IN THE SUPREME COURT FOR THE STATE OF OREGON

INQUIRY CONCERNING A JUDGE

Re: The Honorable Vance D. Day, Respondent.

) ) ) ) )

Commission on Judicial Fitness and Disability 12139, 1486 Supreme Court No. S063844

MOTION TO STRIKE; SUPPLEMENT

AND CORRECT THE RECORD; AND RE: BRIEFING

Janet M. Schroer, OSB No. 813645 Ruth C. Rocker, OSB No. 944225 HART WAGNER LLP 1000 S.W. Broadway, Twentieth Floor Portland, Oregon 97205 Telephone (503) 222-4499 jms@hartwagner.com rcr@hartwagner.com Of Attorneys for The Honorable Vance D. Day

Victoria D Blachly, OSB No. 972805 Darlene D. Pasieczny, OSB No. 124172 Samuels Yoelin Kantor LLP 111 SW 5th Av., Suite 3800 Portland, OR 97204 Telephone (503) 226-2966 vblachy@samuelslaw.com darlenep@samuelslaw.com

James Bopp, Jr.,

Of Attorneys for Commission on Judicial Fitness and Disability

Indiana State Bar # 2838-84 Admitted pro hac vice The Bopp Law Firm 1 South Sixth Street Terre Haute, Indiana 47807-3510 Jboppjr@aol.com Anita Milanovich, Indiana State Bar # 25162-64 Admitted pro hac vice The Bopp Law Firm 1627 W Main Street, Suite 294 Bozeman, MT 59715 aymilanovich@bopplaw.com

Of Attorneys for The Honorable Vance D. Day

Timothy R. Volpert, OSB No. 814074 Tim Volpert PC Attorney at Law 522-A NW 23rd Avenue Portland, OR 97210 Telephone (503) 703-9054 tim@timvolpertlaw.com Of Attorneys for Commission on Judicial Fitness and Disability

March 18, 2016 04:47 PM

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TABLE OF CONTENTS

THE PROPER LEGAL FRAMEWORK FOR CONSIDERATION ................... 2 I. Overview .......................................................................................................... 2

A. The Commission Exceeded Its Statutory Authority.................................... 4 B. The Commission Improperly Assumes Adjudicatory Authority ................ 8 C. The Commission Neglects Constitutionally Required Due Process

Protections for Judges, Including Judge Day ............................................11 REQUEST TO STRIKE THE COMMISSION’S “OPINION” .........................16 I. Introduction ..................................................................................................16 II. Legal Argument ............................................................................................17 REQUEST TO CORRECT RECORD BY STRIKING THE TELEPHONIC TESTIMONY OF BRIAN SHEHAN ................................................................18 I. Introduction ..................................................................................................18 II. LEGAL ARGUMENT .................................................................................19 REQUEST TO CORRECT RECORD BY STRIKING IMPERMISSIBLE MATERIAL FROM THE COMMISSION’S RECOMMENDATIONS ..........23 I. Introduction ..................................................................................................23 II. Legal Argument ............................................................................................23

A. The Commission Violated Its Own Rules .................................................24 B. Constitutional Due Process Was Violated ................................................26

III. All Matters Beyond The Charges Specified In The Complaint Should Be

Stricken ......................................................................................................26

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A. “Miscellaneous Factual Findings” Beyond the Scope of the Complaint ..26 1. Dating Website .......................................................................................27 2. District Attorney’s Office Internship .....................................................27 3. Judge Pellegrini ......................................................................................28 4. Publicity .................................................................................................29

B. Additional Factual Findings Beyond the Scope of Allegations in the

Complaint ..................................................................................................30 C. Claims of Violations Not Charged in the Complaint ................................33

REQUEST TO SUPPLEMENT THE RECORD ...............................................37 I. Videotaped Deposition of Brian Shehan.......................................................37 II. Production of Prohibited Discovery upon Inspection of Christina Brown’s

Old Cell Phone ..........................................................................................38 III. Production of Prohibited Discovery of Copies of All Emails and Instant

Messages Referencing Judge Day Stored on Certain Government Computers/Servers ....................................................................................39

IV. Production of Discover of a Copy of Mr. Shehan’s medical records

contained in Marion County VTC File .....................................................41 V. Production of Exculpatory Evidence Relevant to the Commission’s

Improper Judge Pellegrini Allegation .......................................................41 VI. Receipt of Defense Trial Exhibit 656: Declaration of Peter James

Vierra .........................................................................................................41 REQUEST TO REVISE THE BRIEFING SCHEDULE ...................................42

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INDEX TO APPENDIX

Declaration of Ralph C. Spooner ……………………………………App. 1-11 Order Denying Petition for Peremptory or Alternative Writ of Mandamus…………………………………………………………...App. 12-13 Declaration of Ralph C. Spooner in Support of Petition for Peremptory or Alternative Writ of Mandamus……………………………………...App. 14-17

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TABLE OF AUTHORITIES

CASES

Boddie v. Connecticut, 401 US 371 (1971) .................................................................................... 13, 26 Cleveland Bd. of Educ. v. Loudermill, 470 US 532 (1985) ...........................................................................................13 Compare with In re Conduct of Fitzhenry, 343 Or 86, 162 P3d 260 (2007) .......................................................................10 Federal Deposit Ins. Corp. v. Mallen, 486 US 230 (1988) ...........................................................................................13 Greene v. McElroy, 360 US 474 (1959) ...........................................................................................14 Hannah v. Larche, 363 US 420 (1960) ...........................................................................................11 In re Conduct of Schenck, 318 Or 402, 870 P2d 185 (1994) .....................................................................10 In Re Murchison, 349 US 133 (1955) ...........................................................................................13 In the Matter of Sawyer, 286 Or 369, 594 P2d 805 (1979) .....................................................................11 Koskela v. Willamette Indus., Inc., 331 Or 362, 15 P3d 548 (2000) .......................................................................13 Lambert v. People of the State of California, 355 US 225 (1957) .................................................................................... 13, 26 Meyer v. Nebraska, 262 US 390 (1923) ...........................................................................................13

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State ex rel. Currin v. Commission on Judicial Fitness and Disability, 311 Or 530, 815 P2d 212 (1991) .....................................................................26 Whitehead v. Nevada Com’n on Judicial Discipline, 893 P2d 866 (Nev. 1995) .................................................................................12 Wolff v. McDonnell, 418 US 539, 567(1974) .....................................................14

RULES AND STATUTES

Commission on Judicial Fitness and Disability Rules of Procedure Rule 2 j ..........................................................................................24 Commission on Judicial Fitness and Disability Rules of Procedure Rule 7 a-c ........................................................................................ 6 Commission on Judicial Fitness and Disability Rules of Procedure Rule 8 .............................................................................................. 7 Commission on Judicial Fitness and Disability Rules of Procedure Rule 9 .............................................................................................. 7 Commission on Judicial Fitness and Disability Rules of Procedure Rule 10 ..........................................................................................37 Commission on Judicial Fitness and Disability Rules of Procedure Rule 10 a ......................................................................................3, 7 Commission on Judicial Fitness and Disability Rules of Procedure Rule 10 b ................................................................ 7, 14, 15, 24, 25 Commission on Judicial Fitness and Disability Rules of Procedure Rule 11 a ....................................................................................7, 39 Commission on Judicial Fitness and Disability Rules of Procedure Rule 11 b ......................................................................................... 7

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Commission on Judicial Fitness and Disability Rules of Procedure Rule 11 c ........................................................................... 14, 38, 39 Commission on Judicial Fitness and Disability Rules of Procedure Rule 11 h .......................................................................................15 Commission on Judicial Fitness and Disability Rules of Procedure Rule 13 g .......................................................................................25 Commission on Judicial Fitness and Disability Rules of Procedure Rule 13 h ............................................................................ 8, 22, 25 Commission on Judicial Fitness and Disability Rules of Procedure Rule 16 a .......................................................................................... 8 Commission on Judicial Fitness and Disability Rules of Procedure Rule 16 b .......................................................................................14 Commission on Judicial Fitness and Disability Rules of Procedure Rule 16 c .......................................................................................... 9 Commission on Judicial Fitness and Disability Rules of Procedure Rule 17 b .......................................................................................22 Commission on Judicial Fitness and Disability Rules of Procedure Rule 17 d .......................................................................................38 Oregon Code of Judicial Conduct Rule 2.1(A) ..................................................36 Oregon Code of Judicial Conduct Rule 2.1(B) ...................................................35 Oregon Code of Judicial Conduct Rule 2.1(C) ...................................................35 Oregon Code of Judicial Conduct Rule 3.9(A) ..................................................35 Oregon Code of Judicial Conduct Rule 3.12(A) ......................................... 34, 35 Oregon Code of Judicial Conduct Rule 4.5(A) ..................................................36

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ORAP 11.272(2)(b)(ii) ......................................................................................... 1 ORAP 11 ............................................................................................................... 6 ORAP 11.27 ................................................................................................ passim ORS 1.415 .................................................................................................. 2, 5, 17 ORS 1.420 ................................................................................................... passim ORS 1.425 ............................................................................................................. 2 ORS 1.430 ................................................................................................... passim ORS 1.450 ...........................................................................................................22 ORS 1.470 ...........................................................................................................22 ORS 1.475 ...........................................................................................................22 ORS 11.27(2)(b) ................................................................................................... 1

OTHER

Guidebook for Complainants and Respondents on the FEC Enforcement Process, Federal Election Commission ...........................................................12

Or Const, Art VII (Amended), § 8 ............................................................. 2, 4, 17 US Const, Amend XIV .......................................................................................12

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The Honorable Vance D. Day is now before this Court pursuant to ORS

1.430(1) on this Court’s adjudication of “the record of the proceedings on the

law and facts” made during the due process hearing held before the

Commission on Judicial Fitness and Disability (“Commission”) under ORS

1.420. ORAP 11.27(2)(b).

Pursuant to ORAP 11.27(2)(b)(ii) and constitutional due process

requirements, Judge Day moves this Court for an order as follows:

1. Striking portions of the Commission’s “Opinion” to conform to its

limited statutory role as discussed below; this includes a request to strike from the

record all evidence, allegations of fact, and claims of judicial ethical violations

that go beyond the Commission’s delegated authority to create a record of

“proceedings on the law and facts” (ORS 1.430) in the due process hearing held

to “inquire into the conduct of the judge” ORS 1.420(1)(a).

2. Permitting Judge Day to supplement the record with evidence in

accordance with ORAP 11.272(2)(b)(ii), including evidence that the Commission

denied Judge Day the opportunity to develop and include in the record.

3. Revising the order of briefing on the Commission’s

recommendations under ORS 11.27(2)(b), so that the Commission is required to

file the opening brief because the Commission bears the burden to prove its

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recommendations, by clear and convincing evidence; Judge Day does not have

the burden to disprove them.

THE PROPER LEGAL FRAMEWORK FOR CONSIDERATION

OF A DISCIPLINARY COMPLAINT AGAINST A JUDGE

I. Overview

The Oregon Constitution grants this Court the power to discipline judges

as a matter of this Court’s Original Jurisdiction. The exercise of this power is

subject both to Oregon law and due process requirements. Or Const, Art VII

(Amended), § 8.

Oregon statutes authorize the Commission to investigate any allegation

of misconduct by a judge, to conduct a hearing into the conduct of the judge

and to make recommendation to the Supreme Court regarding discipline of a

judge. ORS 1.415- ORS 1.425.

