Editor’s Note: Audio of this hearing is available at the bottom of this article
While we may never know how many people called in and joined the WebEx meeting for a remote hearing on a case that normally would have drawn little attention, the amount of chatter it generated on Twitter afterwards suggests that it well could have been a packed courtroom in non-pandemic days. It was a testament to civic minded nature of Portland’s activist groups, and how important government accountability is becoming in today’s day and age.
The case started with incumbent mayor Edward Wheeler loaning his campaign $150,000 of personal money, and concerns that it was a violation of campaign finance reform laws that were passed overwhelmingly by the city in 2018. As this was the first major election since Measure 26-200 had passed and the city charter was amended, there were a number of uncertainties involved. County campaign contribution rules that had been challenged in 2017 had formed part of the structure for the 2018 measure and challenges related to it were still winding their way through the county court and the state Supreme Court. When a complaint was filed, the City Auditor flatly stated that “The City Auditor’s Office is not currently enforcing the limit on self-financed campaigns.” A violation of the city charter, and a failure to do the office’s job.
The fact that the only ‘self-financed campaign’ was the incumbent mayor, her boss, raised concerns from a number of a variety of sources, including this publication, who filed a records request to attempt to determine if the Mayor had had any contact with the city auditor, Mary Hull Caballero, at the time the donation was made. We did not find any evidence of obvious collusion between the donation and the refusal to investigate. But the concerns were still there, and the people making the complaint were forced to go to court to assert their rights. Thus started the case of State ex rel James Ofsink, Seth Woolley, Friends of Sarah for Portland v. Mary Hull Caballero.
What is ‘State ex rel’?
Of course, one of the first questions I had when I saw this case is ‘State ex rel’? And reading the documents there were references to Ofsink and Woolley as ‘realtors’. What did selling property have to do with campaign reform? It turned out, nothing really. According to The Free Dictionary, ex rel, short Latin for ex relatione, is a term used when someone needs to use the state to protect their rights. In this case, two individuals, as well as the Friends of Sarah campaign, needed to use the power of the state to protect their rights under city charter.
So, early in October, the realtors went to court to get their help in enforcing the law, by way of a writ of mandamus (an order compelling someone to do or not do something that is required by law) to open an investigation into the ‘loan’, or to appear in court to show cause why they shouldn’t be required to. The city decided not to, which brought us to last weeks hearing.
The idea behind the campaign finance reform was that large donations have a corrupting influence on the political process, leaving candidates beholden to those who donated large amounts of money to their campaigns. Donation limits would reduce that ability to corrupt. At the same time, candidates who spend their own money on a campaign (much like Mike Bloomberg did earlier in the year in the Democratic Presidential Primaries) can’t be corrupted by it because it’s already their money. The city laid out their four examples of what would have happened with a loan in a case like this:
- Most loans, according to the city, are forgiven historically, and as such, wouldn’t be a violation of the charter
- If the campaign paid back the loan before the end of the election cycle (unlikely, given how far in debt the Wheeler campaign is at this point), it still wouldn’t violate the charter
- If donations were given to Wheeler after the end of the campaign, when limits reset again, it would depend on the election. If he won, existing laws regarding politicians receiving gifts would come into play.
- If he lost re-election, since the donations would be to a private citizen, they wouldn’t have the ability to corrupt.
If the city’s view, none of these outcomes would run afoul of the law, so there was no way there could be a violation. And since the office only has one person assigned to handle campaign violations, with at least 70 such complaints already on their docket, it wasn’t an appropriate use of resources, a claim that the judge had concerns with because of the executive branch ignoring the legislative branch’s clear will.
They also brought up First Amendment concerns about investigating what they believed were baseless claims would violate Mayor Wheeler’s free speech. When the Judge Ryan asked why he or his campaign weren’t the ones bringing up the free speech complaints, the city responded simply that they weren’t a party.
When Mr. Kessler spoke, he explained that there is a strong difference in case law between grants and loans, and that state loan rules in Washington have not currently been struck down, as well as an ongoing case between Texas Senator Ted Cruz and the FEC under the kinds of circumstances regarding post-election donations that the city suggested. At the end of the day, none of these concerns have been addressed.
The judge, instead, focused on the fact that the city charter says that the auditor ‘will’ investigate these complaints, setting up a process that takes about 12 days for the city to receive feedback and evidence from the public and the campaign that the allegation is against. Because of the city’s initial delay, it’s all but guaranteed that the investigation cannot be completed before the election. The city clarified with the judge on the record that he was ‘directing the process, not the result’, leaving most, if not all, convinced that no matter what evidence is provided, any investigation will be pencil whipped as ‘not valid’, a decision that Mr. Kessler and the people he’s representing are sure to appeal.
All this has done is run out the clock on possible corruption until after the election and made more work for the lawyers, the judges, and more cost for the taxpayers in a time of hotly contested elections locally and around the country.
Or, as Judge Ryan put it: Really? There’s an election?
Audio of the hearing
For The Record Player
Size: 52890055 bytes (50 MiB)
I went ahead and converted the audio to an MP3 version for universal listening without any proprietary software.
Size: 15715296 bytes (14 MiB)
Court Wrap-Up, Jan 10, the Transparency Files
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.
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