Judge denies city’s request to reconsider ban of West Linn residents from Oppenlander jury

With trial set to begin in less than a week, Clackamas County Circuit Court Judge Susie Norby has denied a request from the city of West Linn to reconsider her decision to bar West Linn residents from the jury pool in the case over a proposed sale of Oppenlander fields.

The city submitted a motion to reconsider Aug. 6, only six days before trial is scheduled to begin on Aug.12. Norby, who made her initial ruling last week, rejected the city’s motion Aug. 7.

The West Linn community has awaited the trial, which is set to resolve a dispute between the city of West Linn and West Linn-Wilsonville School District over Oppenlander fields, for over two years. The district sued the city in February 2022, arguing the city breached a purchase and sale agreement to buy the 10-acre Oppenlander property from the district.

Last week, Norby issued a ruling that West Linn residents would be excluded from the jury pool because their “elevated status” of living in West Linn “would predictably skew their discernment when evaluating accusations of misconduct by their chosen City.”

Attorneys for the city cited an Oregon law, ORS 10.030(1), which states, “Except as otherwise specifically provided by statute, the opportunity for jury service may not be denied or limited on the basis of race, religion, sex, sexual orientation, gender identity, national origin, age, income, occupation or any other factor that discriminates against a cognizable group in this state,” and argued that Norby was attempting to bar West Linn residents based on income levels.

“Depriving an entire community of the right to jury service, and, by extension, the right of the parties to have a jury of their peers, is extraordinary,” the city’s motion stated. “The City believes it is unwarranted. As the Supreme Court held previously, ‘[t]he financial interest of a juror arising solely from status as a taxpayer or resident alone normally is too remote and minute to affect his innate sense of justice and fairness to all parties concerned.’”

The city’s attorneys posited that Norby’s references to “affluent” residents, “highest propertyvalues” and “personal success,” while pointing to other cities in Clackamas County as “less prestigious municipalities,” suggest her reasoning for barring West Linn residents was based on her perception of their economic status.

In her Aug. 7 response , Norby wrote that the city had improperly interpreted ORS 10.030(1), which is meant to ensure protected classes are not excluded from serving on a jury.

“The City’s argument that affluence creates a class that must be protected from discrimination under ORS 10.030(1) is antithetical to the concept of, and need for, true protected classes of people,” Norby wrote.

The city also cited census figures to argue that not everyone living in West Linn is part of the economic uppercrust.

“According to online census data regarding household income, the percentage of West Linn residents making less than $10,000 per year is 4.3%, while the percentage for Clackamas County is 3.3%, Oregon is 4.4%, the Portland Vancouver Metro Area is 3.7%,” lawyers for the city wrote. Hoping to show that West Linn is not outside the norm, they went on to cite percentages of the population from West Linn, Clackamas County, the greater Portland area and the entire that fall within certain income brackets.

“The Court’s unilateral designation of all of these ‘regular’ Oregonians as ‘affluent’ residents with the ‘highest property values’ who have all achieved great ‘personal success’ has denied these regular Oregonians of the opportunity to perform jury service, and is a violation of ORS 10.030(1),” the city’s attorneys wrote.

The city also argued, somewhat humbly, that its municipal amenities are not particularly desirable.

“As just a single example, the City does not even have a recreation center. The City has many unfunded capital improvements,” the attorneys wrote.

However Norby also wrote in the Aug. 7 decision that her opinion was not, as the city alleged in its motion, predicated on the affluence of West Linn residents.

“The issue is that residents identify with this particular city to a heightened degree, not because of their incomes, but because the city’s many fine attributes inspire a level of loyalty in residents that becomes part of their identity, more so than most cities and geographical areas, creating a high probability of bias, which need not be admitted in voir dire in order to exist,” Norby wrote.

She expanded on the city’s attributes in a footnote: “West Linn is a city of beauty, located on the river, with beautiful old growth trees and enviable landscapes throughout. It has quaint shops, rolling hills, excellent schools, minimal crime and friendly neighborhoods. It is agreed that not everyone who lives in West Linn is personally affluent, but it is safe to say that everyone who lives in West Linn is proud to live there.”

Norby noted that having lived there herself, she was familiar with the unique pride West Linn residents have in their city.

“It is not their mere address that gives rise to the exclusion,” she wrote. “It is the unique connection that arises in West Linn residents that is unmatched in most other cities and geographical areas.”

In its motion, the city said it would file a petition for mandamus with the Oregon Supreme Court if Norby did not change her decision. A mandamus is an order from a superior court commanding a government official or entity to fulfill their legal duties. According to the U.S. Department of Justice, a mandamus “is an extraordinary remedy, which should only be used in exceptional circumstances of peculiar emergency or public importance.”

Norby also rejected the city’s request for a stay (delay) in the case to allow the Supreme Court to weigh the mandamus, reaffirming that trial would begin as scheduled on Aug. 12.

In a statement to the Tidings, the city said Norby’s decision to bar all West Linn residents was a surprise, even to its attorneys.

“Depriving an entire community of the right to jury service based on assumed income level and ‘personal success’ is an extraordinary action,” the city’s statement read. “Every member of our community is an individual. We feel they deserve the same opportunity as Wilsonville residents, who are also serviced by the West Linn-Wilsonville School District but were not excluded from the jury pool, to have a voice at this trial that impacts both communities.”

The city added that it expects to release more information about the situation soon.

Citing a longstanding policy of not commenting on litigation, the school district declined to discuss Norby’s decision.