The Oregonian has a lien on a former public servant’s house. Is this strange?
“I HAVE NEVER HEARD OF THIS” said Frank LoMonte, executive director of the Brechner Center for Freedom of Information at the University of Florida.
“I haven’t read that this is happening anywhere else,” said Daniel BÃ©varly, executive director of the National Freedom of Information Coalition.
“The first time I see something like this,” said Robert Corn-Revere, media attorney at Davis Wright Tremaine.
“It’s new to me,” said Lee levine, media lawyer at Ballard Spahr.
“I’ve never seen this before,” said Adam marshall, lawyer at the Committee of Journalists for the Freedom of the Press.
These are the answers I got when I asked about the six-digit lien that Oregonian To put against the Bend House of Cylvia Hayes, fiancee of former Governor John Kitzhaber, who resigned in 2015 amid a ethical controversy. (A lien is a legal interest in someone else’s property that lasts until a debt or duty is discharged.)
Yet the newspaper’s lawyer, Charles hinkle, told me: âThis is not an unusual event. It is purely ministerial and procedural.
So what is it ? An unprecedented legal action flagged as news by the Associated Press, The (Bend) Bulletin, Willamette Week, and KDRV, or a daily document? It’s something of both, and the background tells the whole story.
I don’t understand why this is a newsworthy event. It would border on professional misconduct if you didn’t.
IN 2014, OREGONIAN requested emails relating to government affairs sent or received by Hayes through his private email account. The request was part of an investigation into whether Hayes had used her public position (she had an office and staff as first lady) and her relationship with Kitzhaber for personal financial gain.
Hayes did not respond to the request, so the newspaper submitted a petition to the state attorney general for an order directing Hayes to publish the emails. The AG granted the request over the objections of Hayes, who argued that she was not a public official and therefore not subject to the state’s freedom of information law.
Shortly after, Kitzhaber announced he would resign, and Hayes for follow-up Oregonian to block e-mail delivery. She argued that their release would violate his rights against self-incrimination (criminal investigations were underway into allegations of influence peddling) and invade his privacy. Unconvinced, the court of first instance ordered the release.
By that time, newly installed governor Kate Brown had independently posted tens of thousands of emails from state accounts, and some of them came to or from Hayes. These emails, Hinkle told me, “quite vividly showed [Hayesâ] participation in government affairs.
Whitney Boise, Hayes’ lawyer, declined to comment on this story.
The trial court hired a local IT company to deduplicate e-mails posted by the governor from them. Oregonian always wanted from Hayes. Next, the court appointed a designate, another judge, to review the pending emails to determine which were exempt from disclosure or contained inside information. In the end, Hayes must have posted over 70,000 emails.
Oregonian editorialized about the case: âMaybe Hayes had hoped her legal tactics would wear us out. But we weren’t leaving. If we had given up on this fight, what message would it have sent? Government agencies and public figures would have felt emboldened to block the media and the public, hoping that we would eventually disappear. We won’t. It’s a matter of principle. We will relentlessly pursue the documents that belong to you.
Under state law, the winning party was entitled to attorney fees, so Oregonian petitioned the court for them. (Fee transfer is available to encourage disclosure of public records.) The court awarded $ 127,760 in the newspaper. Hayes responded in court documents that the sentence was punitive, and she wrote on Facebook that she planned to appeal and did not “intend to give the Oregonian a dime, who has been dishonest, irresponsible and biased in its coverage of my case “.
Hayes has, in fact, filed an appeal, which is ongoing. The pleading took place in March and a decision is not expected until the end of the year.
Here’s where the lien comes in. Oregon law states that a judgment is automatically a lien on any real estate owned by the debtor (Hayes, in this case) in the county where the judgment is made. Hayes doesn’t own any property in this county, so Oregonian, while the appeal is pending, recorded the judgment in the county where Hayes owns her home, ultimately placing a lien against her. This is the day-to-day part of the case.
âIt’s something lawyers do for their clients every day,â Hinkle told me. âI don’t understand why this is a newsworthy event. It would border on professional misconduct if you didn’t do this. And if his home was in the county where the lawsuit was brought, you won’t call me, because the privilege would have been automatic.
Whether it’s true or not, that I wouldn’t have called, it’s still rare that an individual, as opposed to an agency, is held accountable for a violation of the FAITH. This is the non-routine part of the case. “In the more ordinary open case scenario, âLoMonte told me,â this is an agency that has to pay for all judgment, including costs. It seems to me a rather rare confluence of facts. And most states do not observe the âloser paysâ rule in civil litigation, and most in particular protect the pockets of plaintiffs, in the absence of genuine legal frivolity.
It is not clear, in any event, whether Hayes has the resources to pay the judgment.
Jonathan Peters is CJR’s press freedom correspondent. He is Professor of Media Law at the University of Georgia, with positions at the Grady College of Journalism and Mass Communication and the School of Law. Peters blogged about freedom of speech for the Harvard Law and Policy Journal, and he wrote for Squire, Atlantic, Illustrated sports, slate, The nation, Wired, and PBS. Follow him on twitter @jonathanwpeters.
TOP IMAGE: The Cascade Mountains, as seen from Bend, Oregon. Andy Melton, via Flickr