As I said Friday night when I posted my last wrap-up, I was going to tackle the government transparency lawsuits separately because of just how much was going on. I promised Sunday, so here we are!
The first case we look at is Buel v. Caballero, a case where the City Auditor is getting sued for not fining the Ted Wheeler campaign for donations in excess of limits voted for by the city. The difficulty is for a time, the limit in question was found unconstitutional, but overturned on appeal and found to be constitutional.
Mr. Buel asserted that while the appeal was ongoing, Friends of Ted Wheeler should have restricted donations, but the court ended up finding that “it is well accepted that when a court rules a statute, rule, or other government enactment to be facially unconstitutional, the government will not enforce that enactment until and unless the lower court s ruling is altered by a superior court”, setting the bar too high to clear.
In other news of the city fighting to protect their own interests over those of it’s citizens, we have the case of the city suing government transparency attorney Alan Kessler. In July Mr. Kessler sent a public records request to the city for text message metadata (timestamps, number and message IDs) sent or received by city owned cell phones (starting in 2017), which the city wanted to heavily redact and charge a hefty sum of $100,000 (at a very generous estimate, enough to pay for a dedicated employee for an entire year to the request) to process. Mr. Kessler raised issues with these details with the county attorney’s office, as part of an appeal process, and the Multnomah County District Attorney’s office sided with him, telling the city that they needed to provide the information with less redactions (which would also lower the costs).
The city disagreed with DA Schmidt’s determination, and decided to file in county court against Mr. Kessler to try to dodge their duties. Also included were statements by city employees who claim their rights would be violated if their information was to be made public. Keeping in mind that the information requested was very limited, this seems to be a challenge in just how much information the government can legally keep hidden from us.
Court Case Wrap Up, Nov 13
This week has been a lot of self-recovery and time in bed (still not sure what I got hit with. Not sick, just -incredibly- tired). But some things have been happening in recent days and here’s you’re catch up. In the Montgomery v. Portland case, where Mr. Montgomery alleges he was tackled multiple times by police while following dispersal orders, the case has progressed to the point where Judge Lopez will be hearing pre-trial matters. Another recent case, Christiansen v. Portland, has been served on the city
In other civil cases, Corey Wyatt has responded in the Swinney, Wyatt and Willis case from federal detention, vociferously denying any of his involvement and announcing his intention to countersue for defamation and emotional damages. Mr Wyatt has his own criminal cases ongoing both in state and federal courts for unrelated incidents.
Our third civil case with recent changes is the ACLU suing on behalf of an unnamed protester for police illegally recording protests when there was no evidence of criminal activity. Judge Lopez has been assigned to the case, making this the third such protest related suit that has been randomly assigned to them at this time.
In criminal cases, as was reported by us previously, Marquise Love recently pled guilty to assault and riot, and was sentenced to 20 months in jail and three years post-jail supervision. To my knowledge, this is the first felony conviction to come from any of these protests, but that is solely because any other still pending cases have been pled not guilty.
In Salem, the Wolfskill case appears to have a not guilty plea entered, and Judge Wren has been assigned as the trial judge for that case.
Moving along to campaign reform cases, the writ of mandamus from late October’s State ex rel case (more information available here) has been returned. Much of what was said in court was restated, that the rule was unenforceable and as such there was no violation. At this point, that gives the parties 30 days to file an appeal of the decision to the county, and we’ll be watching to see if they do so. The response from the city is available to read here.
And finally, the last case that we’ve been actively tracking right now is moving surprisingly quickly. The city, suing lawyer Alan Kessler over a disagreement where the city attorney has sided with Mr. Kessler’s view of proper redactions of a records request, has already had Judge Russell appointed as the trial judge. .
Total Recall 2021
Newly seated Portland Commissioner Dan Ryan ran on a platform of that included divesting the Portland Police of more of it’s budget, stating “We have to find ways to follow up on the $15 million cuts to the Portland Police budget with even more substantial cuts.” On the night of October 28th, protesters, angry about months of increased police violence, gathered at his house ahead of a city budget meeting to make their voices heard about why these cuts were so necessary. The night before the vote, he stated that he wasn’t sure how he wanted to vote. The next day, after hours of passionate testimony by his stakeholders, he, along with Mayor Wheeler, voted to delay the budget vote for a week.
A week which would take us past the election, and give both the sitting mayor and the commissioner a sense of how the council would look in the 2021 legislative future.
Of course, the city spoke, overwhelmingly supporting 26-217, the measure to rewrite the city charter to massively expand the civilian oversight over the Portland Police. They also barely re-elected Ted Wheeler, and elected Mingus Mapps over Chloe Eudaly to the city council. And in the following week’s budget vote, any thought of further stripping of Portland Police funding was quietly scrapped.
Commissioner Ryan quickly showed his unwillingness to stand up for his campaign promises with his statement at the vote:
This $18 million proposal is a threat to our current public safety.Commissioner Dan Ryan, November 5, 2020 City Council
I feel that Commissioner Hardesty summed things up best when she said:
I knew that when we were passing [city council] resolutions in June that Black lives wouldn’t matter long […] It is disappointing that the status quo will reassert itself in this process. So we’ll continue to talk about Black lives but we won’t actually do anything to make these Black lives betterCommissioner JoAnn Hardesty, November 5, 2020 City Council
These statements have served to re-engage a number of protesters and police reform/abolitionist activists. While the election may be over, there are still options. Recall campaigns can be run after a candidate has been in office for 6 months. That timer has already started for Commissioner Ryan, and Mayor Wheeler’s will start in January when his second term starts.
