the player’s area after other games to congratulate
4
the players, but this was the first time she saw him go up to the referee’s table. She
5
didn’t see Judge Day do anything inappropriate at this game or the November 7, 2012,
6
game that is the subject of Count 2. Interestingly, Ms. Belmodis never received any
7
complaints about Judge Day’s conduct from the referee or any referee organization after
8
this incident. There is no evidence that there were any signs, or any other form of
9
notice that tell spectators that the area around the referee’s table is restricted.
10
Marty Limbird, the head soccer coach for Chemeketa Community
11
College was also present at the October 17, 2012, game. He said this was a rivalry
12
match with Clark College. He criticized the officiating during the game saying fouls
13
were missed and there were a lack of calls by the officials that should have been made.
14
He was aware that Daniel Day had a concussion during the game and had to leave the
15
game. Daniel Day had helped the team win a championship in 2011. After the game,
16
Mr. Limbird saw Judge Day walking casually toward the referee’s table. He said he did
17
not look angry. Mr. Limbird was close by. He testified Judge Day remained calm. He
18
asked for the referee’s name. The referee got defensive. He asked for Judge Day’s
19
name. Judge Day handed him a business card. Mr. Limbird said he would have done
20
the same thing if his son had been injured because of a referee’s lack of control. Mr.
21
Limbird had seen Judge Day at many of his son’s soccer games and that it is Judge
22
Day’s practice to come across the field and interact with players. Mr. Limbird also
23
testified that he has seen Judge Day thank referees.
24
25
ps
Elizabeth Mansell was expecting a baby and she had a pre-natal
appointment that day. She testified that she called her father after the appointment on
Page 22 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 22 of 106
1
October 17, 2012. This was at the same time Judge Day was interacting with the soccer
2
official. While Ms. Mansell was talking with her father on the phone, she overheard
3
someone asking her father for a business card. Her testimony is consistent with that of
4
Judge Day and with his letter sent to the Commission on January 31, 2013. See, Ex.
5
607.
6
Analysis
7
This matter and another matter that is the subject of Count 2 involving
8
another soccer game that occurred on November 7, 2012, were originally investigated
9
by the Commission in 2012-13. At the conclusion of its investigation, the Commission
10
dismissed the matters due to “insufficient evidence and lack of jurisdiction.” See, Ex.
11
655. According to the testimony at the hearing of the Commission’s investigator, Karen
12
Saul, the Commission, apparently on its own initiative, re-opened these matters
13
sometime after Ms. Saul started her investigation.
14
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
15
the conduct of a judge in only two situations: upon complaint from any person
16
concerning the conduct of a judge or upon request of the Supreme Court. There is no
17
evidence in the record that the Commission received a new complaint from any person
18
or a request by the Supreme Court to re-open these matters. The Commission’s rules do
19
not provide any authority for re-opening these matters. See Third Motion to Dismiss,
20
supra at 13. Having been dismissed once, these matters should be summarily dismissed
21
again due to insufficient evidence and lack of jurisdiction.
22
If the Commission rejects the argument above and decides that it has
23
authority to re-open these matters, then Judge Day respectfully argues that the evidence
24
does not establish any “(e) Willful violation of any rule of judicial conduct as shall be
25
established by the Supreme Court” as alleged in paragraph 8 of the complaint. The
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1
proof must be by clear and convincing evidence. It was not. The “clear and convincing”
2
standard of proof “requires evidence that is of ‘extraordinary persuasiveness,’ so that
3
the fact at issue is ‘highly probable.” State v. N.A.P., 216 Or. App. 432, 437, 173 P.3d
4
1251 (2007), quoting State v. Allen, 209 Or. App. 647, 652, 149 P3d 289 (2006). The
5
evidence concerning what happened following the October 17, 2012 soccer game is in
6
dispute. It is not extraordinarily persuasive. There were several witnesses who
7
observed Judge Day’s demeanor. He was not angry or acting in a threatening or
8
intimidating manner. Judge Day’s act of providing a business card, in response to a
9
request to identify himself, does not constitute a willful violation of Rule 2.1(A), (C),
10
Rule 2.2. In fact, the formal complaint filed by Judge Day on October 17, 2012, does
11
not identify Judge Day as anything but a private citizen. See Ex. 607, p. 06353.
12
13
14
15
Proposed Finding of Fact and Recommendation
Judge Day respectfully requests the Commission to adopt the following
proposed finding of fact:
Judge Day did not willfully violate Rule 2.1 (A), (C), and Rule 2.2
16
when he produced his business card identifying himself to a soccer referee
17
following a soccer game that occurred on October 17, 2012.
18
Rule 2.1 (A): “A judge shall observe high standards of conduct so that the integrity,
19
20
21
22
impartiality and independence of the judiciary and access to justice are preserved and
shall act at all times in a manner that promotes public confidence in the judiciary and
the judicial system.”
23
Rule 2.1 (C): “A judge shall not engage in conduct that reflects adversely on the judge’s
24
character, competence, temperament, or fitness to serve as a judge.”
25
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Page 24 of 106
Rule 2.2: “A judge shall not use the judicial position to gain personal advantage of any
1
2
3
kind of the judge or any other person. However, a judge may provide a character or
ability reference for a person about whom the judge has personal knowledge.”
4
Rules 2.1 (A) and 2.1 (C) are unconstitutionally vague, see Day Tr.
5
Mem. at 14-15, fail strict scrutiny review, see id. at 16-19, and violate the Oregon
6
Constitution, see id. at 23-25.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Judge Day respectfully requests the Commission to adopt the following
recommendation:
The Commission recommends Count 1 be dismissed due to lack of
jurisdiction, constitutionality concerns, and insufficient evidence.
Count 2
Summary of Key Points in the Evidence
Count 2 of the Commission’s Complaint arises out of an incident that
occurred on November 7, 2012. The following facts in this paragraph are not in
dispute. Judge Day attended a college soccer play-off game on that date. His son,
Daniel, played in the game for Chemeketa Community College. At the conclusion of
the game, Judge Day was walking across the soccer field. He was intending to go over
to the referee’s area to thank the referees and then interact with the Chemeketa soccer
players. Michael Allen, a national assessor and area coordinator for the National
Intercollegiate Soccer Officials Association, was present for the game because Mr.
Andrew Deuker had told him about his interaction with Judge Day at the October 17,
2012 game. Mr. Allen did not know Judge Day so as to be able to recognize him by
sight. After the game, a fight broke out between two players on the opposing teams. At
about the same time, Mr. Allen saw an individual crossing the field, approaching the
25
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Exhibit 657
Page 25 of 106
1
referees’ area. Mr. Allen put his hands up and yelled at the individual using words to
2
the effect, you can’t be here and get the hell off of the field. Mr. Allen assumed the
3
individual was Judge Day. Mr. Allen marked on a diagram of the field, his position and
4
the position of the person he believed to be Judge Day and testified that the person was
5
“15 yards” away (45 feet) when Mr. Allen put his hands up and yelled. See, Ex. 135.
6
Mr. Allen did not follow-up on the complaint letter that he drafted for Mr. Deuker to
7
send to the Commission. Over two years went by before Mr. Allen was contacted by
8
the Commission’s investigator, Karen Saul. He did not contact the investigator. Ms.
9
Saul contacted him.
There are factual differences in the remaining evidence offered
10
11
concerning Count 2 at the hearing. Judge Day testified he did not lie to the Commission
12
in his January 31, 2013 letter that was introduced as Exhibit 607. During his testimony,
13
Judge Day pointed out he never stated in the letter that the person who grabbed him was
14
a soccer official. A plain reading of the second paragraph on page 4 of the letter
15
confirms that Judge Day did not tell the Commission that the person who grabbed him
16
was a soccer official. See Ex. 607, p. 06351. Judge Day did not recognize the
17
individual. Count 2, paragraph 6, lines 10-11 alleges a conclusion that the unknown
18
person was a soccer official. This conclusion did not come from the January 31, 2013
19
letter Judge Day sent to the Commission. The allegation that Judge Day lied is simply
20
not supported by the evidence.
There was other significant evidence introduced at the hearing. Other
21
22
witnesses who were present, including Cassie Belmodis, testified there were people
23
milling around the area where this incident happened. Her testimony contradicted Mr.
24
Allen’s testimony to the effect that he did not see anyone near Judge Day.
25
///
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Exhibit 657
Page 26 of 106
Richard Horner, another referee, testified there were a lot of people
1
2
milling around the area. While Mr. Horner testified he did not see any physical contact
3
between Judge Day and a soccer official, he couldn’t rule out the possibility that contact
4
occurred between someone else and Judge Day because he did not keep his eyes on
5
Judge Day.
6
Mr. Allen did not testify at the hearing that he kept his eyes on Judge
7
Day at all times. Mr. Allen testified he was six feet tall and weighed 240 pounds at the
8
time. He was three inches shorter and twenty pounds lighter than the person Judge Day
9
described. Finally, Ms. Belmodis and Mr. Horner placed markers of on the field
10
diagram that were different than Mr. Allen’s markers on the same diagram. See, Ex.
11
136, Ex. 137. In summary, the eyewitness evidence was in conflict. Finally, Daniel
12
Day recalled his father telling him right after the game that he had been shoved.
13
14
Analysis
This matter and the matter that is the subject of Count 1 involving a
15
different soccer game that occurred on October 17, 2012 were originally investigated by
16
the Commission in 2012-13. At the conclusion of its investigation, the Commission
17
dismissed the matters due to insufficient evidence and lack of jurisdiction. See, Ex. 655.
18
According to the testimony at the hearing from the Commission’s investigator, Karen
19
Saul, the Commission, apparently on its own initiative, re-opened these matters
20
sometime after Ms. Saul started her investigation.
21
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
22
the conduct of a judge in only two situations: upon complaint from any person
23
concerning the conduct of a judge or upon request of the Supreme Court. There is no
24
evidence in the record that the Commission received a new complaint from any person
25
or a request by the Supreme Court to re-open these matters. The Commission’s rules do
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Exhibit 657
Page 27 of 106
1
not provide any authority for re-opening these matters. See Third Motion to Dismiss,
2
supra at 13. Having been dismissed once, these matters should be summarily dismissed
3
again due to insufficient evidence and lack of jurisdiction.
If the Commission rejects the argument above and decides that it has
4
5
authority to re-open these matters then Judge Day respectfully argues that the evidence
6
does not establish any “(e) Willful violation of any rule of judicial conduct as shall be
7
established by the Supreme Court” as alleged in paragraph 8 of the complaint. The
8
proof must be by clear and convincing evidence. It was not. The “clear and
9
convincing” standard of proof “requires evidence that is of ‘extraordinary
10
persuasiveness,’ so that the fact at issue is ‘highly probable.” State v. N.A.P., 216 Or.
11
App. 432, 437, 173 P.3d 1251 (2007), quoting State v. Allen, 209 Or. App. 647, 652,
12
149 P.3d 289 (2006). The evidence concerning what happened following the November
13
7, 2012, soccer game is in conflict. It is not extraordinarily persuasive.
14
Judge Day’s letter of January 31, 2013, did not say he was grabbed by a
15
soccer official. Count 2 improperly charges Judge Day with lying, when in fact, he did
16
not lie. Judge Day testified he did not intend to lie to the Commission. Judge Day
17
testified he was grabbed by an unknown person. The description of the person he gave
18
to the Commission is substantially different than Mr. Allen’s description of his own
19
height and weight at the time. There was evidence from other reliable witnesses that
20
there were people milling around the area where Judge Day was when Mr. Allen yelled
21
at him to stop and leave the field. A reasonable inference can be drawn that some
22
unknown person grabbed Judge Day and shoved him. There was no clear and
23
convincing evidence that Judge Day willfully violated Rule 2.1 (C), (D).
24
///
25
///
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Exhibit 657
Page 28 of 106
Proposed Finding of Fact and Recommendation
1
Judge Day respectfully requests the Commission to adopt the following
2
3
proposed finding of fact:
Judge Day did not willfully violate Rule 2.1 (C), (D) when he sent the
4
5
Commission a letter dated January 31, 2013 that stated: “Before I could finish the
6
sentence I was grabbed by my shoulders from behind without warning, whirled
7
around, and nearly picked [up] off my feet and forcefully thrown forwards. I
8
nearly went down on my hands and knees, but was able to right myself.”
9
Rule 2.1 (C): “A judge shall not engage in conduct that reflects adversely on the judge’s
10
11
12
13
character, competence, temperament, or fitness to serve as a judge.”
Rule 2.1 (D): “A judge shall not engage in conduct involving dishonesty, fraud, deceit,
or misrepresentation.”
Rules 2.1 (C) and 2.1 (D) are unconstitutionally vague. See Day Tr.
14
15
Mem. at 15-16. Rule 2.1 (C) fails strict scrutiny review, see id. at 16-19, and violates
16
the Oregon Constitution, see id. at 23-25. And Rule 2.1 (D) is unconstitutionally
17
overbroad. See Day Tr. Mem. at 12-13.
18
Judge Day respectfully requests the Commission to adopt the following
19
20
recommendation:
The Commission recommends Count 2 be dismissed due to lack of
21
22
23
24
25
ps
jurisdiction, constitutionality concerns, and insufficient evidence.
///
///
///
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Exhibit 657
Page 29 of 106
Count 3
1
Summary of Key Points in the Evidence
2
Count 3 of the Commission’s Complaint arises out of an incident that
3
4
occurred on November 18, 2013. The following facts in this paragraph are not in
5
dispute. It was the practice of the Veterans Treatment Court team to help participants
6
find work. Judge Day was interested in helping Brian Shehan, a Veterans Treatment
7
Court participant, get some work to earn some money. He mentioned this to his son-in-
8
law, Don Mansell, because Mr. Mansell was working on a home improvement project.
9
Mr. Mansell called Mr. Shehan and hired him to do taping and papering around a room
10
so that cabinets could be sprayed with lacquer and the area around the cabinets would
11
be protected.
12
There are conflicts in the testimony about other matters that occurred on
13
this day. Don Mansell testified that he asked Mr. Shehan to see if he could find a secret
14
compartment in the cabinets. All of the three cabinets had a similar compartment.
15
Judge Day testified he was busy working in another part of the room and did not make
16
this request to Mr. Shehan. Mr. Mansell testified this was a game he would typically
17
play with visitors to his home. Mr. Shehan found one of the secret compartments.
18
When he opened it, there was an unloaded gun in the compartment. Mr. Mansell knew
19
there was a gun in the compartment. He had put it there following the birth of a child
20
for personal security reasons. Judge Day was not aware of the fact that his son-in-law
21
had a handgun in the secret compartment.
22
Mr. Shehan testified that he asked to see if it was loaded and handled the
23
gun. Mr. Mansell testified that Mr. Shehan only looked at the gun, but didn’t handle it.
24
Contrary to the statement Mr. Shehan made to the Commission’s investigator, Judge
25
Day said he did not give Mr. Shehan permission to handle the gun. Judge Day agrees
ps
Page 30 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 30 of 106
1
he would not have authority to waive the statutory firearm prohibitions against a felon
2
having or handling firearms. On the day of this incident, Judge Day was not even aware
3
that Mr. Shehan had been near the gun. Judge Day does recall that his son-in-law said
4
something about his daughter needing protection from the boys, but Judge Day was
5
working on a cabinet on the other side of the room and was not part of the incident.
6
Judge Day did not have any intent to willfully violate Rule 2.1 (A), (C).
7
Mr. Shehan testified he received a complaint form from Judge Rhoades
8
that he chose not to fill out. Exhibit 29 is a letter that was sent to Mr. Shehan by Judge
9
Rhoades. It confirms a complaint form by which Mr. Shehan could have sent a
10
11
12
complaint to the Commission.
Analysis
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
13
the conduct of a judge in only two situations: upon complaint from any person
14
concerning the conduct of a judge or upon request of the Supreme Court. There is no
15
evidence in the record that the Commission received a complaint from any person or a
16
request by the Supreme Court to conduct an investigation or conduct a hearing
17
involving this matter. The Commission does not have statutory authority to do so. See
18
First Motion to Dismiss, supra at 10. Count 3 should be summarily dismissed.
19
If the Commission rejects the analysis above, then Judge Day
20
respectfully argues that the evidence does not establish any “(e) Willful violation of any
21
rule of judicial conduct as shall be established by the Supreme Court” as alleged in
22
paragraph 8 of the complaint. The proof must be by clear and convincing evidence. It
23
was not. The “clear and convincing” standard of proof “requires evidence that is of
24
‘extraordinary persuasiveness,’ so that the fact at issue is ‘highly probable.” State v.
25
N.A.P., 216 Or. App. 432, 437, 173 P3d 1251 (2007), quoting State v. Allen, 209 Or.
ps
Page 31 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 31 of 106
1
App. 647, 652, 149 P.3d 289 (2006). The evidence concerning what happened
2
involving the gun incident at Judge Day’s son-in-law’s home is in conflict. It is not
3
extraordinarily persuasive.
Judge Day was not given the opportunity to depose Mr. Shehan prior to
4
5
the hearing. Requests were made by Judge Day’s attorney to the Commission’s
6
attorneys to assist in getting his deposition scheduled. Prior to the hearing and at the
7
time of the hearing Mr. Shehan remained outside the jurisdiction. Mr. Shehan was
8
allowed to testify by telephone at the hearing over the objection of the attorney for
9
Judge Day. The attorney for Judge Day was prevented from working with any exhibits
10
during the cross-examination of Mr. Shehan even though exhibits were sent by e-mail to
11
Mr. Shehan. Judge Day’s attorney forwarded the exhibits he wanted to use to the
12
Commission’s attorneys for forwarding to Mr. Shehan. Mr. Shehan testified he did not
13
receive the exhibits. Judge Day was denied the opportunity to effectively cross-
14
examine Mr. Shehan. This was a denial of due process. Mr. Shehan’s testimony should
15
not be given much weight under these circumstances.
