OHSA investigates judge who flouted 'nanny state' mask rules
Three weeks after a controversial Washington County judge told jurors they didn't need to wear masks in his courtroom, Oregon's top judicial official ordered new restrictions on in-person court proceedings.
As of Nov. 19, courts across the state may not conduct legal proceedings that require people other than judges or court staff to be in-person, according to an order by Martha Lee Walters, chief justice of the Oregon Supreme Court.
The order contains exceptions for proceedings such as arraignments and other proceedings that could lead to the release of a defendant, grand jury hearings and protective order hearings. The rules will remain in place until Dec. 4.
The order followed Gov. Kate Brown's decision to mandate a two-week statewide 'freeze,' adding new restrictions on in-person gatherings and businesses, as new cases of COVID-19 continue to soar in Oregon.
These rules and restrictions come weeks after Washington County Circuit Court Judge Charles Bailey told a defense attorney and a prosecutor during a trial that mask requirements were part of a "nanny state." A recording of Bailey's comments were first made public on Nov. 7 by The Oregonian/OregonLive.
After jurors entered the courtroom, Bailey said, "As you all can see, I'm not wearing a mask. It's very uncomfortable for me to wear. I know they're uncomfortable for you all, and so when you're in my courtroom, I treat everybody as adults, which you all get to make adult decisions that you think are best for you and those around you."
Bailey went on to say that he got "very sore throats" and "very irritated eyes" after wearing a mask for an extended period of time in airports and on a flight.
"We don't need the nanny state looking over you," Bailey previously said to attorneys during the Oct. 29 trial.
He also told jurors they could speak with him about potentially not participating in the trial if his treatment of masks made anybody uncomfortable.
No jurors reportedly took their masks off.
Bailey's comments came as Oregon saw record-breaking numbers of new coronavirus cases that week. That trend has continued.
Bailey did not respond to an email asking questions about his comments.
A June order by the presiding judge of the Washington County Circuit Court, Beth Roberts, mandated all people entering the court to wear a mask except in certain circumstances, including when a judge permitted people to "temporarily remove the protective face covering to facilitate communication" during court proceedings. Roberts issued the order after Gov. Kate Brown created mask requirements for people in public spaces in Washington County and several other counties. Brown later expanded that order statewide.
Bailey made his comments days before Walters implemented an order statewide that was similar to Roberts'.
Walters' order was not in response to the circumstances of any particular court, but rather to create consistency across the state, said Todd Sprague, a spokesperson for the Oregon Judicial Department.
Although Bailey had the authority to allow people not to wear masks in his courtroom, the judge's comments showed a relaxed attitude toward what health officials widely consider as the top way to prevent the spread of the coronavirus at a critical time of the pandemic.
Bailey, who was a prosecutor in Washington County for six years before becoming a judge in 2006, has been seen as a divisive figure in the Washington County Circuit Court. Multiple defense lawyers have publicly said they've complained about Bailey to the Oregon Judicial Fitness Commission.
Former Judge Suzanne Upton filed a tort claim notice five years ago against Bailey, saying he harassed her after she missed days of work due to a personal matter. Upton didn't end up filing a lawsuit before she retired.
In 2018, Bailey sent an email to the entire Washington County Circuit Court bench attacking the character of his colleague Judge Eric Butterfield, who had wanted to succeed Bailey as the court's presiding judge.
Walters, the chief justice, investigated the email, and Bailey later stepped down as presiding judge.
Earlier this year, Bailey told Roberts he would no longer hear cases in which defendants are represented by defense attorneys from Metropolitan Public Defender. The nonprofit handles about 45% of the public defense casework in Washington County. Its attorneys have been critical of Bailey, accusing him of bias.
Bailey said the defense attorneys were trying to use "cancel culture" tactics against him after they threatened to file a complaint with the judicial fitness commission.
The Oregon Occupational Health and Safety Administration is currently investigating an anonymous complaint related to Bailey's treatment of masks during the Oct. 29 trial, a spokesman for OSHA confirmed.
According to officials involved in the court, Bailey has shown a reluctance to wearing masks for months.
Jeff Lesowski, chief deputy district attorney for the Washington County District Attorney's Office, said after Roberts issued her general mask order this summer, judges' treatment of masks varied widely.
"Roberts in particular was a pretty vigilant mask proponent," Lesowski said. "Everybody knew that in her courtroom, you masked up and kept it on. In other courtrooms, Judge Bailey's among them, we knew that the rules were a little bit looser on that."
Lesowski wasn't at the trial when Bailey told jurors they didn't have to wear masks. He said he has only appeared in Bailey's courtroom a couple of times since the beginning of the pandemic, and Bailey didn't discuss mask-wearing in those cases.
Lesowski was not aware of any other instances in which Bailey told people in the courtroom they didn't need to wear a mask.
He said he saw Bailey wearing a mask while addressing jurors in a different case on Nov. 13, days after Bailey's comments about mask-wearing were first reported.
Roberts did not respond to emails asking questions about whether she would make any additional mask rules. She also didn't respond when asked how Walters' new order would affect court proceedings.
Richard Moellmer, administrator for the county circuit court, said the court has not received any complaints from the public related to judges' treatment of COVID-19 safety procedures.
He said in some recent cases, people have raised concerns about too many people congregating in court waiting areas. Recently, the court began to increase the number of cases that were being heard.
In October, the court opened two satellite courtrooms at the Wingspan Event & Conference Center in Hillsboro, formerly known as the Washington County Fair Complex. It was an effort to make an impact on a backlog of hundreds of cases that haven't been heard due to the pandemic.
Even with Walters' new restrictions on in-person court proceedings, Moellmer said most of the types of cases that have been heard recently would be able to proceed remotely.
He added that the Washington County Circuit Court has used the state-sanctioned video conferencing program for court proceedings more than any other county in the state. Some counties, including Lane County, that have been using a different program didn't appear in the data Moellmer was referring to, he said.
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