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Judge Vance Day's judicial fitness case goes before Oregon Supreme Court

Whitney M. Woodworth
Statesman Journal
Justice Rives Kistler asks a question during a judicial fitness hearing for Marion County Circuit Judge Vance Day at the Oregon Supreme Court in Salem on Wednesday, June 14, 2017.

Gun felonies, First Amendment rights, same-sex weddings and lies were all up for discussion Wednesday, June 14, during arguments before the Oregon Supreme Court on whether Marion County Judge Vance Day is fit to remain on the bench.

Day walked into the courtroom holding his wife's hand. He stopped to speak to a few community members in the audience before joining his attorneys in front of the seven justices.

The embattled judge has faced a series of controversies and legal proceedings in recent years.

Following a two-week hearing in 2015, the Commission on Judicial Fitness and Disability found "clear and convincing evidence" on eight counts against Day, including allegations that he allowed a convicted felon and Veteran's Treatment Court probationer to handle a gun on two occasions, instructed his staff to "inappropriately" screen same-sex wedding applicants and lied to the commission on multiple occasions.

Last year, the commission voted unanimously to recommend removing Day from the bench. Commission officials wrote that Day lied under oath, used his office for personal gain and hurt public confidence in the judiciary.

Day also is facing criminal charges stemming from his out-of-court conduct with Brian Shehan, a Navy SEAL who participated in the Veteran's Treatment Court that Day presided over.

A Marion County grand jury indicted Day in late 2016 on two felony gun violations and two counts of first-degree official misconduct.

Day is accused of allowing Shehan, a convicted felon, to possess and control guns two times, once in 2013 and once in 2014.  Day allegedly asked Shehan to retrieve an unloaded gun hidden in a cabinet while Shehan was doing work at Day's daughter's house.

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According to a report from the Oregon Commission on Judicial Fitness and Disability released earlier this year, Shehan said he also fired a gun during an outing with Day's son in 2014, believing he had Day's permission to do so.

Day stopped hearing criminal cases when charges were filed against him, but he remains a sitting judge and continues to work from home on special projects assigned to him by Presiding Marion County Circuit Court Judge Dale Penn.

The criminal charges are separate from the ethics case.

The commission filed its recommendation that Day be removed from the bench with the Oregon Supreme Court, which handles judicial discipline.

Janet Schroer, attorney for Marion County Circuit Judge Vance Day, speaks during a judicial fitness hearing regarding Day's conduct at the Oregon Supreme Court in Salem on Wednesday, June 14, 2017.

Day's attorney Janet Schroer argued that the commission's report was "very selective" and ignored evidence of Day's credibility. The commission had the burden of proof that Day purposely and willfully violated the judicial code of ethics.

There is no way to look at this record — the whole record — and to conclude that the commission's cynical view of events meets the burden of proof, she added.

She also cast doubt on the authority of the commission to re-investigate previous complaints, such as the allegations that Day had "shoved" his business card at a referee during a 2013 soccer game involving his son in an attempt to intimidate the referee.

Memories fade, facts change and stories evolve, Schroer said.

She also said the court should give no weight to the testimony of Shehan, who she described as a "convicted felon.'' Schroer highlighted the difficulties in getting Shehan to appear for cross-examination and questioned his honesty.

"All of the commission's witnesses have a lot of credibility problems," Schroer said.

Schroer also defended Day's actions regarding same-sex marriage, saying it was based on his sincerely held religious beliefs, which are protected by the First Amendment.

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"This case not only impacts Judge Day but society at large," she said. "We expect judges to be treated fairly just as we expect judges to treat people fairly."

Judges can and do make mistakes, she said, adding that Day changed his conduct as soon as he understood it was inappropriate.

"He is a man of character and integrity," Schroer said.

She concluded with questioning the seriousness of the sanction. Judges in Oregon are rarely removed from the bench. When removal is recommended, it is usually for much more serious charges such as complete incompetence or repeated misconduct, she said.

"At most, it should be a censor," she said.

Timothy Volpert, the attorney for the Commission on Judicial Fitness, speaks during a judicial fitness hearing for Marion County Circuit Judge Vance Day at the Oregon Supreme Court in Salem on Wednesday, June 14, 2017.

Timothy Volpert, attorney for the commission, defended its investigation and findings. As the investigation unfolded, more facts were discovered and charges were added, he said.

Many unbiased witnesses provided overwhelming evidence that pointed to Day's multiple ethics violations. Their under-oath testimonies contradicted Day's own accounts, he said.

The commission found that Day implemented a system of discrimination by ordering his staff to screen same-sex couples. If same-sex couples asked for Day, his staff was to tell the couple the judge was unavailable for a wedding. In Oregon, judges are not required to perform weddings.

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Day's staff never carried out his plan. Instead, he stopped performing weddings altogether. Day has said publicly he is a Christian and that his beliefs prevent him from performing same-sex weddings.

Even if the court disregards the older allegations involving the soccer game, there would still be sufficient reasons to remove Day from the bench, Volpert said, citing the firearm allegations, the same-sex wedding bias issue and the lies told by Day.

"The lies that were told over the course of this proceeding were systematic, were fundamental, they proceeded over several occasions," he said. "There were lies made in testimony."

These actions, he said, demonstrated a clear pattern of misconduct.

Following the arguments, Susan Isaacs, executive director for the Commission on Judicial Fitness and Disability, said the case was in the court's hands now. The commission's job was to investigate, find facts and make a recommendation, she said.

The recommendations are not binding, said Ralph Spooner, who represented Day before the commission. He said hearing Day being called a liar in open court was very disturbing.

"Judge Day is a man who has a reputation — that he earned — of being hardworking, honest and obviously a sincere Christian who has his own beliefs," Spooner said.

Those beliefs, he said, did not interfere in any way with his official duties as a judge.

Spooner said he thinks Day is being targeted for being Christian.

"It's taxpayer money paying for all this prosecution," he said. "If we have a good, honest hardworking judge whose only disqualification is the fact that he's a Christian, that concerns me as a lawyer that's practiced here in the state of Oregon."

For questions, comments and news tips, email reporter Whitney Woodworth at wmwoodwort@statesmanjournal.com, call 503-399-6884 or follow on Twitter @wmwoodworth