After this Court receives the record of the hearing and recommendations

of the Commission, this Court conducts a de novo “review of the record of the

proceedings” and, if this Court finds by clear and convincing evidence that

misconduct of a judge occurred, it may discipline a judge. ORS 1.430.

This Court is the adjudicatory body, not the Commission. The role of the

Commission is to administer an orderly process by which the facts surrounding

alleged misconduct by a judge are placed in a record which this Court will

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review to adjudicate any misconduct alleged or discipline recommended by

the Commission.

Of course, since the Commission may fulfill this record-making

responsibility by conducting a hearing, this hearing must afford due process,

since it is the basis for this Court’s fact finding. These due process requirements

include notice of the alleged violations and an opportunity to be heard.

As the Commission itself acknowledges, there is a critical limitation on

the Commission’s hearing process; it is limited to hearing facts regarding the

conduct of the judge. The Commission will not accept evidence on affirmative

defenses or counterclaims by the judge, nor will they consider these matters in

making its recommendation. CR 10 a. Affirmative defenses and counterclaims

must be presented to this Court, and if additional evidence is needed to litigate

them, this Court will receive additional evidence.

Thus, since the Commission’s record-making and recommendation role

is limited and does not consider affirmative defenses and counter claims, it

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would violate due process1

The Commission, through its rules and by its conduct, has unlawfully

assumed an adjudicatory role contrary to Oregon law and due process. As a

result, this Motion seeks to conform the Commission’s “Opinion” to its proper

role of a recommendation and to ensure that the record, which this Court will

consider in finding facts, conform with Oregon law, due process and the

Commission’s own Rules.

to confer upon the Commission adjudicatory

authority and limit the role of the Supreme Court to only a traditional appellate

review of the Commission’s “findings of fact” and findings of violation.

A. The Commission Exceeded Its Statutory Authority

Oregon’s Constitution authorizes this Court to remove, suspend, or

censure judges. Or Const, Art VII (Amended), § 8. To facilitate this power,

Oregon statutes create the Commission of Judicial Fitness and Disability (the

“Commission”), with the power to “take and preserve testimony and administer

1 For instance, if a hearing were conducted by an adjudicatory body on the question of whether a person violated a statute making it an offense to burn a flag and the adjudicatory body failed to consider whether such statute violated the First Amendment, a finding by the adjudicatory body of a violation of that statute would deny due process since the body refused to consider a constitutional defense of the accused. In this case, the Commission purported to find violations of the Code of Judicial Conduct without considering Judge Day’s defense that certain application of the Code violated the First Amendment. Thus, the Commission’s “Opinion” here cannot be given, under due process requirements, the deferential review entitled to a lower court’s adjudication. And as explained, the Oregon Constitution and statutes do not contemplate an adjudicatory role for the Commission either.

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oaths to witnesses . . .” ORS 1.415(1)(c), and, in conducting hearings, to

“issue any processes necessary to compel the attendance of witnesses and the

production of any books, papers, records or documents as may be required,” id.

1.415(2). It is directed to “adopt rules of procedure governing proceedings”

conducted pursuant to its authority. Id. 1.415(3).

The Commission, in response to a complaint from any person about a

judge or at the request of the Oregon Supreme Court, may itself hold a due

process hearing to inquire into the conduct of the judge, may request the

Supreme Court to appoint three masters to conduct the hearing, may stipulate to

facts with the judge in question, and may allow a judge to execute a consent to

censure, suspension, or removal. ORS 1.420(1). This due process hearing is

public, with testimony and evidence given and received at the hearing

becoming public record. Id. 1.420(3). “The judge shall have the right to be

present at such hearing, to be represented by counsel, to present testimony and

evidence and to cross-examine witnesses.” Id. If the Commission or masters

believe that the conduct of the judge warrants censure, suspension, or removal,

it so recommends to the Oregon Supreme Court. Id. 1.420(4).2

2 The statute uses the term “finds” rather than “believes.” ORS 1.420(4). Because this can be misconstrued as a legal term suggesting “findings of fact,” which are outside of the scope of the Commission’s authority, the term “believes” is here used to avoid such confusion.

The Supreme

Court reviews the record of the due process hearing on the facts and law and

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may receive additional evidence. Id. 1.430(1). It then may exercise its

constitutional authority to censure, suspend, or remove the judge. Id.

This Court’s rules closely follow these constitutional and statutory

provisions. ORAP 11, which addresses “Original Proceedings in the Supreme

Court,” delineates in ORAP 11.27 procedures governing judicial disciplinary

proceedings. ORAP 11.27(2)(a) authorizes the Commission to seek and

nominate special masters to conduct the due process hearing, with the judge

authorized to both respond and nominate. Citing to authority from ORS 1.430,

ORAP 11.27(2)(b)(i) directs the commission to provide a record of proceedings

with any recommendation it may have to the Court. Additional evidence can be

requested by motion. ORAP 11.27(2)(b)(ii). Oral argument is permitted for

both parties unless the judge files no brief. ORAP 11.27(2)(b)(iv).

These provisions all make clear that this Court has original jurisdiction

over judicial conduct complaints and the statutes assign the primary record-

making obligations to the Commission. This case is thus not an appeal that

Judge Day is taking of the Commission’s decision, but a due process hearing in

the first instance on which the Commission makes recommendations of charges

and sanctions based on allegations of fact that it must defend.

Properly understood under these laws, rules, and due process, see infra

Section C, the Commission can investigate complaints from anyone about a

judge. CR 7 a-c. If the complaint appears meritorious, the Commission must

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provide notice to judge of that complaint (including the complainant)3 in a

statement of potential charges (the Commission’s rules designate that notice

statement a “Complaint”). CR 8. The judge is permitted to answer to ascertain

whether he admits to the potential charges as true and thereby avoid any

unnecessary hearings and expedite resolution of the matter. ORS 1.420(1)(c);

CR 9, 10 a.4 If he does not, and the Commission determines a due process

hearing is necessary, ORS 1.420(1)(a), the Commission must notify the judge

of the hearing and provide access to its intended witnesses and supporting

evidence to give him adequate opportunity to prepare for the hearing. ORS

1.420(3); CR 11, 12. The Complaint can be amended prior to the hearing to

ensure the judge can again answer (to avoid unnecessary delay) and adequately

prepare for the hearing. CR 10 b.5 At the due process hearing, the Commission

presents the witnesses and evidence supporting the statement of charges it

disclosed to the judge,6

3 Commission Rule 11 a gives the Commission unlimited discretion to redact

the complainant.

with the judge afforded the opportunity to cross-

4 The Commission has no authority to address affirmative defenses and counterclaims, and so they properly have no place at this stage in the process. CR 10 a. The Commission adhered to their rule on this point. 5 Commission Rule 10 b improperly permits amending the complaint up until

the Commission makes its determination. 6 Commission Rule 11 b improperly suggests that non-disclosed witnesses and documents may be included at the hearing.

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examine those witnesses. ORS 1.420(3); CR 13 h. On conclusion of the

hearing, the Commission may believe it has adequate evidence to pursue

charges, in which case it makes recommendations to this Court, with claims of

violations based on allegations of fact for this Court’s determination.7

Unfortunately, the Commission has adopted rules and conduct that both

1) overstep its limited role, prejudicing this court’s adjudicatory role; and 2)

inadequately protect the due process rights of those subject to a due process

hearing.

ORS

1.420(4); ORAP 11.27(2)(b). The judge may then seek, if necessary, to

supplement the evidence to address his affirmative defenses or counterclaims,

as well as to remedy any improper denial of her rights during the due process

hearing. ORAP 11.27(2)(b)(ii).

B. The Commission Improperly Assumes Adjudicatory Authority.

Perhaps the most apparent misapprehension of the Commission’s

authority is exhibited in its recommendations to this Court in this very matter.

Designated an “Opinion” “BY UNANIMOUS DECISION,” the Commission’s

recommendations provide twenty pages of “FINDINGS OF FACT” with none

but a single, solitary record citation—an exhibit cited in a footnote—to help this

7 Any potential charges for which inadequate evidence is believed to exist can simply be dropped—the Commission has no obligation to present those to this Court. ORS 1.420(4); but see CR 16 a (directing the Commission to recommend “dismissal” of charges to this Court).

9

Court either assess the merits of the Commission’s recommendations or to

exercise its authority to find facts in this case.8 It then “finds” which judicial

canons are applicable to this case, Recommendations at 26, asserting that Judge

Day “willfully” “violated” those canons by clear and convincing evidence. Id.

at 30-36, 37-38, 39-40. It makes assertions about what is true or is not,

conclusively finding evidence “completely implausible,” id. at 31, and when it

recommends dismissal, it offers few if any facts one way or another to justify

that recommendation. Id. at 37, 38, 40. In short, the Commission

recommendations are crafted as though it is adjudicating facts and law,9

The Commission’s rules also authorize a judge to petition this Court to

modify or reject recommendations pursuant to ORS 1.430. CR 16 c. This too

suggests some sort of adjudication has occurred. But most critically, this is

flatly contrary to the Commission’s fact collecting function, and ORS 1.430

(which compels this Court to review the record on the law and facts) the judge

has no burden to petition, the burden is on the Commission.

with

the apparent expectation that this Court will defer to its “findings” and

“conclusions.”

8 Indeed, without record citations, the parties cannot identify where in the

record factual disputes might lay to present those disputes to the Court. If they had been included, it would be readily apparent that the Commission completely disregards any exculpatory testimony whatsoever from Judge Day and his witnesses. 9 When addressing sanctions, it adopts Washington law. Id. at 42.

10

It might appear that the Commission has adjudicatory power in light of

this Court’s statement in In re Conduct of Schenck, 318 Or 402, 870 P2d 185

(1994) that “the Commission combines investigatory, prosecutorial, and

adjudicative roles,* * *.” Id. at 437. But this Court dismissed that adjudicative

role assertion by observing that “the Commission has no independent authority

to discipline a judge,” and that this Court “is the final adjudicative authority.”

Id. Indeed, this Court is the only adjudicative authority under Oregon law. In

any event this Court cannot empower the Commission with an adjudicative role

that the legislature did not provide for.

The Commission’s assumption of this Court’s adjudicatory authority

appears supported by key rules and decisions of this Court. For example, this

Court rightly applies de novo review of the Commission’s recommendations

and the record developed below. In Re Conduct of Schenck, 318 Or at 405.

And that review requires “clear and convincing evidence of a wilful [sic]

violation.” Id. So the Commission bears the burden of affirmatively proving a

willful violation and defending its sanction recommendation to this Court under

the “clear and convincing evidence” standard. Compare with In re Conduct of

Fitzhenry, 343 Or 86, 99, 162 P3d 260, 269 (2007) (“To establish an affirmative

misrepresentation, the Bar must prove by clear and convincing evidence that the

accused knowingly made a false statement of material fact.”). But this Court’s

Rule, ORAP 11.27, establishes the expectation that a judge must brief first,

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allowing for the Commission to go first only if “the judge fails to file an

opening brief.” ORAP 11.27(2)(b)(iii). Such an approach places the burden on

the judge as the accused, rather than the Commission as prosecutor, and

suggests an appeal of an adjudication that has already occurred. This

inconsistency must be reconciled to reinforce that the Commission’s statutorily-

created role is not as adjudicator, but as record-maker for this Court and

defender of its recommendations to this Court.

C. The Commission Neglects Constitutionally Required Due Process Protections for Judges, Including Judge Day.

While improperly creating an appearance of an adjudicatory role that is

lawfully reserved for this Court, the Commission’s rules also inadequately

protect Judge Day’s rights under the United States Constitution’s Fourteenth

and Sixth Amendments.