The statements of Mr. Shehan, Judge Day, and Don Mansell about what
16
17
happened on the day of this incident cannot be fully reconciled. The Commission
18
members had the opportunity to see Don Mansell and Judge Day testify so they could
19
evaluate the manner in which they testified. Both of these witnesses were forthright in
20
their manner of testifying. Judge Day did not intentionally expose Mr. Shehan to a gun
21
in this situation. He did not ask him to find the secret compartment. Judge Day did not
22
even know the gun was in the secret compartment. He did not give Mr. Shehan
23
permission to handle the gun. Judge Day’s conduct did not constitute a willful violation
24
of Rule 2.1 (A), (C).
25
///
ps
Page 32 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 32 of 106
Proposed Finding of Fact and Recommendation
1
Judge Day respectfully requests the Commission to adopt the following
2
3
proposed finding of fact:
Judge Day did not willfully violate Rule 2.1 (A), (C) when he was
4
5
present at his son-in-law’s home on November 18, 2013 and Mr. Shehan, a
6
participant in the veteran’s treatment court, was inadvertently exposed to the
7
presence of an unloaded handgun.
8
Rule 2.1 (A): “A judge shall observe high standards of conduct so that the integrity,
9
10
11
12
impartiality and independence of the judiciary and access to justice are preserved and
shall act at all times in a manner that promotes public confidence in the judiciary and
the judicial system.”
13
Rule 2.1 (C): “A judge shall not engage in conduct that reflects adversely on the judge’s
14
character, competence, temperament, or fitness to serve as a judge.”
15
Rules 2.1 (A) and 2.1 (C) are unconstitutionally vague, see Day Tr.
16
Mem. at 14-15, fail strict scrutiny review, see id. at 16-19, and violate the Oregon
17
Constitution, see id. at 23-25.
18
Judge Day respectfully requests the Commission to adopt the following
19
20
recommendation:
The Commission recommends Count 3 be dismissed due to lack of
21
22
23
24
25
ps
jurisdiction, constitutionality concerns, and insufficient evidence.
///
///
///
Page 33 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 33 of 106
Count 4
1
2
3
Summary of Key Points in the Evidence
Count 4 of the Commission’s Complaint arises out of an incident that
4
occurred on January 5, 2014. The following facts in this paragraph are not in dispute.
5
Brian Shehan, a participant in the veteran’s treatment court, was living at a friend’s
6
home who was in the military and not living at the house. A wood pellet stove had
7
stopped working and was Mr. Shehan’s only source of heat. It was cold outside at the
8
time of this incident. Judge Day and the veteran’s treatment court team were concerned
9
about Brian Shehan’s wellbeing, as he was not from the area and did not have any
10
relatives or friends living nearby. The team was concerned Mr. Shehan was isolating
11
himself and becoming depressed. They had concerns about possible self-harming.
12
After a discussion with the Veterans Treatment Court team on January 3, 2014,
13
concerning Mr. Shehan’s lack of heat, Judge Day decided to go over to see if he could
14
fix the wood pellet stove. His son, Justin, went with him.
15
There are conflicts in the testimony about other matters that occurred on
16
that day. Judge Day testified he was working on the pellet stove. During this time,
17
Judge Day testified his son Justin showed Mr. Shehan a gun that he had brought along
18
in his truck. Judge Day testified he has unaware of the fact that his son had brought the
19
gun along. Judge Day recalls hearing the conversation behind him between Mr. Shehan
20
and Justin Day, and looked over his shoulder to see Mr. Shehan holding a pistol and
21
making a gesture. Judge Day testified that his family is very familiar with guns and the
22
fact that Mr. Shehan had felony DUII was not in his mind at the time he saw Mr.
23
Shehan with the hand gun.
24
25
ps
Mr. Shehan testified that Judge Day was not working on the pellet stove,
but instead was eating a burrito or something when his son, Justin, showed him a gun.
Page 34 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 34 of 106
1
Mr. Shehan testified he was concerned about the manner in which Justin was handling
2
the firearm so he showed him how to handle it. Mr. Shehan testified Judge Day told
3
him that he could waive the terms of his probation prohibiting him from handling
4
firearms. Judge Day testified that he did not say this to Mr. Shehan. Judge Day
5
testified he did not have authority to waive the statutory firearm prohibitions. Judge
6
Day also testified that he does not categorize Veterans Treatment Court participants
7
based on the crimes that brought them into the Veterans Treatment Court. Judge Day
8
was there to help a veteran in need and was not thinking about Mr. Shehan’s felony
9
DUII when he saw Mr. Shehan handling Justin’s pistol. The fact that a violation was
10
11
occurring never even occurred to Judge Day on January 5, 2014.
Justin Day provided a Declaration to the Commission by way of a
12
February 6, 2015, letter from attorney Mark Fucile. See Ex. 609, pp. 06399-06400.
13
Justin Day’s recollection of the event is that “[o]n our arrival, my father went to
14
examine the pellet stove. At that point in time, I had my handgun safely locked in its
15
case and unloaded in my truck. I brought the unloaded handgun, in its case, inside the
16
house to show Mr. Shehan. My father did not know that I had the handgun with me.
17
While my father was inspecting Mr. Shehan’s stove, I took the pistol out of the case and
18
showed Mr. Shehan. Mr. Shehan demonstrated a SEAL maneuver with the pistol for
19
me and then returned the pistol to me. The entire interaction with the pistol took one or
20
two minutes. During that time, my father was in another part of the room with the stove
21
and simply observed the interaction between Mr. Shehan and me.” Judge Day also
22
testified that he never said Mr. Shehan could handle the gun.
23
There are no disputes in the evidence concerning the following facts.
24
About a week after the incident occurred, Elan Lambert mentioned to Judge Day that
25
Mr. Shehan was uncomfortable with the fact that he had handled a gun, due to his
ps
Page 35 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 35 of 106
1
felony status. Judge Day immediately became cognizant of the potential probation
2
violation and promptly disclosed the fact that it occurred to the deputy district attorney,
3
Bryan Orrio who was handling Mr. Shehan’s case. It was also promptly disclosed to
4
Mr. Shehan’s defense attorney, Daniel Wren. Mr. Orrio testified that he considered all
5
of the circumstances and decided, using his prosecutorial discretion, not to charge Mr.
6
Shehan with a crime. Other members of the Veterans Treatment Court team also knew
7
about the incident near the time when it occurred. Mr. Shehan was not charged with a
8
new crime and his probation was not revoked. In fact, Mr. Shehan compliance with the
9
program was exemplary and on February 21, 2014, he was recommended by the
10
Veterans Treatment Court Team to receive misdemeanor treatment for his DUII, nunc
11
pro tunc to June 28, 2013. See, Ex. 510, Ex. 511.
Analysis
12
13
Judge Day respectfully argues that the evidence does not establish any
14
“(e) Willful violation of any rule of judicial conduct as shall be established by the
15
Supreme Court” as alleged in paragraph 17 of the Complaint. The proof must be by
16
clear and convincing evidence. It was not. The “clear and convincing” standard of
17
proof “requires evidence that is of ‘extraordinary persuasiveness,’ so that the fact at
18
issue is ‘highly probable.” State v. N.A.P., 216 Or App 432, 437, 173 P3d 1251 (2007),
19
quoting State v. Allen, 209 Or App 647, 652, 149 P3d 289 (2006). The evidence
20
concerning what happened involving the gun incident on January 5, 2014, is in conflict.
21
It is not extraordinarily persuasive.
22
Judge Day’s attorneys were not given the opportunity to depose Mr.
23
Shehan prior to the hearing. Requests were made by Judge Day’s attorney to the
24
Commission’s attorneys to assist in getting his deposition scheduled. Prior to the
25
hearing and at the time of the hearing Mr. Shehan remained outside the jurisdiction.
ps
Page 36 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 36 of 106
1
Mr. Shehan was allowed to testify by telephone at the hearing over the objection of the
2
attorney for Judge Day. The attorneys for Judge Day were prevented from working
3
with any exhibits during the cross-examination of Mr. Shehan even though exhibits
4
were sent by e-mail to Mr. Shehan. Judge Day’s attorneys forwarded the exhibits he
5
wanted to use to the Commission’s attorneys for forwarding to Mr. Shehan. Mr.
6
Shehan testified he did not receive the exhibits. Judge Day was denied the opportunity
7
to effectively cross-examine Mr. Shehan. This was a denial of due process. Mr.
8
Shehan’s testimony should not be given much weight under these circumstances.
9
The testimony of Mr. Shehan, Justin Day, and Judge Day about what
10
happened on the day of this incident cannot be reconciled. The Commission members
11
had the opportunity to see Judge Day testify so they could evaluate the manner in which
12
he testified. Judge Day was forthright in his manner of testifying. Judge Day did not
13
intentionally expose Mr. Shehan to a gun in this situation. Judge Day did not even
14
know his son had brought the gun until he saw him showing it to Mr. Shehan. He did
15
not tell Mr. Shehan he could waive the terms of his probation prohibiting him from
16
handling firearms. Justin Day’s recollection of the events supports Judge Day’s
17
version. See Ex. 609. Judge Day’s conduct did not constitute a willful violation of
18
Rule 2.1 (A), (C).
19
20
21
22
Proposed Finding of Fact and Recommendation
Judge Day respectfully requests the Commission to adopt the following
proposed finding of fact:
Judge Day did not willfully violate Rule 2.1 (A), (C) when he was
23
present at a home where Brian Shehan, a participant in the veteran’s treatment
24
court was staying, and Mr. Shehan was inadvertently exposed to the presence of an
25
unloaded handgun.
ps
Page 37 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 37 of 106
1
Rule 2.1 (A): “A judge shall observe high standards of conduct so that the integrity,
2
impartiality and independence of the judiciary and access to justice are preserved and
3
shall act at all times in a manner that promotes public confidence in the judiciary and
4
5
6
7
8
9
10
the judicial system.”
Rule 2.1 (C): “A judge shall not engage in conduct that reflects adversely on the judge’s
character, competence, temperament, or fitness to serve as a judge.”
Rules 2.1 (A) and 2.1 (C) are unconstitutionally vague, see Day Tr. Mem. at 1415, fail strict scrutiny review, see id. at 16-19, and violate the Oregon Constitution, see
id. at 23-25.
Judge Day respectfully requests the Commission to adopt the following
recommendation:
11
The Commission recommends Count 4 be dismissed due to
12
constitutionality concerns and insufficient evidence.
13
Count 5
14
15
16
17
Summary of Key Points in the Evidence
Count 5 of the Commission’s Complaint arises out of the incident that
occurred on January 5, 2014. The summary of key points in the evidence concerning
that incident is set forth in Judge Day’s argument concerning Count 4. That summary is
18
incorporated by reference. There are some additional key points in the evidence that
19
relate to Count 5.
20
Judge Day acknowledged that he was asked questions by the
21
Commission’s investigator, Karen Saul, about this incident. When talking to the
22
investigator, Judge Day did not deny that his son brought a gun on the day of this
23
incident. In fact, Judge Day described the incident involving the gun in detail with the
24
investigator. See Ex. 71, pp. 26-27. Judge Day acknowledges that he did not tell the
25
Commission’s investigator that he told Brian Shehan he “waived” the statutory
ps
Page 38 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 38 of 106
1
prohibition against felons having or handling firearms. In fact, Judge Day denied the
2
allegation that he gave permission for Mr. Shehan to handle the weapon because no
3
such discussion occurred on January 5, 2014, or at any other time. When interviewed by
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ps
the Commission’s investigator, Judge Day stated: “ The gun incident took very little
time – no more than one or two minutes at most. There was no discussion about
whether Mr. Shehan should touch the gun.” See Ex. 71, pg. 26 of 67.
Judge Day was asked about this incident in a meeting with Judge
Rhoades and Judge Penn on August 21, 2014. Judge Rhoades testified that Judge Day
did not acknowledge during their meeting that on the day of this incident, January 5,
2014, he knew Mr. Shehan was a felon. Judge Day admitted in his Answer to the
Complaint that when he was asked by Judge Rhoades, he used a phrase to the effect, “I
did not know he was a felon.” Judge Day admitted this explanation was in-artful. He
was simply trying to explain that, at the time the incident, he wasn’t thinking of Mr.
Shehan’s felony conviction when the incident happened. The context of the August 21,
2014 discussion is important to understand Judge Day’s comment: Judge Rhoades was
making factual statements to Judge Day based upon what she had learned from Mr.
Shehan, Elan Lambert and other staff members in the days preceding the meeting.
Judge Day testified that he was surprised and felt attacked by Judge Rhoades’
aggressive questions. The comment made by Judge Day concerning Mr. Shehan’s
felony status was made after several questions about what happened at Mr. Shehan’s
home while Judge Day was there fixing the pellet stove. In that context – working on
the stove in Mr. Shehan’s home – the DUII felony was not even in Judge Day’s mind.
Judge Day was not trying to mislead his colleagues.
Judge Rhoades acknowledged during her testimony that Judge Day may
have used the phrase, “I didn’t realize he was a felon.” Prior to the meeting, Judge
Page 39 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 39 of 106
1
Rhoades had looked at Mr. Shehan’s criminal file information to see if he was a felon at
2
the time of the incident. She also testified that she did not tell Judge Day about the
3
purpose of the meeting as she “wanted to surprise him and see what he would say.”
4
Judge Penn testified he was more of an observer at the meeting, but did
5
not feel that it was their role to be investigators. He testified that before the meeting
6
took place, Judge Rhoades told him the matter needed to be reported so it could be
7
investigated. Judge Penn testified that Judge Day may have used the phrase, “I didn’t
8
realize he was a felon” when he was asked by Judge Rhoades if he knew Mr. Shehan
9
was a felon when Judge Day was at his home fixing the heater. Judge Penn said he
10
didn’t know and still doesn’t know if Judge Day did anything wrong. Judge Penn
11
advised Judge Day to keep his report to the Commission general. In fact, Judge Penn
12
testified that the Commission should not hold Judge Day responsible for the content of
13
his August 23, 2014 letter, as Judge Penn had instructed him to keep it short and simple.
14
Judge Penn also testified that the purpose of the meeting was not to conduct some
15
investigation but to determine if Judge Day would self-report to the Commission.
16
Judge Day said he would self-report the incident to the Commission.
17
Judge Day testified that no one told him he had to report. He sent a letter self-reporting
18
the incident to the Commission and provided Judge Rhoades with a copy. Judge
19
Rhoades was going on a vacation out of the country shortly after the meeting and Judge
20
Penn followed up on the matter while she was gone.
21
22
Analysis
Judge Day respectfully argues that the evidence does not establish any
23
“(e) Willful violation of any rule of judicial conduct as shall be established by the
24
Supreme Court” as alleged in paragraph 21 of the Complaint. The proof must be by
25
clear and convincing evidence. It was not. The “clear and convincing” standard of
ps
Page 40 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 40 of 106
1
proof “requires evidence that is of ‘extraordinary persuasiveness,’ so that the fact at
2
issue is ‘highly probable.” State v. N.A.P., 216 Or. App. 432, 437, 173 P.3d 1251
3
(2007), quoting State v. Allen, 209 Or. App. 647, 652, 149 P.3d 289 (2006). The
4
evidence concerning what Judge Day’s discussions were with the Commission’s
5
investigator, Judge Rhoades, and Judge Penn involving the gun incident on January 5,
6
2014, is not in conflict. There is no clear and convincing evidence that Judge Day lied
7
about his knowledge of Mr. Shehan’s status as a felon at the time of the incident on
8
January 5, 2014 in violation of Rule 2.1 (D). While his explanation may have been in-
9
artful, it did not amount to lying. There is no evidence that he intended to mislead his
10
colleagues.
The incident involving the gun was unexpected. It lasted only a few
11
12
minutes. At the time of the incident, Judge Day was simply acting as a “Good
13
Samaritan.” He was trying to fix Mr. Shehan’s pellet stove so he would have some heat
14
in the dead of winter. It is understandable that he wouldn’t be thinking about Mr.
15
Shehan’s status as a felon at that moment. Even Deputy District attorney, Bryan Orrio,
16
testified that he was “embarrassed to admit” that he forgot Mr. Shehan was a felon. The
17
same is true with Judge Day, as he testified that he didn’t categorize, in his mind,
18
participants in the veteran’s treatment court as felons or even recall the category of their
19
crimes. Judge Day’s focus was to help veterans address their problems and get
20
treatment for things that contributed to their being brought before the court on criminal
21
charges in the first place. Later, when Judge Day was asked about the incident, he
22
didn’t lie. He did the right thing; he self-reported the incident so it could be
23
investigated.
24
///
25
///
ps
Page 41 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 41 of 106
Proposed Finding of Fact and Recommendation
1
2
3
4
Judge Day respectfully requests the Commission to adopt the following
proposed finding of fact:
Judge Day did not willfully violate Rule 2.1 (D) when he discussed
5
the January 5, 2014 gun incident with the Commission’s investigator, Judge
6
Rhoades and Judge Penn.
7
Rule 2.1 (D): “A judge shall not engage in conduct involving dishonesty, fraud, deceit,
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ps
or misrepresentation.” Rule 2.1 (D) is unconstitutionally vague and overbroad. See Day
Tr. Mem. at 12-14, 16.
Judge Day respectfully requests the Commission to adopt the following
recommendation:
The Commission recommends Count 5 be dismissed due to
constitutionality concerns and insufficient evidence.
Count 6
Summary of Key Points in the Evidence
Count 6 of the Commission’s Complaint arises out of the incident that
occurred on November 18, 2013. The following facts in this paragraph are not in
dispute. Judge Day had out of court contact with Brian Shehan, a participant in the
veteran’s treatment court, on several occasions. Judge Day had discussed with the
veteran’s treatment court team their concern about Brian Shehan isolating himself and
being depressed. Judge Ochoa, a judge who filled in for Judge Day at the veteran’s
treatment court and who presided over at least two court sessions involving Mr. Shehan,
had Mr. Shehan over to his home with other members of the team for a Christmas Eve
dinner. Judge Ochoa had also taken Mr. Shehan to dinner and a museum in Portland.
Page 42 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 42 of 106
1
Judge Ochoa also drove Mr. Shehan to medical appointments. Other members of the
2
veteran’s court team, including the court coordinator, Elan Lambert and the Deputy
3
District Attorney, Bryan Orrio, also had out of court contact with Mr. Shehan. This
4
context is important in order to fairly evaluate Judge Day’s out of court contact with
5
Mr. Shehan.
