The long-running legal battle over public access to Oswego Lake has hit another patch of choppy water as local officials won their bid to boot a judge off the case after raising fears that she couldn’t be impartial.
Instead of launching the crucial second phase of the trial, Clackamas County Circuit Judge Ann Lininger was removed from the case Tuesday after lawyers for the defendants found out she had communicated with the plaintiffs while serving as a state lawmaker eight years ago.
Multnomah County Circuit Court Judge Tom Ryan said Lininger hadn’t violated judicial rules of conduct but disqualified her nonetheless during a hearing. The decision came three months after Lininger issued a favorable ruling to the plaintiffs declaring that the waters of Oswego Lake belong to the state and are therefore subject to public access provisions.
Largely surrounded by posh private homes, the historical Lake Oswego was dramatically expanded in the 1920s and is essentially closed to the public, as the local swim park is open only to residents of Lake Oswego, population 40,000.
“The defendants never raised an objection until they lost and now have made a big issue of it,” said Todd Prager, a former Lake Oswego planning commissioner and swimmer who filed the suit with kayaker Mark Kramer in 2012. “I’m dismayed that our opponents would personally attack a judge for a fair decision, but not surprised.”
The city argued that Lininger’s earlier ruling wasn’t unfavorable, because their legal team didn’t participate in that first phase of the trial.
Lininger’s prior ruling had no immediate effect, but teed up a second question that was set to be answered this week at trial: Whether Lake Oswego ordinances creating de facto exclusion of the general public from the lake are legal.
The city’s rules effectively bar public access by prohibiting anyone from paddling or wading into the water at the few public access points, such as Millenium Park Plaza.
The Lake Oswego Corporation serves as steward of the partially-manmade lake, using funds from lakeside property owners.
“There were property rights that were deeded to the Lake Oswego Corporation, when we were created in 1942, and we’re bound to protect those,” said Jeff Ward, the corporation’s general manager. “But a big part of it is safety.”
With no future court dates on the docket so far, it’s unclear when the second phase of the trial will proceed. Clackamas County Circuit Judge Kathie Steele was appointed to the case on Thursday.
Lawyers for the corporation uncovered old emails sent to Lininger by Kramer and Prager. The emails, from 2014, pitched the then state representative on a possible bill that would accomplish the same public-access goals sought by the ongoing lawsuit.
Lininger never introduced the legislation or responded to the emails. But Kramer said she did take a telephone meeting with him and he subsequently reached out to other legislators, saying that Lininger had deemed them “sympathetic” to the cause.
Lininger, who was appointed to the bench in 2017, began overseeing the case in 2020. She said she disclosed at that time that she had spoken to people “on all sides” of the dispute as a former lawmaker, Clackamas County commissioner and 20-year resident of Lake Oswego.
“I did not describe the interaction at that time because I did not recall it,” Lininger wrote in a July 6 letter to the lawyers. “I remain able to impartially resolve the remaining issues in this case.”
Attorneys for the city and Lake Oswego Corporation, however, questioned why Kramer and Prager never disclosed the contact themselves, instead waiting until the emails were uncovered during discovery.
“This is not business as usual as plaintiffs argue, and defendants are not making a big deal over nothing,” wrote Steven Olson, a lawyer for the city.
Ward said he didn’t know if lawyers for the corporation would seek to overturn Lininger’s previous decision establishing that the lake was covered by the public trust doctrine.
An attorney for the plaintiffs, Nadia Dahab, said her side is ready to press on.
“Both the City and the Lake Oswego Corporation got a fair trial in phase 1, and we are ready to proceed to phase 2,” she said.
— Zane Sparling; zsparling@oregonian.com; 503-319-7083; @pdxzane
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