Parker v. Burnes

545 P.3d 753

331 Or.App. 58

Robert R. PARKER, Jr., Plaintiff-Appellant,

v.John D. BURNES et al., Defendants,andJohn D. Burns; Miller Nash, LLP; John Kitzhaber; Chevron Industries; Union Oil Company of California; Texaco, Inc.; and Exxon Mobil Corporation, Defendants-Respondents.

A178691

Court of Appeals of Oregon.

Argued and Submitted September 29, 2023

February 22, 2024

Multnomah County Circuit Court, 880502842; Judith H. Matarazzo, Judge.

Robert R. Parker, Jr., argued the cause pro se. Also on the brief was Law Office of Robert R Parker, Jr., LLB, LLC.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent John Kitzhaber. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

B. John Casey, Portland, argued the cause for respondents Chevron Industries, Union Oil Company of California, and Texaco, Inc. Also on the brief were Rachelle D. Collins and Stoel Rives LLP.

Anthony Coppie and Sarah J. Ryan, Portland, argued the cause for respondent Exxon Mobil Corporation. Also on the brief was Jackson Lewis P.C.

Shayna M. Rogers, Portland, argued the cause for respondents John D. Burns and Miller Nash LLP. Also on the brief were Paul A. Berg and Cosgrave Vergeer Kester LLP.

Before Egan, Presiding Judge, and Mooney, Judge, and Kamins, Judge.

EGAN, P. J.

₆₀Plaintiff appeals an order denying his motion to set aside a judgment and reinstate his defamation claims, which he brought against defendants and voluntarily dismissed in 1988. Plaintiff argues that the trial court erred, because he was entitled to relief from the judgment pursuant to ORCP 71 B and C. In addition, plaintiff argues that, due to systemic racism and bias in the Oregon courts, he has not been able to resolve his claims against defendants for over 30 years.

The legal question before us is a narrow one: whether the trial court erred when it denied plaintiff s motion to vacate the judgment and reinstate his defamation claims. We conclude that it did not err, because the Oregon Rules of Civil Procedure compelled it to reach that result.

At the outset, however, we highlight that in 2021, the Legislative Assembly in Senate Concurrent Resolution 22 ("SCR 22") determined that plaintiff was damaged by the allegations that underlie his defamation claims, that those allegations were "grounded in discrimination and racism," and that those allegations have been "determined to be unfounded[,] or [have] been dismissed or vacated." It bears mention that SCR 22 is a legislative resolution, not a judicial determination of wrongdoing reached after a trial on the merits. We also highlight that the trial court stated that the result in this case—the denial of plaintiff’s motion to set aside the 1988 judgment and reinstate his defamation claims—did not provide what it "would consider to be justice" to plaintiff.

We do so because, although this court is aware of the need for stability and predictability in the administration of justice, and aware of the need for litigants to have a measure of finality when they receive a judgment, we are also cognizant of the historical and ongoing harm caused by racism, institutional and otherwise. This case is difficult, because it demonstrates that our desire for stability, predictability, and finality in the law, can, at times, operate to deny people, such as plaintiff, the opportunity to prove their allegations in court and obtain appropriate redress upon such proof.

₆₁Nevertheless, as noted, the legal question before us is a narrow one: whether the trial court erred when it denied plaintiff’s motion to vacate the judgment and reinstate his defamation claims. We affirm the order on appeal because the trial court did not err when it determined that the Oregon Rules of Civil Procedure compelled it to deny plaintiff’s motion to vacate and set aside the 1988 judgment.¹

STANDARD OP REVIEW

[1–3] We review "whether a moving party has asserted a cognizable ground for relief under ORCP 71 B * * * for errors of law." Kerridge v. Jester, 316 Or App 599, 604, 502 P.3d 1206 (2021), rev. den., 369 Or. 507, 507 P.3d 700 (2022). "[I]f we determine on appeal that the moving party has not asserted a valid basis for relief, our inquiry ends there." M at 604-05, 502 P.3d 1206. If the moving party has asserted a valid basis for relief, then we review the trial court’s determination for granting relief from a judgment under ORCP 71 B for abuse of discretion. Id. at 604, 502 P.3d 1206. Likewise, "[w]e review a court’s ruling under ORCP 71 C for abuse of discretion." A. B. A. v. Wood, 326 Or App 25, 26, 530 P.3d 522 (2023) (citing Hill v. Hill, 323 Or App 458, 459, 523 P.3d 163 (2022)).