The Commission’s rules establish not only hearing procedures, but

investigatory procedures. In that latter context, the Commission need not

concern itself with due process rights. See In the Matter of Sawyer, 286 Or 369,

594 P2d 805 (1979) (establishing that at the outset, a formal complaint is not

required to trigger the Commission’s investigatory role); Hannah v. Larche,

363 US 420, 449 (1960) (discussing grand jury’s investigative role and lack of

due process obligations). The Commission may (and indeed has) voluntarily

adopted investigatory procedures that create rights for the judge to which he is

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not constitutionally entitled during the investigatory process, procedures it

must follow by virtue of the rules.10

The Commission’s rules must ensure due process protections as to

hearing procedures, and must accord due process to litigants. US Const,

Amend XIV. See, e.g., Whitehead v. Nevada Com’n on Judicial Discipline, 893

P2d 866, 910-11 (Nev. 1995) (discussing newly-adopted Commission rules

found to be necessary to ensure the Commission’s procedures in a judicial

disciplinary original action were “accusatory rather than inquisitorial, open

rather than closed, and accompanied by due process formalities ***rather than

loose, unstructured and informal.”). In this regard, the Commission’s rules and

practices do not adequately protect due process.

The Fourteenth Amendment states: “No State *** shall deprive any

person of life, liberty or property without due process of law.” US Const,

Amend XIV. “Liberty”:

denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

10 Indeed, agencies such as the Federal Election Commission do precisely that.

See, e.g., Guidebook for Complainants and Respondents on the FEC Enforcement Process, Federal Election Commission, available at http://www.fec.gov/em/ respondent_ guide.pdf (last visited March 17, 2016).

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Meyer v. Nebraska, 262 US 390, 399 (1923). See also Koskela v. Willamette

Indus., Inc., 331 Or 362, 378, 15 P3d 548, 558 (2000) (“[T]he loss of a person's

livelihood is a severe deprivation. Continued employment is such an important

interest that it ‘ought not be interrupted without substantial justification.’”)

(quoting Federal Deposit Ins. Corp. v.. Mallen, 486 US 230, 243 (1988) and

citing Cleveland Bd. of Educ. v. Loudermill, 470 US 532, 543 (1985) (“We

have frequently recognized the severity of depriving a person of the means of

livelihood”)).

Such deprivations require basic due process rights, principal among them

the right to notice and the opportunity for a hearing. Boddie v. Connecticut, 401

US 371, 378 (1971). Notice is “essential so that the citizen has the chance to

defend charges,” and is “required before property interests are disturbed, before

assessments are made, before penalties are assessed.” Lambert v. People of the

State of California, 355 US 225, 228 (1957). The opportunity to be heard

requires “an opportunity * * * granted at a meaningful time and in a meaningful

manner, * * *.” Boddie, 401 US at 378 (internal citations omitted).

A “fair trial in a fair tribunal is [also] a basic requirement of due

process.” In Re Murchison, 349 US 133, 136 (1955). Essential to a “fair trial”

is the “right of a defendant to examine and cross-examine witnesses * * *.” Id.

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at 139. And coupled with the right to cross-examine is the right to confront

under the Sixth Amendment, both of which the United States Supreme Court:

* * *has been zealous to protect * * * not only in criminal cases, * * * but also in all types of cases where administrative and regulatory actions were under scrutiny. E.g., Southern R. Co. v. Commonwealth of Virginia, 290 U.S. 190, 54 S.Ct. 148, 78 L.Ed. 260; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093; Morgan v. United States, 304 U.S. 1, 19, 58 S.Ct. 773, 776, 999, 82 L.Ed. 1129; Carter v. Kubler, 320 U.S. 243, 64 S.Ct. 1, 88 L.Ed. 26; Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 LEd 63.

Greene v. McElroy, 360 US 474, 496-97 (1959) (cited by Wolff v. McDonnell,

418 US 539, 567(1974)(“These procedures are essential in criminal trials where

the accused, if found guilty, may be subjected to the most serious deprivations,

* * * or where a person may lose his job in society, * * * .”).

The Commission’s rules necessarily afford the opportunity for discovery

so a judge may adequately prepare. CR 10 b. But those rules also give the

Commission exclusive control over depositions, with the sole authority to order

or deny depositions as well as subpoenas. CR 11 c.; CR 16 b. And so, as Judge

Day experienced, judges can be denied the opportunity to meaningfully prepare

for the hearing by deposing witnesses that were used at trial. Here, Mr. Shehan

was authorized to testify at the due process hearing by phone. Tr. 920. Judge

Day had not been afforded the opportunity to depose Mr. Shehan and therefore

prepare for his testimony, and so requested that opportunity at the hearing,

15

offering to make any requisite motion. Id. 920-21, 927. That opportunity

was denied, id. 927, and so too, Judge Day’s due process right for an

opportunity to be heard.

The Commission’s rules grant a judge the right to defend, to have

counsel, and to examine/cross-examine witnesses. CR 11 h. But Judge Day

was denied the right to cross-examine witnesses interrogated by the

Commission. Tr. 210-11. This violates due process.

The Commission’s rules allow a complaint to be amended at any point

prior to the Commission’s determination. CR 10 b. For Judge Day, at the

completion of the Commission’s presentation of evidence, the Commission

instructed that it would consider the amendment of the complaint if presented

by written motion from the Commission’s legal counsel, Tr. 1279, and

apparently accepted those amendments without Judge Day’s knowledge.11

11 The Commission’s recommendations included violations of OCJC provisions

not charged in the Complaint—the subject of Judge’s Day’s motion to strike set forth below.

Although the Commission Rule 10 b compels an opportunity for a judge to both

answer and prepare and present a defense to such amendments, no such

opportunity was provided to Judge Day. Judge Day was deprived of both

notice and the right to be meaningfully heard.

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It is within this legal framework of the Commission’s role and with

these constitutional concerns in mind that Judge Day here seeks relief through

the following motions.

I. Introduction.

REQUEST TO STRIKE THE COMMISSION’S “OPINION”

The Commission’s recommendations, designated an “Opinion” “BY

UNANIMOUS DECISION,” provide twenty pages of “FINDINGS OF FACT”

with none but a single, solitary record citation—an exhibit cited in a footnote—

to help this Court either assess the merits of the Commission’s

recommendations or to exercise its authority to find facts in this case. It “finds”

which judicial canons are applicable to this case, “Opinion” at 26, asserting that

Judge Day “willfully” “violated” those canons by clear and convincing

evidence. “Opinion” at 30-36, 37-38, 39-40. It makes assertions about what is

true or is not, conclusively finding evidence “completely implausible,” id. at 31,

and when it recommends dismissal, it offers few if any facts one way or another

to justify that recommendation. Id. at 37, 38, 40.

The Commission recommendations are crafted as though it is

adjudicating facts and law, with the suggestion that this Court will defer to its

“findings” and “conclusions.” This is contrary to the Commission’s role. The

“Opinion,” as written, should be stricken.

17

II. Legal Argument.

As shown above, this Court is the only adjudicator of both the facts and

law in this matter. Or Const, Art VII (Amended), § 8; ORAP 11.27. The

Commission has no authority to make “findings of fact,” determine violations,

or make conclusions regarding the law. ORS 1.415; ORS 1.420(4). Instead, its

sole role is to establish the record on behalf of this Court and make

recommendations to this Court. ORS 1.430; ORAP 11.27(2)(b)(i).

The “Opinion” in this case goes far beyond the Commission’s limited

statutory role, making “findings of fact” and asserting that violations have, in

fact, occurred. This is improper. And because of the pervasiveness of the

impropriety, the, as written, create the very real risk, no matter how proactively

avoided, of this Court inadvertently extending deference when none is owed.

Moreover, the “Opinion” as written, suggests to the public the

Commission has greater weight and resolution on this matter than is warranted

under Oregon law. Given the seriousness of the charges being made against an

elected official, it is imperative that this Court make certain that the processes it

afforded Judge Day, which are all public record, ORS 1.420(3), are accurately

conveyed to the public. To the extent it goes beyond recommendations, the

“Opinion”, as written, should be stricken.

18

REQUEST TO CORRECT RECORD BY STRIKING THE

TELEPHONIC TESTIMONY OF BRIAN SHEHAN12

I. Introduction.

Brian Shehan is a material, adverse witness whose accusations to

Commission investigator Karen Saul (“Saul”) and others formed the basis of

four of the thirteen-count Commission Complaint against Judge Day. Largely

based on Mr. Shehan’s unexpected telephonic testimony and his out-of-court

statements admitted as hearsay evidence, the Commission has recommended

this Court find that Judge Day violated charges in Counts 3, 4, and 6 of the

Complaint.

As framed by the Commission, the violations in these charges concern

(1) Judge Day “facilitat[ing] the handling of a firearm” by Mr. Shehan while

Mr. Shehan was on supervised probation as an active participant of the Marion

County Veteran’s Treatment Court (“VTC”), “Opinion” at 32 (Counts 3 and 4);

and (2) Judge Day’s “unsolicited, and often unwanted, personal out-of-court

contacts” with Mr. Shehan which the Commission claims “singled out BAS for

obvious favoritism.” Id. at 35 (Count 6). The Commission specifically found

Mr. Shehan’s telephonic testimony “the most credible source” of information

regarding these charges. Id. at 12.

12 The Commission’s Complaint and “Opinion” in this matter refer to Mr. Shehan as “BAS.”

19

II. LEGAL ARGUMENT.

Mr. Shehan’s testimony must be excluded from the Commission’s

recommendations as alleged facts because Judge Day did not have a fair and

adequate opportunity to confront Mr. Shehan on his accusations, many of

which, the evidence shows, were inconsistent with his interactions and conduct

during the time of the subject events. The Commission’s authorization and

receipt of Mr. Shehan’s telephonic testimony prejudiced Judge Day’s defense in

violation of his procedural due process rights in several respects.

The Commission permitted Mr. Shehan’s unexpected telephonic

testimony despite that Commission counsel Blachly reneged on her agreement

to facilitate Mr. Shehan’s appearance for a pre-trial discovery deposition at

Judge Day’s expense, despite the fact that Blachly was in contact with Mr.

Shehan and herself conducted a pretrial interview of him, and despite the

Commission’s denial of Judge Day’s request that it order an out-of-state

commission allowing Judge Day to take Mr. Shehan’s deposition. Appendix 1,

Declaration of Ralph C. Spooner, ¶ 3; Tr. 927, 1665.

The Commission permitted Mr. Shehan’s telephonic testimony despite

that Spooner objected to Blachly’s November 4, 2015 proposal that Mr. Shehan

appear at trial by real time video. Appendix 1 at ¶ 3, Ex. 640; Tr. 1665.

Several days into the trial, and without prior notice to Judge Day, Blachly

represented to the Commission that Mr. Shehan “changed his mind about

20

coming to town” and she requested he “testify by video or telephone this

afternoon.” Tr. 920. Spooner objected, again contesting the lack of the

opportunity to depose Mr. Shehan and arguing that “in the spirit of fair play and

due process” Judge Day should have the opportunity to examine Mr. Shehan in

person rather than “at the last minute by phone or Skype, or whatever it turns

out to be.” Tr. 921.

Spooner also objected to the unexpected telephone testimony because

“we don’t even have an opportunity to present exhibits to the witness so we can

effectively cross-examine him.” Tr. 923. Blachly suggested that Mr. Shehan

receive the exhibits by email prior to his testimony, and represented that Mr.