6
It is also important to emphasize that there is no evidence that Judge Day
7
had any “ex parte” contact with any veterans’ court participant. As thoroughly
8
addressed in Exhibit 609, pages 8 & 9, ex parte contact is defined in Rule 1.3 of the
9
Oregon Code of Judicial Conduct as “(a) communication between a judge and fewer
10
than all parties or their lawyers, concerning a pending or impending matter.” There is
11
no evidence in the record that Judge Day had any such discussion in his out of court
12
contacts with Veterans Treatment Court participants.
13
It is also important to note the testimony of Mr. Shehan when he told the
14
Commission that, despite his criticisms of Judge Day, he knew Judge Day was a good
15
man who cared about him. Mr. Shehan testified he knew that Judge Day was trying to
16
help him. Mr. Shehan said Judge Day was kind to him.
17
Judge Day testified he was taking Mr. Shehan to his son-in-law’s house
18
to do some work which is discussed in Count 3. On the way there, Judge Day had to
19
stop briefly to officiate at a wedding at the gazebo in Willson Park next to the state
20
capitol. Judge Day asked Mr. Shehan if he wanted to attend or stay in the car. Mr.
21
Shehan was not ordered to attend. Judge Day introduced Mr. Shehan as a friend to the
22
people who were present for the wedding. Mr. Shehan testified he felt like he was on
23
display and was being exploited because he was introduced as a Navy seal.
24
25
ps
Ronna Jo Warner, the aunt of the groom, testified. She was present at
the wedding. She testified the wedding lasted fifteen to twenty minutes. It was a nasty
Page 43 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 43 of 106
1
rainy day. She did not know Judge Day. She said Judge Day treated Mr. Shehan with
2
respect. She did not observe Judge Day do anything wrong.
3
Bobbie Jo Hernandez, another person who was present at a wedding that
4
took place on November 18, 2013, testified. Bobbie Jo Hernandez is the mother of the
5
groom, Christopher Mark Warner. She observed Judge Day act in a caring, professional
6
manner. He did not do anything demeaning to Brian Shehan. In fact, she testified that
7
only when the conversation turned to her son being a Navy Seal did Judge Day
8
introduce Mr. Shehan as a Seal.
9
Mr. Shehan never told Judge Day about his feelings that he was being
10
exploited or put on display. Judge Day did not think he was exploiting Mr. Shehan or
11
putting him on display. Judge Day acknowledged he gave Mr. Shehan more attention
12
because he deserved and needed it, given his military service record. Judge Day
13
testified that he never required Mr. Shehan to stand next to him, nor did he seek to place
14
him on display.
15
The evidence is uncontroverted that before this event in November,
16
2013, Mr. Shehan volunteered to assist the Veterans Treatment Court in two very public
17
events. At no time did Mr. Shehan complain to any member of the team or court staff
18
members that he was uncomfortable with the attention of the team or of Judge Day. In
19
October of 2013, Mr. Shehan’s story was used in an article about the Veterans
20
Treatment Court printed in the Oregon Trial Lawyer Association magazine. See Ex.
21
543, Ex. 544, Ex. 545, Ex. 546, and Ex. 547. Some of the Veterans Treatment Court
22
team members helped edit the article and Mr. Shehan was given the article to review
23
and correct. In mid to late October of 2013, participants and mentors were asked by the
24
Veterans Treatment Court Team if they wanted to supply photos of their time in service
25
to be used in the PowerPoint music presentation which was planned for the public
ps
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Exhibit 657
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1
celebration of the Veterans Treatment Court being one year old. Mr. Shehan and others
2
voluntarily submitted photos. Mr. Shehan sent in three photos – one which showed him
3
in a very compromising position. See Ex. 548 (only photo 00184 was admitted into
4
evidence due to the nature of the other two photos).
Analysis
5
6
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
7
the conduct of a judge in only two situations: upon complaint from any person
8
concerning the conduct of a judge or upon request of the Supreme Court. There is no
9
evidence in the record that the Commission received a complaint from any person or a
10
request by the Supreme Court to conduct an investigation or conduct a hearing
11
involving this matter. The Commission does not have statutory authority to do so. See
12
First Motion to Dismiss, supra at 10. Count 6 should be summarily dismissed.
13
If the Commission rejects the analysis above, then Judge Day
14
respectfully argues that the evidence does not establish any “(e) Willful violation of any
15
rule of judicial conduct as shall be established by the Supreme Court” as alleged in
16
paragraph 25 of the Complaint. The proof must be by clear and convincing evidence. It
17
was not. The “clear and convincing” standard of proof “requires evidence that is of
18
‘extraordinary persuasiveness,’ so that the fact at issue is ‘highly probable.” State v.
19
N.A.P., 216 Or. App. 432, 437, 173 P.3d 1251 (2007), quoting State v. Allen, 209 Or.
20
App. 647, 652, 149 P.3d 289 (2006). The evidence concerning what happened
21
involving the wedding incident on November 18, 2013 is in conflict. It is not
22
extraordinarily persuasive.
23
The fact that Judge Day had out of court contact with Brian Shehan has
24
to be evaluated in the context in which it occurred. See Ex. 609. The team members of
25
the veteran’s treatment court had concerns about Mr. Shehan isolating himself. They
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Exhibit 657
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1
had out of court contact with him in order to help him. Judge Ochoa had similar contact
2
with good intentions. So did other members of the Veterans Treatment Court Team,
3
including Elan Lambert and Bryan Orrio. So did Judge Day. There is no evidence that
4
ex parte contact occurred. Mr. Shehan did not disclose to Judge Day his feelings about
5
how he was being treated. Mr. Shehan knew that Judge Day cared about him and was
6
trying to help him. In the months leading up to the out of court contact, Mr. Shehan had
7
voluntarily participated in several public events, as noted above. Given these facts,
8
there is no clear and convincing evidence that Judge Day willfully violated Rule 2.1
9
(A), (C) or Rule 3.7 (B).
10
11
12
13
Proposed Finding of Fact and Recommendation
Judge Day respectfully requests the Commission to adopt the following
proposed finding of fact:
Judge Day did not willfully violate Rule 2.1 (A), (C) or Rule 3.7 (B)
14
when he invited Brian Shehan, a participant in the veteran’s treatment court, to
15
attend a wedding on November 18, 2013, officiated by Judge Day.
16
Rule 2.1 (A): “A judge shall observe high standards of conduct so that the integrity,
17
18
19
20
impartiality and independence of the judiciary and access to justice are preserved and
shall act at all times in a manner that promotes public confidence in the judiciary and
the judicial system.”
21
Rule 2.1 (C): “A judge shall not engage in conduct that reflects adversely on the judge’s
22
character, competence, temperament, or fitness to serve as a judge.”
23
Rule 3.7 (B): “ A judge shall be patient, dignified, and courteous to litigants, jurors,
24
witnesses, lawyers, court staff, court officials, and others with whom the judge deals in
25
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Exhibit 657
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an official capacity, and shall require similar conduct of lawyers, court staff, court
1
2
3
officials, and others subject to the judge’s direction and control.”
Rules 2.1 (A) and 2.1 (C) are unconstitutionally vague, see Day Tr.
4
Mem. at 14-15, and Rules 2.1 (A), 2.1 (C), and 3.7 (B) fail strict scrutiny review, see id.
5
at 16-19, 21, and violate the Oregon Constitution, see id. at 23-25.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Judge Day respectfully requests the Commission to adopt the following
recommendation:
The Commission recommends Count 6 be dismissed due to lack of
jurisdiction, constitutionality concerns, and insufficient evidence.
Count 7
Summary of Key Points in the Evidence
Count 7 of the Commission’s Complaint arises out of an incident that
occurred on July 26, 2013, involving a veteran’s treatment court hearing for Brian
Shehan in which Judge Day ordered Mr. Shehan to read the book Fearless. This count
also arises out of several undated incidents in which Judge Day used the term “Raggedy
Ass” in the veteran’s treatment court, required veterans on one occasion to watch a
video that allegedly exacerbated PTSD symptoms, and allegedly said to veterans’
treatment court staff, “I’m the judge -- I can do whatever I want.”
The facts are not in dispute about the matter involving the book Fearless.
On July 26, 2013, Judge Day discussed the book with Brian Shehan and the clerk wrote
“read Fearless” on the order. At that time, Judge Day knew Mr. Shehan had suffered a
traumatic brain injury in the military and that he had been diagnosed with PTSD. Mr.
Shehan told Judge Day that he knew Adam Brown who was the individual that the book
was about. Judge Day knew that Mr. Shehan was emotional during the hearing.
25
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Exhibit 657
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1
Later, Judge Day spoke with a veteran’s treatment court team member
2
who said it may not be good for Mr. Shehan to read the book. Judge Day testified that
3
he told the team member Mr. Shehan did not have to read the book if it would be
4
upsetting to him. Mr. Shehan acknowledged at the August 23, 2013, hearing that he
5
knew Judge Day said he did not have to read the book. See Ex. 122. Mr. Shehan
6
testified that he took that as a challenge and decided to read the book on his own in one
7
sitting. He thanked Judge Day during the August 23, 2013hearing, saying it “was a
8
good read.” He did not say that reading the book caused him any problems. There is
9
nothing in the record which suggests that Mr. Shehan had any problems as a result of
10
reading the book.
11
Experts testified about this subject. The Commission’s attorneys called
12
an expert, Dr. William Brown, a sociologist, who testified that ordering a veteran who
13
expressed concerns about reading the book was a “gateway to suicide.” Judge Day’s
14
attorney called an expert, Dr. Craig Bryan, a psychologist, who testified that Judge Day
15
handled this situation in perfectly appropriate manner that would not have caused harm
16
to Mr. Shehan. Dr. Bryan reviewed the exhibits that contained the video recordings of
17
the court hearings on the subject before testifying.
18
Judge Day testified that he had read a letter the prior year from another
19
combat veteran who had substance abuse issues and found the book to be very helpful.
20
See Ex. 621. Judge Day thought the book would also help Mr. Shehan. No one on the
21
Veterans Treatment Court Team objected during the hearing to Judge Day discussing
22
the book with Mr. Shehan. Mr. Shehan never said it would threaten his sobriety or
23
trigger his PTSD. Deputy District Attorney Bryan Orrio testified that he did not see any
24
problem with Mr. Shehan reading the book. In fact, Mr. Orrio recalls that he may have
25
made the suggestion to Judge Day before the July 26, 2013, hearing.
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Exhibit 657
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Judge Day admitted to using the term “Raggedy Ass” on a few occasions
1
2
in the Veterans Treatment Court. He even used it in reference to himself. He testified
3
that it was his intention to use language appropriate for building camaraderie with the
4
veterans. He did not intend to use the phrase in a derogatory or demeaning way. Élan
5
Lambert was the only member of the veterans treatment court team that testified she
6
thought Judge Day used the term in a demeaning way. Other veteran’s treatment court
7
team members testified during the case, including: Joe Glover (ODVA Veteran Service
8
member), Gary Cohen (mental health social worker), Steve Cooper (Sheriff Deputy and
9
Major in the Oregon National Guard), Dan Wren (defense attorney), Thomas Sermak
10
(defense attorney), Brian Orrio (deputy district attorney), Austin Herman (probation
11
officer), Fred Ross (veteran mentor), Wayne Crowder (veteran mentor), and Scott
12
Delbridge (Vet Center therapist and Colonel in the Oregon National Guard). All of
13
these witnesses testified Judge Day conducted the veteran’s treatment court
14
appropriately and none of them raised any concerns about the language he used in the
15
court.
16
Other graduates of the veteran’s treatment court also testified including
17
Alan Grizzle, Wayne Crowder, Tim Kuenzi, Gary Grady, and Jeff Elizalde. They all
18
testified about how Judge Day really cared about veterans and how the veteran’s
19
treatment court team helped them improve their lives. None of them raised any
20
concerns about the manner in which Judge Day conducted the veteran’s treatment court
21
or the language he used. None of the participants who testified felt disrespected or
22
traumatized by anything Judge Day said or did.
23
The experts also testified about the appropriateness of the use of the term
24
“Raggedy Ass” by Judge Day. Dr. Brown testified that it was inappropriate and Dr.
25
Bryan and Colonel Delbridge testified it was appropriate. In fact, after viewing all the
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1
video segments in evidence Dr. Bryan described Judge Day’s communication style as
2
an good example of “therapeutic irreverence” and very appropriate for the Veterans
3
Treatment Court. Dr. Bryan testified that he and many other professionals use this
4
technique in relating to veterans.
With regard to the alleged statement by Judge Day to the effect, “I’m the
5
6
judge -- I can do whatever I want,” both Christine Brown and Élan Lambert testified
7
that he said this frequently. Their credibility has been called in to serious question, with
8
Elan Lambert perjuring herself with regard to story she told about Dr. DeAnn Smetana
9
and Tina Brown wrongly concluding and spreading the story that Judge Day was
10
cheating on his wife. Judge Day acknowledged that he uses humor a lot and may have
11
said words to this effect, but he did so with intent to be humorous. He did not intend a
12
comment like this to be a serious description of the scope of his authority. In fact,
13
Judge Day testified that he and his staff discussed on numerous occasions that a judge
14
has limited authority and must stay within the jurisdiction of the law.
Judge Day and other members of the Veteran’s Treatment Court team
15
16
testified Élan Lambert would easily get upset, and even vitriolic, when Judge Day did
17
not do what she thought he should do on a particular matter. It was in this context that
18
Judge Day would remind her he was the judge and did have the authority to make the
19
final decision.
20
21
Analysis
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
22
the conduct of a judge in only two situations: upon complaint from any person
23
concerning the conduct of a judge or upon request of the Supreme Court. There is no
24
evidence in the record that the Commission received a complaint from any person or a
25
request by the Supreme Court to conduct an investigation or conduct a hearing
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Exhibit 657
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1
involving the matters raised in this Count. The Commission does not have statutory
2
authority to do so. See First Motion to Dismiss, supra at 10. Count 7 should be
3
summarily dismissed.
If the Commission rejects the analysis above, then Judge Day
4
5
respectfully argues that the evidence does not establish any “(e) Willful violation of any
6
rule of judicial conduct as shall be established by the Supreme Court” as alleged in
7
paragraph 32 of the Complaint. The proof must be by clear and convincing evidence. It
8
was not. The “clear and convincing” standard of proof “requires evidence that is of
9
‘extraordinary persuasiveness,’ so that the fact at issue is ‘highly probable.” State v.
10
N.A.P., 216 Or App 432, 437, 173 P.3d 1251 (2007), quoting State v. Allen, 209 Or App
11
647, 652, 149 P.3d 289 (2006). The evidence concerning what happened involving the
12
book Fearless is not in conflict. The evidence concerning the other allegations is in
13
conflict. It is not extraordinarily persuasive.
The evidence concerning the book Fearless does not establish a violation
14
15
of Rule 2.1 (A), (C). Brian Shehan was given the option to read the book. He
16
voluntarily chose to read the book. Brian Shehan never testified that reading the book
17
exacerbated his PTSD symptoms or threatened his sobriety. There was no expert
18
testimony to prove that reading the book exacerbated his PTSD symptoms or threatened
19
his sobriety. Expert testimony would be needed to establish causation. As mentioned
20
above, Mr. Shehan did not testify to any adverse effects from reading the book, let alone
21
have his sobriety threatened or exacerbated his PTSD. In fact, he thanked Judge Day.
22
There is no evidence to support the allegations in paragraph 28 of the Commission’s
23
complaint.
24
The evidence concerning Judge Day’s use of the term, “Raggedy Ass” or
25
making a statement to the effect that he was the judge and could do whatever he wanted
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Exhibit 657
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1
was in conflict. The overwhelming evidence from other members of the veteran’s
2
treatment court team and participants verifies Judge Day conducted himself
3
appropriately. The expert testimony of Dr. Bryan, the head of the National Center for
4
Veterans also supports the finding that Judge Day acted appropriately.
Proposed Finding of Fact and Recommendation
5
Judge Day respectfully requests the Commission to adopt the following
6
7
proposed findings of fact:
Judge Day did not willfully violate Rule 2.1 (A), (C) when he gave
8
9
Brian Shehan, a participant in the veteran’s treatment court, the option of reading
10
the book Fearless. Mr. Shehan’s PTSD was not exacerbated and his sobriety was
11
not threatened by reading the book.
Judge Day did not willfully violate Rule 2.1 (A), (C) when he used
12
13
the term “Raggedy Ass” while conducting the veteran’s treatment court or when he
14
used words to the effect, “I am the judge -- I can do whatever I want.”
15
Rule 2.1 (A): “A judge shall observe high standards of conduct so that the integrity,
16
17
18
19
impartiality and independence of the judiciary and access to justice are preserved and
shall act at all times in a manner that promotes public confidence in the judiciary and
the judicial system.”
20
Rule 2.1 (C): “A judge shall not engage in conduct that reflects adversely on the judge’s
21
character, competence, temperament, or fitness to serve as a judge.”
22
Rules 2.1 (A) and 2.1 (C) are unconstitutionally vague, see Day Tr. Mem. at 14-15, fail
23
strict scrutiny review, see id. at 16-19, and violate the Oregon Constitution, see id. at
24
23-25.
25
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1
2
3
4
5
6
7
Judge Day respectfully requests the Commission to adopt the following
recommendation:
The Commission recommends Count 7 be dismissed due to lack of
jurisdiction, constitutionality concerns, and insufficient evidence.
Count 8
Summary of Key Points in the Evidence
Count 8 of the Commission’s Complaint arises out of a letter dated
8
August 23, 2014 that Judge Day sent to the Commission. The following facts in this
9
paragraph are not in dispute. Judge Day wrote the letter, Exhibit 94, as a self-report
10
following the meeting Judge Day had with Judge Rhoades and Judge Penn in which he
11
was informed that Brian Shehan had recently contacted Judge Rhoades to report the gun
12
incident. Judge Day testified he wrote the letter, and that in giving his information, he
13
did not intend to lie to the Commission and did not lie to the Commission. Both Judge
14
Rhoades and Judge Penn acknowledged that when Judge Day was confronted with the
15
information Judge Rhoades provided, Judge Day immediately responded by saying he
16
would self-report to the Commission. Neither Judge Rhoades nor Judge Penn could
17
remember the precise words said during the meeting. They did not take notes during
18
the meeting. Judge Rhoades acknowledged that Judge Day also immediately stated that
19
Brian Shehan had done nothing wrong. Judge Day testified that he said that Mr. Shehan
20
had done nothing wrong and that his case should be assigned to Judge Prall, as she was
21
the backup judge on the Veterans Treatment Court.
