SALEM, Ore. (CN) – Vance Day, a judge who refused to perform same-sex marriages and hung a portrait of Hitler in his Oregon courthouse, will lose his job if the state Supreme Court approves the recommendation of its Commission on Judicial Fitness and Disability.
The commission heard two weeks of testimony in November on the 13 ethics charges against Day, who presides in the state capital at Marion County Court.
The charges included an allegedly inappropriate relationship with a former Navy SEAL who was a defendant in Day’s Veterans Treatment Court; soliciting money from attorneys in his court to pay for the war art lining the walls; and using his official position to intimidate a referee at his son’s soccer game.
The commission found that Day’s behavior “indicates that he has little insight concerning the boundaries required in a judicial position. In fact, much of Judge Day’s conduct violated common sense restrictions prescribed by the very nature of the judiciary.”
In its 48-page unanimous decision, the commission found that Day had a “frequent and extensive” pattern of “exploiting his judicial position to satisfy his personal desires.” This included allowing a felon to hold a gun to teach Day’s son how to use it safely, taking a Navy SEAL and defendant in Day’s court to a wedding to “show him off,” and having probationers in his court do construction work on his home.
Day also touted his refusal to marry same-sex couples in media appearances before the commission hearing, in an attempt to make it seem that the complaints against him were based on his religious beliefs and to deflect attention from his other misconduct, the commission found.
And the commission found that Day lied to cover his tracks.
The nine-member commission, made up of three judges, three attorneys and three public members appointed by the governor, unanimously recommended Day’s removal from office based on eight of the 13 counts of ethics violations.
“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 wrote in its Jan. 25 report.
The commission’s filed its recommendations with the Oregon Supreme Court, which will either approve the recommendations, as it almost always does, or dismiss them.
U.S. District Judge Michael McShane, in Oregon, ruled in May 2014 that the state’s ban on same-sex marriage was unconstitutional.
The commission found that Day implemented a system of discrimination against same-sex couples after that ruling, until November 2014, when Day stopped performing any marriages at all.
For five months, Day told his staff to find out whether a couple was same sex or not, and if they were, to lie about his availability and send the couple to another judge.
Day told the commission that his system was actually an attempt to accommodate the feelings of same-sex couples.
“I certainly wouldn’t want to embarrass anybody,” he told the commission.
The commission took issue with that claim.
“In keeping with the oath of office, Rule 3.3(B) prohibits a judge from manifesting prejudice against anyone based upon sexual orientation in the performance their judicial duties,” the commission wrote. “The discriminatory practice implemented by Judge Day violates Rule 3.3(B). Furthermore, the idea that a discriminatory practice is a positive ‘accommodation’ to those being discriminated against shows a deplorable lack of understanding of the most basic concepts of impartiality.”
The commission found that Day twice facilitated a felon’s handling of a gun and let his son take the man, who had appeared in Day’s Veterans Court, target shooting.
Day was accused of having an inappropriate relationship with Brian Shehan, a Navy SEAL who was awarded a Bronze Star and served on the prestigious SEAL Team Six, which later killed Osama bin Laden. Shehan suffers from traumatic brain injury and post-traumatic stress disorder.
Shehan, referred to by the commission as BAS, became a defendant in Day’s Veteran’s Treatment Court after he was charged with felony driving while intoxicated. Day sentenced Shehan to two years probation.
Veterans Treatment Court at the Marion County Courthouse is a collaborative process in which a team of lawyers, counselors, social workers and the judge work together with veterans to resolve underlying issues that might be causing the veteran to break the law.
Day required veterans to stand in “parade rest” before the bench, a military stance that requires absolute silence. Day also jokingly referred to veterans in his court as “raggedy asses” and called one mentor “baldy.”
Shehan said Day showed up at his house, invited him to his own home for Christmas brunch, carried on long text conversations with him and twice let him handle a gun, though that could have landed Shehan in jail and scuttled his chances to reduce his felony conviction to a misdemeanor.
Shehan wanted that change badly. His felony conviction kept him stuck in Oregon and prevented him from moving to Texas, where his girlfriend, former SEAL teammates and a job waited.
Shehan’s ability to move into the post-military life he wanted hinged on the decisions of a man who misunderstood military culture and was by all accounts star-struck by Shehan, according to the commission.
“BAS was a criminal defendant on Judge Day’s caseload subject to Judge Day’s orders and sanctions,” the commission wrote. “In this context, Judge Day’s unsolicited, and often unwanted, personal out-of-court contacts with BAS were completely inappropriate.
“In many, if not most, of these instances, BAS actively tried to avoid Judge Day’s overt attentions. In the end, due to Judge Day’s conduct, this criminal defendant had no choice but to acquiesce to Judge Day’s requests to avoid any negative impact on the outcome of his probation.”
Shehan reported the incidents after an August 2014 hearing that Shehan attended by phone, where Day asked Shehan in front of other veterans whether he knew what an order was.
Day was also accused of taking Shehan to a wedding where Day was officiating and introducing Shehan to the crowd as a Navy SEAL. Shehan testified that he felt exploited, as if he were being put on display.
The commission agreed.
“Clearly, Judge Day was enamored with BAS’s notoriety and his accomplishments in the military,” the commission wrote. “This fascination with BAS’s military history caused Judge Day to lose perspective on who he was really dealing with.”
