The Oregon Commission on Judicial Fitness and Disability investigated Marion County Judge Vance Day last year for deciding he could not in conscience perform same-sex weddings and therefore would not perform any weddings. Although he is not required to perform weddings at all, the commission earlier this year recommended he be removed from office. The commissioners unanimously found him guilty of 8 of 13 charges of violating the Oregon Code of Judicial Conduct. The Oregon State Supreme Court is now considering the recommendation.

Judge Day is an evangelical Christian, and officiating at a same-sex wedding would violate his deeply held religious views. After the Supreme Court’s decision in Obergefell v. Hodges legalizing same-sex marriage, he decided not to perform any weddings at all to avoid any controversy, but the Commission still went ahead with an investigation and two-week-long hearing.

Many thought it was a political witch hunt, because the Commission also investigated several other charges, as if it were hoping something would stick. Notably, two of the three judges on the nine-member commission are featured on the website of the Oregon Democratic Party.

He Said, She Said

Here is how Day’s defense fund describes the charges:

Most of the accusations range from insignificant to trivial. Among the things that the Judicial Fitness Commission considers violations of state ethics rules include handing his business card to a soccer referee who had asked for it; hanging displays of memorabilia honoring the service of American military veterans on the walls outside his office; and even hanging pictures of former presidents of the United States.

Much of the 48-page opinion is a “he said, she said” analysis of Day’s version of events versus someone else’s, and the commission decided to believe his accusers over him. Day was accused of opposing the appointment of Judge Cheryl Pellegrini to the bench because she was a lesbian, for example. Day said he told her that he didn’t support her because she was a government lawyer, but she claimed that over breakfast he had told her he opposed her because of her sexual orientation.

Though the commission had no evidence either way, it ruled that “Given all the other factual and credibility findings herein, the Commission finds Judge Pellegrini to be the more credible.” In the summary of the findings, this “more credible” became definitive”

Judge Day testified under oath at the hearing that he told Judge Pellegrini 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.

He was found to have harbored intentional “prejudice” based on sexual orientation.

The Commission Piles On

Incredibly, the Commission piled on even more by claiming that Day had organized a media campaign to convince the public he was being disciplined for objecting to perform same-sex weddings. Since the other charges were rather petty and dubious, he would appear to be correct. The commission also piled on by accusing him of “continual public mischaracterizations of this disciplinary process, both procedurally and substantively.”

Day spent 25 years as a plaintiff litigator and never had one ethics complaint. The commission admitted that as a judge Day “has no prior record of discipline and has a good reputation among his colleagues.” He has the lowest attorney recusal rate among his colleagues. Local residents say that he is highly respected in the legal community. Even some among those with opposing political views call this a witch hunt.

He cares very deeply for veterans, and ran a veterans’ treatment court with a wrap-around team. They made a comprehensive team decision to personally help a high-risk, suicidal Navy Seal veteran. Everyone in the court, as well as Day’s family, participated in “Good Samaritan” acts like this. The Commission even admitted in its opinion, “Judge Day has a sincere interest in helping veterans.”

Yet when the relationship soured, and the veteran complained about Day, the commission chose to believe him over Day. The commission said that Day had actually committed a felony, by allowing the veteran to handle a firearm. If true, why wasn’t he prosecuted in a real court of law with a jury to determine his guilt? When a disciplinary commission accuses someone of a crime for which he hasn’t been charged, it’s usually an indication that he hasn’t committed a crime, but that the commission wants to use the charge without having it tested in court.

Sadly judicial and state bar commissions abuse their authority in this way all too often. Since they know they can’t get their target convicted in a real court of law, they bring him in front of a commission where he doesn’t get a real trial. Everyone accused of crimes in this country has a constitutional right to a jury trial.

The media has been especially vicious. An article in The Washington Post was titled, “Meet the judge who honors Hitler, hates gays, has ‘pattern of dishonesty.'” It completely twisted the truth. What the Post‘s reporter dishonestly called “honors Hitler” was a World War II collage hanging on the Day’s courtroom wall that included a photo of Hitler had been contributed by a veteran and was a celebration of defeating Hitler. 

Banning Liberty of Conscience

Oregon is essentially banning liberty of conscience from its judiciary. Day issued a statement about the commission’s decision through a spokesperson:

A quick review of the decision indicates that the Commission’s ‘finding of facts’ are at odds with evidence presented at the hearing, and some have no evidentiary support at all. The opinion is especially troubling because it disregards Judge Day’s First Amendment rights to freedom of religion, speech and association. He will vigorously defend these rights, and his innocence of the remaining charges, before the Oregon Supreme Court.

People who know him were so concerned they donated $150,000 for his legal defense. However, his costs continue to escalate, and have now reached $400,000. He and his wife emptied all their savings and major retirement investments and have been forced to put their house up for sale. His friends are hoping to raise the full $400,000 on his legal defense website.

This is not an isolated case and there will be more. Two judicial ethics hearings were conducted in Oregon this past year. The other one also was investigating a Republican judge, whose father is a former chairman of the Oregon Republican Party. Day was the state GOP chair from 2005-2009. It appears pretty clear that Day has been targeted because he is a Republican activist and opposes same-sex marriage. Hopefully the Oregon Supreme Court will do the right thing and stop this witch hunt.

Just who are the nine commissioners who unanimously recommended to remove Judge Day from office?

• Public Members
  Annabelle Jaramillo is an LGBT activist
  Linda Collins is married to a criminal defense attorney
  Judy Edwards is a connected legal insider
• Attorney Members
  Judy Snyder – One person wrote on Yelp about her services, “She wouldn’t take my employment discrimination case because I am a male.”
  Judith Parker was named an honoree at the 2011 Convocation on Equality for her work promoting diversity. She tweets things like “I’m hoping POTUS shouts out to @MayorPDX for examples of what progressive cities can do. #SOTU”
  Jeffrey Wallace is a criminal defense attorney
• Judge Members
  Patricia Sullivan is featured on the Oregon Democratic Party website
  Debra Vogt is also featured on the Oregon Democratic Party website
  James Egan was a member of the Oregon State Bar Associations Affirmative Action Committee