Shehan was in Texas and that he had access to email. Tr. 924-25.

Commissioner Judge Vogt ruled that Mr. Shehan was permitted to testify

by video or telephone, preferably video, and that extra time would be provided

to transmit the defense exhibits to Mr. Shehan because Spooner raised “a very

real concern to the Commission” but not significant enough to preclude or delay

Mr. Shehan’s testimony. Tr. 925. Commissioner Judge Vogt further indicated

that any concern about the ability to adequately assess Mr. Shehan’s credibility,

would “go[] to the weight” given to his testimony. Tr. 923. Contrary to this

ruling, the Commission’s “Opinion” gave great weight to Mr. Shehan’s

telephonic testimony finding it the “most credible source” of information even

21

when it conflicted with the testimony of Judge Day and other witnesses.

“Opinion” at 12.

Later on the same day of trial, Blachly represented that she had contacted

Mr. Shehan and he could appear by telephone that afternoon. Tr. 1047. In

response to Commissioner Judge Vogt’s question, Blachly admitted that she did

not talk to Mr. Shehan about “getting him exhibits, or anything like that[.]” Id.

Commissioner Judge Vogt asked whether Mr. Shehan could be available

tomorrow instead, to which Blachly responded, “We can certainly check.” Id.

There is no indication in the record that Blachly did check with Mr. Shehan.

Spooner’s office transmitted defense Exhibits 500-505 to Blachly’s office

during the noon hour that day. Appendix 1 at ¶ 4. Mr. Shehan’s telephonic

testimony took place that afternoon. Tr. 1096. Prior to Mr. Shehan’s

testimony, Blachly represented that all the defense exhibits had been emailed to

Mr. Shehan “so he has those.” Tr. 1095. However, Mr. Shehan did not receive

the exhibits and he testified anyway. Tr. 1144.

During Spooner’s cross-examination, Mr. Shehan represented that he had

“been checking for a couple of hours” but he had not received the emailed

exhibits. Tr. 1144. As a result, Spooner was not able to effectively conduct

cross-examination on defense Exhibit 637 A through I, video clips of VTC

22

sessions , Tr. 1151, and Exhibits 500-505.13

The receipt of Mr. Shehan’s testimony without necessary process

afforded Judge Day, including an opportunity to confront Mr. Shehan as

material adverse witness, in person, either at a discovery deposition or at trial,

violated the Commission’s statutory directive, ORS 1.420(3), it’s own Rules of

Procedure, CR 13 h, and Judge Day’s constitutional due process rights.

Additionally, despite its statutorily recognized authority to compel a witness to

appear at the trial, ORS 1.450, 1.470 and 1.475, and its own Rules requiring the

issuance of “processes necessary to compel the attendance of witnesses[,]” CR

17 b, the Commission denied Judge Day’s request that it order an out-of-state

commission to compel Mr. Shehan’s personal appearance for cross-

examination. Tr. 927. For all the above reasons, Mr. Shehan’s testimony

should be stricken from the record.

Tr. 1665. Mr. Shehan also

testified that Blachly had contacted him during the week prior and asked him

questions about Judge Day, the Veteran’s Treatment Court, and the “shooting

incident[.]” Tr. 1145. Spooner, however, did not get the same opportunity.

13 These defense exhibits consisted of Shehan’s Petition to Enter Plea, Ex. 500; Addendum to Plea Petition, Ex. 501; Shehan Judgment DUII Felony, Ex. 502; Shehan’s Conditions of Supervision, Ex. 503; Marion County Circuit Court Veterans Treatment Docket Petition and Contract, Ex. 504; Order regarding Shehan’s Custodial Status, Ex. 505.

23

I. Introduction.

REQUEST TO CORRECT RECORD BY STRIKING IMPERMISSIBLE

MATERIAL FROM THE COMMISSION’S RECOMMENDATIONS

The Commission’s Complaint against Judge Day (with complainant

unspecified) contains thirteen counts of alleged conduct said to constitute

violations of various provisions of the OCJC and the Oregon Constitution Article

VII (Amended) Section 8(1). After a due process hearing held between

November 9 and November 20, 2015, the Commission improperly concluded that

Judge Day violated eight counts and recommends the most punishing sanction of

removal of Judge Day from his position as a Marion County Circuit Court Judge.

“Opinion” at 2.

Contrary to Judge Day’s due process rights, the Commission made

recommendations based on factual matters and OCJC violations that were not

specified nor charged in the Complaint. For this reason, Judge Day moves to

strike irrelevant evidence from the record and strike from the Commission’s

recommendations all recommendations based on charges not included in the

Complaint as identified below.

II. Legal Argument.

The Commission received evidence regarding new allegations and charges

not contained in the Complaint, but it did not receive nor rule on a motion to

24

amend, and it did not provide Judge Day the opportunity to answer and prepare

and present a defense against the new accusations.14

A. The Commission Violated Its Own Rules.

Commission Rule 8 c provides that the Complaint “shall specify in

ordinary and concise language the charges against the judge and the alleged facts

upon which such charges are based * * *.” The Commission’s rules confirm that

the term“’[s]hall’ is mandatory[.]” CR 2 j.

Commission Rule 10 b provides that “the Commission, at any time prior to

its determination, may allow or require amendments to the complaint and may

allow amendments to the answer.” In this case the Commission informed Blachly

that it would consider amending the Complaint upon a written motion to amend

submitted along with a proposed amended pleading “so that the Commission

could rule on that, those amendments within a pleading, and kind of take those

14 At the close of the Commission’s evidence, Commission counsel Blachly suggested that the Complaint be amended to add new allegations to conform to the extraneous evidence received at trial, citing Commission Rule 10 b. Tr. 1278-79. Commissioner Judge Vogt informed Blachly that her motion to amend would be considered only when submitted in writing along with a proposed amended complaint. Tr. 1279. Blachly responded that she was “prepared to do that” and further represented that she would submit “written amendments at a later time so everyone can look at them at the same time.” Tr. 1280. Judge Day’s counsel, objected on constitutional due process grounds. Tr. 1280-81.

Blachly never filed a motion to amend nor submitted a proposed Amended Complaint and the Commission never ruled that the Complaint be amended.

25

amendments one-by-one, but in one motion, with an actual document.” Tr.

1279. Blachly did not submit a motion to amend or a proposed amended pleading

and the Commission made no ruling permitting any amendment to the factual

allegations or charges in the Complaint. For this reason alone, Judge Day’s

motion to strike should be granted.

Commission Rule 10 b further provides that if a complaint is amended “to

conform to proof or to set forth additional facts, whether occurring before or after

the commencement of the hearing[,] * * * the judge shall be given reasonable

time both to answer the amendment and to prepare and present his or her defense

against the matters charged thereby.” (Emphasis added). Judge Day was

ambushed during the hearing by the introduction of testimony regarding matters

that went well beyond the Complaint’s allegations and charges and was given no

time, let alone a reasonable amount of time, to answer and prepare a defense to

the unexpected testimonial evidence.

Commission Rule 13 g provides that “[i]rrelevant, immaterial or unduly

repetitious evidence shall be excluded” and Rule 13 h requires the judge be given

a “reasonable opportunity to defend against the charges” specified in the

Complaint.

By receiving irrelevant evidence and making recommendations on matters

not alleged or charged in the Complaint, the Commission violated its own Rules

26

of Procedure and denied Judge Day the process of law to which he is entitled.

The Commission has no discretion to deny that process.

B. Constitutional Due Process Was Violated.

As discussed supra, adequate notice of information sufficient to permit the

accused to understand “precisely where, when, how and before whom he is

alleged to have committed acts” in violation of specified ethical rules is a

necessary component of due process of law. State ex rel. Currin v. Commission

on Judicial Fitness and Disability, 311 Or 530, 532-33, 815 P2d 212 (1991); see

also Boddie, 401 US at 378; Lambert, 355 US at 228. Here, Judge Day was

presented for the first time at the due process hearing with evidence to support

charges not alleged in the Complaint. Allowing the Commission’s

recommendations to stand as to these charges, when he had inadequate notice of

those charges, violates due process.

III. All Matters Beyond The Charges Specified In The Complaint Should Be Stricken.

A. “Miscellaneous Factual Findings” Beyond the Scope of the

Complaint.

The Commission’s recommendations identify the following four matters as

“Miscellaneous Factual Findings”: 1. Dating Website; 2. District Attorney’s

Office Internship; 3. Judge Pelligrini; and 4. Publicity. “Opinion” at 21-23. None

of these matters relate to any charges or allegations contained in the Complaint

against Judge Day. The Commission recommended these factual findings without

27

providing Judge Day the required notice or giving him the opportunity to

answer and prepare and present a defense.

1. Dating Website

Judge Day moves to exclude this alleged fact because, as the

recommendations state, “the profile had nothing to do with Judge Day” and the

dating website evidence is not relevant to any charge levied against him.

“Opinion” at 21.

.

Particularly objectionable, however, is the Commission’s recommended

finding that “the farmersonly.com evidence is simply not relevant to any material

issue in this case” id. at 22 (emphasis added), and the footnote alleging that “the

evidence only proved that Ms. Brown and Ms. Curry were truthful regarding what

they viewed on the website” id. at n. 17. These allegations reflect a complete

disregard of the purpose for which Judge Day proffered the dating website

evidence and the Commission’s improper rejection of relevant evidence.

2. District Attorney’s Office Internship

Judge Day moves to exclude these alleged facts from the Commission’s

recommendations because it is not relevant to any charge or allegation made

against Judge Day. There is nothing alleged in the Complaint that provides Judge

Day notice that this matter would be raised at the due process hearing to support a

recommended sanction. Judge Day has not been given the opportunity to prepare

and present an adequate defense.

.

28

Furthermore, had Judge Day been provided notice of this allegation,

video and testimonial evidence would have been produced to demonstrate that at

no time was the jury told that Daniel Day was part of the prosecutorial team or

that he was Judge Day’s son. If the court does not strike this, Judge Day requests

an opportunity to produce evidence on this allegation.

3. Judge Pellegrini

Judge Day moves to exclude from the Commission’s recommendation

these alleged facts because they are not relevant to any charge or allegation made

against Judge Day and the Commission’s legal counsel conceded this point at

trial. Tr. 229. The record shows that Spooner objected on relevancy grounds to

portions of Commission Exhibit 71, specifically referring to accusations

concerning Judge Pellegrini that are “not even part of the charges” at issue. Tr.

228-29. Blachly conceded this objection, stating: “And to that claim that has

been redacted.” Tr. 229.

.

It is improper for the Commission to make factual assertions based on

evidence when its counsel agreed the matter was outside the scope of the charges

in the Complaint and Judge Day has not been given an opportunity to prepare and

present an adequate defense. If the court does not strike this, Judge Day requests

an opportunity to produce evidence on this allegation.

29

4. Publicity

Judge Day moves to exclude alleged facts relating to the Commission’s

recommendations for the reason that nothing alleged in the Complaint or

produced in discovery provided Judge Day with notice that this matter would be

raised at the due process hearing to support a recommended sanction. Judge Day

was not given the opportunity to adequately prepare for it at the hearing.

.

Additionally, this finding interjects conclusions about Judge Day’s

motivation for defending himself publically that have no support in the evidence.

There is no evidence that Judge Day organized a “media campaign designed to

create the impression that the only reason for the investigation of this conduct is

his position regarding same sex marriage” or that his public statements about the

Commission’s charges “were intentionally deceptive to the public.” “Opinion” at

23 (emphasis added). These are opinions of the Commission based on conjecture

and nothing more.

