Oregon Circuit Court Judge Vance Day has fought hard two years to defend himself against charges that he violated state code of judicial conduct. His legal team did not expect much justice from the Oregon Commission on Judicial Fitness and Disability. Anyone who attended the entire hearing recognized that Judge Day’s evidence would be discarded in the Commission’s attempt to drive him from the bench.
Now the Attorney General of Oregon has filed a criminal indictment based on the false allegation that Judge Day knowingly aided and abetted a felon (one of the veterans in his Vet Court) in possessing a firearm. The charges are false and independent witnesses have stated that Judge Day did no such thing. Nevertheless, it appears that the Attorney General Rosenblum wants Judge Day punished for simply standing for his First Amendment rights. It is clear that Judge Day, and those like him, have enraged the ill-liberal left. (To see Ellen Rosenblum’s final campaign email, click here)
The onslaught against Judge Day began with the Commission’s allegations filed back in June of 2015. Most of the accusations range from insignificant to trivial. Among the things that the Judicial Fitness Commission considered were violations of state ethics rules include handing his business card to a soccer referee who had asked for it; hanging displays of memorabilia honoring the service of American military veterans on the walls outside his office; and even hanging pictures of former presidents of the United States. (To review the 44 page document which combines both the commission’s complaint and Judge Day’s answer, affirmative defenses and counterclaims, please click here)
Judge Day’s decision to not perform weddings
One serious charge lies at the heart of the complaint against him: that his decision to excuse himself from performing same sex marriages violated his duty as a judge. Presiding at weddings is something that state court judges are permitted to do, but it is not required, and it is not part of a judge’s core responsibilities.
Many judges do not perform weddings at all, and Judge Day decided to make that his policy as well, in the fall of 2014. He instructed his staff to be helpful to those who called seeking a same sex wedding by referring them to other judges who gladly perform them. For Judge Day, performing such ceremonies is contrary to his deeply held religious beliefs, and he believes that his First Amendment rights of free exercise of religion, free speech and freedom of association give him an unquestioned right to decline to perform such marriages. Judge Day’s policy does not in any way affect the right of same-sex couples to be married in Marion County, Oregon. Such weddings are readily available to all.
Religious Liberty under Attack
The unmistakable message in the Commission’s complaint is that anyone who has a personal religiously-based objection to same-sex marriage are to be forced to make a public display of approval or else suffer public condemnation and official sanction.
In November of 2015, Judge Day and his legal team defended against the Commission’s complaint in a two-week hearing. In Oregon, the Commission assumes most all of the major roles contained in the American system of justice at the trial level; as such, the commission acts as the investigator, the prosecutor, the trial judge, and the trial jury. That’s right – the same nine people who charge a judge with a violation hire a prosecutor, and then sit as both the judge and the jury on that same case. Additionally, the commission’s rules governing the process do not afford the accused judge procedural and substantive protections afforded litigants in other cases.
Lack of Due Process
Most of those who attended the entire nine-day hearing concluded that Judge Day’s team countered every single charge, despite not being allowed to present certain witnesses and evidence. Originally the Commission’s case was to take four of the nine days, with Judge Day being allotted five days to present his evidence. Attendees observed that the Commission’s attorneys were not organized or efficient and Judge Day team had to cut back on the number of witnesses in an effort to keep within the Commissions nine-day timeline. The Commission ran out of time and requested that their attorney and Judge Day lawyers submit closing arguments in writing rather than argue on the record.
The “Already Decided” phenomenon
In late January of 2016 the Commission issued its “Opinion” recommending that Judge Day be removed from his position. The Commission found he violated the ethics cannons on 8 of the 13 counts they alleged. The 48 page document does not even mention the mass of evidence produced to counter the Commission’s case – it is as if Judge Day did not even put on a case. (Click here for the “Opinion”) The Commission even found him in violation of certain acts which were never alleged in the complaint – an act which Judge Day’s lawyers have asserted violates the Commission’s own rules. (Click here for Judge Day post-opinion Motion to Strike)
Ethics case: The next step
We hope you’ll agree that the Commission’s “findings” turn fundamental constitutional rights on their head, and that you’ll help Judge Day defeat this effort to overturn those rights.
Judge Day’s ethics case is now before the Oregon Supreme Court. Oral arguments have just been re-set for June 14, 2017, at 9:00 AM.
A Political Vendetta?
On November 17, 2016, the Oregon Department of Justice filed an indictment against Judge Day alleging that he had committed two felonies – aiding and abetting a felon in the possession of a firearm. The indictment also added two misdemeanors based on the firearm charges – official misconduct. The maximum sentence Judge Day faces if convicted is 12 years in prison. (Click here to see the indictment)
It seems clear that the Commission failed in its task of driving Judge Day from his position on the court. The Oregon Attorney General is now attempting to do the same. Judge Day’s legal team strongly believes the DOJ will fail in its attempt to criminalize Judge Days charitable actions toward the disabled veteran in question.
Motions to Dismiss
Judge Day’s legal team on the criminal case has filed several Motions to Dismiss the indictment (click here to read the motions). The DOJ attorneys have filed responses to the motion (click here to read). In early January 2017, Judge Day’s team filed his replies to the state’s responses (click here to read), and the Judge on the case will hear arguments on February 24, 2017 in Marion County Courthouse. Several of the motions will be argued before the Judge on the case at 8:15 AM, on April 14, 2017 in Marion County Courthouse, in Salem, Oregon. The hearing is open to the public.
The cost of defending liberty
It has been an expensive battle with Judge Day’s legal fees totaling over $650,000 as of April 2017. DefendJudgeDay.com has been very helpful in providing funds to fight this battle. The ethics case could potentially go to the U.S. Supreme Court based on Judge Day being denied his First Amendment liberties. That will only be possible if people who share Judge Day’s desire to vindicate the rights of religious conscience will help support the legal battle to prevent the evisceration of these rights.
With the recent indictment, Judge Day faces even more legal expenses. We don’t believe that the state should prevail in its attempt to put Judge Day in prison because his legal team doesn’t have the funds to fight this battle. We believe that Judge Day can and will defeat this indictment.
The State of Oregon has over-reached in its attempt to bring down a good and honorable man. By criminally charging Judge Day, the state may be giving his legal team the vehicle it was denied before the Commission – the right to obtain the evidence about who is really behind these injustices.