Judge who refused to perform gay marriages has boundaries problem, should be ousted, commission says
A judge in Salem, Oregon, should be removed from office because of his refusal to marry gay couples and other conduct indicating a lack of insight into required “boundaries,” a state commission has concluded.
The Oregon Commission on Judicial Fitness and Disability unanimously recommended the removal of Judge Vance Day in a Jan. 25 opinion (PDF), report the Oregonian and the Statesman Journal. The state supreme court will make the final decision.
The commission found that Day came up with a plan to avoid marrying same-sex couples; solicited funds from attorneys, some of whom appeared before him, for a courthouse veterans art project; had improper ex parte contact with probationers in his veterans court; and tried to intimidate a soccer referee by showing his business card.
“Judge Day’s behavior indicates that he has little insight concerning the boundaries required in a judicial position,” the commission said. “Given the nature of the misconduct and Judge Day’s lack of appreciation for its seriousness, the commission is not confident that Judge Day will make any effort to change or modify his behavior.”
The commission also said Day “engaged in a pattern of dishonesty” to cover up his conduct and in one instance accepted funds to put together a wall hanging at the courthouse, even though he had already been reimbursed for his expenses.
A spokesman for Day released a statement saying the commission’s finding of facts were at odds with evidence presented in a November hearing. “The opinion is especially troubling,” the statement said, “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.”
According to the commission’s findings of fact:
• Day instructed his staff in the early summer of 2014 to screen marriage applicants to determine if they were a same-sex couple. Staffers were directed to tell the same-sex applicants that Day was unavailable on the day of their service and they should contact other judges. Day continued to marry opposite-sex couples until August 2014, when he stopped performing marriages altogether. Staffers didn’t encounter a situation where Day’s screening process had to be used. Day made statements before a disciplinary hearing to create the impression that it was only about his refusal to conduct same-sex marriages “to deflect public attention away from other misconduct,” the commission said.
• During a community-college soccer game, Day’s son suffered a concussion. Day believed the injury was due to poor officiating. After the game, he laid his business card on the referee’s table, said he would file a complaint over the officiating, and shoved the business card toward the referee. As the referee drove home, he noticed Day and his son making a note of the referee’s license plate number. Day told the commission the referee had asked for his business card and he politely complied.
• At the next home soccer game, soccer officials were prepared for Day. When the judge approached the referee table, a soccer official yelled at Day to return to the spectator section, saying something to the effect “get the hell out of here.” The officials and other witnesses said there was no physical contact. Day said he had approached the referee table to thank game officials, but someone grabbed him by his shoulders, whirled him around, and nearly picked him off his feet.
• The soccer officials’ testimony was consistent and backed by other witnesses. Day’s testimony, on the other hand, “was internally inconsistent and inconsistent with his initial written response,” the commission said. Day’s facial expressions and responses were “tinged with a bit of sarcasm” when challenged with contrary evidence, and he was “smiling smugly” during part of the referee’s testimony, the commission said.
• Day asked a former Navy SEAL who had pleaded guilty in his courtroom for an interview for a magazine article he was writing. The article included personal information about the veteran, who had pleaded guilty to driving under the influence of intoxicants. The veteran felt he couldn’t say no because he wanted to obtain the benefit of his plea bargain and he wanted a successful probation.
• The same veteran said he was invited to Day family events, Day allowed him to handle a gun, and he went target shooting with Day’s son. The veteran was a felon and Oregon law made it a felony for him to possess a firearm.
• Day had denied allowing the veteran to handle the gun, but it is “inconceivable” the veteran would handle a gun in Day’s presence without getting permission, the commission said. The commission concluded that Day was “enamored” with the veteran’s military record, causing the judge to lose perspective that the veteran was a criminal defendant subject to Day’s orders and sanctions.
• Day used funds from a nonprofit that trained police on working with veterans to create military art to be hung in his courtroom and nearby public areas. Day sought and obtained donations from lawyers, some of whom appeared before him, to matte and frame the art. The smallest attorney donation was $225 and the largest was $793. Day created placards identifying the lawyers or law firms that donated funds.
• One collage in the military art collection included a portrait of Hitler. When the presiding judge told him to take it down, Day replied, “You don’t want to go there because some very influential people in this town want it up.” He did, eventually, remove the portrait.