By statute, the proceeding before the Commission “shall be public[.]” ORS

1.420(3). It is not improper for Judge Day to speak out in defense of himself

against charges he finds unfounded and unfair. Judge Day is entitled to his

opinion and speaking it has not violated any ethical rules.

30

B. Additional Factual Findings Beyond the Scope of Allegations in the Complaint.

The following “Findings of Fact” in the Commission’s “Opinion” are

outside the scope of the allegations and should therefore be stricken for the

reasons set out more fully above.

1. Recommended findings regarding February 6, 2015

amendment to VTC contract language regarding ex parte contact.

a. Entirety of paragraph on page 18 beginning with the

sentence “On February 6, 2015, Judge Day’s then counsel Mark

Fucile wrote a lengthy defense of Judge Day’s conduct to the

Commission” and ending with the sentence “Judge Day amended

this contract language without input from other members of the VTC

team.” “Opinion” at 18.

b. “Judge Day represented by implication to the

Commission via letter that the new VTC language, implemented on

February 6, 2015, was in effect at the time of his interactions with

BAS and, thus, it excused his ex parte contacts with BAS, neither of

which were true.” Id. at 45.

c. “Making the VTC contract change in February 2015 in

an attempt to justify his ex parte contacts with BAS.” Id., at 47.

31

2. Recommended findings regarding reimbursement for

framing Vollmar family art piece.

a. “Judge Day did not reimburse PVR from the funds he

received from the Vollmar family” to frame the Vollmar art piece.

Id. at 20. Yet the next sentence concludes that “Judge Day did not

personally profit from the proceeds of the wall hanging project.” Id.;

b. “Receiving a double reimbursement for the Vollmar

wall hanging” id., p. 44;

c. “Judge Day was dishonest in accepting reimbursement

from the Vollmar family for their wall hanging when it was removed

when he had already been fully reimbursed for that piece by the

501(3)(c) PVR.” Id. at 45.

3. Recommended findings regarding hiring of probations to

work on home projects.

a. “Facilitating the hiring of probationers under his

supervision to assist with home projects for himself and his family”

id., p. 42.

b. “Using probationer laborers at his home, whether or not

they were paid” id., p. 44.

4. Recommended findings regarding Daniel Day’s internship

with Deputy District Attorney Orrio.

32

a. “Sitting as the judge on a case while his son was

working for one of the parties and allowing that fact to be announced

to the jury” id. at 43.

b. “Encouraging his son’s internship with the District

Attorney’s office during a case he was adjudicating such that his son

would gain experience prior to applying for law school” id. at 44.

c. “Sitting as a judge on a case in the summer of 2015

while his son was working for one of the parties and allowing that

fact to be announced to the jury.” Id. at 47.

5. Recommended finding that Judge Day “[u]s[ed] the 501(c)(3)

PVR to decorate his own courtroom and the hallways of the floor to

promote a personal agenda and personal prestige.” Id., p. 44.

6. Recommended finding regarding Judge Day’s public

statements.

a. “Making public statements in pre-hearing publicity to

create the impression that this proceeding was solely regarding his

religious beliefs and his refusal to conduct same-sex marriages in

order to deflect public attention away from other misconduct.” Id. at

44.

b. “Judge Day has been dishonest to the public at large

when asserting that his proceeding is due to his religious beliefs and

33

his refusal to perform same-sex marriages. That is not true.” Id.

at 46.

c. “Continual public mischaracterizations of this

disciplinary process, both procedurally and substantively” id. at 47.

7. Recommended finding that “Judge Day testified under oath at

the hearing that he told Judge Pelligrini that he was concerned about her

appointment because of the number of government attorneys on the bench.

That was not true. Judge Day actually indicated to her that he was

concerned about her appointment due to her sexual orientation.” Id. at 46.

C. Claims of Violations Not Charged in the Complaint.

The following OCJC violations found by the Commission should be

stricken as they were not alleged in the Complaint, and Judge Day was not

provided notice and an opportunity to defend.

1. Count 1 conclusion:

This [Rule 2.1(C)] violation was also evident by Judge Day’s demeanor while Mr. Deuker was testifying concerning the events of that day.

“Opinion” at 30.

As to this recommended conclusion, the Commission improperly relied up the

undisclosed observation opinion to bolster its Count 1 finding of an OCJC Rule

2.1(C) violation, without making a contemporaneous record so that Judge Day

was informed of the allegation.

34

2. Count 2 conclusion:

By misrepresenting these facts in his February 2013 response letter to the Commission, Judge Day violated * * * Rule 3.12(A) by not being candid with the Commission, a judicial discipline agency.

Id. at 31.

Count 2 does not allege a violation of OCJC Rule 3.12(A).

3. Count 3 and 4 conclusions:

By facilitating the handling of a firearm by a convicted felon on each of these dates, Judge Day aided and abetted in the commission of the crime of felon in possession of a firearm, which is a felony. See ORS 166.270 and ORS 161.155(2)(b). Thus, during these incidents Judge Day violated Rule 2.1(B), which prohibits a judge from committing a criminal act.

Id. at 33.

By facilitating the handling of a firearm by a convicted felon on active supervised probation and by verbally granting permission for that person to handle the weapons in violation of his probation conditions and prohibitions under Oregon law on each of these dates, Judge Day violated Rule 3.9(A), which prohibits a judge from initiating or permitting ex parte communications as such communications are defined in Rule 1.3.

Id.

The Commission further concludes that Judge Day’s willful violations of Rule 2.1(B), * * * and Rule 3.9(A) during each incident constitutes willful misconduct in his judicial office, such misconduct bearing a demonstrable relationship to the effective performance of his judicial duties. Thus, Judge Day is also in violation of Article VII, §8(1)(b) of the Oregon Constitution.

Id., p. 34.

35

Neither Count 3 nor 4 alleges a violation of OCJC Rule 2.1(B) or OCJI 3.9(A),

nor that he committed a criminal act and initiated or permitted ex parte

communications as such communications are defined in Rule 1.3.

4. Count 5 conclusions:

By misrepresenting facts in his statement to the Commission’s investigator, Karen Saul, Judge Day violated Rule 21(C) by engaging in conduct adverse to his character to serve as judge, * * * and he violated Rule 3.12(A) by not being candid with the Commission, a judicial discipline agency.

Id. at 34.

By misrepresenting the facts noted above to Judge Rhoades and Judge Penn, Judge Day violated Rule 21(C) by engaging in conduct adverse to his character to serve as judge * * *.

Id.

Count 5 does not allege a violation of OCJC Rule 2.1(C) or OCJC 3.12(A).

5. Count 9 conclusion:

By soliciting funds from attorneys, Judge Day also violated Rule 4.5(A) which prohibits judges from personally soliciting funds from anyone or any organization or entity. There are exceptions to this rule, but there are no exceptions that excuse Judge Day’s solicitations. Soliciting funds from anyone in this context is a violation of Rule 4.5(A). Judge Day’s doing so from attorneys who appear before him is a flagrant violation of the rule.

Id. at 37-38.

The Commission further concludes that Judge Day’s willful violations of * * * Rule 3.7(B) by soliciting funds from attorneys constitute willful misconduct in his judicial duties. Thus, Judge

36

Day is in violation of Article VII §8(1)(b) of the Oregon Constitution.

Id. at 38.

Count 9 does not allege Judge Day “solicited” funds nor that he violated OCJC

Rule 4.5(A) or Rule 3.7(B).15

6. Count 12 conclusions:

* * * Furthermore, the idea that a discriminatory practice is a positive “accommodation” to those being discriminated against shows a deplorable lack of understanding of the most basic concepts of impartiality. Judge Day’s implementation of this discriminatory practice also violates Rule 2.1(A).

Id., pp. 39-40.

Judge Day’s discriminatory plan required his staff to lie to the public in order to conceal Judge Day’s discriminatory tactics. Thus, Judge Day violated Rule 2.1(D).

Id., p. 40.

The Commission further concludes that Judge Day’s willful violations of Rule 2.1(A), 2.1(D) * * * constitute willful misconduct in his judicial office, such misconduct bearing a demonstrable relationship to the effective performance of his judicial duties. Thus, Judge Day is in violation of Article VII, §8(1)(b) of the Oregon Constitution.

Id.

Count 12 does not allege violations of OCJC 2.1(A) and Rule 2.1(D).

15 Count 9 alleges Judge Day “collected money from lawyers * * *” which has a different meaning altogether.

37

Pursuant to ORAP 11.27(2)(b)(ii) and constitutional due process

considerations, Judge Day requests this Court supplement the record in this matter

with additional evidence. Consistent with due process considerations governing

judicial disciplinary proceedings, Judge Day’s ability to supplement the record is

necessary to provide him the opportunity to properly present his defense to this

Court, including affirmative defenses and counterclaims, as well present evidence

that the Commission improperly excluded from the record.

REQUEST TO SUPPLEMENT THE RECORD

16

I. Videotaped Deposition of Brian Shehan.

To this end, Judge

Day specifically seeks to add the supplemental evidence described below.

Should this Court deny Judge Day’s request to exclude Mr. Shehan’s

testimony from the Commission’s recommendations, Judge Day asks this Court

to permit the issuance of an out-of-state commission to compel Mr. Shehan to

appear for a videotaped deposition that may then be added to the record in this

matter.

As discussed previously, Brian Shehan is a key adverse witness in this

matter and Judge Day was improperly denied the opportunity to confront him in

16 CR 10 a properly precludes the filing of motions to dismiss and counterclaims because it has no adjudicatory authority to address those issues. Judge Day offered them to the Commission in an abundance of caution to avoid a claim of waiver. The Commission rejected them and did not address them during the due process hearing.

38

person and with defense exhibits thereby prejudicing Judge Day’s due

process rights and preventing him from creating an adequate record in his

defense of the charges based on Mr. Shehan’s out-of-court accusations.

II. Production of Prohibited Discovery upon Inspection of Christina Brown’s Old Cell Phone.

Pursuant to CR 11 c and CR 17 d, Judge Day petitioned the Commission

for the Issuance of Subpoena Duces Tecum in Connection with Continuation

Deposition of Christina Brown seeking to require Ms. Brown to produce her old

cell phone for inspection by a qualified neutral expert to retrieve recorded data

from the phone that is likely to lead to the discovery of admissible evidence

relevant to Judge Day’s defense in this proceeding. Hon. Vance D. Day’s

Petition for Issuance of Subpoena Duces Tecum in Connection with

Continuation Deposition of Christina Brown.

Ms. Brown testified in her deposition that she still had possession of the

old phone which contains an original screen shot from the farmersonly.com

dating website account 200525, depicting a photograph of Judge Day in his

judicial robe, and may also contain texts, photos and emails relevant to the

charges against Judge Day. Id. at 2. Despite Ms. Brown’s initial agreement to

produce the cell phone, the Commission denied the Petition. Id. at 6. As a

result, Judge Day was denied his due process opportunity to properly prepare

for the due process hearing.

39

Judge Day filed a Petition for Peremptory or Alternative Writ of

Mandamus to this Court on October 29, 2015 to correct the Commission’s

denial of key evidence before the hearing. This Court denied the Mandumus

Petition reasoning: “Because relator is entitled to post-hearing review in this

Court, relator has a remedy in the ordinary course of law * * *.” Appendix 12,

Order dated November 3, 2015. Judge Day once again seeks that remedy.