Though the commission found that Day “has a sincere interest in helping veterans,” it also found that he lied on several occasions: when he claimed the full team of the Veterans’ Treatment Court knew about his outside meetings with Shehan, when he denied that Shehan had held a gun at Day’s daughter’s house, and when he denied that he had discussed whether to waive Shehan’s weapons prohibition after that incident and another incident in which Day took his son to Shehan’s house and his son handed a gun to Shehan.
“During these incidents, Judge Day verbally granted permission for BAS to handle the weapon,” the commission found. “Although Judge Day continues to deny this, it is actually inconceivable that BAS would handle a firearm in the presence of Judge Day without asking and receiving permission from the judge. BAS was on Judge Day’s caseload and had every motivation to be successful on probation. For this veteran, success meant not having a felony conviction on his record at the end of his probationary period. Judge Day clearly waived the prohibition against BAS handling a firearm during these incidents.”
Day later falsely claimed he did not know that Shehan had a felony conviction, the commission found.
It also said that Day changed Shehan’s contract with the court retroactively to try to cover his tracks.
On Feb. 6, 2015, Day’s former attorney, Mark Fucile, wrote to the commission in defense of Day. He cited language in Shehan’s contract: “I understand and agree that there will be discussions about my case, my treatment program, and my condition which may take place out of my presence or the presence of my attorney. I also understand that out of court contact with any members of the VTC team, including the VTC Judge and court personnel, authorized by the VTC team or treatment professionals is not considered ex parte contact.”
Judge Day added the second sentence to Shehan’s contract on the day that Fucile wrote to the commission, without discussing the change with other team members on the Veterans’ Treatment Court.
Day committed a felony by giving Shehan access to guns, the commission found.
“By facilitating the handling of a firearm by a convicted felon on each of these dates, Judge Day aided and abetted in the commission of the crime of felon in possession of a ,firearm, which is a felony,” the recommendations state. “Thus, during these incidents Judge Day violated Rule 2.l(B), which prohibits a judge from committing a criminal act.”
Day lined his fourth-floor courtroom, chambers and hallway with dozens collages of war art, mostly commemorating World War II.
Although in some instances Day paid for the art himself, the commission found that he also solicited money from attorneys who appeared in his court. In one case, he asked for money from an attorney during a status meeting in his chambers.
The commission found that Day violated Judicial Code of Conduct Rule 4.5(A), which “prohibits judges from personally soliciting funds from anyone for any organization or entity,” the commission wrote. “There are exceptions to this rule, but there are no exceptions that excuse Judge Day’s solicitations. Soliciting funds from anyone in this context is a violation of Rule 4.5(A). Judge Day’s doing so from attorneys who appear before him is a flagrant violation of the rule.”
And Day falsely claimed that he did not ask attorneys for money, the commission found.
The commission found that Day used his authority as a judge to try to intimidate a referee at his son’s soccer game.
Day’s son took a nasty header from another player at a Chemeketa Community College soccer game in October 2013. Referee Andrew Deuker said he stopped the game immediately to address Day’s injuries. But Judge Day wasn’t pleased.
Day angrily confronted him on the technical side of the field, where spectators are not normally allowed, Deuker told the commission during questioning by commission attorney Darlene Pasieczny.
Deuker said it was the only time such a thing had happened in his 17 years as a referee.
“Never have I ever been encountered by a spectator,” Deuker said. He said Day thrust his business card into Deuker’s hand and said he was going to report Deuker to the authorities.
As Deuker drove out of the parking lot after the game, he passed Day and his son. He said Day pulled out paper and pen and appeared to write something down.
“I thought it was my license plate,” Deuker said. “I was incredibly frightened. My permanent address and registration was at my parents’ house. They were the first people I contacted. I said, ‘I don’t know what he could do, or what he’s capable of, but he has our information now.'”
“Are you still concerned for your safety as a result of that Oct. 17 game?” Pasieczny asked.
“Yes,” Deuker said.
Day claimed that Deuker had asked for his card and said he had approached Deuker only to express his concerns about player safety.
“I would never intimidate anybody with my position or even my person,” Day told the commission.
The commission sided with Deuker.
“The commission finds Mr. Deuker to be a very credible witness,” the commission wrote. “Mr. Deuker has absolutely no motivation to misrepresent what occurred. He made a timely complaint about Judge Day’s behavior, which he memorialized in writing very shortly after the event. Mr. Deuker’s testimony was consistent and corroborated by other witnesses. Mr. Deuker’s demeanor on the stand was earnest. Clearly nervous, he expressed fear about potential repercussions for reporting Judge Day’s conduct. The depth of his concern was evident in his voice and manner on the witness stand.”
The commission found Day’s testimony about the incident with Deuker unreliable.
“Judge Day’s testimony regarding the soccer incidents was internally inconsistent and inconsistent with his initial written response to the Commission,” the commission found. “His testimony is contrary to virtually every other witness. His demeanor on the stand was measured and controlled when being asked about his version of events. However, when challenged by contrary evidence, his facial expressions and responses were tinged with a bit of sarcasm. Furthermore, Judge Day’s demeanor while Mr. Deuker was testifying bordered on mockery. As Mr. Deuker emotionally related how afraid he felt when Judge Day was noting his license plate number, Judge Day was smiling smugly. The Commission does not find Judge Day’s testimony credible.”
Day said in a statement released through his spokesman that he was “disappointed” with the commission’s decision.
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