22
Judge Rhoades did not disclose to Judge Day that she had already signed
23
an Order re-assigning Brian Shehan’s case to Judge Prall just before the meeting. If she
24
had done so, Judge Day may very well have used different words in his self-report.
25
Following the meeting with Judge Rhoades and Judge Penn, Judge Day contacted Judge
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1
Prall to coordinate the transfer of Mr. Shehan’s case. Most importantly, when the actual
2
words used by Judge Day are examined, he did not say, as alleged, that “I have
3
reassigned” Shehan’s case to Judge Prall, as implied in the Commission’s allegation.
4
What Judge Day actually wrote on August 23, 2014, was“(b)ased upon this contact, I
5
have requested that this case be formally transferred to Judge Tracy Prall, who serves as
6
the backup judge the veterans’ court.” See, Ex. 94. Judge Day testified that he did not
7
intend to lie to the Commission when he wrote the letter dated August 23, 2014, and the
8
actual words of the letter support this conclusion.
Analysis
9
10
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
11
the conduct of a judge in only two situations: upon complaint from any person
12
concerning the conduct of a judge or upon request of the Supreme Court. There is no
13
evidence in the record that the Commission received a complaint from any person or a
14
request by the Supreme Court to conduct an investigation or conduct a hearing
15
involving the matters raised in this Count. The Commission does not have statutory
16
authority to do so. See First Motion to Dismiss, supra at 10. Count 8 should be
17
summarily dismissed.
18
If the Commission rejects the analysis above, then Judge Day
19
respectfully argues that the evidence does not establish any “(e) Willful violation of any
20
rule of judicial conduct as shall be established by the Supreme Court” as alleged in
21
paragraph 36 of the Complaint. The proof must be by clear and convincing evidence. It
22
was not. The “clear and convincing” standard of proof “requires evidence that is of
23
‘extraordinary persuasiveness,’ so that the fact at issue is ‘highly probable.” State v.
24
N.A.P., 216 Or App 432, 437, 173 P.3d 1251 (2007), quoting State v. Allen, 209 Or App
25
647, 652, 149 P.3d 289 (2006). The evidence concerning Judge Day’s intent when he
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1
chose the words that were used in the self-report letter dated August 23, 2014, is not
2
extraordinarily persuasive. Judge Day testified that he did not intend to lie to the
3
Commission when he wrote the letter. There wasn’t any clear and convincing evidence
4
to the contrary that would support a finding that Judge Day violated Rule 2.1 (D).
5
In analyzing Count 8, the question of who is behind the prosecution of
6
Judge Day and what are their motivations, naturally surfaces. It would be totally
7
inconsistent for a judge to self-report an incident that raises ethical concerns, and in the
8
process of doing so, lie to the Commission that would investigate the self-report. Judge
9
Day did not do this. The actual words of the letter do not support the allegations of
10
Count 8. This base attack on Judge Day is not warranted, is not supported by any
11
credible evidence, and should be dismissed.
Proposed Finding of Fact and Recommendation
12
13
14
15
16
Judge Day respectfully requests the Commission to adopt the following
proposed findings of fact:
Judge Day did not willfully violate Rule 2.1 (D) when he sent the selfreport letter to the Commission dated August 23, 2014.
17
Rule 2.1 (D): “A judge shall not engage in conduct involving dishonesty, fraud, deceit,
18
19
20
21
22
23
24
25
ps
or misrepresentation.”
Rule 2.1 (D) is unconstitutionally vague, see Day Tr. Mem. at 12-13, and
overbroad, see id. at 14, 16.
Judge Day respectfully requests the Commission to adopt the following
recommendation:
The Commission recommends Count 8 be dismissed due to lack of
jurisdiction, constitutionality concerns, and insufficient evidence.
Page 55 – HON. VANCE D. DAY’S CLOSING ARGUMENT
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Count 9
1
Summary of Key Points in the Evidence
2
Count 9 of the Commission’s Complaint arises out of Judge Day’s
3
4
coordination of a project involving the framing of military memorabilia honoring local
5
judges, attorneys, and citizens who served in the military and the installation of this
6
artwork on the fourth floor of the Marion County Courthouse. This count alleges Judge
7
Day: lied about having permission to hang the artwork, improperly collected money
8
from lawyers who appeared before him, improperly put up placards identifying the
9
donors, and the improper installation of a wall hanging that contained a picture of
10
11
12
Hitler.
Evidence Regarding Permission
The evidence concerning the permission issue is undisputed. When
13
Judge Day started coordinating this project, there were no rules, written or oral,
14
regulating what could be hung on the walls of the Marion County Courthouse. The
15
building is owned by Marion County and the Judicial Department is one of the tenants.
16
The Marion County Commissioners and Marion County Circuit Judges have not
17
adopted any formal rules right up to today.
18
It is important to recognize that there is no dispute that Judge Day
19
originally hung wall hangings in late 2011 and early 2012. See Ex. 549, Ex. 550. Judge
20
Day testified that the wall hangings were in his chambers, his courtroom, and along the
21
hallways of the fourth floor. Before he hung the wall hangings in late 2011 and early
22
2012, he asked Judge Rhoades if it would be permissible and she said to check with the
23
other judges on the fourth floor. At the time, Judge Partridge was the only other judge
24
on the fourth floor. Judge Partridge testified that Judge Day checked with him and he
25
did not have any concerns. Judge Day also testified that he checked with Diane Morse,
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1
the Trial Court Administrator. Approval was given and the court paid Marion County
2
for hanging the wall hangings. The undisputed evidence is that military and historical
3
memorabilia hung on the walls of the public areas of the fourth floor for two and a half
4
years before there was any concern. Despite the undisputed history of wall hangings on
5
the fourth floor, Count 9 mistakenly assumes that the walls were bare before July of
6
2014.
In April of 2013, plans for the first Veterans Treatment Court graduation
7
8
were initiated. See Ex. 552. Judge Day testified that in June of 2014 he discussed his
9
plans for a “Hall of Honor” with Judge Rhoades and Marion County Commissioner
10
Kevin Cameron about the project. Neither one of them raised any concerns. In fact,
11
Commissioner Cameron was very supportive. According to Judge Day’s testimony,
12
Judge Rhoades suggested that he check with the other judges who had offices and a
13
courtroom on the fourth floor to see if they had any personal concerns. Judge Prall
14
testified that Judge Day consulted her about his plans and asked if she had any
15
objections, which she did not. Judge Prall testified that she was fine with the wall
16
hangings and thought they were interesting and well done. Judge Pellegrini testified
17
that Judge Day talked to her before he hung the additional pieces on the fourth floor.
18
After the additional pieces were hung, Judge Pellegrini did say that she thought there
19
was too much war memorabilia and that it was inappropriate for a courthouse. She did
20
not tell this to Judge Day until after all the additional pieces were hung in mid July
21
2014.
22
In mid-July 2014, Judge Day started installing wall hangings himself.
23
Eventually, new wall hangings were hung in the foyer area between courtrooms 4A and
24
4D, and additional pieces were installed in the hallways and in Judge Day’s courtroom.
25
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Exhibit 657
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1
See Exs. 599-603. Judge Day described the installation as the “Heroes and Heritage
2
Hall.” The project is a museum quality installation.
The wall hanging project was to be unveiled at the inaugural graduation
3
4
ceremony of the Veterans Treatment Court. An email invitation describing the event
5
was sent on July 3, 2014, to numerous community members, including Judge Rhoades,
6
Diane Morse, and all three Marion County Commissioners. See Ex. 553. The invitation
7
describes the event and advises the recipients that “[s]everal members of our
8
community have encouraged Judge Day to consider decorating the blank walls on the
9
fourth floor between 4D & 4A with photos and memorabilia of selected local veterans –
10
in essence, to create mini-museum. As a result of generous donation by an anonymous
11
citizen, we will be inaugurating the Marion County Veterans Court Hall of Honor at
12
noon following the graduation on July 18. Many people have participated in this
13
project by loaning, sponsoring, and donating various photos and artifacts to be included
14
in the Hall of Honor.” Judge Day did not receive any objections from anyone about his
15
plans for the Hall of Honor.
The first graduation of Veterans’ Treatment Court participants took place
16
17
on July 18, 2014. There was no evidence at that time that people had concerns. In fact,
18
in the days leading up to the event Judge Rhoades asked Judge Day to see if something
19
could be done to honor Rod Miller, a Marion County Circuit Judge who had served in
20
the United States Marine Corps and had just passed away. See, Exs. 554-557. The
21
discussion between Judge Day and Judge Rhoades was about contacting Judge Miller’s
22
son Scott so that a military wall hanging could be created describing Judge Miller’s
23
service. At Judge Rhoades’ direction Judge Day, Judge Day contacted Judge Miller’s
24
son and discussed the creation of a wall hanging honoring Judge Miller’s service.
25
///
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Exhibit 657
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1
There wasn’t any concern voiced until a few days after Judge Day hung
2
a piece honoring a local doctor, Ken Vollmar, who served in World War II. That piece
3
was a collage of many military artifacts from Dr. Vollmar’s service and contained an
4
old oil portrait of Adolf Hitler which was in poor condition and obscured by other
5
artifacts.
6
Judge Day made an effort to avoid conflicts over any of the wall
7
hangings. He drafted a Resolution for possible consideration by the Marion County
8
Board of Commissioners. See Ex. 558, 559. Judge Day asked Commissioner Cameron
9
to hold off on the consideration of the resolution as Judge Day wanted to discuss the
10
resolution with his colleagues when he returned from vacation. While Judge Day was
11
gone, Judge Rhoades heard about the pending resolution and sent a strongly worded
12
letter to the Marion County Commission on August 18. Evidence shows this was just
13
after she had received a complaint from Elan Lambert and Brian Shehan on August 14,
14
2104 about Judge Day.
15
16
Evidence regarding Collection of Money from Lawyers
The evidence concerning the collection of money from lawyers is
17
undisputed. Judge Day did not collect money from lawyers. As the term “collect” is
18
used in the Complaint, it is inferred by Judge Day that the Commission is charging him
19
with “soliciting” money from lawyers who appeared before him. Judge Day testified he
20
has always been interested in military history. He testified that he coordinated this
21
project for two reasons: first, to honor local judges, attorneys, and citizens who served
22
in the military to protect our freedom, and second, to create a supportive atmosphere for
23
the veterans who were participating in the veteran’s treatment court that is located on
24
the fourth floor. Judge Day testified he did not “solicit” donations from lawyers.
25
ps
Page 59 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 59 of 106
1
According to the evidence, only four lawyers made donations. Three
2
lawyers testified at the hearing. The fourth lawyer was Judge Day’s trial lawyer, Ralph
3
C. Spooner. Documents were offered into evidence concerning a donation that was
4
made by Spooner & Much P.C. to help pay for the cost of a wall hanging honoring
5
Bruce W. Williams, a local attorney who had a distinguished career as a Navy fighter
6
ace in World War II. There was nothing in these documents proving Judge Day
7
solicited a donation from Mr. Spooner. Judge Day testified to the background
8
information concerning this donation. He said Mr. Spooner inquired about the project
9
and offered to make a donation. The other three lawyers testified at the hearing. They
10
all said they volunteered to make a donation for a wall hanging honoring a specific
11
person they cared about.
12
Keith Bauer testified that he and his former partner, Phil Parks, wanted
13
to sponsor the wall hanging honoring Otto Skopil, a well- known local attorney, U.S.
14
District Court Judge, and Ninth Circuit Court of Appeals Judge. Mr. Bauer testified
15
that Phil Parks practiced law with Judge Skopil and was very close to him. Mr. Bauer
16
testified that Judge Day did not solicit him to make the donation.
17
Kevin Mannix testified that when he heard about the project, he offered
18
to sponsor the wall hanging honoring former Chief Justice Wallace P. Carson. Mr.
19
Mannix said he was close to Justice Carson having served with him in the Oregon
20
legislature. Mr. Mannix also testified he does not appear before Judge Day. Mr.
21
Mannix testified that Judge Day did not solicit him to make the donation.
22
Paul Ferder testified that he and his firm regularly sponsor things in
23
Marion County. When Mr. Ferder heard about the project, he wanted to sponsor a wall
24
hanging honoring former Chief Justice Paul DeMuniz. At the time Justice De Muniz’s
25
ps
Page 60 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 60 of 106
1
son was working in Mr. Ferder’s firm. Mr. Ferder testified that Judge Day did not
2
solicit him to make the donation.
The evidence was undisputed that checks for the donations were made
3
4
out to Partnership for Veteran’s at Risk, a non-profit corporation, which was associated
5
with the Veterans Treatment Court. Elan Lambert was the treasurer of the non-profit
6
and worked on Judge Day’s staff as a part time employee of the Oregon Judicial
7
Department. The testimony was that checks were either mailed to the non-profit or
8
delivered to Judge Day’s office in envelopes and forwarded to the non-profit
9
corporation.
Evidence regarding Placards
10
Judge Day acknowledged he had placards installed identifying the names
11
12
of donors. After the controversy started concerning the Hitler picture, Judge Day
13
learned that others had concerns about the placards. In response to these concerns, he
14
immediately removed the verbiage identifying the donors.
Evidence regarding Wall Hanging that contained Hitler Picture
15
Judge Day testified to the historical significance of this wall hanging.
16
17
Exhibit 633 provides the detail. Judge Day testified that the wall hanging was put up,
18
not to stir up controversy, but rather to remind people about how America defeated the
19
ideology of fascism and Hitler. When the controversy arose, and Judge Rhoades asked
20
Judge Day to take the picture down, he did. The wall hanging was only for what
21
appears to be nine or ten days, only six of those being week days. Judge Day also
22
testified that the allegation concerning this wall hanging was used to sensationalize the
23
case in the media. The wall hanging is now located in the Oregon Military Museum at
24
Camp Withycombe.
25
///
ps
Page 61 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 61 of 106
Analysis
1
2
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
3
the conduct of a judge in only two situations: upon complaint from any person
4
concerning the conduct of a judge or upon request of the Supreme Court. There is no
5
evidence in the record that the Commission received a complaint from any person or a
6
request by the Supreme Court to conduct an investigation or conduct a hearing
7
involving the matters raised in this Count. The Commission does not have statutory
8
authority to do so. See First Motion to Dismiss, supra at 10. Count 9 should be
9
summarily dismissed.
10
If the Commission rejects the analysis above, then Judge Day
11
respectfully argues that the evidence does not establish any “(e) Willful violation of any
12
rule of judicial conduct as shall be established by the Supreme Court” as alleged in
13
paragraph 41 of the Complaint. The proof must be by clear and convincing evidence. It
14
was not. The “clear and convincing” standard of proof “requires evidence that is of
15
‘extraordinary persuasiveness,’ so that the fact at issue is ‘highly probable.” State v.
16
N.A.P., 216 Or App 432, 437, 173 P.3d 1251 (2007), quoting State v. Allen, 209 Or App
17
647, 652, 149 P.3d 289 (2006). There wasn’t any clear and convincing evidence that
18
Judge Day violated Rule 2.1 (A), (C)
19
The Commission did not introduce any evidence that some sort of
20
permission was needed by Judge Day to be able to hang the wall hangings at the Marion
21
County Courthouse. There was no evidence offered of a rule, oral or written, that
22
dictated permission was needed. The majority of the wall hangings were hung in 2011
23
and 2012 and there were no objections during the two and a half years before additional
24
pieces were hung in July of 2014.
25
ps
Page 62 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 62 of 106
Judge Day did talk to Judge Rhoades and Commissioner Cameron, as
1
2
well as other judges on the fourth floor before installing the additional wall hangings in
3
mid-July of 2014. Judge Rhoades, along with many other officials, was sent the July 3
4
invitation which contained a description of the “Hall of Honor.” No one expressed any
5
objection or the need to follow an established process for getting permission. The wall
6
hangings were installed. The first graduation of the Veteran’s Treatment Court took
7
place with the wall hangings present. No-one raised any concerns at that point. In fact,
8
Judge Rhoades suggested that something should be mentioned about a Marion County
9
Circuit Judge Rod Miller, a veteran, who had just passed away. There is no clear and
10
convincing evidence to support “permission” element of this count.
The Commission’s attorneys did not introduce any evidence that lawyers
11
12
were solicited by Judge Day to donate money for the wall hanging project. The
13
Commission’s attorneys did not call any of the lawyers who made donations to testify at
14
the hearing. Rather, the Commission’s attorneys relied upon the testimony of Judge
15
Day’s judicial assistant, Christine Brown, and clerk, Megan Curry, who didn’t really
16
know what had transpired between the lawyers and Judge Day. Both Ms. Brown and
17
Ms. Curry’s credibility has been called into question. There is no clear and convincing
18
evidence to prove this allegation.
19
The Commission’s attorneys did not offer any evidence that any litigant
20
ever read the placards and inferred that lawyers were “buying influence” or would have
21
an “unfair advantage” because they made a donation to the project. There was no
22
evidence that any lawyer gained influence or an advantage by making a donation. As
23
soon as a concern was raised, Judge Day had the language on the placards removed.
24
There is no clear and convincing evidence to prove this allegation.
25
///
ps
Page 63 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 63 of 106
The allegations concerning the wall hanging that contained the small oil
1
2
painting of Hitler have no merit at all. Judge Day did nothing wrong. This allegation
3
was used to sensationalize the case against Judge Day and put him in a bad light. A fair
4
and balanced review of the evidence concerning this allegation should come to this
5
conclusion.