III. Production of Prohibited Discovery of Copies of All Emails and Instant Messages Referencing Judge Day Stored on Certain Government Computers/Servers.

Pursuant to CR 11a and c, Judge Day petitioned the Commission to

produce copies of all emails and instant messages that reference Judge Day in

the subject line of the email or body of the email from October 17, 2012 to the

present that are stored on the government computers/servers used by the

following individuals: Honorable Jamese L. Rhoades, Honorable Dale W.

Penn, Honorable Thomas M. Hart, Honorable Cheryl A. Pelligrini, Honorable

Susan A. Tripp, Cynthia Haddad, Megan Curry and Christina Brown. Hon.

Vance D. Day’s Rule 11 a/b Discovery Petition.

Additionally, Judge Day requested that if the search of the

computers/servers identifies email and instant messages have been deleted, then

Judge Day be permitted the opportunity to have a forensic computer expert

inspect the computers/servers to determine if the deleted material can be

retrieved. Id.

40

During depositions of Marion County Circuit Court judges and staff it

was learned that government computers were used for personal

communications. Appendix 16, Declaration of Ralph C. Spooner In Support of

Peremptory or Alternative Writ of Mandamus, ¶ 9. Trial testimony confirmed

this personal use. Tr. 728-30.

Following the discovery depositions, the attorney representing the judges

and staff did not oppose the production of the requested electronic

communications relating to the charges in the Commission’s Complaint against

Judge Day. Id. Counsel exchanged emails to facilitate the search of the

government computers. Id. During this process, the attorney representing the

judges and staff asked if a discovery request had been made to the Commission

and a copy of that petition was proved to him. Id. No formal objection was

filed by the attorney for the judges and staff or the Commission’s attorney, yet

the Commission denied Day’s Discovery Petition without explanation. Id.

This denied discovery request was part of the same Mandamus

Proceeding concerning the denied discovery of Christina Brown’s old cell

phone.

The denial of the requested discovery prevents Judge Day from

ascertaining whether any of the electronic communications exist and, if so, what

the contents of those communications reveal. Judge Day was denied his due

41

process right to adequately prepare for the due process hearing and secure

evidence that might support his defense.

IV. Production of Discover of a Copy of Mr. Shehan’s medical records contained in Marion County VTC File.

Judge Day seeks to supplement the record with a copy of Mr. Shehan’s

medical records contained in the Marion County VTC file for the reason that

they are likely to lead to the admissibility of relevant evidence pertaining to the

credibility of a pivotal witness.

V. Production of Exculpatory Evidence Relevant to the Commission’s Improper Judge Pellegrini Allegation.

In the alternative, in the event this Court denies Judge Day’s request to

strike the Commission’s “Miscellaneous Factual Finding” regarding Judge

Pelligrini, “Opinion” at 23, Judge Day requests this Court allow him to

supplement the record with documents he submitted to the Commission in

response to this charge that the Commission refused to accept. The documents

are related because they support Judge Day’s credibility.

VI. Receipt of Defense Trial Exhibit 656: Declaration of Peter James Vierra.

On December 1, 2015, just days following the Commission’s due process

hearing, Judge Day filed a motion with the Commission to allow the

introduction of Exhibit 656 into evidence, which the Commission denied.

Exhibit 656 is a Declaration of Peter James Vierra attesting to the fact that he

42

created the profile posted on farmersonly.com account 200525 and uploaded

the photograph of Judge Day marrying him and Jennifer Chantyl Blecher on

January 24, 2014. Mr. Vierra’s Declaration confirms that Judge Day had

nothing to do with the farmersonly.com posting upon which Ms. Brown based

her erroneous accusation that Judge Day posted on a dating website to cheat on

his wife. The Commission’s recommendations even seem to rely on this

evidence to conclude that Judge Day had nothing to do with the posting.

“Opinion” at 20-21. Yet the record excludes this evidence. This is improper.

As shown above, the Commission bears the burden of proof to prove, by

clear and convincing evidence, that this Court should adopt the Commission’s

recommendations to this Court. Because of that burden, ORAP 11.27(2)(b)(iii),

which directs judges to file an opening brief concerning Commission

recommendations, violates Judge Day’s due process rights and so is

unconstitutional under the Fourteenth Amendment of the United States

Constitution. Judge Day respectfully requests this Court to establishing a briefing

schedule in this matter that reflects the Commission’s burden and protects Judge

Day’s due process rights by directing the Commission to filing an opening brief,

REQUEST TO REVISE THE BRIEFING SCHEDULE

43

with Judge Day responding, with affirmative defenses and counterclaims,

thereafter.

Respectfully submitted this 18th day of March, 2016.

HART WAGNER LLP By: /s/ Janet M. Schroer Janet M. Schroer, OSB No. 813645

Ruth C. Rocker, OSB No. 944225 Of Attorneys for The Honorable Vance D. Day THE BOPP LAW FIRM /s/ James Bopp, Jr. James Bopp, Jr., Indiana State Bar # 2838-84 Admitted pro hac vice Of Attorneys for The Honorable Vance D. Day /s/ Anita Milanovich Anita Milanovich, Indiana State Bar # 25162-64 Admitted pro hac vice Of Attorneys for The Honorable Vance D. Day

APPENDIX

I, Ralph C. Spooner, do hereby state as follows:

1. I make this Declaration based on personal knowledge, and I am competent

to testify to the matters herein.

2. I am one of the trial attorneys for Hon. Vance D. Day.

3. On the day of Judge Day's deposition, August 5, 2015,1 spoke with theCommission's attorney, Victoria Blachly, about whether she could produce Brian Shehan as awitness for a deposition. Ms. Blachly wanted to know if Mr. Shehan's travel expenses would bereimbursed by us. I told her I would let her know. Later, on September 10, 2015,1 sent her anemail requesting an opportunity to depose Mr. Shehanbefore the hearing. This email, along withother emails concerning our request to depose Mr. Shehan before the hearing and have Mr.Shehan appear in person at the hearing, were marked as Exhibit 640. A true copy of Exhibit 640is attached to this Declaration.

4. I learned during the hearing on November 4, 2015 that Mr. Shehan wasnotgoing to appear in person at the hearing and informed Ms. Blachly, on November 5, 2015,that I did not consent to Mr. Shehan appearing by telephone during the hearing. I objected toMr. Shehan appearing by phone during thehearing. I attempted to send Mr. Shehan exhibits viaDarlene Pasieczny, co-counsel for the Commission with Victoria Blachly, that I wanted to useduring cross-examination by e-mail during the noon hour onNovember 16, 2015. NeitherDarlene Pasieczny nor Victoria Blachly provided me with Mr. Shehan's email address, butrequired that I send the exhibits to Darlene Pasieczny, who in turn, was supposed to forwardthem fo Mr. Shehan. I sent multiple exhibits by three emails at 12:23 p.m., 12:24, p.m., and12:30 p.m., dated November 16, 2015, true copies of which are attached to this Declaration. Inthe afternoon on November 16, 2015, Mr. Shehan testified at the Commission hearing by phone.He indicatedhe did not receive any of the exhibits that I had sent to Darlene Pasieczny.

I HEREBY DECLARE THAT THE ABOVE STATEMENT IS TRUE TO THE

BEST OF MY KNOWLEDGE AND BELIEF, AND THAT I UNDERSTAND IT IS MADE

FOR USE AS EVIDENCE IN COURT AND IS SUBJECT TO PENALTY FOR PERJURY.

DATED this 17th day ofMarch, 2016.

Isi Ralph C. SpoonerRALPH C. SPOONER, OSB# 732880

App. 1

Carolyn Reil

From: Carolyn Reil on behalf of Ralph SpoonerSent: Thursday, September 10,2015 5:21 PMTo: 'Victoria Blachly'Cc: michaelbdye@yahoo.com; Darlene PasiecznySubject: RE: OCJFD Matter/ DayAttachments: OCJFD Matter/ Day

Follow Up Flag: Follow upFlag Status: Completed

CONFIDENTIAL COMMUNICATION

Victoria:

When we delivered the discovery to Salem Printing &Blueprint for copying and bates numbering, my assistant followedthe instructions your assistant gave in the attached email. We understood Salem Printing & Blueprint was going todeliver the discovery directly to your office. Myassistant was at their officeTuesday delivering another project on adifferent case. The representative from Salem Printing& Blueprint said he had called your office and had not been ableto get a hold of anyone. This isn't our fault. Please call Salem Printing & Blueprint to make payment and deliveryarrangements.

With regard to summaries of expected testimony from witnesses who have been deposed, Iwill be relying on everythingin their depositions. Ifyou want me to highlight depositiontranscripts, Ican do so, but I haven't ordered themyet. Since youor another attorney from your office were present for the depositions, Idon't thinkthere can be anysurprises. Ifyouare going to rely on testimony from the witnesses who have been deposed, do youintend to providesummaries of the information from the depositions that constitute their expected testimony? Let's reach agreement sowe are both not engaged in unnecessarywork. Thespirit of the rule isto provide notice to each other ofwho theyanticipate calling as witnesses, their contact information, and a briefsummary of expected testimony.

Are you in contact with Brian Shehan and will he voluntarily appearfora deposition ifyou request him to appear? Ifso,I think we should make arrangements to either have him fly up here at our expense or fly down there and we will eachpay our ownexpense. Either way, we need to have an opportunity to depose him before the hearing. Ihavehadaninvestigator try to contact him and he has not cooperated that Iam aware of.

Ralph C. SpoonerSpooner & Much, P.C.

Please note our new Salem office address: 530 Center Street IME. Suite 712, Salem. OR 97301. Thank vou!

PORTLAND OFFICE • 1SW COLUMBIA ST.,SUITE 430 • PORTLAND, OREGON 97258 • PHONE (503) S17-0777 •FAX (503) 467-4039

SALEM OFFICE • 530 CENTER STREET NE, SUITE 712 • SALEM, OREGON 97301 • PHONE (503) 378-7777 • FAX (503) 588-5899

PLEASE SEND ALL CORRESPONDENCE TO SALEM OFFICE

This electronic mail and any documents accompanying it contain information belonging to Spooner & Much, P.C. and itsclients which are privileged, confidential, and subject to attorney client privilege.This information is intended solely forthe benefit of the firm and its clients and may not be released, copied or utilized in any manner without prior writtenconsent of Spooner & Much, P.C. and the client to which it relates. Ifyou are not the intended recipient, you are hereby

EXHIBIT

640

App. 2

Carolyn Reil

From: Carolyn Reil on behalf of Ralph SpoonerSent: Thursday, September 24, 2015 2:08 PMTo: 'Victoria Blachly'Cc: michaelbdye@yahoo.comSubject: Re: OCJFD Matter/ Day

Follow Up Flag: Follow upFlagStatus: Completed

CONFIDENTIAL COMMUNICATION

Victoria:

Where are we at on Brian Shehan's deposition? Are you in contact with him? Will he cooperate in scheduling adeposition? My investigator has not been able to make contact with him. As Imentioned in a previousemail,we arewilling to pay his reasonable travel expenses for travelingto Oregonfor a discoverydeposition.

Ralph C. SpoonerSpooner & Much, P.C.

Please note our new Salem office address: 530 Center Street NE. Suite 712. Salem, OR 97301. Thank vou!

