This story was updated from its original version
Phase two of the trial over public access at Oswego Lake has been pushed back due to the lingering issue of whether Clackamas County Circuit Judge Ann Lininger can preside over the case.
The second phase of the trial was initially scheduled for the week of July 19. However, the city of Lake Oswego and the Lake Corp. — which represents lake shareholders — asked for Lininger to recuse herself due to emails they collected appearing to show that Lininger and plaintiffs Mark Kramer and Todd Prager had met for coffee in 2014 while she served in the state Legislature.
The emails indicated that Lininger had pointed the plaintiffs to other elected officials who might be sympathetic to legislation regarding lake access, and the city and corporation argued that Lininger should have disclosed the specifics of this interaction — which they felt called her objectivity into question — prior to the trial. After Lininger refused to recuse herself during a hearing July 12, the Lake Corp. filed a motion to disqualify her from the case.
Now, Multnomah County Circuit Court Judge Beth Allen will preside over a motion to disqualify hearing on Tuesday, July 19, Lininger's judicial assistant Elliott Ware wrote via email.
"Scheduling phase two of the trial is on pause due to the motions to disqualify," Ware wrote.
Ware also surmised that, if Lininger is disqualified, a hearing would take place regarding whether phase one of the trial would have to be redone.
The battle over lake access dates back to 2012, when Kramer and Prager filed a lawsuit in response to Lake Oswego's ordinance barring access to the lake from city-owned property (effectively banning all public access). The lawsuit called for the ordinance to be struck down, while also asking for a declaratory judgment affirming that the lake is a public body. After both the circuit court and the Oregon Court of Appeals ruled in favor of the Lake Corp. and the city, Kramer and Prager petitioned the Oregon Supreme Court and the case was ultimately remanded back to the county court in 2019.
In phase one of the new circuit court trial, Lininger ruled that the lake was navigable at the time of statehood and subject to Public Trust Doctrine, therefore potentially opening it up to be publicly accessible. Phase two of the trial will determine whether the city of Lake Oswego's rules barring access from public facilities are reasonable. Lininger had noted during a previous hearing that it seemed that the city and corporation had tried to get her disqualified from the case only after she had issued a ruling that was unfavorable to the Lake Corp.
Lake Corp. General Manager Jeff Ward said it could be awhile before the trial resumes, because a request for a writ of mandamus — asking a higher court to issue an order — could be filed following the ruling on the motion to disqualify.
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