6
7
8
9
Proposed Finding of Fact and Recommendation
Judge Day respectfully requests the Commission to adopt the following
proposed findings of fact:
Judge Day did not willfully violate Rule 2.1 (A), (C) when he
10
coordinated the wall hanging project, notified Judge Rhoades, Judge Partridge,
11
and Commissioner Cameron of his plans for the project and installed the wall
12
hangings at the Marion County Courthouse.
13
Judge Day did not willfully violate Rule 2.1 (A), (C) when he
14
provided information to lawyers about the wall hanging project and forwarded
15
their checks to the non-profit corporation sponsoring the project.
16
Judge Day did not willfully violate Rule 2.1 (A), (C) when he
17
installed placards identifying persons who made donations for the wall hangings
18
and promptly removed them when a concern was raised.
19
Judge Day did not willfully violate Rule 2.1 (A), (C) when he
20
installed a wall hanging honoring Dr. Ken Vollmar that contained a small oil
21
portrait of Hitler surrounded by other war memorabilia concerning Dr. Vollmar.
22
Rule 2.1 (A): “A judge shall observe high standards of conduct so that the integrity,
23
24
impartiality and independence of the judiciary and access to justice are preserved and
25
ps
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Exhibit 657
Page 64 of 106
shall act at all times in a manner that promotes public confidence in the judiciary and
1
2
3
4
the judicial system.”
Rule 2.1 (C): “A judge shall not engage in conduct that reflects adversely on the judge’s
character, competence, temperament, or fitness to serve as a judge.”
5
Rules 2.1 (A) and 2.1 (C) are unconstitutionally vague, see Day Tr.
6
Mem. at 14-15, fail strict scrutiny review, see id. at 16-19, and violate the Oregon
7
Constitution, see id. at 23-25.
8
9
Judge Day respectfully requests the Commission to adopt the following
recommendation:
10
The Commission recommends Count 9 be dismissed due to lack of
11
jurisdiction, constitutionality concerns, and insufficient evidence.
12
Count 10
13
Summary of Key Points in the Evidence
14
15
16
17
18
19
20
21
22
23
24
Count 10 of the Commission’s Complaint arises out of Judge Day’s
interactions with his judicial assistant, Christine Brown. Count 10 alleges that Judge
Day improperly hung pictures and wall hangings in the area where his judicial assistant
worked and that Judge Day improperly spoke to his assistant using terms like
“benevolent dictator” and she “works at his pleasure.”
The following evidence in this paragraph is not in dispute. Judge Day
did not deny hanging pictures and wall hangings in the area outside his chambers across
from where his judicial assistant, Christine Brown, had her desk. The pictures and wall
hangings were described as historical, including pieces that were military or political in
the opinion of Ms. Brown. See Ex. 601. There was evidence that pictures were hung on
the walls of the courthouse of past presidents from both parties. There was also
25
ps
Page 65 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 65 of 106
1
evidence that other judges hung animal trophies, travel pictures and other similar things
2
on the walls.
While Judge Day was on vacation, Ms. Brown took down the pictures
3
4
and wall hangings that Judge Day had hung in the waiting area across from where her
5
desk was located. Ms. Brown acknowledged this was wrong and she probably should
6
not have done it. Ms. Brown testified Judge Day was upset when he returned. Judge
7
Day did not deny that he said words to the effect: “Did you become a circuit court judge
8
while I was on vacation?” Judge Day also acknowledged that, at times, he referred to
9
himself as a “benevolent dictator” but not the words to the effect that Ms. Brown
10
“works at his pleasure.” He did testify that he discussed with her whether she was
11
desirous of a transfer. Ms. Brown told him she was not, but she just didn’t like the wall
12
hangings. Judge Day did not put them back up until after Ms. Brown eventually took a
13
position at the Oregon Supreme Court.
The evidence concerning the interactions between Judge Day and
14
15
Christine Brown are in dispute. Christine Brown testified that in the beginning of her
16
work as Judge Day’s judicial assistant she liked working for Judge Day. As time went
17
on, she got “burned out” and did not like Judge Day. She started to complain about
18
Judge Day to her co-workers. Judge Day’s attorneys were prevented from getting
19
access to the text messages and e-mails on Christine Brown’s and Megan Curry’s work
20
computers even though there was testimony during their depositions that they used their
21
work computers for personal use. Christine Brown admitted she said things like he was
22
a phony, a liar, political, and egotistical. Some of these conversations with co-workers
23
were overheard by Judge Prall who suggested to Ms. Brown that she should talk
24
directly with Judge Day.
25
///
ps
Page 66 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 66 of 106
1
Judge Day, on the other hand, testified that he thought he had a good
2
working relationship with Ms. Brown. When he hung the pictures in the waiting area
3
outside his chambers, he thought they were appropriate. This area is open to lawyers
4
and the public. Judge Day described the history behind some of the pieces. Judge Day
5
did not realize his assistant was “burned out” and saying bad things about him. He
6
explained they both used sarcasm as a way to communicate to each other. Christine
7
Brown acknowledged that this was true. An examination of the text messages between
8
Judge Day and Christine Brown provides insight into their manner of communicating
9
with each other. See Exs. 517-518, 571-583, 587.
10
Judge Day testified that he did not intend to offend Ms. Brown with the
11
language he used. Ms. Brown testified she never brought her concerns about Judge
12
Day’s language directly to Judge Day so that there could be a resolution. Instead, her
13
dislike of Judge Day intensified as time went on. Evidence demonstrates that she
14
sought to influence other staff members by spreading gossip about Judge Day.
15
Sometime in the spring of 2014, Christine Brown testified she used her
16
cell phone to access a dating website, farmersonly.com. She did this while she was with
17
her co-worker, Megan Curry, at the Ram Pub after work one day. Ms. Brown testified
18
that she saw a profile picture that she believed was posted by Judge Day. She took a
19
screen shot of the profile picture. See Ex. 626. Ms. Brown testified that she concluded
20
Judge Day was trying to cheat on his wife. This made her upset as she concluded that
21
Judge Day was a phony. She spread this gossip by talking to others. She showed the
22
screen shot to Judge Rhoades, Elan Lambert, Cynthia Haddad, and other staff members.
23
She did not, however, ever bring it up with Judge Day to find out if her conclusion that
24
he was cheating on his wife was true. She made a point of telling the Commission’s
25
investigator, Karen Saul, about what she found on www.farmersonly.com. The
ps
Page 67 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 67 of 106
1
Commission’s attorneys asked Judge Day about posting on dating websites and
2
farmeronly.com during his deposition, but then redacted Ms. Brown’s statement
3
concerning www.farmersonly.com from Exhibit 71. Judge Day’s attorney asked Ms.
4
Brown questions about her statement to the investigator during the hearing. Ms. Brown
5
did not deny bringing this subject up with the investigator. The most reasonable
6
explanation for this conduct by Ms. Brown is that she was trying to damage Judge
7
Day’s reputation and get him in trouble. During her testimony at the hearing Ms.
8
Brown admitted that she told those interviewing her for the Supreme Court position that
9
she thought Judge Day was “a liar.”
Judge Day was prevented from having Ms. Brown’s old cell phone, on
10
11
which she took the screen shot, inspected by a qualified expert. Bill Carroll, an internet
12
investigator, testified that if the old phone was made available for inspection, there was
13
likely electronic data on it that could be used to verify when the photo was uploaded, by
14
whom, and other information. It is possible text/e-mail messages about Judge Day
15
could also be retrieved. Christine Brown could not provide a precise date when she first
16
looked at farmersonly.com and took the screen shot. Christine Brown testified she
17
saved her old phone and was able to get it to turn back on so that she could take a
18
picture of the screen shot with her new phone, Ex. 626. She testified that she initially
19
was going to allow her old phone to be inspected, but then changed her mind. She also
20
testified that her old phone is now in the possession of Steve Lippold, Chief Trial
21
Counsel for the Attorney General’s office. One can reasonably infer that there are
22
things on Christine Brown’s old phone concerning Judge Day that she does not want
23
discovered.
24
25
ps
Another witness corroborated the fact that Judge Day referred to himself
as a “benevolent dictator.” Jessica Andrade, a legal assistant who worked for Judge
Page 68 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 68 of 106
1
Day from 2007-2011 until he went on the bench, testified that Judge Day did a lot of
2
dictation when he was an attorney in private practice and that he often referred to
3
himself as the “benevolent dictator” in reference to the dictating a lot of work for his
4
staff. She testified that Judge Day always felt bad about how much work he created for
5
his employees. Ms. Andrade also testified that Judge Day was always respectful and
6
kind to his employees while she worked for him. In her opinion, he was an excellent
7
employer who cared for those who worked for him.
Analysis
8
9
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
10
the conduct of a judge in only two situations: upon complaint from any person
11
concerning the conduct of a judge or upon request of the Supreme Court. There is no
12
evidence in the record that the Commission received a complaint from any person or a
13
request by the Supreme Court to conduct an investigation or conduct a hearing
14
involving the matters raised in this Count. The Commission does not have statutory
15
authority to do so. See First Motion to Dismiss, supra at 10. Count 10 should be
16
summarily dismissed.
17
If the Commission rejects the analysis above, then Judge Day
18
respectfully argues that the evidence does not establish any “(e) Willful violation of any
19
rule of judicial conduct as shall be established by the Supreme Court” as alleged in
20
paragraph 46 of the Complaint. The proof must be by clear and convincing evidence. It
21
was not. The “clear and convincing” standard of proof “requires evidence that is of
22
‘extraordinary persuasiveness,’ so that the fact at issue is ‘highly probable.” State v.
23
N.A.P., 216 Or App 432, 437, 173 P.3d 1251 (2007), quoting State v. Allen, 209 Or App
24
647, 652, 149 P.3d 289 (2006). There wasn’t any clear and convincing evidence that
25
Judge Day violated Rule 2.1 (A), (C) or Rule 3.7 (B).
ps
Page 69 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 69 of 106
Judge Day testified to his intentions when he hung pictures and other
1
2
wall hangings in the area where his judicial assistant work. He liked the historical
3
significance of these pieces and thought they were appropriate. He did not hang them up
4
to irritate his judicial assistant. He does not recall any conversations with his assistant
5
about the pictures before they were hung. As set forth in the Analysis section of Judge
6
Day’s argument concerning Count 9, there were no written or oral rules about what
7
could or could not be hung on the walls of the Marion County Courthouse. There is no
8
clear and convincing evidence that Judge Day violated Rule 2.1 (A), (C), or Rule 3.7
9
(B).
10
With regard to the language Judge Day used with his judicial assistant, it
11
was appropriate given the context in which it was used and the fact that both Judge Day
12
and his assistant, used sarcasm as a manner of communicating with each other.
13
Additionally, Ms. Brown is not a credible witness, as she demonstrated bias against
14
Judge Day based on unfounded conclusions she made concerning a photo on a website.
15
Not only did Ms. Brown’s opinion of Judge Day sour in the spring of 2014, but she took
16
deliberate action to damage Judge Day’s reputation and persisted in doing so through
17
her testimony at hearing. It is clear from the evidence presented by Investigator Bill
18
Carroll that Judge Day had nothing to do with creating a profile on the famersonly.com
19
website. The owner of the profile was tracked down and admitted to creating the profile
20
and posting a photo of his wedding (which happened to include a side view of Judge
21
Day performing the wedding. Ms. Brown’s conclusions were totally incorrect about
22
Judge Day having a profile on farmersonly.com. Ms. Brown did nothing to determine
23
whether her conclusion that Judge Day was cheating on his wife was true before
24
spreading that gossip to others. There is no clear and convincing evidence that Judge
25
Day violated Rule 2.1 (A), (C) or Rule 3.7 (B).
ps
Page 70 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 70 of 106
Proposed Finding of Fact and Recommendation
1
Judge Day respectfully requests the Commission to adopt the following
2
3
proposed findings of fact:
Judge Day did not willfully violate Rule 2.1 (A), (C) or Rule 3.7(B)
4
5
when he hung pictures and wall hangings in the area outside his chambers where
6
his judicial assistant worked.
Judge Day did not willfully violate Rule 2.1 (A), (C) or Rule 3.7 (B)
7
8
in the manner in which he spoke to his judicial assistant.
9
Rule 2.1 (A): “A judge shall observe high standards of conduct so that the integrity,
10
11
12
13
impartiality and independence of the judiciary and access to justice are preserved and
shall act at all times in a manner that promotes public confidence in the judiciary and
the judicial system.”
14
Rule 2.1 (C): “A judge shall not engage in conduct that reflects adversely on the judge’s
15
character, competence, temperament, or fitness to serve as a judge.”
16
Rule 3.7 (B): “ A judge shall be patient, dignified, and courteous to litigants, jurors,
17
witnesses, lawyers, court staff, court officials, and others with whom the judge deals in
18
an official capacity, and shall require similar conduct of lawyers, court staff, court
19
20
21
officials, and others subject to the judge’s direction and control.”
Rules 2.1 (A) and 2.1 (C) are unconstitutionally vague, see Day Trial Mem. at 14-15,
and Rules 2.1 (A), 2.1 (C), and 3.7 (B) fail strict scrutiny review, see id. at 16-19, 21,
22
23
24
25
ps
and violate the Oregon Constitution, see id. at 23-25.
///
///
Page 71 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 71 of 106
1
2
3
4
Judge Day respectfully requests the Commission to adopt the following
recommendation:
The Commission recommends Count 10 be dismissed due to lack of
jurisdiction, constitutionality concerns, and insufficient evidence.
Count 11
5
6
7
Summary of Key Points in the Evidence
Count 11 of the Commission’s Complaint arises out of Judge Day’s
8
interactions with his court staff concerning breaks during the work day and vacation
9
time. Count 11 also arises out of Judge Day’s interaction with Élan Lambert
10
concerning her work as a contract evaluator with the Veteran’s Treatment Court.
11
The following evidence in this paragraph is not in dispute. Christine
12
Brown, Judge Day’s judicial assistant and Megan Curry, his clerk both testified that
13
Judge Day was a hard working judge who worked through break periods and into the
14
lunch hour at times. He was described as a “go-go” judge. They both acknowledged
15
that while Judge Day was their immediate supervisor, he was not their employer. They
16
both acknowledged that, as employees of the Judicial Department, any issues
17
concerning the break periods, lunch hour and the availability of flex time should have
18
been brought to the attention of the Trial Court Administrator, Diane Morse, or the
19
Deputy Trial Court Administrator, Paula Myers who could then address the problem.
20
Neither Christine Brown nor Megan Curry kept track of the number of hours they
21
worked overtime. There is nothing in the record from which the Commission can
22
conclude this was a significant issue.
23
The following evidence in this paragraph is also not in dispute. Both of
24
these staff members received a written guide for employees, Exhibits 515-516, entitled
25
Court Expectations. This document provided guidance for staff regarding the use of
ps
Page 72 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 72 of 106
1
breaks: “Breaks are not monitored; it is necessary as a judicial office to work together
2
as a team. If there is not enough staff coverage it is appropriate to notify the judge and
3
the office door may be closed for the break.” The flex time policy was also set forth in
4
this document. It provided: “Each staff member is expected to build time and use the
5
time they have earned.” “In general, flex time should be planned in advance.” “Flex
6
time should be used within the same week unless approved in advance and it cannot be
7
banked or carried over to another month.”
8
9
There isn’t any evidence in the record to confirm Judge Day’s staff
members followed this policy concerning breaks and flex time. Both Ms. Brown and
10
Ms. Curry complained that Judge Day regularly worked through breaks and into the
11
lunch hour on Fridays because of the Veteran’s Treatment Court docket, but there is no
12
evidence they ever took steps to get approval in advance to carry over their flex time
13
into the next week which was permitted under the policy. Although they testified they
14
brought this issue to the attention of Diane Morse, Ms. Morse was not called as a
15
witness by the Commission’s attorneys.
16
The following evidence in this paragraph is also not in dispute. Judge
17
Day testified that there were situations that required working through breaks or into the
18
noon hour. He disputed the testimony of Christine Brown and Megan Curry concerning
19
breaks and the use of flex time. Judge Day did not keep track of the overtime that his
20
staff now say they had to work. Judge Day testified he tried to accommodate both
21
Christine Brown and Megan Curry’s requests for time off. The extensive text messages
22
offered into evidence certainly corroborate Judge Day’s testimony. See Exs. 517, 518,
23
567-577, 579-58.
24
25
ps
The following evidence in this paragraph is also not in dispute. Judge
Day did not have sole control over the issuance or approval of Élan Lambert’s contract
Page 73 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 73 of 106
1
concerning her service as Veterans Treatment Court evaluator. He did, however, work
2
to get it issued and approved. At the outset, there was difficulty finding an agency to
3
administer and provide interim funding for the contract. The Oregon Department of
4
Justice refused to do it. See Ex. 525. Marion County Board of Commissioners was
5
approached but eventually turned down the proposal made by Judge Day. See Ex. 629.
6
Eventually, the Marion County Sheriff’s office agreed to administer and provide interim
7
funding for the contract and approval for this process was obtained. The grant that
8
provided for the funding of the Veteran’s Treatment Court had to then be adjusted with
9
approval from the U.S. Department of Justice. The approval process took some time.
10
This was outside of Judge Day’s control. The timeline is as follows:
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ps
10/14/2013 Notice that Élan Lambert was hired as Veteran’s Court
Coordinator. See Ex. 522.
10/30/2013 Élan Lambert sends Judge Day notice that she is upset
because she worked 20 unpaid hours in October. See Ex. 523.
10/30/2013 Diane Morse confirms Ms. Lambert will be paid for all the
hours she worked in October. See Ex. 524.
10/31/2013 Diane Morse confirms that the Oregon Judicial Department
will not issue the contract for the evaluator part of Ms. Lambert’s work.
See Ex. 525.
11/1/2013 Judge Day contacts Allycia Weathers, management analyst
for the Marion County Sherriff’s Office to see if grant funds could be
allocated by changing Élan Lambert’s status from employee to private
contractor. See Ex. 526.
11/4/2013 Judge Day confirms that Allycia Weathers met with Élan
Lambert to discuss keeping Ms. Lambert as an employee of the
Department of Justice and dedicating grant funds for her health benefits
(which Ms. Lambert was declining) to increase her FTE time/salary. See
Ex. 527.
