A8
OREGON
East Oregonian
Thursday, May 21, 2020
Pastor of church challenging stay-home State economists:
Oregon budget has
order is Facebook friend with judge
a $3 billion gap
By MAXINE BERNSTEIN
The Oregonian
BAKER CITY — Baker
County Circuit Judge Mat-
thew B. Shirtcliff, who
invalidated Oregon Gov.
Kate Brown’s emergency
“stay home”
orders this
week,
is
Fa c e b o o k
friends with
the pastor
of the Baker
County
Francis
chu r ch
that’s the
lead plain-
tiff in the
case.
T h e
connec-
tion in the
h ig h - p r o -
file case —
Shirtcliff
now before
the Oregon Supreme Court
— highlights what judi-
cial experts say is an ongo-
ing discussion about the
proper use of social media
by judges.
It also reveals the prac-
tical problem in a sparsely
populated county with just
a single state judge and one
who served as district attor-
ney for almost two decades.
Chances are that longtime
members of the political and
legal community like Shirt-
cliff know a lot of people
who might appear before
him.
Among them: Elkhorn
Baptist Church Senior Pas-
tor Tim Francis. Francis
spent 21 years as a sher-
iff’s deputy in the county
and said Tuesday that he
sent a friend request to the
judge when a recommenda-
tion popped up on his screen
within the past year.
“I’ve known the judge
over 25 years, but our rela-
tionship has always been
professional,” Francis said.
Francis didn’t give the
personal Facebook link
between the two much
thought when the case —
brought by his church and
nine others — went before
Shirtcliff this month, with
Shirtcliff ruling on Monday,
he said.
“We don’t hang out with
him or anything,” the pas-
tor said. “It doesn’t con-
cern me because the judge
and I don’t have a personal
relationship.”
Shirtcliff did not respond
to emails or a phone mes-
sage. His judicial assistant,
Amy Swiger, said judicial
ethics constraints prevent
the judge from commenting
or granting an interview on
a case before him.
Shirtcliff was appointed
to the bench Nov. 1, 2019,
by Brown after serving as
Baker County’s top prosecu-
tor for 18 years.
Oregon has no written
guidelines on use of social
media for judges.
The Oregon Code on
Judicial Conduct, along with
the American Bar Associ-
ation’s model Code of Judi-
cial Conduct, tells judges
they should disqualify them-
selves in any proceeding
Federal aid and
cuts needed to
cushion blow on
state services
By PETER WONG
Oregon Capital Bureau
Photo courtesy of Elkhorn Baptist Church
A Baker County judge on Monday granted a preliminary injunction to 10 churches, in-
cluding Elkhorn Baptist in Baker City, who sued the governor. The judge ruled Gov. Kate
Brown’s restrictions on religious gatherings “null and void’’ because her emergency order
due to the coronavirus pandemic had exceeded its 28-day limit.
where “a reasonable person
would question the judge’s
impartiality.”
According to the Ore-
gon code, that could include
a personal bias or prejudice
relating to one party in the
case, one of the lawyers or
personal knowledge of the
facts that are in dispute.
Other disqualifying circum-
stances include if a close rel-
anything that would give
the impression that they’re
biased, but just because
judges know someone
doesn’t mean they can’t hear
the case, he said.
The next question is
whether a judge’s relation-
ship with the person in ques-
tion could affect impartial
decision-making, Hill said.
Yet, even if the judge
“WHAT DOES IT SAY WHEN
I’M FRIENDING SOMEBODY?
IT DOESN’T MEAN THE SAME
THING AS THAT’S MY ‘FRIEND.’
THAT’S HARD TO EXPLAIN, AND IT
CREATES ISSUES.”
— Polk County Circuit Judge Norman R. Hill
ative or friend is involved in
the proceeding, if the judge
or a spouse has an economic
interest in the case or if the
judge has made statements
that indicate a commitment
to a particular result.
