Judge Ann Lininger Disqualified From Long-Running Case Over Access to Waters of Oswego Lake

Lininger communicated about the case with the plaintiff before becoming a judge.

The long-running battle over public access to the waters of Oswego Lake took an unusual twist July 19, when Multnomah County Circuit Judge Thomas Ryan agreed with defendants that Clackamas County Circuit Judge Ann Lininger, who was presiding over the case, should be disqualified.

How the case got to today’s decision is a bit of a shaggy dog story.

Originally filed in 2012 by plantiffs Mark Kramer and Todd Prager, who argued the public should be allowed to use the lake for recreation, the case was appealed up to the Oregon Supreme Court, which sent it back to Clackamas County for reconsideration.

There, Lininger presided over the first phase of a two-part trial. In that phase, decided in April, Lininger ruled against the Lake Oswego Corporation, which manages the lake for owners of property adjacent to its waters.

After hearing from experts on the lake’s history, Lininger determined that because it had long been used for commerce and transportation, the lake constituted a navigable waterway and should be managed under the “public trust doctrine”—meaning its waters belong to the public.

That finding would represent a dramatic change from current practice, under which the public is barred from entering the lake from any of the city parks that border its waters.

Lininger decided that because the lake is a navigable waterway, its bottom belongs to the state—and the public should be allowed to access the lake through city parks.

After the first phase of the trial concluded, the parties prepared for the second phase, in which Lininger was supposed to determine whether a resolution passed by the city of Lake Oswego in 2012 codifying the prohibition on public access to the lake was “reasonable.”

In preparation for the second phase, the parties to the case engaged in discovery, the legal term for requesting information from each other. As first reported by the Lake Oswego Review, the Lake Corp. discovered emails showing Kramer had communicated about the access issue with Lininger in 2014, when she was a state representative prior to going on the bench.

The Lake Corp. and the city of Lake Oswego asked Lininger to recuse herself. At a July 9 hearing, Lininger told the parties she believed she had disclosed to all parties prior to the beginning of the case that as a Clackamas County commissioner and lawmaker she had spoken to people on both sides of the access issue but had taken no position and could hear the case impartially. (Notes from the plaintiffs’ attorney supported her recollection.)

Lininger declined to recuse herself, so the Lake Corp. and the city filed motions seeking to disqualify her. The state of Oregon, a party to the case because of its ownership of the lake bottom, opposed those motions, saying, “disqualification would be unwarranted, inappropriate, and a waste of public resources.”

The presiding judge in Clackamas County, Michael Wetzel, would normally make the determination whether Lininger should stay on the case. But Lininger and Wetzel had already discussed the matter, so Wetzel asked Multnomah County Circuit Judge Beth Allen to hear the case.

The Lake Corp. then filed a motion seeking a different judge (under Oregon law, parties seeking a different judge do not have to explain their reasons). The case was finally assigned to Multnomah County Circuit Judge Thomas Ryan.

On Tuesday morning, Ryan found that when Lininger, as a lawmaker, communicated with Kramer about the access issue, she “participated personally as a public official concerning the matter,” which Oregon Judicial Code says is a basis for disqualification of a judge.

An attorney for the Lake Corp., the primary defendant in the first phase of the trial, did not respond to a request for comment, nor did the Clackamas County court administrator.

It is unclear whether the Lake Corp. will now seek reconsideration of Lininger’s decision. The second phase of the trial was set to begin July 19 but has been postponed.