Oregon prosecutors to judges: You’re Fired
District attorneys in Oregon have a new tactic to deal with judges that hand down rulings against their offices: they’re effectively getting rid of them. County circuit judges in both Lane and Multnomah counties have been disqualified from hearing criminal cases this year following accusations from district attorneys that the judges failed to be “fair and impartial.”
Accusing a judge of bias isn’t something that should be done casually. The ability to rule fairly and impartially is the chief job of a judge, and charges that they aren’t capable of doing so can have serious consequences. But Oregon’s process is quite simple for seeking to disqualify a judge from a case. In Multnomah County, prosecutors filed an affidavit challenging Judge Judith Matarazzo and announcing they would no longer bring new criminal cases before her. Under Oregon law, little to no evidence is required to back up claims that a judge can’t be fair and impartial.
Prosecutors’ complaints amount largely to dissatisfaction with rulings in which Matarazzo decided not to adopt their sentencing recommendations, and a problem with what the office believes to be leniency in DUI cases. The office also accuses her of starting, and in some instances completing, hearings and settlement conferences in the absence of a prosecutor on more than one occasion. Matarazzo told The Oregonian/OregonLive that although she is deeply disturbed by the accusations, “There’s not much I can do.”
In Lane County, Oregon, similar accusations were brought by prosecutors against Judge Josephine Mooney in March. Because of the complaints informally charged by District Attorney Patty Perlow, Mooney is no longer hearing any criminal, juvenile delinquency, or civil cases involving the Lane County District Attorney’s Office. In Mooney’s case, a formal affidavit was never filed — instead, she agreed to stop presiding over these cases after Perlow’s office filed memos complaining about her conduct to another judge, according to documents obtained by The Register-Guard.
This practice isn’t isolated to Oregon. Between 2014 and 2015, the beleaguered office of Orange County District Attorney Tony Rackauckas successfully prevented county Superior Court Judge Thomas Goethals from hearing 55 of 58 murder cases assigned to him. Rackauckas’ office repeatedly accused Goethals of bias that made him unfit to preside over the cases in question, and successfully disqualified him under the state’s Code of Civil Procedure.
Orange County Superior Court Judge Richard M. King ruled the repeat disqualifications were inappropriate. The court found that the efforts by Rackauckas’ office were “based on Judge Goethals calling out the prosecution on misconduct,” and they “ha[d] the appearance of attempting to intimidate, punish, and/or silence Judge Goethals, and to send a warning to the other local judges that similar rulings will produce a similar fate.” California’s 4th Circuit Court of Appeal, despite finding the prosecutors’ actions to be “abusive,” ultimately allowed them to stand under existing California law. Erwin Chemerinsky, constitutional law scholar and dean of Berkeley Law School, argued the case on the Superior Court’s behalf. He told In Justice Today that the disqualification practice “violates [the] separation of powers.” In dissent, Associate Justice David A. Thompson agreed, arguing that the ease with which prosecutors were able to disqualify Judge Goethel amounted to an unconstitutional interference of one branch of government (the judiciary) by another (the executive).
As Chemerinsky’s petition to the court points out, the disqualification claims were not brought against Goethals out of the blue. The DA office’s attacks on the judge began at the same time that Goethals began calling out the office for misconduct and exposing the office’s illegal use of jailhouse informants. In the spring of 2015, Goethals deemed the entirety of Rackauckas’ office unfit to work on the murder trial of Scott Dekraai. The “blanket papering” of Goethals by the DA’s office was an unabashed move of retaliation.
Though the appellate court did allow the disqualifications to stand, the ruling was sharply critical. “As courts work to keep doors open and to provide timely and meaningful access to justice to the public, the extraordinary abuse of [judicial disqualification] is a barrier to justice and its cost to a court should be reconsidered,” wrote Justice Kathleen O’Leary in the opinion.