I. BACKGROUND

The following summary of allegations are in plaintiff’s First Amended Complaint and other pleadings filed in plaintiff’s state and federal lawsuits. In the 1987 legislative session, Senator Jim Hill hired plaintiff to serve as the Committee Administrator for the Oregon Senate’s Business Housing and Finance Committee of which Hill was the chair, During that session, Senate Bill 664 ("SB 664") was referred to the Committee, and various oil companies—-including Chevron Industodes, Union Oil Company, Texaco, Inc., and Exxon Mobil Corporation—opposed the bill. Shortly afterwards, plaintiff was accused of improperly soliciting money from lobbyists to start a business, using his legislative position to influence parking tickets, and using a lobbyist’s credit card. On May 29, 1987, two uniformed officers with the Oregon State Police stopped ₆₂plaintiff when he arrived at work, and the officers denied plaintiff entry into his office. Then-Senate President John Kitzhaber informed plaintiff that he was placed on administrative leave pending the outcome of an investigation into plaintiff’s activities.

The Oregon Attorney General’s Office, the Oregon State Police, and the Marion County District Attorney’s Office began widely publicized investigations of plaintiff based on those allegations. Plaintiff resigned from his position as committee administrator due to the "excruciating pressure" stemming from the investigations. The Marion County District Attorney’s Office subsequently submitted the ease to a grand jury for a felony indictment against plaintiff on three separate occasions, and the grand jury did not indict him. Afterwards, plaintiff was charged with three "unrelated" misdemeanors for filing false financial statements. The misdemeanor charges were later dismissed.²

After failing to indict plaintiff, the district attorney transmitted the investigation file to the Executive Director of the Oregon Government Ethics Commission ("OGEC") Betty Reynolds, and the OGEC prepared a report in which Reynolds included "highly inflammatory, prejudicial, derogatory, and irrelevant personal and private information about plaintiff * * *." Reynolds released the report to the press and the public—without plaintiff’s consent—before the OGEC had approved the report and before confirming any of the allegations contained in the report. On December 8, 1987, plaintiff appeared at a probable cause hearing before the OGEC and responded to the allegations in the report. Plaintiff made a motion to strike the irrelevant background information as prejudicial and inflammatory. Without taking testimony, the commission passed a motion to accept Reynolds’ recommendation that probable cause existed that plaintiff had violated the Oregon Ethics in Government Act.

₆₃In May 1988, plaintiff filed a defamation claim in the Multnomah County Circuit Court, naming as defendants John Burns,³ Miller Nash LLP, Senate President John Kitzhaber, Chevron Industries, Union Oil Company, Texaco Inc., and Exxon Mobil Corporation.⁴ Bums worked as a lobbyist and lawyer with defendant Miller Nash, and in that role, he represented the oil companies named as defendants. Plaintiff alleged that Burns told Kitzhaber that plaintiff solicited money from Bums to start a business, and that that allegation led to the investigations against plaintiff. Plaintiff also alleged that defendants' conduct cost him his job with the Oregon Senate Committee, and that defendants’ lies triggered a probe by the OGEC.⁵ In September 1988, plaintiff voluntarily dismissed the lawsuit pursuant to ORCP 54 A(1).⁶ The court entered a judgment dismissing plaintiff’s claims and imposed sanctions against plaintiff for failing to appear for a court-ordered deposition.

Then, in 1988, plaintiff filed claims against defendants in the United States District Court for the District of Oregon based on the same allegations. The federal district court struck and dismissed most of the defendants and claims—although it denied Burns’s motion to dismiss plaintiff’s claim for tortious interference. The parties worked to settle that claim, and plaintiff signed a settlement agreement and release of claims on December 20, 1989, in exchange for $500. In that document, plaintiff released certain defendants "from any and all causes of action, * * * including but ₆₄not limited to any claims in any way connected with or arising out of [plaintiff’s] employment with or severance from employment with the Oregon State Legislature."⁷ Plaintiff filed unsuccessful appeals in both the Multnomah County case and the federal district court case. Plaintiff also sought to void the release and reinstate his complaint in the federal district court. The district court denied those motions and the Ninth Circuit affirmed those decisions.

In 1990, plaintiff passed the Oregon State Bar Examination. The Board of Bar Examiners conducted an examination into plaintiff s character and fitness, and following the board’s recommendation, the Oregon Supreme Court denied plaintiff’s admission. Plaintiff argues that his admission was denied due to the false allegations against him.

Over 30 years later, the Oregon legislature passed SCR 22 during the 2021 Regular Session. In SCR 22, the Senate issued a formal apology to plaintiff for the role that...