11/7/2013 Allycia Weathers updates everyone including Ms. Lambert on
the status of the changes. See Ex. 528.
11/8/2013 Allycia Weathers sends the draft grant adjustment notice to
Judge Day with a copy to Ms. Lambert. See Ex. 529.
Page 74 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 74 of 106
Mid-November 2013 Judge Day sends Marion County Board of
Commissioners a proposal to provide interim funding for the grant
related contracts. See Ex. 629.
1/14/2014 Notification from U.S. Department of Justice that grant
adjustment request was approved. See Ex. 531.
1/15/14 Elan Lambert receives first draft of contract and other necessary
documents. See Ex. 615, Ex. 631, Ex. 632, & Ex. 634.
1/21/2014 Judge Day sends a follow-up inquiry to Diane Morse and
Paula Myers to find out the process to increase Ms. Lambert’s FTE
based upon the approval of the grant adjustment that had been received.
See Ex. 530.
2/20/2014 Camber Schlag sends draft contract to everyone involved for
review. See Ex. 532.
2/27/2014 Camber Schlag sends a follow-up e-mail to five people
including Judge Day requesting any changes to contract. See Ex. 537.
3/3/2014 Camber Schlag requests confirmation from Judge Day that he
has no suggested changes to the contract. See Ex. 534.
3/3/2014 Judge Day confirms he has no suggested changes to the
contract. See Ex. 536.
3/3/2014 Élan Lambert wants to confirm with Judge Day that her
invoice is being processed. See Ex. 535.
3/4/2014 Judge Day confirms Ms. Lambert’s invoice was sent to Troy
Clausen for payment. See Ex. 536.
3/4/2014 Camber Schlag sends final draft of contract to Ms. Lambert for
signing. See Ex. 538.
3/5/2014 Camber Schlag asks Ms. Lambert for insurance certificate. See
Ex. 539.
3/5/2014 Élan Lambert signs contract. See Ex. 542.
3/6/2014 Élan Lambert sends signed contract to Camber Schlag. See Ex.
538.
3/17/2014 Élan Lambert asks Camber Schlag for payment information
and Christine Wilson confirms when payment will be available. See Ex.
540.
3/20/2014 Élan Lambert confirms she will pick check up on Tuesday.
See Ex. 541.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ps
///
///
Page 75 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 75 of 106
Analysis
1
2
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
3
the conduct of a judge in only two situations: upon complaint from any person
4
concerning the conduct of a judge or upon request of the Supreme Court. There is no
5
evidence in the record that the Commission received a complaint from any person or a
6
request by the Supreme Court to conduct an investigation or conduct a hearing
7
involving the matters raised in this Count. The Commission does not have statutory
8
authority to do so. See First Motion to Dismiss, supra at 10. Count 11 should be
9
summarily dismissed.
10
If the Commission rejects the analysis above, then Judge Day
11
respectfully argues that the evidence does not establish any “(e) Willful violation of any
12
rule of judicial conduct as shall be established by the Supreme Court” as alleged in
13
paragraph 50 of the Complaint. The proof must be by clear and convincing evidence. It
14
was not. The “clear and convincing” standard of proof “requires evidence that is of
15
‘extraordinary persuasiveness,’ so that the fact at issue is ‘highly probable.” State v.
16
N.A.P., 216 Or. App. 432, 437, 173 P.3d 1251 (2007), quoting State v. Allen, 209 Or.
17
App. 647, 652, 149 P.3d 289 (2006). There wasn’t any clear and convincing evidence
18
that Judge Day violated Rule 2.1 (A), (C) or Rule 3.7 (B).
19
The evidence concerning Judge Day’s handling of breaks, flex time and
20
vacation time is in dispute. The staff testified they were prevented from taking some of
21
their breaks, but they didn’t follow the established policy and bring it up in a timely
22
manner with Judge Day. Eventually they talked to the trial court administrator, Diane
23
Morse, but there is nothing in the record that indicates Diane Morse conducted an
24
investigation or concluded Judge Day was at fault. There isn’t any evidence concerning
25
the amount of time in question. Judge Day testified that he tried to accommodate
ps
Page 76 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 76 of 106
1
requests for time off. The text message evidence confirms that he accommodated
2
numerous requests for time off, many of which were last minute requests. There was no
3
evidence of any significant vacation requests for time off that were not accommodated
4
by Judge Day. Neither Ms. Brown nor Ms. Curry testified that Judge Day was
5
exasperated when they requested time off, as alleged by the Commission. In fact, the
6
record reveals that Judge Day was very accommodating regarding vacation and last
7
minute off-work requests. In summary there wasn’t clear and convincing evidence that
8
Judge Day willfully violated Rule 2.1 (A), (C) or 3.7 (B).
The manner in which Judge Day assisted Élan Lambert in securing a
9
10
contract for her work with the Veteran’s Treatment Court supports the conclusion that
11
Judge Day did not violate Rule 2.1 (A), (C) or 3.7 (B). The timeline of events
12
demonstrates Judge Day did not cause any significant delay. In addition, both of the
13
people from the Sheriff’s Office who were in charge of assisting Elan Lambert during
14
this time, Allycia Weathers and Christine Wilson, both testified that while there was a
15
delay, Judge Day was not the cause of the delay. In fact, Christine Wilson stated in a
16
file memo regarding the contract that she and Allycia Weathers had a few conversations
17
with Elan Lambert, specifically regarding “how she (Elan) would be paid and what she
18
needed to submit in order to keep the process moving. I’m (Christine Wilson) not so
19
sure she (Elan) always understood there was a process she needed to follow, but we got
20
through it.” See Ex. 519, p. 2. Élan Lambert is blaming Judge Day for the delay, but
21
the evidence does not support her contention. Additionally, Ms. Lambert’s credibility is
22
in serious question given her false representations concerning statements that were
23
never made by Dr. Smetana.
24
///
25
///
ps
Page 77 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 77 of 106
Proposed Finding of Fact and Recommendation
1
Judge Day respectfully requests the Commission to adopt the following
2
3
proposed findings of fact:
Judge Day did not willfully violate Rule 2.1 (A), (C) or 3.7 (B) in the
4
5
manner in which he interacted with his staff concerning breaks, flex time, and
6
vacation time.
7
Judge Day did not willfully violate Rule 2.1 (A), (C) or 3.7 (B) in the
8
manner in which he assisted Élan Lambert in securing a contract and payment for
9
her work for the Veteran’s Treatment Court.
10
Rule 2.1 (A): “A judge shall observe high standards of conduct so that the integrity,
11
12
13
14
impartiality and independence of the judiciary and access to justice are preserved and
shall act at all times in a manner that promotes public confidence in the judiciary and
the judicial system.”
15
Rule 2.1 (C): “A judge shall not engage in conduct that reflects adversely on the judge’s
16
character, competence, temperament, or fitness to serve as a judge.”
17
Rule 3.7 (B): “ A judge shall be patient, dignified, and courteous to litigants, jurors,
18
witnesses, lawyers, court staff, court officials, and others with whom the judge deals in
19
an official capacity, and shall require similar conduct of lawyers, court staff, court
20
21
22
officials, and others subject to the judge’s direction and control.”
Rules 2.1 (A) and 2.1 (C) are unconstitutionally vague, see Day Tr.
Mem. at 14-15, and Rules 2.1 (A), 2.1 (C), and 3.7 (B) fail strict scrutiny review, see id.
23
24
at 16-19, 21, and violate the Oregon Constitution, see id. at 23-25.
25
ps
Page 78 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 78 of 106
Judge Day respectfully requests the Commission to adopt the following
1
2
recommendation:
The Commission recommends Count 11 be dismissed due to lack of
3
4
jurisdiction, constitutionality concerns, and insufficient evidence.
Count 12
5
Summary of Key Points in the Evidence
6
Count 12 of the Commission’s Complaint arises out of Judge Day’s
7
8
request to his assistant to not schedule him to perform same sex marriages, but to find
9
an alternate judge who would do so, because it conflicted with his firmly held religious
10
beliefs rooted in the Judeo-Christian tradition that defines marriage as between a female
11
and a male.
12
The evidence concerning the same sex marriage issue is not in dispute.
13
In late 2011, Judge Day made himself available to the public to perform wedding
14
ceremonies. Judge Day accepted and performed weddings requested by members of the
15
public from late 2011 until late August of 2014. Judge Day stopped performing
16
marriages altogether at the end of August before his staff complained to Judge Rhoades
17
about his instructions and other unrelated matters.
18
Judge Day testified he is a Christian who has firmly held religious
19
beliefs including the belief, rooted in the Judeo-Christian tradition that defines marriage
20
as between a female and a male. Judge Day also testified that he is a long-time member
21
of the Morning Star Community Church in Salem, Oregon. Judge Day testified about
22
the church’s statement on marriage; that is marriage is sanctioned by God which joins
23
one man and one woman in a single, exclusive union, as delineated in Scripture.
24
Other witnesses who worked with Judge Day including Judge Don Abar, Judge Susan
25
ps
Page 79 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 79 of 106
1
Tripp, Judge Dennis Graves, Judge Lindsay Partridge, Don Mansell, Megan Curry, and
2
Christine Brown all indicated they knew Judge Day had firmly held religious beliefs.
3
In particular, Christine Brown, Judge Day’s judicial assistant, told the
4
Commission’s investigator that she and Megan Curry anticipated that Judge Day’s
5
religious beliefs would conflict with performing weddings for same sex couples. See
6
Ex. 71, p 13. Megan Curry, Judge Day’s clerk, told the Commission’s investigator that
7
Judge Day said, “I’m a white male with a target on my back…” referring to the same
8
sex marriage issue. See Ex. 71, p 21.
9
Prior to the change in the law, Judge Day officiated at weddings. After
10
the law changed, Judge Day did not discriminate against any same sex couple who
11
wanted to get married by a judge. Christine Brown and Megan Curry acknowledged
12
they never said or did anything discriminatory, at the direction of Judge Day, against a
13
same sex couple. If a call came in, they were not instructed to make a statement to the
14
effect that Judge Day does not perform weddings for same sex couples. They were
15
instructed to assist the same sex couple in finding another judge. They only recall
16
receiving one call from a same sex couple before Judge Day stopped officiating at
17
weddings altogether. That couple was told Judge Day was not available and the
18
statement was true; he really wasn’t available to perform their wedding at the time
19
requested. That couple was given information concerning how to find another judge
20
who was available.
21
After the law changed, Judge Rhoades, the presiding judge, and Judge
22
Day testified they did not receive any information or guidance from the Oregon
23
Supreme Court, the Attorney General’s office or the Circuit Court Judges Association
24
concerning the implementation of the new law. After the law changed Marion County
25
had a list of judges some of whom would perform same sex marriages. There was no
ps
Page 80 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 80 of 106
1
evidence that any same sex couple experienced any problems finding a judge in Marion
2
County to perform their marriage.
3
Judge Day testified he has not discriminated against anyone because of
4
their sexual orientation. Numerous witnesses testified that Judge Day never
5
discriminated against gays and lesbians. Judge Tripp, a lesbian, testified Judge Day was
6
supportive of her decision to hang a framed poster regarding a historical Gay Rights
7
march on Washington D.C. on the walls of the Marion County Courthouse. See Exs.
8
622, 623. She described a personal act of kindness when Judge Day came to her home
9
to install an air conditioner when she was ill. She referred to him as a “stand-up guy.”
10
Judge Day testified that he loves his brothers and sisters in the gay and lesbian
11
community and he respects their rights.
Analysis
12
13
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
14
the conduct of a judge in only two situations: upon complaint from any person
15
concerning the conduct of a judge or upon request of the Supreme Court. There is no
16
evidence in the record that the Commission received a complaint from any person or a
17
request by the Supreme Court to conduct an investigation or conduct a hearing
18
involving the matters raised in this Count. The Commission does not have statutory
19
authority to do so. See First Motion to Dismiss, supra at 10. Count 12 should be
20
summarily dismissed.
21
If the Commission rejects the analysis above, then Judge Day
22
respectfully argues that the evidence does not establish any “(e) Willful violation of any
23
rule of judicial conduct as shall be established by the Supreme Court” as alleged in
24
paragraph 53 of the Complaint. The proof must be by clear and convincing evidence. It
25
was not. The “clear and convincing” standard of proof “requires evidence that is of
ps
Page 81 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 81 of 106
1
‘extraordinary persuasiveness,’ so that the fact at issue is ‘highly probable.” State v.
2
N.A.P., 216 Or. App. 432, 437, 173 P.3d 1251 (2007), quoting State v. Allen, 209 Or.
3
App. 647, 652, 149 P.3d 289 (2006). There wasn’t any clear and convincing evidence
4
that Judge Day violated Rule 3.3 (B).
5
Performing marriages is not a required judicial duty under Oregon law.
6
ORS 106.120 sets forth a list of persons who may solemnize a marriage. The statute
7
does not require judicial officers, including circuit court judges, to perform marriages;
8
rather, it gives them the authority to solemnize a marriage, if they choose to do so.
9
When Judge Day became a circuit court judge, he took an oath of office
10
in the form provided by section 7, Article VII (Amended) of the Oregon Constitution
11
that required him to support the constitution of the United States, and the constitution of
12
the State of Oregon. He agreed to faithfully and impartially discharge the duties of a
13
judge. (Emphasis added).
14
Count 12 alleges that Judge Day violated Rule 3.3 (B) by inappropriately
15
screening and ordering his staff to screen wedding applicants to ensure they were not
16
same sex applicants. Rule 3.3 (B) prohibits a judge, in the performance of judicial
17
duties, from discriminating by words or conduct against parties, witnesses, lawyers, or
18
others based upon their sexual orientation.
19
required duty, the Commission’s allegation that Judge Day violated Rule 3.3 (B) is not
20
well founded. Judge Day’s exercise of his personal, firmly held religious beliefs,
21
protected by the First Amendment, prevented him from performing same sex marriages
22
after the law changed. His request to his staff did not involve discrimination by Judge
23
Day in the performance of any judicial duty. Rather, it was a way for Judge Day to
24
exercise his rights under the First Amendment. His instructions to his staff were a way
25
to have his rights accommodated under the law.
ps
Because performing a marriage is not a
Page 82 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 82 of 106
1
The process Judge Day used did not involve any words or conduct that
2
constituted manifest bias or prejudice. There wasn’t any evidence that any same sex
3
couple even knew about Judge Day’s instruction or was unable to find a judge in
4
Marion County to marry them. No-one would have even known about his instructions
5
to his staff if the Commission had not charged him publicly by filing the Complaint and
6
conducting a hearing. If one were to argue that there is an appearance of impropriety,
7
then it would logically follow that it was the Commission’s act of filing the Complaint
8
and conducting a public hearing that created the appearance.
9
10
11
Proposed Finding of Fact and Recommendation
Judge Day respectfully requests the Commission to adopt the following
proposed findings of fact:
12
Judge Day did not willfully violate Rule 3.3 (B) when he instructed
13
his staff, after the law on same sex marriage changed, to identify and assist same
14
sex couples who wanted a judge to perform their marriage in finding an available
15
judge to marry them.
16
Judge Day did not willfully violate Rule 3.3 (B) when he exercised
17
his First Amendment rights, based upon his personal firmly held religious beliefs,
18
to initially not perform same sex marriages and eventually all marriages.
19
Rule 3.3 (B): “A judge shall not, in the performance of judicial duties, by words or
20
21
22
23
conduct, manifest bias or prejudice, or engage in harassment, against parties, witnesses,
lawyers, or others based on attributes including but not limited to, sex, gender identity,
race, national origin, ethnicity, religion, sexual orientation, marital status, disability,
24
age, socioeconomic status, or political affiliation and shall not permit court staff, court
25
officials, or others subject to the judge’s direction and control to do so.”
ps
Page 83 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 83 of 106
Rule 3.3 (B) is unconstitutionally vague as applied to Judge Day, see
1
2
Day Tr. Mem. at 14, 16, fails strict scrutiny, see id. at 16-18, 20, and violates the
3
Oregon Constitution, see id. at 23-24, 25.
Judge Day respectfully requests the Commission to adopt the following
4
5
recommendation:
The Commission recommends Count 12 be dismissed due to lack of
6
7
jurisdiction, constitutionality concerns, and insufficient evidence.
Count 13
8
Summary of Key Points in the Evidence
9
Count 13 of the Commission’s Complaint arises out of Judge Day’s
10
11
temporarily storing pictures of past U.S. presidents in his courtroom’s jury room.
The evidence concerning this count is not in dispute. Judge Day testified
12
13
he had some framed pictures of past U.S. presidents temporarily stored in his chambers
14
that were previously hung in his former law office. Judge Day was going on vacation
15
and knew his chambers were going to be used by a visiting judge so he moved these
16
pictures into his courtroom’s jury room and set them against the wall. Judge Day
17
testified he did not intend to hang them up in the jury room. While he was on vacation,
18
Judge Rhoades sent Judge Day a text message on June 27, 2014, indicating Judge
19
Lipscomb used the jury room. Judge Rhoades referred to the pictures as partisan and
20
she informed Judge Day that she had Christine Brown and Megan Curry move the
21
pictures back into Judge Day’s chambers. Judge Day disagreed with Judge Rhoades
22
reference to the pictures as “partisan.” See Ex. 564.
There was evidence that pictures of George Washington and Abraham
23
24
Lincoln have been hanging in other courtrooms at the Marion County courthouse for a
25
long time.
ps
Page 84 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 84 of 106
Analysis
1
2
ORS 1.420 authorizes the Commission to hold a hearing to inquire into
3
the conduct of a judge in only two situations: upon complaint from any person
4
concerning the conduct of a judge or upon request of the Supreme Court. There is no
5
evidence in the record that the Commission received a complaint from any person or a
6
request by the Supreme Court to conduct an investigation or conduct a hearing
7
involving the matters raised in this Count. The Commission does not have statutory
8
authority to do so. See First Motion to Dismiss, supra at 10.Count 13 should be
9
summarily dismissed.
