Ginger McCall, the state's public records advocate, alleged this week that Misha Isaak, the general counsel to Gov. Kate Brown, sought to subvert McCall's work to further open government in ways that served Brown politically.
McCall wrote in a memo about a Jan. 15, 2019 meeting that Isaak's behavior struck her as "both unethical and dishonest."
Now critics are raising questions about Isaak's fitness to serve on the Oregon Court of Appeals.
Brown appointed Isaak to that position on Aug. 30, as WW first reported.
This morning, the Oregonian editorial board called on Brown to rescind her nomination of Isaak, which isn't effective until Nov. 1, or for Isaak himself to decline the position.
"Even before the news of McCall's resignation, the decision to give her inexperienced, but loyal lawyer a seat on the appellate court smacked of cronyism," The Oregonian wrote. "But McCall's very credible allegations that he pressured her to support the governor's political objectives over the mission of her independent office merit pulling the nomination completely. If true, such scorn for transparency and disrespect for the office's independence show Isaak to be unqualified for the appeals court."
Rob Harris, a lawyer who runs the Harris Velázquez Gibbens firm in Hillsboro, also says McCall's accusations against Isaak should cause Brown to reconsider that appointment.
"Given Ms. McCall's credible allegations of 'abuse of authority' and her view that Mr. Isaak's appointment to the Oregon Court of Appeals is 'deeply troubling' Governor Brown should withdraw the nomination and reopen the selection process, allowing Mr. Isaak to reapply," Harris says. "That would be a fully transparent process."
The Oregon Constitution gives the governor broad discretion to appoint judges but documents the governor's office compiled in August to support Isaak's nomination show that the process Brown followed for appointing Isaak was anything but transparent.
Normally, as general counsel to the governor, Isaak is responsible for filling judicial vacancies.
The way it usually works is that a judge who plans to retire notifies the governor's office. The general counsel then ensures that potential applicants are aware of the opening by posting it with the Oregon State Bar and local bar associations, which appoint panels to review and rate candidates for the vacancies. The names of the lawyers who apply for openings is a public record.
On June 25, according to the governor's office, Oregon Court of Appeals Judge Erika Hadlock informed the governor's office she intended to retire. Unlike typical vacancies, Hadlock's job was never posted—and the state court administrator's office confirms the governor's office never announced the vacancy.
Isaak recused himself from the process of filling Hadlock's seat—apparently because he wanted the job for himself.
In a memo to Brown describing why Isaak was qualified for the position, Isaak's deputy, Dustin Buehler, described the typical process.
"Ordinarily, the Governor's Office invites people interested in filling a judicial vacancy to complete and submit an interest form," Buehler wrote. "We then run a vetting process to gather information about the applicants. The process consists of interviewing judges and practitioners about the applicants, receiving input from various bar organizations and other stakeholders, and interviewing the applicants. The purpose of this process is to gather information about the applicants to inform the Governor's appointment decision."
That didn't happen in Isaak's case.
First, there was never any announcement of the vacancy Hadlock's planned retirement would create, so nobody except Isaak could apply.
Instead, Buehler recycled the names of three finalists for a previous court of appeals vacancy. But according to Buehler's memo to Brown, only Isaak was granted an interview with the vetting panel the governor's office picked. (The governor's spokesperson, Kate Kondayen, says the three other candidates had been interviewed for the previous opening in April so there was no need to interview them again.)
Brown then announced Isaak's nomination on Aug. 30, a Friday before the Labor Day weekend.
The lack of an open process and Isaak's relative youth—he's 37—and lack of trial court experience (he's tried two cases to verdict and handled 11 appeals) caused grumbling in the legal community, although Clackamas County District Attorney John Foote was the only critic willing to comment for the record.
"For the long term health of our justice system, judicial appointments have to be removed from the political process," Foote told WW then. "Unfortunately, that is not true right now."
As baby boomers have moved toward retirement in Oregon's judicial system over the past year, numerous judges have retired. For example, Brown has appointed six of the 13 judges currently serving on the Oregon Court of Appeals.
There has been some criticism of some of those appointments and in the past year. In response, Isaak has provided his own written description of the process he followed when selecting judicial candidates, which he described as "politically neutral."
"My team and I work extraordinarily hard on judicial appointments," Isaak wrote. "The process, which includes meeting with judges and practitioners in local communities across the state, participating in county bar committee vetting processes, convening screening panels, and briefing the Governor, takes significant time and effort. We work hard to make the best decisions and gather the best information we can to winnow the field and inform Governor Brown's decisions."
The controversy over his appointment is likely to continue.
The Oregon State Bar today received two complaints about Isaak: one from Stephanie Volin, who writes about legal matters, and another from former state Rep. Jeff Kropf (R-Sublimity). The bar is just beginning its evaluation of those complaints.
Kondayen says that Isaak's appointment resulted from an appropriate process.
"Our office ensures that the Governor has a suitable number of qualified candidates to select from as she considers filling any vacancy," Kondayen says in an email. "All candidates, including Misha, were interviewed before a screening panel of well-respected judges and practitioners to ensure that every candidate was similarly vetted.
"Constitutionally the Governor has sole authority to make appointments, and is not mandated to run a process at all," Kondayen adds. "However, Governor Brown thinks it's important to make sure the judges she appoints on the bench are vetted by a panel of well-respected lawyers and judges for their suitability and qualifications, and that was done so for all finalists for this position."