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Judge will determine in September whether the initial ruling, which determined that the lake is subject to Public Trust Doctrine, should stand. 

PMG FILE PHOTO - The Lake Corporation wants initial ruling that could have paved the way for Oswego Lake to be publically accessible to be thrown out.

Following the disqualification of the initial judge from presiding over a case regarding public access at Oswego Lake, the Lake Corporation asked the Clackamas County Circuit Court Monday, Aug. 1 to vacate the April ruling that opened the door toward the lake being public.

The corporation, which represents shareholders who live along the body of water that has long been considered private, filed a motion to vacate case findings and conclusions of law for phase one of the trial, during which Judge Ann Lininger determined that the lake was navigable at the time of statehood and therefore subject to Public Trust Doctrine. The second phase of the trial, which was initially scheduled for July but postponed, will look at whether the city of Lake Oswego's policies limiting access to the lake from its facilities are reasonable.

The second phase was put on hold due to the revelation that Lininger had met with the plaintiffs in the case and discussed possible legislation related to lake access when she was a state representative. Multnomah County Circuit Court Judge Tom Ryan ruled during a hearing in July that this contact equated to participating personally in the matter, and therefore granted a motion to have her disqualified from the case.

Plaintiffs Mark Kramer and Todd Prager filed the lawsuit that began this saga in 2012 and the circuit court and Oregon Court of Appeals previously ruled in favor of the Lake Corporation. The Oregon Supreme Court remanded the case back to the circuit court in 2019, leading to the current two-part trial.

In its Aug. 1 court filing, the Lake Corporation argued that public confidence in the legal proceedings could suffer and the risk of error could increase if Lininger's phase one ruling is allowed to remain after she was removed from the case.

"Ensuring adherence to ethical standards and preserving public confidence in the judiciary are likewise paramount when determining whether a disqualified judge's rulings should be vacated after disqualification," its brief read. " As outlined by the United States Supreme Court in a widely adopted test, unless the parties can demonstrate some special hardship resulting from vacatur, a disqualified judge's decisions should be vacated. Vacatur does not depend on a showing of actual bias, or potential prejudice resulting from actual bias or incorrect rulings. Instead, vacatur is appropriate because public confidence is shaken when there are reasonable questions about a judge's impartiality, yet that same judge's rulings are allowed to stand."

Along with vacatur, the Lake Corporation asked for the trial to no longer be bifurcated into two phases and for a single judge to determine the results of both phases.

A hearing on the motion to vacate the findings and conclusions established in phase one is slated for Sept. 19.


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