PQRTLANO OFFICE • 1SW COLUMBIA ST., SUITE 430 • PORTLAND, OREGON 97258 • PHONE (503)517-0777 • FAX (503)467-4039

SALEM OFFICE •530 CENTER STREET NE, SUITE 712 • SALEM, OREGON 97301 • PHONE (503)378-7777 • FAX (503)588-5899

PLEASE SEND ALL CORRESPONDENCE TO SALEM OFFICE

This electronic mail and any documents accompanying it contain information belonging to Spooner &Much, P.C. and itsclients which are privileged, confidential, and subject to attorneyclient privilege. This information isintended solely forthe benefit of the firm and its clients and may not be released, copied or utilized in any manner without prior writtenconsent ofSpooner &Much, P.C. and the client to which it relates. If you are not the intended recipient, you are herebynotified to destroy this message. You are also advised that anyfurther distribution, copying, or taking ofanyaction inreliance on this message is strictly prohibited.

App. 3

'arolyn Reil

From: Victoria Blachly <vblachly@samuelslaw.com>Sent: Monday, October 05, 201511:35 AMTo: Ralph SpoonerCc: Darlene Pasieczny; michaelbdye@yahoo.comSubject: Day - witness summariesAttachments: 0410_001.pdf

Ralph:

Contact information for William Brown, PhD and Dr. Stanulis is attached. Attorney Karen Saul's contact info iskarensaull(5)comcast.net. 503.734.8121.

The first two witnesses will testify regarding their observations of Judge Dayin court, VTC, the war art, as well as theirexpertise in working with veterans and criminal court. You already have oneof theirarticles that Imarked at JudgeDay's deposition.

Karen will testify about herwork as an investigator forthe Commission on thiscase. You already have her notesand thewitness statements.

It looks like I'll be finished by Friday, November 13, although at this point Brian Shehan is only available onNovember16, soifIend upfinishing early, Iwould hope that wecould take his testimony during your case. Do you plan on puttingonyour case through the cross-examination ofJudge Day, orwill you be calling him back to the stand for yourcase? That information will help me figure out scheduling better.

App. 4

Carolyn Reillyn

From: Carolyn Reil on behalf of Ralph SpoonerSent: Wednesday, October 07,2015 5.09 PMTo: Victoria BlachlyCc: michaelbdye@yahoo.comSubject: Re: OCJFD Matter/ DayAttachments: Letter.Lambert-Dayl.26.14.DAY06236.pdf; Scanned Doc20151007170017.pdf; Scanned

Doc20151007170022.pdf

Follow Up Flag: Follow upFlag Status: Completed

CONFIDENTIAL COMMUNICATION

Victoria:

Attached are two more witness statements for witnesses we intend to call at the hearing. Also attached is another pageof discovery from Judge Day that he located in response to your requests.

We need to coordinate witness scheduling, especiallythe MarionCountyCircuit Court judges and staff. Could you pleasesend me a list of the witnesses you intend to call at the hearingso that Ican figure out the witnesses Iwill need toadd. With regard to the Marion County Circuit Court judges and staffyou intend to call as witnesses, Ithink it would bebetter for me to do mycross-examination and additional direct examination following your directexamination of themso we do not have to call them back a second time. Let me know if you agree with this procedure.

With regard to Brian Shehan, Idon't agreethat hecanbe called out oforderduring my client's case. Ihave severalconcerns. First, we haven't been able to depose him. You originally indicated that ifwe would payfor histravelexpense, you could make him available fora deposition prior to the hearing. We sent you confirmation that wewerewilling to pay his travel expense, but you haven't indicated whether you will be ableto produce him foradeposition. Ifwe are not affordedan opportunity to depose him before the hearing, we will object to histestifying at the hearing. Wehave made reasonable efforts to try to contact himto schedule hisdeposition without any success. Ourinvestigator hascontacted individuals who know his present whereabouts and requested that they have Mr.Shehan contact theinvestigator, but he hasnot doneso. Please let me know ifyou will be able to produce him for a discoverydeposition. Thank you for your continued cooperation.

Ralph C. SpoonerSpooner & Much, P.C.

Please note our new Salem office address: 530 Center Street NE, Suite 712. Salem. OR 97301. Thank voul

PORTLAND OFFICE • 1SW COLUMBIA ST., SUITE 430 • PORTLAND, OREGON 97258 • PHONE (503) S17-0777 • FAX (503)467-4039

SALEM OFFICE •530 CENTER STREET NE, SUITE 712 • SALEM, OREGON 97301 •PHONE (503)378-7777 • FAX (503) S88-S899

PLEASE SEND ALL CORRESPONDENCE TO SALEM OFFICE

Thiselectronic mail and any documents accompanying it contain information belonging to Spooner & Much, P.C. and itsclients whichare privileged, confidential, and subject to attorney client privilege. This information is intended solelyforthe benefit of the firm and its clients and may not be released, copied or utilized in any manner without prior writtenconsent of Spooner & Much, P.C. and the client to which it relates. Ifyou are not the intended recipient, you are hereby

App. 5

Carolyn Reil

From: Victoria Blachly <vblachly@samuelslaw.com>Sent: Saturday, October 10, 2015 1:35 PMTo: Ralph SpoonerCc: michaelbdye@yahoo.comSubject: RE: OCJFD Matter/ Day

I've never had the ability to make Mr. Shehan appear for a deposition. I'm not keeping him from you.

From: Carolyn Reil fmailto:Carolyn(o)smapc.com] On Behalf Of Ralph SpoonerSent: Wednesday, October 07, 2015 5:09 PMTo: Victoria Blachly (xl34)Cc: michaelbdye@vahoo.com

Subject: Re: OCJFD Matter/ Day

CONFIDENTIAL COMMUNICATION

Victoria:

Attached are two more witness statements for witnesses we intend to call at the hearing. Also attached is another pageof discovery from Judge Day that he located in response to your requests.

We need to coordinate witness scheduling, especially the Marion County Circuit Court judges and staff. Could you pleasesend me a list of the witnesses you intend to call at the hearing so that Ican figure out the witnesses I will need toadd. With regard to the Marion CountyCircuit Courtjudgesand staff you intend to call as witnesses, Ithinkit would bebetter for me to do mycross-examination and additional direct examination following your direct examination of themso we do not have to call them back a second time. Let me know if you agree with this procedure.

With regard to Brian Shehan, Idon't agree that he can be called out of order during myclient'scase. Ihaveseveralconcerns. First,we haven't been able to depose him. You originally indicated that if we would pay for his travelexpense, you could make him available for a deposition prior to the hearing. Wesent youconfirmation that we werewilling to payhis travelexpense,but youhaven't indicated whetheryou will be able to produce him fora deposition. Ifwe are not afforded an opportunity to depose himbefore the hearing,we will object to his testifyingat the hearing. Wehave made reasonable efforts to try to contact him to schedule his deposition without any success. Our investigator hascontacted individuals who know his present whereabouts and requested that they have Mr. Shehan contact theinvestigator, but he has not done so. Please let me know ifyou will be able to produce him for a discoverydeposition. Thank you for your continued cooperation.

Ralph C. SpoonerSpooner & Much, P.C.

Please note our new Salem office address: 530 Center Street NE. Suite 712, Salem. OR 97301. Thank you!

PORTLAND OFFICE • 1SW COLUMBIA ST.,SUITE 430 • PORTLAND, OREGON 97258 • PHONE (503) 517-0777 • FAX (503) 467-4039

SALEM OFFICE •530 CENTER STREET NE, SUITE 712 • SALEM, OREGON 97301 • PHONE (503) 378-7777 • FAX (503) 588-5899

PLEASE SEND ALL CORRESPONDENCE TO SALEM OFFICE

This electronic mail and any documents accompanying it contain information belonging to Spooner & Much, P.C.and itsclients which are privileged, confidential, and subject to attorney client privilege. This information is intended solely for

App. 6

Carolyn Reil

From: Victoria Blachly <vblachly@samuelslaw.com>Sent: Wednesday, November 04,2015 6:44 PMTo: Ralph SpoonerCc: michaelbdye@yahoo.com; Darlene PasiecznySubject: BAS

Do you have an objection to BAS appearing at the hearing by real time video for direct and cross examination? As youknow, he's out of state. Additionally, he has legitimate concerns about the heightened press related to this case afterJudge Dayreleased the entire complaint and response; he's seen what religious zealots are capable of during hisnumerous military tours; he was told by his former criminal counsel not to get involved because of the probationviolations; and Judge Day's interactions with him were so unpredictable that he fears retaliation in the form of a warrantor some other legal action that may have adverse consequences.

Please let me know your position. Ifyou object, I'll file something with the Commission.

Victoria Blachly | Partnervblachlv(5>samuelslaw.com

CSamuels Yoelin Kanton,-

111 S.W. 5th Ave., Suite3800 | Portland, Oregon 97204Office 503.226.2966 | Fax 503.222.2937www.samuelslaw.com I www.wealthlawbloa.com

Tnis transmission may contain confidential orprivileged information. It is intended only for the useofthe recipient named above. If you arenot trie intendedrecipient, any disclosure, distribution, forwarding, orcopying of this transmission, or the taking ofany action based on this transmission, is strictly prohibited. !f youhave received this inerror, please immediately notify us by telephone. In addition, please delete theerroneously received transmission from any device/mediav/he:? the message is stored.

App. 7

Carolyn Reil

From: Victoria Blachly <vblachly@samuelslaw.com>Sent: Thursday, November 05, 2015 9:50 AMTo: Ralph SpoonerCc: michaelbdye@yahoo.comSubject: RE: BAS

Ido not understand your opposition, but it has been noted.

From: Ralph Spooner [mailto:RSpooner@smapc.com1Sent: Thursday, November 05, 2015 9:47 AMTo: Victoria Blachly (xl34)Cc: vddDC@aol.com: michaelbdve@yahoo.comSubject: RE: BAS

Victoria

We don't agree with this approach. BAS will need to appear in person. Itrust you understand our opposition.

Ralph C. SpoonerSpooner & Much, P.C.

Please note our new Salem office address: 530 Center Street NE. Suite 712, Salem, OR 97301. Thank you!

PORTLAND OFFICE • 1SW COLUMBIA ST., SUITE 430 •PORTLAND, OREGON 97258 • PHONE (503)517-0777 • FAX (503)467-4039

SALEM OFFICE -530 CENTER STREET NE, SUITE 712- SALEM, OREGON 97301 •PHONE (503)378-7777 •FAX (503) 588-5899

PLEASE SEND ALL CORRESPONDENCE TO SALEM OFFICE

This electronicmail and any documents accompanying it containinformation belonging to Spooner & Much, P.C. and itsclients which are privileged, confidential, and subject to attorneyclient privilege. This information isintended solely forthe benefit of the firm, and its clients and may not be released, copied or utilized in any manner without prior writtenconsentofSpooner&Much, P.C. and the client to which it relates. Ifyou are not the intended recipient, you are herebynotified to destroy this message. You are also advised that anyfurther distribution, copying, or taking ofanyaction inreliance on this message is strictly prohibited.

From: Victoria Blachly [mailto:vblachlv@samuelslaw.comlSent: Wednesday, November 04, 2015 6:44 PMTo: Ralph SpoonerCc: michaelbdve@vahoo.com; Darlene PasiecznySubject: BAS

Doyou have an objection to BAS appearing at the hearing by real time video for direct and cross examination? Asyouknow, he's out of state. Additionally, he has legitimate concerns about the heightened press related to this case afterJudge Day released the entire complaint and response; he's seen what religiouszealots are capable of duringhisnumerous militarytours; he was told by his former criminal counsel not to get involved because of the probationviolations; and Judge Day's interactions with him were so unpredictable that he fears retaliation in the form of a warrantor some other legal action that may have adverse consequences.

