Joe Charter explains

Jackson County Judge David Orr had a recusal problem.

Now he has a new problem.

Today's blog is about a topic that wasn't on the radar of most Americans until now --  functioning courts. Who cares? Now lots of us do. Americans are learning from the Trump trials that the smooth operation of federal and state courts is a matter of consequence.

Jackson County's District Attorney Beth Heckert filed a complaint against Judge David Orr and Presiding Judge Benjamin Bloom with the Commission on Judicial Fitness and Disability. She asserted that Judge Bloom used the power of his office to help fellow Judge David Orr's re-election, and that Judge Orr misrepresented his ability to hear criminal cases. The district attorney felt her attorneys could not get a fair trial from Judge Orr, so she requested and received an order that recused him from hearing criminal cases. Judge Bloom lifted that recusal a week ago. In a report to local media, Heckert described Bloom's attempt to backdate the effective date of that action. Heckert said Judge Orr had told the Rogue Valley Times that the recusal had been lifted. It had not been -- at least not yet. Heckert said Bloom used the power of his office to try to make Orr's statement to the media accurate --but after the fact. She said this campaign help was unethical behavior for both judges.

That is the political issue affecting Judge Orr's contested election. Judge Bloom is unopposed in his re-election.

Joe Charter addresses a second issue, the legal and legislative one. The Oregon legislature thought that recusals were getting out of hand. It was exacerbating court congestion of exactly the kind Jackson County is experiencing. What was the problem with the old law? What is the new law?

Joe Charter is the Jackson County Justice of the Peace, a position he held from 2004 until 2020, when he was elected to the Circuit Court. He was re-appointed to the Justice of the Peace position by the Oregon governor in January 2024. Charter worked with Judge Orr in the Juvenile Court for more than a year, and is well aware of the docket problems caused by recusals and disqualifications of judges.

Charter

Guest Post by Joe Charter

I write to provide some background for the claims currently being made regarding disqualifications of judges. I realize that most non-lawyers will not be very interested in recent changes in the law. However, a broader context may help to understand the claims being made.

Prior to January 2024, ORS 14.260 provided that “any party . . . or any attorney” in any case could file a motion and affidavit to disqualify a judge assigned to their case, which “shall be granted” unless the judge moved against challenges the good faith of the affidavit. Most do not because it is difficult to successfully challenge subjective good faith.

The affidavit required for disqualification could simply state that the party or attorney believes they “cannot have a fair and impartial trial or hearing before the judge, and that it is made in good faith and not for the purpose of delay. No specific grounds for the belief need be alleged.” SB 807 (2023) changed that last sentence to provide an exception in criminal and juvenile delinquency cases. The new law allows the judge moved against to request a hearing before a disinterested judge from another judicial district.

The disinterested judge then determines whether (1) disqualification “effectively denies the judge assignment to a criminal or juvenile delinquency docket”; and (2) “there is a reasonable good faith belief that the judge lacks fairness or impartiality.” The burden of proof is the party making the motion, and the disinterested judge views the evidence on an objective basis. The new law essentially shifts the burden of proof in criminal cases to the party requesting disqualification rather than the judge, and imposes an objective standard, rather than allowing just a subjective good faith belief to disqualify a judge.

The procedure is unchanged for civil cases. There, the party gets ‘two free bites at the apple’ of changing the assigned judge based on a subjective good faith belief that they cannot receive a fair trial. The motion has to be filed within 10 days after the judge’s assignment, and cannot be filed after a judge has already ruled on an issue in the case. ORS 14.270. This latter provision prevents a party from disqualifying a judge because they did not like a ruling the judge made in the case.

In a May 5, 2023 Oregonian article one judge called blanket disqualifications a “bullying tactic.” On the other side, one DA said “Judges like anybody else have biases and histories” which mean that they should not hear certain cases. My opinion is that most judges don’t like to admit that they may have biases. The ‘implicit bias theory’ posits that we all are influenced by unconscious associations and judgments. Opinions differ on whether individuals can overcome their subconscious biases through training.

Although Judge Orr’s statement (Peter’s Blog, 4.24.24) says otherwise, the Oregonian article states that criminal “defense lawyers have filed more motions than prosecutors . . ..” Klamath County had more than half of the disqualification motions filed during the 2016-2020 period and the majority of those were filed by the DA according to the Oregonian. In Marion and Washington Counties, the majority of disqualification motions were filed by defense attorneys, not the DA.

Although explanations for disqualification motions were not previously required, the Oregonian article noted that in one Multnomah County case, the DA’s 16-page memorandum outlined multiple cases. DA Heckert’s July 2021 disqualification request outlined five separate cases over a six-month period. (Peter’s Blog, 4.23.24).

I have no opinion regarding any disputes between the DA and Judge Orr. SB 807 was effective January 1, 2024. Nothing in the bill suggests that it applies to prior cases. If new criminal cases are assigned to Judge Orr, both he and the DA would have to follow the new procedure for each of those cases.

Neither the judicial system nor those who participate in it are perfect. Blanket disqualifications of judges, without examining the reasons for any alleged bias, can cause additional expense for visiting judges and docket disruptions, particularly in rural counties. So can overuse of the “two bites at the apple” affidavit procedure in civil cases.

The criminal justice system balances power between the executive branch (the DA), the judiciary, and citizens. The legislature weighed competing policy considerations and adjusted the balance in SB 807, which hopefully will provide better clarity going forward. The objective of the system should be unbiased decision making for all.

 

Tomorrow: The U.S. stock market is at an all time high. Democrats are tempted to cite it as proof that Biden is doing a great job. That's a mistake.

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