Former Josephine County Commissioner John West has filed three lawsuits in relation to his recall. The third of the three was filed against recall chief petitioner Lily Morgan last December related to the recall petition language.
Many in the public felt like this third lawsuit was yet another political stunt, considering it was filed about a week after recall election ballots were mailed out and if West truly had a problem with the language he could have filed a case against the language all the way back in August when the petition was filed. Instead, West waited until after ballots were in hand to legally argue the language, likely to influence votes.
The lawsuit claims the six main points in the recall petition are false statements. The court of public opinion agreed with the recall, voting nearly two to one to recall Commissioner John West in the December 17th vote. The court of law process began last Friday, February 7th.
In full disclosure, I helped write the recall petition language and served with the Committee to Recall John West during the recall campaign. This is both a news report and an opinion from a recall supporter of how the first day in court went. I say this both to disclose my biased opinion but also to provide some factual information about how the recall petition language was drafted.
West’s attorney in court on Friday made some dramatic statements about the potential penalties of making a false statement in the recall petition, which include the potential for a felony and a very large monetary fine. In many times during the argument, West’s attorney acted as if he was speaking to the large audience of observers rather than to the judge, making public pleas almost as if he was campaigning politically. But the truth is, those of us that drafted the recall petition were acutely aware of the penalties for making a false statement in the recall petition. We went out of our way to make sure the language accurately reflected the concerns of the community and spent almost two months drafting and finalizing the language from the very start to the finish.
And the Recall Committee was well aware of West’s bullying behavior and the many lawsuits he has filed against anyone that gets in the way of his personal, political, or business agenda. In fact, some of us fully expected him to use lawfare at some point during the recall campaign.
We didn’t, however, think West’s lawsuits would be as frivolous as the three lawsuits he filed in the last three months. As first reported by the Daily Courier last weekend, West even recently appealed his lawsuit loss against the County Clerk for the recall signature verification processes used by the Clerk’s office. His costly decisions for the taxpayers of Josephine County continue even after he’s out of office and the County will have to pay even more legal fees in relation to the appeal.
West’s campaign strategy during the recall was to try and convince voters that the recall petition statements were not true, and that charade continued in court last Friday.
In response to West’s frivolous case against chief petitioner Lily Morgan, Morgan’s attorneys filed a motion to strike (dismiss the case) under Oregon’s Anti-SLAPP statutes. The Oregon anti-SLAPP law was strengthened in the State’s 2023 legislative session and this law helps prevent abusive litigation, known as “strategic lawsuits against public participation” or “SLAPPs,” aimed at silencing free speech through meritless defamation, privacy, or other nuisance claims.
And in my opinion, West’s lawsuit is exactly that, a bullying tactic to silent free speech, both in this case and in my opinion in the case that West filed against the owner of the Grants Pass Tribune. After all, the Tribune is media and has an even clearer case of free speech rights. The Tribune published most of the same types of statements in relation to the recall language that was published by the other major local newspaper, the Grants Pass Daily Courier. Except only the Tribune saw a lawsuit from Commissioner West as a result, likely because West felt like he could bully a smaller organization.
On Friday, judge Bain of Josephine County Circuit Court heard arguments related to the motion to strike under Anti-SLAPP laws. The hearing reminded me of the recall campaign but just in a court of law. Morgan’s attorneys presented sufficient evidence that all the recall petition points presented as fact were true, and West’s attorney made some ridiculous arguments about how he sees them as not true. West’s attorney was clearly coached by West, making the same ridiculous arguments West made during the recall campaign.
The following is a summary play by play of the arguments for and against each of the six main recall petition points.
1) Bad faith negotiations in the Pipe Fork property sale, leading to lost revenue and jeopardizing a Williams community water source.
Morgan’s attorney: It’s clear from public meetings that West acted as one of the negotiators (West claimed he wasn’t). And “bad faith” has various definitions and is ultimately an opinion. Also, the recall committee claimed the County lost $2.3 million in revenues due to West and one other Commissioner cancelling the sale at the last minute while West argued the County didn’t lose anything. Cash from sale proceeds is considered revenue so this point is accurate. This point is both fact and opinion.
West’s attorney: He suggested West wasn’t the negotiator and stated, “West didn’t negotiate a single thing.”