10
If the Commission rejects the analysis above, then Judge Day
11
respectfully argues that the evidence does not establish any “(e) Willful violation of any
12
rule of judicial conduct as shall be established by the Supreme Court” as alleged in
13
paragraph 55 of the Complaint. The proof must be by clear and convincing evidence. It
14
was not. The “clear and convincing” standard of proof “requires evidence that is of
15
‘extraordinary persuasiveness,’ so that the fact at issue is ‘highly probable.” State v.
16
N.A.P., 216 Or. App. 432, 437, 173 P.3d 1251 (2007), quoting State v. Allen, 209 Or.
17
App. 647, 652, 149 P.3d 289 (2006). There wasn’t any clear and convincing evidence
18
that Judge Day violated Rule 3.3 (B) or Rule 3.7 (B).
19
This count is premised on the conclusion that pictures of past presidents
20
of the United States, if hung in a jury room, would offend the concept of partisan
21
neutrality. That premise is not necessarily true. There was evidence that pictures of
22
George Washington and Abraham Lincoln have been hanging in other courtrooms at the
23
Marion County courthouse and concerns that they violated the concept of partisan
24
neutrality have never been raised by anyone. Pictures of past U.S. presidents have
25
ps
Page 85 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 85 of 106
1
historical significance, but there was no evidence that the presence of this type of
2
picture would affect jurors or create an appearance of bias.
3
It was conceded at the hearing by the Commission’s attorneys that the
4
pictures were not “hung in the jury room” as originally alleged. The evidence is that
5
they were temporarily stored there by Judge Day at a time when he did not think the
6
jury room would be used because he was going on vacation. There is no evidence that
7
Judge Day intended to willfully violate Rule 3.3 (B) or Rule 3.7 (B). This count
8
demonstrates the lengths to which the Commission’s attorneys are reaching to discredit
9
Judge Day.
It is instructive to note the progression of the allegations made by the
10
11
Commission which constitute Count 13:
12
3/2/2014 – The first time the Commission raised any allegation concerning the
13
presidents’ pictures: “You hung pictures of Republican presidents such as
14
Reagan and Bush in your jury room”;
15
6/28/14 – Count 13 formally charges: “Disregarding the importance of partisan
16
neutrality in the courthouse, Judge Day inappropriately hung pictures of select
17
past U.S. presidents in his courtroom’s jury room”;
18
11/20/15 – At hearing amendment of Count 13 striking the word “hung” and
19
replacing it with “stored.”
20
Originally the allegations in Count 13 appear to have a distinct “republican” element to
21
the violation, even mentioning Reagan and Bush. Perhaps recognizing the that intent of
22
the attack on Judge Day was too obvious, the allegation was modified to capture a more
23
generic violation of “disregarding partisan neutrality” in the actual complaint.
24
///
25
///
ps
Page 86 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 86 of 106
Proposed Finding of Fact and Recommendation
1
Judge Day respectfully requests the Commission to adopt the following
2
3
proposed findings of fact:
Judge Day did not willfully violate Rule 3.3 (B) or Rule 3.7 (B) when
4
5
he temporarily stored pictures of past U.S. presidents in his jury room.
6
7
8
9
10
Rule 3.3 (B): “A judge shall not, in the performance of judicial duties, by words or
conduct, manifest bias or prejudice, or engage in harassment, against parties, witnesses,
lawyers, or others based on attributes including but not limited to, sex, gender identity,
race, national origin, ethnicity, religion, sexual orientation, marital status, disability, age,
socioeconomic status, or political affiliation and shall not permit court staff, court
11
12
13
14
15
officials, or others subject to the judge’s direction and control to do so.”
Rule 3.7 (B): “ A judge shall be patient, dignified, and courteous to litigants, jurors,
witnesses, lawyers, court staff, court officials, and others with whom the judge deals in
an official capacity, and shall require similar conduct of lawyers, court staff, court
officials, and others subject to the judge’s direction and control.”
16
17
Rules 3.3 (B) and 3.7 (B) fail strict scrutiny review, see id. at 16-18, 2021, and violate the Oregon Constitution, see id. at 23-24, 25-26.
18
19
Judge Day respectfully requests the Commission to adopt the following
recommendation:
20
The Commission recommends Count 13 be dismissed due to lack of
21
jurisdiction and insufficient evidence.
22
///
23
///
24
///
25
///
ps
Page 87 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 87 of 106
1
PART 4: AGGRAVATING/MITIGATING FACTORS
2
The attorneys for the parties agreed to exchange any aggravating or
3
4
5
6
mitigating factors that would be discussed in their closing arguments. Judge Day’s
attorneys received the Commission’s attorneys’ list of 40 “aggravating factors” four
days prior to the filing of this closing argument with the caveat that more may be
7
included in the Commission’s final document. The already over-blown list of identified
8
“aggravating factors” largely omits reference to the evidence and is a collection of
9
innuendo and argument that is repetitive, outside the bounds of the charges contained in
10
the Complaint, and ignores the clear and convincing standard of proof.
11
12
To the extent the “aggravating factors” introduce additional matters that
were not charged in the Commission’s Complaint, Judge Day has not been given
13
14
15
16
17
18
19
adequate notice and the opportunity to defend in violation of the Commission’s own
Rules of Procedure and Judge Day’s constitutional due process rights. See Rule 8 c
(The complaint * * * shall specify in ordinary and concise language the charges against
the judge and the alleged facts upon which such charges are based * * *.”) (Emphasis
added); and Rule 10 b (requires amendments be made to the complaint “to set forth
additional facts” and when “such amendment is made, the judge shall be given
reasonable time to both answer the amendment and to prepare and present his or her
20
defense against the matters charged thereby”) (emphasis added). See also Murphy,
21
M.D. v. Oregon Medical Board, 270 Or App 621, 631-32 (2015) (reversing OMB’s
22
disciplinary order explaining that the Board’s explanation of the basis of its charges
23
against the petitioner, prevented the Board from “then changing course at the contested
24
case hearing * * * without first providing petitioner adequate notice so that he could
25
have the opportunity to prepare a defense”), citing Villanueva v. Board of Psychologist
ps
Page 88 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 88 of 106
1
Examiners, 179 Or App 134, 138, 39 P3d 238 (2002) (“[T]he absence of adequate
2
notice is prejudicial in and of itself.”).
3
4
5
6
7
8
9
10
Adequate notice and an opportunity to be heard and present evidence are
foundational elements of the judicial system. And yet the Commission’s attorneys seek
to deprive Judge Day of this basic right. Why? The explanation lies in the recent
ascendency of the politically correct philosophy espoused by elements of American
society. Some have called it the “We Are Already Decided” phenomenon. This
perspective presumes that “the offense is not just in thinking the wrong thing you think
but in no realizing that We Are Already Decided that the thing you think is deeply
ridiculous.” (Fredrik deBoer, “Bingo Cards Go Both Ways,” FrederikdeBoer.com, April
29, 2014). Underlying the Commissions attorneys’ arguments is the presumption that
11
12
13
14
15
16
17
18
19
all good and decent judges (and other members of the respectable ruling class) are
already agreed on how the Oregon Code of Judicial Conduct should be applied to the
issue in question. Therefore, a judge who expresses ideological, philosophical or
political views that don’t line up with what all good and decent judges should believe or
know, should be silenced. Instead of using evidence and the art of legal persuasion to
make a positive case against Judge Day, the Commission’s attorneys have worked to
delegitimize Judge Day throughout this process by the use of tactics based in character
assassination and demonization.
A prime example of this strategy is the failed attempt of soiling Judge
20
Day’s reputation as a faithful and loving husband, committed to his wife of many years.
21
The Commission’s attorneys, through the testimony of Elan Lambert, Christina Brown
22
and Megan Curry, brought false accusations against Judge Day’s reputation as a decent
23
and respectable husband. It doesn’t matter that the salacious allegations were irrelevant
24
or untrue; it mattered that they were publically stated. In each instance, the accusations
25
were unmasked as baseless and driven by bias and conjecture. But the strategy reveals
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Exhibit 657
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1
a deeper presumption: since the Commission’s allegations have scant support in the
2
evidentiary record, instead attack Judge Day personally, trying to cast doubt on his
3
abilities, intentions, and even his value as a person. The purpose of demonizing Judge
4
5
6
7
8
9
10
Day is to make him unacceptable to the broader culture. The use of character
assassination is used to ensure that Judge Day won’t be treated as a sincere or
thoughtful contributor to the debate over how the Oregon Code of Judicial Conduct
should apply or where a jurist’s First Amendment rights end.
This “destroy Judge Day” strategy becomes even clearer when one
considers the “piling on” of aggravating factors which outnumber the original thirteen
counts by nearly four to one. Certain elements of our society have worked hard to
convince Americans the opposing same-sex marriage is so inherently immoral that
11
12
13
14
15
16
17
18
those who do should be brutally suppressed and silenced. Instead of debate and
discussion, Judge Day has been characterized as a bigot and a homophobe, simply
because he reiterated an orthodox, and until recently unremarkable, Christian belief in
natural marriage. But those who once sought tolerance and generally received the
same, now require complete compliance. Those who don’t comply will be made a
public example so that others who share their view will be effectively silenced lest they
too make the same error.
Due to the length of these closing arguments and Judge Day’s above-
19
noted objections, the following short explanation to each of the 40 “aggravating factors”
20
is provided for the limited purpose to demonstrate the insufficiency of proof of clear
21
and convincing evidence and is not intended to waive Judge Day’s right to adequate
22
notice or reasonable opportunity to prepare and present a defense. Rules 8 c, 10 b, 13 h;
23
Murphy, M.D. 270 Or App at 631.
24
25
ps
A short response follows with the understanding Judge Day is not
waiving his objections. If the Commission decides to give serious consideration to any
Page 90 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
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1
of these aggravating factors, then Judge Day should be afforded an opportunity to
2
conduct discovery and present evidence so that his rights are protected:
3
No. 1: Judge Day and his son further sought to intimidate a referee by taking down his
4
5
6
7
8
9
10
license plate number.
Response to No. 1: There was no evidence presented at the hearing concerning Judge
Day’s intent, except that he desired to file a complaint concerning the player safety
concerns he had after observing the referee in question.
No. 2: Judge Day willfully violated Rule 3.12(A) by failing to be candid with a judicial
discipline agency in his letter of explanation of the soccer events.
Response to No. 2: Please see the analysis for Counts 1 and 2.
No. 3: Judge Day willfully violated Rule 2.1(B) in committing a criminal act in allowing
11
12
13
14
15
16
17
a felon to possess a firearm.
Response to No. 3: Please see the analysis concerning Counts 3, 4, and 5 – No
permission was requested nor given. No criminal act was committed (note that the
commission’s attorneys do not specify the nature of the criminal act).
No. 4: Judge Day willfully violated Rule 2.1(D) in being untruthful about gun incidents
with BAS.
Response to No. 4: Please see the analysis concerning Counts 3, 4, and 5.
18
No. 5: Justin Day and BAS went shooting on January 5, 2014, after talking about it in
19
front of Judge Day and BAS assumed he could go shooting, since Judge Day had already
20
said he waived the prohibition.
21
Response to No. 5: Please see the analysis concerning Counts 3, 4, and 5. There was no
22
clear and convincing evidence offered that Judge Day ever waived the prohibition. The
23
evidence actually shows that Brian Shehan and Justin Day discussed their plans to go
24
shooting in December, 2013, before the January 5, 2104 event. Once again, the
25
Commission’s attorneys rely on assumption and innuendo.
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1
No. 6: Judge Day has ex parte contact with other probationers and has hired them to work
2
for him.
3
Response to No. 6: There is no evidence that any ex parte contact took place, using a
4
5
6
7
8
9
10
legal definition of ex parte contact. There is only evidence that out of court contact took
place and with knowledge of the Veterans Treatment Court team. There was also
evidence that other members of the Veterans Treatment Court team had out of court
contact with probationers. There was no clear and convincing evidence that Judge Day
willfully engaged in misconduct that bears a demonstrable relationship to the effective
performance of judicial duties or that he engaged in any willful violation of the Oregon
Code of Judicial Conduct.
No. 7: On February 6, 2015, the VTC contract was substantially modified to expressly
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12
13
14
15
16
17
include ex parte contact by the VTC judge and staff, which was the same day that Judge
Day’s attorneys wrote to the CJFD and asserted that Judge Day’s contact with BAS was
not inappropriate because the VTC contract allowed for such contact.
Response to No. 7: There was no evidence that the timing of the change in contract had
any relationship to this proceeding. There was evidence that the Veterans Treatment
Court team participated in the approval of the change in contract. There was no clear and
convincing evidence that Judge Day willfully violated the Oregon Code of Judicial
18
Conduct. Please also see the analysis concerning Count 6.
19
No. 8: Judge Day gave special attention to BAS by allowing BAS to be released from
20
probation early and allowing him to work out of state in violation of criminal interstate
21
compact requirements.
22
Response to No. 8: There was no clear and convincing evidence to support this factor. In
23
fact, the evidence is that the Veterans Treatment Court Team discussed this misdemeanor
24
treatment in January 2014 and that the team decided it was appropriate in February 2014.
25
///
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Exhibit 657
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1
No. 9: Justin Day, Judge Day’s son, had repeated out of court contact with BAS while
2
BAS was on probation with Judge Day as the sanction judge, including driving BAS to
3
medical appointments, numerous texts with him, and going out shooting guns with the
4
5
6
7
8
9
10
knowledge of Judge Day.
Response to No. 9: The Commission is relying on hearsay evidence to support this
factor. The Commission failed to call Justin Day as a witness. Additionally, out of court
contact by Veterans Treatment Court team members, mentors and volunteers, is an
essential part of the therapeutic court model. Justin Day was a volunteer and helped
provide transportation services to the Veterans Treatment Court. There was no clear and
convincing evidence that Judge Day willfully violated the Oregon Code of Judicial
Conduct.
11
12
13
14
15
16
17
No. 10: Judge Day’s son, Daniel Day, worked for Bryan Orrio on a murder case for a
matter in which Judge Day presided –a fact that was shared in front of the jury on the
murder case.
Response to No. 10: There was no clear and convincing evidence that Judge Day
willfully violated the Oregon Code of Judicial Conduct. The Commission failed to offer
evidence of the videotape of the proceedings which would be the best evidence of what
the jury was told, if anything, about Daniel Day.
18
No. 11: Judge Day was offered and accepted a substantial gift from BAS of reclaimed
19
barn wood, which was not ultimately transferred, testifying that he “often gets offers of
20
gifts from probationers.”
21
Response to No. 11: There was no clear and convincing evidence that Judge Day
22
accepted a substantial gift from Brian Shehan. Judge Day denied accepting the gift.
23
There was no clear and convincing evidence that Judge Day willfully violated the Oregon
24
Code of Judicial Conduct. If allowed to present additional evidence, the defense attorneys
25
ps
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Exhibit 657
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1
could produce photos that would show that the barn still exists in the same or similar state
2
on the farm today.
3
No. 12: Judge Day willfully violated Rule 3.9 for ex parte contact.
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5
6
7
8
9
10
Response to No. 12: This factor was discussed above. There was no clear and convincing
evidence that Judge Day willfully violated the Oregon Code of Judicial Conduct with
regard to ex parte contact.
No. 13: Judge Day willfully violated Rule 3.3(A) & (C) in allowing a convicted felon to
violate laws prohibiting possession of a firearm.
Response to No. 13: This factor was discussed above. There was no clear and convincing
evidence that Judge Day willfully violated the Oregon Code of Judicial Conduct.
No. 14: Judge Day willfully violated Rule 3.3(A) & (C) and Rule 3.4(B) by taking steps to
11
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15
16
17
protect his son and himself for allowing a felon to possess a firearm.
Response to No. 14: There was no evidence to support this factor. It amounts to
innuendo and argument. There was no clear and convincing evidence that Judge Day
willfully violated the Oregon Code of Judicial Conduct.
No. 15: Judge Day had ex parte contact with VTC probationer Honee Hill, when he would
give her rides home from his church and she acted as if that relationship should provide[r]
her with special treatment from the court and staff.
18
Response to No. 15: There is no evidence that any ex parte contact occurred between any
19
Veterans Treatment Court participant and Judge Day under the definition supplied by Rule
20
1.3 of the Code. There was no clear and convincing evidence that Judge Day willfully
21
violated the Oregon Code of Judicial Conduct concerning this factor.
22
No. 16: Judge Day allowed a convicted felon access to a firearm for hunting.
23
Response to No. 16: If true, then who is the felon? What were the nature of his charges?
24
When did the alleged violation occur? There was no clear and convincing evidence that
25
Judge Day willfully violated the Oregon Code of Judicial Conduct concerning this factor.
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Exhibit 657
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1
No. 17: Judge Day sought to distance himself from signing the Order for BAS to read
2
Fearless. He testified that his clerk prepared it and that it was “not the gold standard of
3
orders.” Judge Day never rescinded the Order within the formal court docket.
4
5
6
7
8
9
10
Response to No. 17: Brian Shehan testified that he read the book on his own after Judge
Day indicated he did not have to read it. There was no clear and convincing evidence that
Judge Day willfully violated the Oregon Code of Judicial Conduct concerning this factor.
No. 18: Judge Day inappropriately implied to the VTC team that the reassignment of
BAS to Judge Prall was the fault of BAS and had something to do with PTSD.
Response to No. 18: When did this occur? Why weren’t the other Veterans Treatment
Court Team members who were called by Judge Day crossed examined on this allegation?
Why wasn’t Judge Day asked any questions by the Commission’s attorneys on this issue.
11
12
13
14
15
16
17
There was no clear and convincing evidence that Judge Day willfully violated the Oregon
Code of Judicial Conduct concerning this factor.
No. 19: Judge Day told Judge Ochoa he would self-report several months before meeting
with Judges Rhoades and Penn, but did not do so.
Response to No. 19: There was no first hand evidence that Judge Day even discussed
reporting to the Commission. Judge Day testified that he and Judge Ochoa did not talk
about ethics at all, but rather talking to Judge Rhoades about the ramifications of the
18
incident on the probationer. Judge Day did disclose the gun incident to the Deputy
19
District Attorney, Bryan Orrio, and defense attorney Daniel Wren shortly after the
20
incident occurred and they did not take any further action. There was no clear and
21
convincing evidence that Judge Day willfully violated the Oregon Code of Judicial
22
Conduct concerning this factor.