Polk County Circuit
Judge Norman R. Hill, who
chairs the state’s Judicial
Conduct Committee, said
social media and judges is
“a hot topic.” The commit-
tee educates judges on their
obligations under the state’s
judicial code of conduct.
“There’s a lot of dis-
cussion ... But I don’t think
there’s any court opinions in
Oregon that deal specifically
with what judges can or can-
not do on social media,” Hill
said.
Much of the debate cen-
ters on whether judges
should send or accept friend
messages on social media
from lawyers who appear
before them.
“What does it say when
I’m friending somebody? It
doesn’t mean the same thing
as that’s my ‘friend.’ That’s
hard to explain, and it cre-
ates issues,” Hill said.
Most judges, Hill said,
would likely advise it’s bet-
ter not to be on Facebook
or accept friend requests
from lawyers but there’s no
“bright line rule.”
The judicial conduct code
clearly says judges can’t do
has no bias, Hill noted:
“Could a reasonable per-
son in the community raise
a legitimate question about
your bias? That’s a slip-
pery concept because what’s
reasonable?”
Senior Judge Phyllis Wil-
liams Kotey, who teaches
professional ethics at Florida
International University’s
College of Law in Miami,
said there’s been an evolution
over the years as to “what
it means to be a friend” on
Facebook or another social
media account.
Kotey said judges should
disclose any relationships
they have with a party in the
case, but that doesn’t mean
they must step aside from
hearing a matter.
In today’s world of social
media, it’s sometimes impos-
sible for judges to know who
all their friends are on a
social media account, said
Kotey, who has been on the
faculty of the National Judi-
cial College for 20 years.
That’s why she said she
tends not to accept law
school students as Facebook
friends.
“It really is going to
depend on the nature of the
relationship,” she said.
In a small county or
town, if judges “conflicted
out of all of their cases based
on who they knew, they
wouldn’t be able to do their
job,” she said.
In the Baker County case,
Kotey said the same ques-
tions could be asked about
Shirtcliff’s potential bias
in relation to the governor
because Brown appointed
him to the bench.
“I think there’s an issue
for both sides,” she said.
The governor’s staff filed
an emergency appeal to the
Oregon Supreme Court,
which has put a hold on
Shirtcliff’s ruling and set
a deadline of Friday to get
briefs in the dispute.
Shirtcliff ruled that
the governor’s executive
orders in response to the
global pandemic exceeded
a 28-day limit adopted by
state lawmakers and were
no longer valid in response
to a suit filed by 10 churches
against the governor.
Chief Justice Martha L.
Walters recused herself from
the high court’s decision to
put Shirtcliff’s decision on
hold. Todd Sprague, a Judi-
cial Department spokesman,
said justices don’t talk about
decisions in cases beyond
what’s written in their opin-
ions or orders.
Nothing in the order
explains why Walters didn’t
participate in the deci-
sion. However, Walters has
issued orders as chief jus-
tice that restricted court
operations and limited
travel, and has given other
directions to courts similar
to instructions the governor
issued to executive branch
agencies amid the corona-
virus pandemic. Brown’s
orders don’t apply to the
judicial branch.
With the explosion of
social media in the last
decade, other states have
examined how judges
should handle their online
presence and published judi-
cial ethics opinions.
A 2011 judicial eth-
ics advisory panel in Okla-
homa, for example, consid-
ered whether a judge with a
social media account could
add people who may appear
in court — including law
enforcement officers, social
workers and attorneys —
as “friends” on the account.
The answer? Yes, with
restrictions.
SALEM — Gov. Kate
Brown says federal aid must
go hand in hand with spend-
ing cuts to offset almost $3
billion that state tax collec-
tions and other sources will
be short.
Brown made her state-
ment on Wednesday after
state economists told law-
makethe COVID-19 corona-
virus pandemic has resulted
in an unprecedented eco-
nomic downturn from shut-
downs in business activity
and public life.
