The judge who recently ruled that the public has a right to access Oswego Lake was disqualified Tuesday from hearing the second part of the case, which will determine whether the city’s restrictions on entering the lake from public parks can stand.
Clackamas County Circuit Court Judge Ann Lininger, a former county commissioner and state lawmaker representing the city of Lake Oswego, has presided over the case since it was assigned to her in November 2020. At a hearing earlier this month, attorneys for the city and the Lake Oswego Corporation, which is made up of property owners who surround the lake, called her impartiality into question because she failed to disclose a meeting with one of the plaintiffs eight years ago.
“There’s nothing, zero, in this record to support a finding of a due process violation,” ruled Multnomah County Circuit Court Judge Thomas Ryan, who was brought in as an outsider to hear arguments over whether Lininger should continue to oversee the case. Nevertheless, Ryan ordered her removed.
With Lininger, who lives in Lake Oswego, disqualified from the case, a yet to be appointed judge will oversee whatever happens next. The city and Lake Oswego Corporation could ask that judge for a new trial, giving them a chance to relitigate the case. The plaintiffs could also appeal Ryan’s decision.
Oswego Lake, surrounded by multimillion dollar homes in an eponymous posh suburb of Portland, is effectively private. Aside from a swim park for city residents, the vast majority of the lake is for members of the Lake Oswego Corporation.
In 2012, two men filed a lawsuit claiming anyone should be able to access the water. The hearing this week is part of the same, ongoing litigation.
In 2014, as a state representative, Lininger said she had a phone conversation with one of the plaintiffs in the case “and they unsuccessfully asked me to introduce a piece of legislation.”
The meeting was discovered in emails that plaintiffs turned over to the defendants in the case last month. It was the first time since the case began nearly a decade ago that the city and Lake Oswego Corporation asked for email records from the named plaintiffs.
“I did not describe the interaction…because I did not recall it,” Lininger wrote in a letter summarizing her statements at a July 6 hearing on the matter.
During the hearing, attorneys for the city and Lake Oswego Corporation asked Lininger to recuse herself, saying they would move to disqualify her from the case if she refused. Lininger refused.
“I find no basis to recuse myself from this case,” Lininger said at the hearing. “The [city and Lake Corporation] are raising this issue after me having handled the case for 18 months, making disclosures and after issuance of an unfavorable ruling and are now seeking a different judge to handle the second half of this trial.”
The Oregon Code of Judicial conduct requires judges to disqualify themselves from a proceeding “in which a reasonable person would question the judge’s impartiality.” The rules specifically address judges who have served in government and “participated personally as a public official concerning the matter.”
Ryan’s decision to remove Lininger comes three months after she issued a verdict in the first of two trials. This spring, Lininger ruled against the Lake Corporation and the city, laying the foundation for greater public access to the waters of Oswego Lake. After a five-day trial, Lininger found the waters of the lake subject to the state’s public trust doctrine. Most navigable waterways became state-owned the year Oregon became a state. Along with that comes a public right of access.
“Oswego Lake consists primarily of title-navigable waters,” Lininger wrote in her ruling this spring. “Despite that, the lake has been functionally privatized.”
Linninger has also noted that when she took over the case in November 2020 she informed the parties that she had lived in the city for some 20 years and had served as a local elected official.
“I was aware of this dispute about public access to the lake and this litigation, and that I had talked to people on all sides of this dispute,” Lininger said. “I disclosed it was possible that at some point I had talked to a plaintiff, but I had no specific recollection of that. I even said that at one point I had worked for the Sierra Club Legal Defense Fund so that you could have that information. And I indicated that I could fairly and impartially hear this case.”
Lininger said she then asked if anyone had concerns about her overseeing the case.
“No one asked any questions and no one asked for any time to consider what I had said before responding and everyone assented to me handling this case,” she added.
When open water swimmer Todd Prager and kayaker Mark Kramer filed a lawsuit challenging the city’s rules in 2012, they argued that under Oregon law all navigable waterways are public and must be accessible from public land. To prevent that, they argued, would set a dangerous precedent.
Email turned over last month show Prager spoke with Lininger about the case in 2014.
By 2019, the case reached the Oregon Supreme Court. After arguments, the justices sent it back, ruling that the lower courts had never developed a complete factual record.
The justices wrote the Clackamas County Circuit Court needed to answer “the preliminary question of whether the lake is subject to the public trust doctrine and, if the lake is subject to that trust … whether the city’s restriction on entering the lake from the waterfront parks unreasonably interferes with the public’s right to enter the lake from the abutting waterfront parks.”
The two trials set for this year were an effort to comply with the Supreme Court’s ruling to answer these questions. No new date has been set for the next phase of the trial.