Two Oregon judges should be ousted | Opinion | Eugene, Oregon

See - Two Oregon judges should be ousted | Opinion | Eugene, Oregon


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In the past few weeks two circuit court judges in Oregon — Judge Vance Day in Marion County and Judge Thomas Kohl in Washington County — have announced that, based upon their own personal religious beliefs, they will no longer perform marriages.


Judge Day has been very straightforward about the reason for this. He is quoted as stating that he will not perform marriages for gay couples — so, apparently in an attempt to avoid discriminating between gays and heterosexual couples, he has chosen to do no marriages at all. Judge Kohl has been far less forthcoming in his approach.


There has been a lot of loose talk about freedom of speech and freedom of religion in regard to these two judges’ actions. All such discussion is misplaced and irrelevant. The core issue is simply one of judicial misconduct. I want to turn first to the rules that govern the conduct of judges in Oregon, and then will deal further with the individual circumstances of each judge.


Because of the important role judges play in our society, a judge takes on the responsibility of complying with certain rules of conduct that do not apply to any other public servant in this state. These rules are imposed upon judges by Article VII (amended), Section 8, of the Oregon Constitution.


Two subsections are relevant to this situation. Subsection 2 prohibits “Wilful misconduct in a judicial office where such misconduct bears a demonstrable relationship to the effective performance of judicial duties.” Subsection 5 prohibits “Wilful violation of any rule of judicial conduct as shall be established by the Supreme Court.” For violating either of these two constitutional requirements a judge may be censured, suspended or removed by the Supreme Court.


The Oregon Supreme Court has adopted a Code of Judicial Conduct that both requires and forbids certain conduct by judges. The five rules that seem most applicable in this situation are:


“Rule 2.1 (A) A judge shall observe high standards of conduct so that the integrity, 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.”


“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.”


“Rule 3.3 (B) A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice … against parties, witnesses, lawyers, or others based on attributes including but not limited to … gender identity, (or) sexual orientation. ...”


“Rule 3.3 (C) A judge shall not … make any comment that a reasonable person would expect to impair the fairness of a matter pending or impending in any Oregon court.”


“Rule 3.4 (B) A judge shall not permit family, social, political, financial, or other interests or relationships to improperly influence the judge’s judicial conduct or judgment.”


Let me now turn to Judge Day. He has made it perfectly clear that he will not perform marriages for gay couples. Apparently understanding that by doing weddings for heterosexual couples but not for gay couples he would be flagrantly violating the Oregon Constitution and most if not all of the Code of Judicial Conduct rules set forth above, Day has sought to insulate himself from any charges of misconduct by performing no marriages at all. I suggest that this ploy does not have the effect he apparently desires.


By his very act of publicly announcing that he is prepared to place his personal religious beliefs above his obligation as a judge to follow the law — all the law — and by demonstrating a willingness, if necessary, to discriminate against certain people based on their sexual orientation to deprive them of the right to marry, it seems pretty much impossible to argue that he has not violated the Oregon Constitution and various sections of the Code of Judicial Conduct.

The Commission on Judicial Fitness and Disability is the state body charged with investigating and conducting hearings on allegations of judicial misconduct. It will hold a hearing in relation to Judge Day’s conduct in this matter — and some additional allegations — in October.


The commission will then make its findings and make a recommendation to the Oregon Supreme Court as to what action, if any, should be taken.


Now let me turn to Judge Kohl, who has been rather coy in revealing his position on refusing to do marriages for gay couples. Instead of honestly stating his refusal, he has made the somewhat vague statement that “last summer” he quit doing all weddings based on his faith.


However, if one knows a little about the history of gay marriage in Oregon, it is simple to decipher this obviously coded statement. In June 2014, the U.S. District Court in Oregon declared unconstitutional the state law forbidding gay marriage. That ruling became the law in Oregon, and gay couples gained the right to marry in this state. Thereafter, Kohl ceased doing any marriages, apparently for the same reason that Day did; he thought this would insulate him from charges of misconduct.


Again, I believe he was as wrong in that assumption as was Judge Day. It is unknown whether the Commission on Judicial Fitness and Disability is investigating Judge Kohl. It certainly should be.


In the United States, it is a cornerstone of our republic that we operate by the rule of law. As part of the rule of law, everyone who interacts with the courts and judges of this country — voluntarily or involuntarily — has the right to expect that no matter who the judge is, the issue before the court will be resolved based only on the law and the facts of the particular situation and that decisions will not be tainted by the judge’s personal biases, prejudices or beliefs. It is the obligation of each and every judge to ensure that this expectation becomes a reality.


I believe that Day and Kohl, through their willful violations of the Oregon Constitution and several provisions of the Oregon Code of Judicial Conduct, have brought disrepute on themselves and the courts and have thereby demonstrated that they are no longer fit to serve as judges in the state of Oregon. The Oregon Supreme Court should remove each of these judges from the bench.


James Hargreaves is a retired Lane County Circuit Court judge.

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