23
No. 20: Judge Day met with Judge Dickey who told him to self-report and Judge Day
24
was not forthcoming with Judge Dickey that he had already self-reported.
25
///
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Exhibit 657
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1
Response to No. 20: Judge Dickey is Judge Rhoades’ husband. The meeting took place
2
after Judge Day’s August 23 report. Judge Dickey was not called by the Commission and
3
Judge Day was never asked about this allegation at hearing. There was no clear and
4
5
6
7
8
9
10
convincing evidence that Judge Day willfully violated the Oregon Code of Judicial
Conduct concerning this factor.
No. 21: Judge Day used his personal Alaska Airlines miles card to receive a benefit in
purchasing items for VTC.
Response to No. 21: There was evidence that the Alaska Airlines miles from the use of
the credit card had little personal value and it was offset by the payments Judge Day
individually made that were not reimbursed. There was no clear and convincing evidence
that Judge Day willfully violated the Oregon Code of Judicial Conduct concerning this
11
12
13
14
15
16
17
factor.
No. 22: Judge Day made statements to court staff that “It is easier to ask for forgiveness
than to ask for permission” and “I am the judge, I can do what I want.”
Response to No. 22: There was no clear and convincing evidence that Judge Day
willfully violated the Oregon Code of Judicial Conduct concerning this factor. Please see
response to Counts 10 and 11.
No. 23: Judge Day made misrepresentations to the public media that the CJFD issued an
18
inaccurate summary of the allegations against him.
19
Response to No. 23: Judge Day’s representations to the media were accurate. The CJFD
20
media statement only partially summarized the allegations in the case pending against
21
Judge Day. It omitted Judge Day’s allegation in his Answer, Affirmative Defenses, and
22
Counterclaim. There was no clear and convincing evidence that Judge Day willfully
23
violated the Oregon Code of Judicial Conduct concerning this factor.
24
No. 24: Judge Day’s justification for why the CJFD’s summary was inaccurate was
25
disingenuous (it was not a “picture” of Hitler, but a “painting,” and that it was not
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Exhibit 657
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1
“artwork” but a “collage”) which violates Rule 3.12(A) in failing to cooperate and be
2
candid.
3
Response to No. 24: Judge Day’s characterization was accurate. If not accurate, then
4
5
6
7
8
9
10
why didn’t the Commission’s attorneys call Susan Isaacs, the author of the press release,
to testify as to its accuracy? There was no clear and convincing evidence that Judge Day
willfully violated the Oregon Code of Judicial Conduct concerning this factor.
No. 25: Judge Day’s interactions with the media improperly attacked the process and
politicized the legitimate investigation of his actions, in violation of Rule 3.4(A) & (B), as
well as Rule 2.1(A), (C) & (D).
Response to No. 25: Judge Day’s exercise of his First Amendment rights cannot be the
basis for a violation of these rules. There was no clear and convincing evidence that Judge
11
12
13
14
15
16
17
Day willfully violated the Oregon Code of Judicial Conduct concerning this factor.
No. 26: Judge Day acknowledged at the hearing that war art can make some people
uncomfortable and can be a negative experience for some vets, so he was well aware of
the risk of posting war art so predominantly in the courthouse where veterans would
appear.
Response to No. 26: This factor, as stated, is simply argumentative and based on the
assumption that there is a new right to “not be offended” by what exists in public spaces.
18
There was no clear and convincing evidence that Judge Day willfully violated the Oregon
19
Code of Judicial Conduct concerning this factor.
20
No. 27: Judge Day skipped two scheduled weddings then was not truthful about the same.
21
Response to No. 27: The testimony concerning this factor came from one of Judge Day’s
22
staff whose credibility is highly questionable. If this factor is so important, then why
23
wasn’t Judge Day asked any questions about this incident by the Commission’s attorneys
24
or the Commission? There was no clear and convincing evidence that Judge Day willfully
25
violated the Oregon Code of Judicial Conduct concerning this factor.
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1
No. 28: Judge Day was not truthful to VTC staff when stating he had reviewed
2
documents for VTC, when Lambert knew he had not.
3
Response to No. 28: This factor is based upon the testimony of Elan Lambert whose
4
5
6
7
8
9
10
credibility is highly questionable. There was no clear and convincing evidence that Judge
Day willfully violated the Oregon Code of Judicial Conduct concerning this factor.
No. 29: Judge Day willfully violated Rule 2.2 by using his personal Visa card to obtain
airline[s] mileage for PVR purchases.
Response to No. 29: There was evidence that the Alaska Airlines miles from the use of
the credit card had little personal value and it was offset by the payments Judge Day
individually made that were not reimbursed. There was no clear and convincing evidence
that Judge Day willfully violated the Oregon Code of Judicial Conduct concerning this
11
12
13
14
15
16
17
factor. This factor is a repeat of No 21, above.
No. 30: Judge Day willfully violated Rule 2.2 by being reimbursed for the Hitler artwork
without turning that money over to PVR.
Response to No. 30: There was no clear and convincing evidence that Judge Day should
have turned any money over to Partnership for Veterans at Risk or that he willfully
violated the Oregon Code of Judicial Conduct concerning this factor. The evidence is that
Judge Day paid for the artwork because Partnership for Veterans at Risk failed to do so.
18
No. 31: Judge Day willfully violated Rule 4.5(a) by personally soliciting funds for PVR.
19
Response to No. 31: There was no clear and convincing evidence that Judge Day
20
solicited funds for Partnership for Veterans at Risk. The attorneys who donated money for
21
the wall hanging project all testified they were not solicited. Please see response to Count
22
9. There was no clear and convincing evidence that Judge Day willfully violated the
23
Oregon Code of Judicial Conduct concerning this factor.
24
No. 32: Judge Day made unwanted physical contact with Megan Curry, his former clerk,
25
in the last 6 to 8 weeks in a manner to intimidate, in violation of Rule 3.12(B).
ps
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Exhibit 657
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1
Response to No. 32: The videotape evidence of the courthouse hallway on the date in
2
question, Ex. 653, offered at the hearing clearly shows Judge Day did not make unwanted
3
physical contact with Megan Curry. There was no clear and convincing evidence that
4
5
6
7
8
9
10
Judge Day willfully violated the Oregon Code of Judicial Conduct concerning this factor.
No. 33: Judge Day willfully violated Rule 2.1(D) in testifying Lambert did not want to
be timely paid for her work.
Response to No. 33: Please see response to Count 11. There exists no documentation,
email, or texts, at any time which show that Elan Lambert had any other desire other than
to function as the “contract Evaluator” until the time in which a contract could be
arranged. In fact, third party witnesses who worked with Ms. Lambert testified that a
special invoice was discussed with her and agreed to by her. There was no clear and
11
12
13
14
15
16
17
convincing evidence that Judge Day willfully violated the Oregon Code of Judicial
Conduct concerning this factor.
No. 34: Judge Day’s position that his bias, as self-publicized in the media, can be
addressed through recusal is unworkable, particularly when you cannot be what you do
not perceive. That is, Judge Day’s failure to acknowledge his bias, or substantial
appearance of bias, provides no assurances that he has the capability of appropriately
recusing himself.
18
Response to No. 34: Please see response to Count 12. There was no clear and convincing
19
evidence that Judge Day has a bias, rather, he has a firmly held religious belief that he is
20
entitled to exercise under the First Amendment. There was no clear and convincing
21
evidence that Judge Day willfully violated the Oregon Code of Judicial Conduct
22
concerning this factor.
23
No. 35: Judge Day’s position that his bias, including the perceived bias in favor of
24
veterans, due to his war art project, can be managed through affidavits puts and undue
25
burden on the remainder of the Marion County bench.
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Exhibit 657
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1
Response to No. 35: There was no evidence to support this factor that an undue burden
2
was put on the remainder of the Marion County bench. This is simply innuendo. There
3
was no clear and convincing evidence that Judge Day willfully violated the Oregon Code
4
5
6
7
8
9
10
of Judicial Conduct concerning this factor.
No. 36: Judge Day’s argument that he “loves his gay and lesbian brothers and sister” is
flatly contradicted by the testimony of Judge Pellegrini. Judge Day told Judge Pellegrini
shortly after she took the bench that he had concerns about her because she was a “lesbian
judge.”
Response to No. 36: Judge Day testified that he did not say he had concerns about Judge
Pellegrini because she was a lesbian judge. Rather, he had concerns about the number of
government lawyers that were being appointed to the Marion County Circuit Court bench
11
12
13
14
15
16
17
and the need for more judges with private practice experience. In fact, Judge Day initiated
the breakfast meeting with Cheryl Pellegrini before she was sworn in for the sole purpose
of explaining that he had no problem with her sexual orientation or her qualifications, but
that he supported another judicial candidate because the candidate came from the private
practice, civil law side of the bar.
No. 37: Judge Day sought to conspire with state employees to discriminate by asking if
certain staff were “safe”, as in whether or not they shared his religious beliefs.
18
Response to No. 37: Please see the response to Count 12. There was no clear and
19
convincing evidence that Judge Day willfully violated the Oregon Code of Judicial
20
Conduct concerning this factor.
21
No. 38: By clear and convincing evidence, it has been proven that Judge Day willfully
22
violated Rule 3.3(A) by failing to uphold the law, including administrative duties, fairly,
23
impartially, and without bias or prejudice.
24
///
25
///
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Exhibit 657
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1
Response to No. 38: This factor is overbroad and vague. There was no clear and
2
convincing evidence that Judge Day willfully violated the Oregon Code of Judicial
3
Conduct concerning this factor.
4
5
6
7
8
9
10
No. 39: Judge Day’s public representations and arguments at the hearing that his position
on same sex marriage was the reason or “catalyst” for the CJFD investigation to “load up”
and throw in “the kitchen sink” are untrue when it was not an issue discussed at the
August 21, 2014, meeting with Judges Day, Rhoades and Penn and it was not an issue
initially identified by the CJFD’s investigator, Karen Saul, and was only discovered when
talking with Judge Day’s former staff.
Response to No. 39: This factor is argumentative only. There was evidence that supports
the assertions of the undersigned attorney during the hearing as summarized in this closing
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12
13
14
15
16
17
argument. There was no clear and convincing evidence that Judge Day willfully violated
the Oregon Code of Judicial Conduct concerning this factor.
No. 40: Judge Day engaged in game play by originally denying Claim No. 13
(inappropriately putting pictures of selected past presidents in jury room) only because it
stated that the artwork had been “hunt” instead of “stored” in the jury room.
Response to No. 40: Judge Day did not engage in “game play.” The Commission’s
attorneys incorrectly alleged in Count 13 of the Commission’s Complaint that “Judge Day
18
inappropriately hung pictures of select past U.S. Presidents in his courtroom’s jury room.”
19
Judge Day appropriately denied this allegation. There was no clear and convincing
20
evidence that Judge Day willfully violated the Oregon Code of Judicial Conduct
21
concerning this factor.
22
23
24
25
ps
Judge Day respectfully requests the Commission to consider the
following mitigating factors in deciding their recommendations:
1) Because Counts 1 and 2 were previously dismissed and then revived by the
Commission over two years after the incidents occurred, the later revival
Page 101 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
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1
made it very difficult to locate any witnesses because of the passage of time.
2
The Commission should understand the difficulty the defense had in
3
defending against Counts 1 and 2 given the passage of time. Had the
4
5
6
7
8
9
10
Commission decided to go forward with a formal Complaint at the time
these events were originally investigated, Judge Day would have been in a
better position to try to find additional eye witnesses, such as players,
coaches, or fans who possibly saw the events.
2) Judge Day is a younger, inexperienced judge who acknowledged that he
made some mistakes in judgment and would do things differently in the
future. There was evidence that new judges receive very little training when
they are appointed or elected to the bench. The fact that there isn’t
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12
13
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16
17
mandatory training and ongoing education concerning the Code of Judicial
Conduct should be considered as a mitigating factor. Although judges come
from a variety of backgrounds, they usually do not have any training or
experience in this area. To a large extent, judges in Oregon are mentored by
more senior judges and end up “learning on the job.” This is true in Judge
Day’s case.
3) The Veterans Treatment Court in Marion County was a new court and the
18
entire court team, including Judge Day, were inexperienced when the court
19
started. The entire team was learning on the job. When he started the
20
Veterans Treatment Court, Judge Day took training on how to conduct the
21
court. The subject of ex parte contact with court participants was discussed,
22
but there were no clear lines drawn in his training. Judge Day knew that
23
other judges in Marion County were having out-of-court contact with
24
participants in treatment courts. After this experience with Mr. Shehan,
25
Judge Day acknowledged that he would not have this type of out-of-court
ps
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Exhibit 657
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1
contact with participants in the Veterans Treatment Court in the future if he
2
is even assigned that docket again. Finally, Judge Day acknowledged that he
3
made mistakes in judgment in his interactions with Brian Shehan and his
4
5
6
7
8
9
10
staff.
4) There were no guidelines or rules promulgated by the Marion County Circuit
Court judges or the Marion County Commissioners concerning what could
be hung on the courthouse walls. While various witnesses expressed
personal preferences about what should or should not be hung on the walls
of the Marion County Courthouse, it is important to note that Judge Day did
not have any guidelines or rules to review when he decided to coordinate the
project and hang things on the walls. Even after concerns were raised in the
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12
13
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15
16
17
spring and summer of 2014, the Marion County Circuit Court judges did not
solve the problem. They decided to form an art committee, but the art
committee has not taken any formal action to adopt rules or guidelines.
These facts should be taken into account as mitigating factors.
5) When the law changed on same-sex marriage, the Marion County circuit
court judges did not receive any information or legal advice from the
Supreme Court, Attorney General’s office, Circuit Court Judges Association,
18
or the local circuit court judges’ group on how the new law would be
19
implemented in Marion County and the ethical responsibilities of a circuit
20
court judge concerning the implementation. The subject of same-sex
21
marriage has been a controversial subject in American society. When the
22
law changed and procedures needed to be put in place to implement the law,
23
it would have been helpful if any of the entities above had promulgated
24
information or legal advice to circuit court judges and county clerks on how
25
to implement the new law to achieve consistency and compliance with the
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Exhibit 657
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1
new law. The evidence in the case is that nothing was promulgated leaving
2
each individual judge, including Judge Day, in the position of having to
3
figure it out on their own, and at their own risk. This fact should be taken
4
5
6
7
8
9
10
into consideration as a mitigating factor.
6) Judge Day was not allowed to have an expert inspect Christine Brown’s cell
phone or inspect the email/text messages/instant message information on the
servers for the Marion County Courthouse for information concerning the
allegations against Judge Day. The defense attorneys made a timely request
for this discovery that likely would contain exculpatory information. The
request was denied. This fact should be taken into consideration as a
mitigating factor.
11
PART 5: CONCLUSION
12
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17
There is a sharp contrast between each of the parties’ investigation,
presentation of evidence, and arguments. The Commission members are facing a difficult
task; that is, to evaluate the evidence in light of the applicable law, including Judge Day’s
Constitutional rights. As pointed out repeatedly in this closing argument, the significance
of this case impacts Judge Day and larger societal concerns. Most citizens expect judges
to be treated fairly just as they expect judges to treat them fairly. Judges can and do make
18
mistakes every day, but not every mistake should be tantamount to a violation of the
19
Oregon Judicial Code of Conduct. This is the reason for the clear and convincing standard
20
of proof. There has to be more than a mistake. There has to be a willful intention to
21
violate the code which has not been shown in this case. Judge Day is a conservative man
22
of faith, who works hard, who has sincere intentions, and who has done a lot of good.
23
Judge Day has acknowledged he is not perfect and has made mistakes in judgment. He
24
has demonstrated the courage of his convictions when it comes to the issues involving his
25
faith, and he should not be punished for doing this.
ps
Page 104 – HON. VANCE D. DAY’S CLOSING ARGUMENT
Exhibit 657
Page 104 of 106
Thank you again for your service to the Commission and the State of
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DATED this 11 1h day ofDecember, 2015 .
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E-mail: [email protected]
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Of Attorneys for Vance D. Day
E-mail: [email protected]
Fax: (503) 588-5895
JANET M. SCHROER, OSB# 813645
Of Attorneys for Vance D. Day
E-mail: [email protected]
Fax: 503-222-2301
JAMES BOPP, JR., IN# 2838-84
ANITA Y. MILANOVICH, IN# 25162-64
Of Attorneys for Vance D. Day
E-mail: [email protected]
[email protected]
Fax: (812) 235-3685
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Page 105- HON. VANCE D. DAY' S CLOSING ARGUMENT
Exhibit 657
Page 105 of 106
CERTIFICATE OF SERVICE
I hereby certify that, on the date set forth below, I served a copy of the foregoing
HON. VANCE D. DAY'S CLOSING ARGUMENT on:
Victoria D. Blachly, OSB # 972805
Samuels Yoelin Kantor, LLP
111 SW 5th Ave. Ste. 3800
Portland, OR 97204
Fax: 503 222-2937
E-mail address: [email protected]
Attorney for Oregon Commission on Judicial Fitness and Disability
by emailing a copy to said attorney at the above email address with consent of counsel;
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by mailing a copy in a sealed, first-class, postage prepaid envelope, addressed to said
attorney at the above address and deposited in the U.S. Mail;
DATED this 11th day of December, 2015.
ONER, OSB#732880
Of Attorneys for Hon. Vance D. Day
Spooner & Much P.C.
E-mail: rspooner(a)smapc.com
Fax: 503-588-5899
MICHAEL B. DYE, OSB# 700423
Of Attorneys for Vance D. Day
E-mail: michaelbdye(a)yahoo.com
Fax: (503) 588-5895
JANET M. SCHROER, OSB# 813645
Of Attorneys for Vance D. Day
E-mail: [email protected]
Fax: 503-222-2301
JAMES BOPP, JR.
ANITA MILANOVICH
Of Attorneys for Vance D. Day
E-mail: [email protected]
[email protected]
Fax: (812) 235-3685
Exhibit 657
Page 106 of 106