Local lawyer and transparency activist Alan Kessler has already filed the paperwork for a PAC specifically to start that exploration process. The PAC, named Total Recall, likely after the 1990 and 2012 movies by the same name, recently received approval by the Secretary of State’s office and Mr. Kessler has announced via Twitter:
I have started the PAC to start fundraising. I do not have organizational capacity beyond that for a little while.Alan Kessler (@alankesslr), November 6, 2020 Twitter
Raindrop Works has had a working relationship with Mr. Kessler for some time now, and we’re glad to help get information out about this campaign as time goes.
Court Case Wrap-Up, Election Edition
There’s been so much going on already just in the last few days that I have to give an update halfway through the week just to keep track of the stories that I still have to write (and there will be stories coming forward). So without further ado, here’s the recent courthouse news!
State Court Cases, Civil Cases
Right off the bat we’ve had a few new movements in the civil suits filed against the city for police actions. The Green case has now had it’s response to a motion to strike filed, which means at some point we will likely be seeing a hearing on that motion. At the heart of the matter seems to be the idea that the city is claiming that anything that happens to a protester who doesn’t leave after a gathering being declared unlawful is responsible for anything that the police might do to them, no matter how egregious. I hope I’m misunderstanding the situation, honestly. In the Weisdorf case, the city has filed it’s affirmative defense motion, an early key filing for this kind of case.
In the Josephs case, where a visitor from Montana was chased into his hotel lobby and arrested by police for asking about police transparency has just been removed from the state court to the federal court, due to the allegations of ‘a violation of rights, privileges and immunities secured by the Constitution’. I’ll still work on following this case, but federal cases are a little more difficult to keep track of.
A case that I’ve been meaning to add to the list makes it’s way on as well. The case of local legend Andy Ngo suing Rose City Antifa and a number of individuals is still slowly ongoing. The case arose from allegations of an assault against the conservative writer by anti-facists as well as claims that his home was attacked by protesters wearing Andy Ngo masks. One of the people that Mr. Ngo has claimed assaulted him is filing a motion to be removed from the case, saying he is not the person that Mr. Ngo claims he is, and that he never did anything to warrant being sued. This is another case that I know a lot of people will be expressing interest in, and my goal is to follow it closely.
Another case that seems to be moving fast is the McLain v. Swinney lawsuit, a civil suit that also ties into criminal charges that Mr. Swinney is also facing. According to Twitter posts by Ms. McLain’s attorney, an attempt to delay her hearing by Mr. Swinney’s counsel was denied by the judge, with what appears to be a very fast track now in place for trial dates. My understanding is that anything that Mr. Swinney says in a civil trial under oath can be used in his criminal trial, which makes this a very interesting situation to continue to watch.
On the flip side, however, the second civil lawsuit that Mr. Swinney is one of three members of a party to faced a similar motion to stay the proceedings, but since both sides agreed to it, the court allowed the case against him to be held for 90 days. Mr. Swinney’s lawyers stated that “Proceeding with this civil case will likely raise 5th amendment concerns under the US Constitution and likely cause defendant irreparable harm in both matters.” I hope to be able to get more information over the next few days to understand the difference in these cases, other than that one objected and the other was okay with the delay. In the meantime, the case will continue as normal for the other two parties named.
Class Actions against the city
The city has filed response against requests by the ACLU for certain information, similar to affirmative defenses in other civil cases. It’s the first action by the city in over a month in regards to allegations of Portland Police recording protesters that were not engaged in any law violations (including before ‘unlawful gathering’ declarations). This case arose out of an alleged violation of a previous settlement between the ACLU and the Portland Police in the late 1980’s. The last state based class action suit we’re watching, Evans v. City of Portland, has now had it’s judge, Judge Lavin, assigned, helping prepare the way for pre-trial work.
Criminal Cases of Interest
In the Oregon v. Swinney case, as I’ll be reporting on later, his attorneys petitioned the court yesterday to reduce his bail, which was denied, leaving him in Inverness with a bail of a bit over half a million dollars.
Meanwhile, in Marion County, the Oregon v. Parker case has had it’s own interesting twists. At his plea hearing earlier today, it appears he has pled innocent to at least one, but likely all counts against him. The case, originally slated to be heard by Judge Pellegrini, was immediately challenged by his attorney that the particular judge would not be impartial, and the case was moved to be heard by Judge Geyer. At this time, the specifics of why claim was made is unknown, but from past experience, the bar for making a claim like this in Oregon is very low.
Campaign Finance Reform/Government Transparency
While the election may be over and Ted Wheeler appears to have secured a second term, the lawsuits regarding his election campaign still continue. One that we reported on before was State ex rel v. Caballero, where lawyer and public records activist Alan Kessler successfully pushed for the city to be required to open an investigation into a $150k loan the mayor made to his campaign. The city was given 12 days to follow the process in the City Charter to investigate the complaint, which recently was closed as reported by the Oregonian. The city states there was nothing illegal about the loan, and now we wait to see what the response will be. Based on statements made by Mr. Kessler, it seemed that the question of a loan versus a grant could still be an active question, bringing this matter back to the courts later.
But as the saying goes, “No good deed goes unpunished”, and now Mr. Kessler finds himself the subject of a lawsuit brought by the city. The controversy stems from a significant records request he made from the city, and redactions that they want to make to the records to hide identities of city employees. The county district attorney has already said that the city needs to supply information that they don’t want to do, which means the next step in the process is a suit in front of a judge to sort out the details.
Editors Note: For full transparency, Mr. Kessler does support this site by helping provide access to the court records used in a large portion of the reporting. That said, we do our best to not let that color any of our coverage of cases he may be involved in.
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