Oregon’s unemployment
rate jumped from a mod-
ern low of 3.5% in March
to a modern high of 14.2%
in April. Oregon’s state
general fund budget draws
more than 90% of its money
from personal and corporate
income taxes. The combined
general fund and lottery
budget for the 2019-21 cycle
is about $23.7 billion, and
virtually all of the potential
spending cuts of $2.7 billion
will fall within the second
year starting July 1.
“The steepness of this
decline is unprecedented,”
State Economist Mark
McMullen said during a
video conference of the
House and Senate revenue
committees.
While he and Senior
Economist Josh Lehner said
they expected a quick eco-
nomic recovery when busi-
ness activity resumes — as
early as the second half of
2020, and an “all clear” by
mid-2021 — “it takes a full
year or more before pain is
realized.”
They also projected that
state coffers will get less
than originally forecast
in the following two bud-
get cycles. Oregon did get
$1.4 billion as its share of
$150 billion in federal aid
from the recent CARES
Act, although $415 million
is tentatively earmarked for
local and tribal governments
other than Portland, Mult-
nomah County and Wash-
ington County.
“As a state, we took
action to shutter our econ-
omy in order to save lives
in the middle of a once-in-a-
century crisis,” Brown said.
“Now it’s time for Congress
and the president to step up
and provide once-in-a-cen-
tury support for import-
ant state services, includ-
ing schools, health care, and
public safety.”
More federal aid
uncertain
The
Democratic-led
U.S. House passed a $3 tril-
lion aid bill on May 15 with
$500 billion for states and
$375 billion for local gov-
ernments. But the Republi-
can majority in the U.S. Sen-
ate has balked at the price
tag, and President Donald
Trump has taken a wait-and-
see stance, so more aid for
states does not appear to be
imminent.
Brown has received
agency plans she ordered ear-
lier this month for $3 billion
in spending cuts, amounting
to 17% of their general fund
support starting July 1. But
no one expects those cuts to
pass the Legislature. Brown
has the authority to make
across-the-board spending
cuts, but only lawmakers
can approved selected cuts.
Brown also could impose
a hiring freeze — although
she has said more work-
ers have been needed at the
Employment Department
and other agencies affected
by the pandemic and the
downturn — or employee
furloughs.
“The latest forecast for
state revenue makes it clear
that we have tough choices
ahead,” she said in her state-
ment Wednesday. “We will
need to tighten our belts. I
am working with legislative
leaders to preserve critical
state services, find efficien-
cies, and prepare for poten-
tial budget cuts.”
But neither she, Senate
President Peter Courtney of
Salem, nor House Speaker
Tina Kotek of Portland have
said when a special legis-
lative session might occur.
Kotek, in a video conference
on Tuesday sponsored by the
Portland Business Alliance,
said lawmakers still need to
assess other sources of aid
stemming from the $3 tril-
lion CARES Act.
She did say that a session
is likely before August, and
that lawmakers cannot put
off action until their next
regular session starts Jan.
11, 2021.
Other sources
Lawmakers were told
that the state has $1.6 billion
in its two main reserve funds
— one generated by lottery
proceeds for education, the
other from income taxes for
general programs — plus
$1 billion in ending bal-
ances that lawmakers could
tap. The reserve funds have
had a chance to grow since
the most recent downturn a
decade ago, but lawmakers
are barred from using all of
the money in a single budget
cycle.
The forecast by state
economists also projects
a 23% decline ($364 mil-
lion) in Oregon Lottery
proceeds, the lion’s share
of which is generated by
video machines — which
are mostly in restaurants,
bars and taverns that have
been shuttered since March
16. Lottery proceeds go to
economic development and
education, but voters have
earmarked shares for an
education stability fund,
parks and watersheds, veter-
ans’ programs and outdoor
schools. Lawmakers also
have used lottery proceeds
to repay bonds