Ann Lininger, the Clackamas County Circuit Court judge who presided over the ongoing case regarding access to Oswego Lake, has been disqualified from the proceedings due to communications she had with the plaintiffs when she served on the Oregon Legislature in 2014.
Multnomah County Circuit Court Judge Tom Ryan issued the disqualification ruling during a hearing Tuesday, July 19, stating that while Lininger did not commit a due process violation, her contact with Mark Kramer and Todd Prager — when they seemed to have discussed potential legislation related to lake access — in 2014 while she was the House District 38 representative amounted to brief participation in the issue. Oregon law states that a judge cannot preside over a case if they had participated personally as a public official in the matter at hand.
The push to have Lininger disqualified — made by lawyers from the Lake Oswego Corporation and the city of Lake Oswego — led to the delay of the second phase of the trial, which will focus on whether the city's policies preventing access from its facilities are reasonable. In the first phase, Lininger had determined that the lake was navigable at the time of statehood and subject to Public Trust Doctrine, therefore opening up the possibility that it would become publicly accessible. However, Lininger's assistant told the Review last week that a hearing over the status of the first phase of the trial might take place if Lininger were to be disqualified.
Jeff Ward, Lake Corporation general manager, said the corporation has not decided what it will do following the decision. The city's policy is not to discuss ongoing litigation.
Kramer and Prager initially filed a lawsuit in 2012 regarding the city's policies barring lake access, thus leading to a 10-year saga. The circuit court and Oregon Court of Appeals previously ruled in favor of the Lake Corporation, while the Oregon Supreme Court remanded the case back to the circuit court in 2019.
During a previous hearing Lininger declined to recuse herself, saying that she had disclosed during a pretrial hearing that she had discussed the lake issue with people on all sides and that it's part of the normal duties of being an elected official to meet with constituents. Lininger had not sponsored legislation following conversations with the plaintiffs, but had referred them to other legislators who might be sympathetic to their cause. No legislation ended up being introduced.
Nadia Dahab, representing the plaintiffs, argued during the hearing that the fact that Lininger did not sponsor a bill that Kramer and Prager had pushed meant that she was not a participant.
The Lake Corporation and the city disagreed, saying that Lininger had met personally with Kramer and Prager, received documents and responded favorably to the conversation.
The city and the Lake Corporation had felt she should have disclosed prior to the trial that she had met with the plaintiffs as a legislator.
"Had they disclosed that, we wouldn't be here today," a lawyer representing the city said at the hearing.
In the end, Ryan sided with the city and the Lake Corporation.
Prior to the hearing, the judge presiding over the motion to disqualify had shifted twice. First, Judge Michael Wetzel removed himself after he had apparently had conversations with Lininger about the case in recent weeks, and Judge Beth Allen was nixed as well after a request from the Lake Corporation.
A date for subsequent proceedings in the trial has not been set.
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