Records Show Beleaguered Judge Vance Day Has Turned His Refusal to Marry Same-Sex Couples Into a Cash Register for His Allies

Day has used his legal defense fund to cozy up to permanently outraged right-wing culture warriors.

(Kim Herbst)

Marion County Circuit Judge Vance Day hasn't let his troubles get him down. Instead, he's using them to build a national platform.

Day has achieved a lot of firsts. He's the first judge that Oregon's judicial fitness commission has recommended for removal from the bench in more than 35 years. He is the first judge ever to use Oregon's decade-old law allowing embattled public officials to establish legal trust funds. And Day has raised far more with his fund—at least a half-million dollars—than other elected officials who have established such funds.

Although Day's ethical and legal troubles have been well-documented over the past two years, the details of how he's used his defense fund to harness a political movement have not previously been reported.

Day has turned his proposed expulsion from the bench into a cash cow—using his fund to hire big-name lawyers, rake in money from an enigmatic conservative foundation, and cozy up to permanently outraged right-wing culture warriors.

"This case is a unicorn in judicial and legal terms," says Rob Harris, a Hillsboro lawyer and former municipal court and pro tem judge. "But it's expensive to defend yourself, and it sounds like maybe somebody came to Judge Day with a proposition."

Day declined to comment on the specifics of the cases against him or the details of his trust fund.

"I can say that I am very grateful to all those who have stood with me during the last two years," he said. "Hopefully, the process on how we handle political differences will all be the better for it."

Marion County Circuit Judge Vance Day (KATU-TV)

In 2007, the Oregon Legislature passed a law allowing public officials to create a trust fund to defray the cost of legal bills related to their duties. Lawmakers wanted transparency instead of allowing donors to pay public officials' legal expenses without disclosure.

Few elected officials have established such trust funds in the past decade.
Records show that Day, a former chairman of the Oregon Republican Party who was appointed to the bench in 2011, has raised and spent nearly $500,000 in his trust fund. (By comparison, the second-largest active fund benefits Grant County Sheriff Glen Palmer, who was investigated for his support of the occupiers of the Malheur National Wildlife Refuge. It has raised less than $25,000.)

Day's filings with the Oregon Government Ethics Commission show he has raised most of his money from out-of-state donors lured by his culture-warrior cred.
And he's spending it outside Oregon, too—on some of the top conservative lawyers and fundraising consultants in the country.

As in the Sweet Cakes by Melissa case, in which a Christian baker in Gresham named Aaron Klein earned martyrdom in conservative circles for refusing to bake a wedding cake for a lesbian couple, Day has leveraged his plight nationally.

"It's sort of like the political grievance industry has identified Judge Day's case as one that can help finance and promote their industry nationally," Harris says.

Related: A Gresham bakery refused to sell this lesbian couple a wedding cake.

The first complaints about Day were bizarre. In 2012, he allegedly ran across a sports field to intimidate a referee at a community college soccer game in which his son was a player. But the allegations soon grew in severity.

A January 2016 decision by the Oregon Commission on Judicial Fitness and Disability found Day had abused his position of authority over a former Navy SEAL who appeared in his Veterans Treatment Court. Day allowed the SEAL, who was a convicted felon, to handle a gun during out-of-court leisure time the men spent together. Day also solicited donations for courtroom artwork from lawyers who appeared in front of him. And, he declined to marry same-sex couples.

The commission voted unanimously to recommend that Day be removed from the bench.

"Judge Day's actions evidence a pattern of exploiting his judicial position to satisfy his personal desires," the commission wrote in its Jan. 25, 2016, decision. "The behavior is frequent and extensive."

But Day's fundraising website focuses on his refusal to marry same-sex couples.

"One serious charge lies at the heart of the complaint against him," says his website, "That his decision to excuse himself from performing same-sex marriages violated his duty as a judge." (The judicial fitness commission said that's misleading.)

The trust fund kicked into overdrive last spring to prepare to argue the judicial fitness commission decision in front of the Oregon Supreme Court. Only the high court can remove a judge from the bench.

Highlights from the fund's operations show how the national "political grievance industry" got involved:

• Nearly a quarter of the money to pay Day's bills came in the form of tax-deductible contributions funneled through an Indiana-based 501(c)(3) nonprofit called the James Madison Center for Free Speech.

• Day's trust fund also paid the lawyer who directs the Madison Center, James Bopp, nearly $40,000 in legal fees.

• The $380,000 that Day's trust fund raised from individuals (i.e., not from the Madison Center) came from just about every state in the country. And with all those national donations, the fund paid more than $216,000 to a conservative fundraising firm.

In other words, Day spent more than half of individual contributors' money on national consultants who move in the world of conservative politics.
Bopp is an Indiana-based lawyer who's represented the anti-abortion National Right to Life Committee for 35 years and was the architect of the Citizens United case, in which the U.S. Supreme Court in 2010 unshackled corporate political spending.

Portland public interest lawyer Dan Meek says it's odd that donors are getting a tax deduction through the Madison Center, a 501(c)(3) nonprofit, to help pay for Day's defense, and that Bopp is playing a dual role.

"It doesn't look good," Meek says, "but there's probably nothing wrong with it legally."

Bopp says his roles in Day's case are separate and entirely appropriate.

"I was retained by Judge Day to brief the constitutional issues in the case," Bopp says in an email. "In addition, Judge Day asked the Madison Center for support for the case because of the First Amendment constitutional issues involved, and they agreed. Neither is related to the other."

Day has paid large legal bills, but by far the biggest beneficiary of his case was his fundraising firm, Eberle Associates Inc. of Tysons Corner, Va.

In an Oct. 13 filing, Day's trust fund disclosed paying Eberle $216,563—56 percent of the money raised from individual donors. That's about five times what Oregon political fundraisers charge campaigns.

Randall Adams, trustee of Day's fund, says that figure includes extensive "hard costs," including printing, mailing, list acquisition and accounting. "The agency fee through September 2017 was $22,280, which amounts to 6.6 percent of the funds raised," Adams says.

Adams says Day's trust fund is working as designed. "It is not the goal of the legal expense trust fund to politicize this case," he says, "but rather to attract and assist those who support Judge Day."

The fact remains, however, that most of the individual donors' money never made it to Day—it instead was funneled from conservative donors to conservative lawyers and consultants.

For the past two years, Day has been sitting at home, collecting his $137,136 judge's salary and awaiting a Supreme Court ruling on the judicial fitness commission's recommendation. And in February, he'll face trial on two felony charges in Marion County for allowing a felon—the former Navy SEAL—to handle a gun.

Willamette Week’s reporting has concrete impacts that change laws, force action from civic leaders, and drive compromised politicians from public office. Support WW's journalism today.