App. 8

Carolyn Reil

From: Kate Horrocks on behalf of Ralph SpoonerSent: Monday, November 16, 2015 12:23 PMTo: 'darlenep@samuelslaw.com'Subject: OCJFD v. Day - Exhibits #1Attachments: Commission Exhibit 71.pdf; 503.pdf; 504.pdf; 505.pdf; 500.pdf; 501.pdf; 502.pdf

Darlene,

Iwill send you multiplee-mails with the exhibits we want transmitted to Brian Shehan, Iwill number themconsecutively.

Ralph C. SpoonerSpooner & Much, P.C.

PORTLAND OFFICE • 1SW COLUMBIA ST., SUITE 430 • PORTLAND, OREGON 97258 • PHONE (503) 517-0777 • FAX (503) 467-4039

SALEM OFFICE • 530 CENTER STREET NE, SUITE 712 • SALEM, OREGON 97301 • PHONE (503) 378-7777 • FAX (503) 588-5899

PLEASE SEND ALL CORRESPONDENCE TO SALEM OFFICE

This electronic mail and anydocumentsaccompanying it contain information belonging to Spooner&Much, P.C. and itsclients which are privileged, confidential, andsubject to attorney client privilege. This information isintended solely forthe benefit of the firm and its clients and may not be released, copied or utilized in any manner without prior writtenconsent ofSpooner &Much, P.C. andthe client to which it relates. If you are notthe intended recipient, you are herebynotified to destroy this message. You are also advised that any further distribution, copying, or taking ofany action inreliance on this message is strictly prohibited.

App. 9

Carolyn Reil

From:

Sent:

To:

Subject:Attachments:

Kate Horrocks on behalf of Ralph SpoonerMonday, November 16, 2015 12:24 PM'darlenep@samuelslaw.com'OCJFDv. Day - Exhibits#2637(a).wmv

Ralph C. SpoonerSpooner & Much, P.C.

PORTLAND OFFICE • 1SW COLUMBIA ST.,SUITE 430 • PORTLAND, OREGON 97258 • PHONE (503)517-0777 • FAX (503)467-4039

SALEM OFFICE •530 CENTER STREET NE, SUITE 712 • SALEM, OREGON 97301 • PHONE (503) 378-7777 • FAX (503) 588-5899

PLEASE SEND ALL CORRESPONDENCE TO SALEM OFFICE

This electronic mail and anydocuments accompanying it contain information belonging to Spooner &Much, P.C. and itsclients which are privileged, confidential, and subject to attorney client privilege. This information is intended solely forthe benefit of the firm and its clients and may not be released, copied or utilized in any manner without priorwrittenconsent ofSpooner &Much, P.C. and the client to which it relates. If you arenotthe intended recipient, you are herebynotified to destroy this message. You are also advised that any further distribution, copying, or taking ofany action inreliance on this message is strictly prohibited.

App. 10

Carolgn Reil

From:

Sent:

To:

Subject:Attachments:

Kate Horrocks on behalf of Ralph SpoonerMonday, November 16, 2015 12:30 PM'darlenep@samuelslaw.com'OCJFD v. Day - Exhibits #2589.pdf; 590.pdf; 591.pdf; 507.pdf; 508.pdf; 510.pdf; 511.pdf; 547.pdf

Ralph C. SpoonerSpooner & Much, P.C.

PORTLAND OFFICE • 1 SW COLUMBIA ST.,SUITE 430 • PORTLAND, OREGON 97258 • PHONE (503) 517-0777 • FAX (503) 467-4039

SALEM OFFICE •530 CENTER STREET NE, SUITE 712 • SALEM, OREGON 97301 • PHONE (503) 378-7777 • FAX (503) 588-5899

PLEASE SEND ALL CORRESPONDENCE TO SALEM OFFICE

Thiselectronic mail and any documents accompanying it contain information belonging to Spooner & Much, P.C. and itsclientswhich are privileged, confidential, and subject to attorney client privilege. This information is intended solely forthe benefit of the firm and its clients and may not be released, copied or utilized in any manner without prior writtenconsent of Spooner&Much, P.C. and the client to which it relates. Ifyou are not the intended recipient, you are herebynotified to destroy this message. You are also advised that any further distribution, copying, or taking of any action inreliance on this message is strictly prohibited.

App. 11

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE ex rel the Honorable VANCE D. DAY,Plaintiff-Relator,

COMMISSION ON JUDICIAL FITNESS AND DISABILITY,Defendant.

Commission on Judicial Fitness and Disability12139,1489

S063636

ORDER DENYING PETITION FOR PEREMPTORY OR ALTERNATIVE WRIT OF

MANDAMUS

Upon consideration by the court.

Relator requests that this Court issue a preemptory writ of mandamus directing theOregon Commission on Judicial Fitness and Disability to vacate its pre-hearing orderdenying two petitions for pre-hearing discovery filed by relator and directing theCommission to enter an order granting the requested discovery. Alternatively, relatorrequests that this Court issue an alternative writ of mandamus directing the Commissionto vacate its order denying relator's pre-hearing discovery petitions and enter an ordergranting the requested discovery, or show cause why it has not done so.

Whether a petition for pre-hearing discovery must or should be granted is a decision forthe Commission in the first instance. After a hearing before the Commission, this Court"shall review the record of the proceedings on the law and the facts and may receiveadditional evidence." ORS 1.430. A writ of mandamus is an extraordinary remedy that"shall not be issued in any case where there is a plain, speedy and adequate remedy inthe ordinary course of the law." ORS 34.110. Because relator is entitled to post-hearing review in this Court, relator has a remedy in the ordinary course of law and hasnot established a basis for mandamus relief.

Relator's request for a preemptory or alternative writ of mandamus is denied.

TU,a§i^ 11/03/20152:35 PM

THOMAS A. BALMER

CHIEF JUSTICE, SUPREME COURT

ORDER DENYING PETITION FOR PEREMPTORY OR ALTERNATIVE WRIT OF

MANDAMUSREPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,

Supreme Court Building, 1163 State Street, Salem, OR 97301-2563Page 1 of 2

App. 12

DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS

Prevailing party: Defendant [ X ] No costs allowed

Janet M Schroer

Ralph C SpoonerVictoria D BlachlyTimothy R VolpertHon. Debra K. Vogt

asb

ORDER DENYING PETITION FOR PEREMPTORY OR ALTERNATIVE WRIT OFMANDAMUS

REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,Supreme Court Building, 1163 State Street, Salem, OR 97301-2563

Page 2 of 2

App. 13

IN THE SUPREME COURT OF THE STATE OF OREGON

In re:

,MMr,cn ^Avr , Supreme Court Case No.VANCE D. DAY } Case No#: 12.139Case No.: 14-86

DECLARATION OF RALPH C.SPOONER IN SUPPORT OFPETITION FOR PEREMPTORYOR ALTERNATIVE WRIT OFMANDAMUS

I, Ralph C. Spooner, do hereby state as follows:

1. I make this Declaration based on personal knowledge, and I

am competent to testify to the matters herein.

2. I am one ofthe attorneys for Hon. Vance D. Day in the

above-captioned case.

3. This Declaration is being filed to document matters for the

record that are not in dispute.

4. The discovery provided by the Commission confirms that

the Commission has been investigating Judge Day for several years. The

Counts in the Commission's Complaint and the discovery provided by the

Commission to me confirm that the Commission investigated events that

occurred in 2012, 2013, and 2014.

ER-071

App. 14

5. The Commission's Complaint was filed on June 23, 2015.

6. A Petition to take Christine Brown's deposition was filed

with the Commission on August 7,2015 and it was granted on August 24,2015.

7. I did not have any other information about the

farmersonly.com statement by Christine Brown other than her statement to the

Commission's investigator. I did not know at the time the Petition was filed

that Christine Brown had allegedly taken a screenshot of a posting from the

farmersonly.com website on her old cell phone and that she still had her old cell

phone. If I had known this information, I would have requested the

Commission to issue a Subpoena Duces Tecum requiring Christine Brown to

produce her old cell phone for inspection by a qualified expert. It wasn't until

Christine Brown's deposition was taken on September 17, 2015 that I learned

she still had her old cell phone on which she allegedly took a screenshot of the

posting involving Judge Day from the farmersonly.com website.

8. On October 19, 2015, in a letter, the Commission denied the

Petition I filed for an Order requiring Christine Brown to produce her old cell

phone for inspection by a qualified expert. I made a request to the

Commission's Executive Director, Susan Isaacs, to see if Orders would be

issued by the Commission. I received an email on October 23, 2015 indicating

Orders would be prepared, but I have not received them as of the date of this

Declaration.

ER - 072

App. 15

9. During the depositions ofMarion County Circuit Court

judges and staff, it was learned that judges and staff used their government

computers for personal email. Attorney Steve Lippold, Chief Trial Counsel for

the Attorney General's Office, represented the judges and staff during their

depositions. I made a request of Mr. Lippold to search the government

computers to produce personal emails from the judges and staff relating to

charges in the Complaint filed against Judge Day. Mr. Lippold did not oppose

this request. Emails were exchanged to facilitate the search of the government

computers for the personal emails. True copies of the emails are attached to

this Declaration. During the process, Mr. Lippold inquired if a Request had

been made to the Commission for this information. I provided him with a copy

of the discovery Petition involving this issue. No formal objection to this

discovery Petition was filed by Mr. Lippold or the Commission's attorney,

Victoria Blachly. The Commission denied the Petition.

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ER - 073

App. 16

This request was likely to lead to the discovery of admissible evidence that, in

my opinion, would be critical to the defense ofJudge Day.

I HEREBY DECLARE THAT THE ABOVE STATEMENT IS

TRUE TO THE BEST OF MY KNOWLEDGE AND BELIEF, AND THAT I

UNDERSTAND IT IS MADE FOR USE AS EVIDENCE IN COURT AND IS

SUBJECT TO PENALTY FOR PERJURY.

Respectfully submitted this 29th day ofOctober, 2015.

s/ Ralph C. SpoonerRALPH C. SPOONER, OSB# 73288Spooner & Much, P.C.

Of Attorneys for Hon. Vance D. Day

ER-074

App. 17

CERTIFICATE OF FILING AND SERVICE

I certify that on the 18th day of March, 2016, I filed the MOTION TO STRIKE “OPINION”; SUPPLEMENT AND CORRECT THE RECORD; AND RE: BRIEFING with the State Court Administrator by Electronic Filing. I further certify that on the same date, I caused the foregoing to be served upon the following counsel of record by electronic filing: Victoria D Blachly Samuels Yoelin Kantor LLP 111 SW 5th Av., Suite 3800 Portland, OR 97204

Timothy R. Volpert Tim Volpert PC Attorney at Law 522-A NW 23rd Avenue Portland, OR 97210

I further certify that on the same date I served a true and correct copy of the foregoing document upon the following by US Mail: Darlene D. Pasieczny Samuels Yoelin Kantor LLP 111 SW 5th Av., Suite 3800 Portland, OR 97204 Anita Milanovich The Bopp Law Firm 1627 W Main Street, Suite 294 Bozeman, MT 59715

James Bopp, Jr. The Bopp Law Firm 1 South Sixth Street Terre Haute, Indiana 47807-3510

DATED this 18th day of March 2016. HART WAGNER, LLP By: /s/ Janet M. Schroer Janet M. Schroer, OSB No. 813645 Of Attorneys for Honorable Vance D. Day