Editorial Opinion: Yes, of course, West was one of the negotiators as in the last couple months of negotiations many of the negotiations happened in public meetings of the commissioners. And West was the one that tanked the deal by insisting on a deed restriction at the last minute that he knew the BLM would never accept (because the BLM themselves told him this in a public meeting). And it’s correct to say cash proceeds from a property sale are considered revenues; this is government accounting 101.
2) Ignored the will of the voters by eliminating funding for community programs, including OSU extension, Law Enforcement, and Public Health.
Morgan’s attorney: West voted at least twice in the last budget process to remove some funding from both law enforcement and public health, as compared to amounts that were proposed to go to these programs, amounts historically given to these programs, or amounts requested by program directors. And funding for the entire 4H/OSU extension service district was eliminated by votes of Commissioner West. These are all facts.
West’s attorney: In a theatrical fashion, West’s attorney tried to say the language was misleading because it implies that West “Acted alone to….Acted alone to…Acted alone to….” The attorney also suggested that the 4H program was costing “$71,000 per kid.”
Editorial Opinion: There was a somewhat loud reaction from the public in attendance (loud for a courtroom anyway) when the $71k per kid statement was made and one person in attendance stood up and stood in the back of the room in reaction to this statement. And like most controversial decisions made during West’s term in office, West was the tie-breaking vote and could have altered the outcome with a different vote. It’s a clear fact that West voted on these things and therefore the petition point is valid.
3) West has shown a pattern of violating state laws, including campaign finance regulations and public meeting laws, and is currently facing several pending ethics and labor law violations.
Morgan’s attorney: The former HR Director of Josephine County has submitted a statement that details multiple violations of public meetings law. And it’s clear there were several pending ethics and labor law violations at the time the recall petition was filed. In addition, the “spirit of the law” can be considered in relation to violations of campaign finance regulations. It’s clear that West violated campaign finance expenditure reporting laws, and he even admitted to doing so in interviews captured on YouTube.
West’s attorney: The attorney suggested that “all 18 ethics claims have been dismissed” and that it was just a smear campaign against West. And the attorney also suggested that West spending money campaigning against the Charter Change Measure earlier in 2024 was a matter of “free speech” and didn’t need to be reported as campaign finance activity.
Editorial Opinion: There were audible gasps and quiet laughs in the courtroom when West’s attorney made false statements such as West didn’t need to report campaign expenditures unless it’s related to his personal campaign for office. Everyone knows it’s ridiculous to call these expenditures “free speech” and avoid campaign expenditure reporting law. Slightly quieter gasps were heard in the audience when West’s attorney said “all 18 ethics charges have been dismissed” because that’s not true and frankly whether they were true or not is a moot point because the recall petition simply stated there were pending ethics and labor law violations.
4) Unlawfully approved a Library District withdrawal leading to costly litigation.
Morgan’s attorney: There is no disputing that West’s votes on the Library District withdrawal led to litigation between the District and the County, and that the County used an improper process to approve the withdrawal. This is clearly fact.
West’s attorney: The attorney again suggested that West didn’t do this on his own and blamed the decision on a “defective form” created by the County legal office. He then suggested that the Library’s lawsuit was a political stunt.
Editorial Opinion: There were quiet laughs in the courtroom after the statements made by West’s attorney on this point. West keeps claiming that the Library’s lawsuit wasn’t needed because the County admitted that the process and forms used were faulty. But it’s not the forms that were used that caused the lawsuit, it was the Commissioners’ decision that ignored the state law regarding the legal requirements to withdraw from the district.
5) West has shown a pattern of threatening community safety by reducing the Firewise program, reducing the Emergency Management program, and eliminating property development fire standards.
Morgan’s attorney: West clearly participated in decisions that reduced the Firewise program, reduced staffing in the Emergency Management program, and a vote that attempted to eliminate property development fire protection requirements. These are all facts.
West’s attorney: “They didn’t take a penny from the Firewise budget” and the “program was not reduced.” The action on fire standards was to get rid of an unconstitutional requirement to contract with only one private fire protection agency when developing a property in the County.
Editorial Opinion: The County did in fact take funding from the Firewise program budget when they cancelled the contract with the City of Grants Pass to provide part of the services done by the Firewise program. The City had to terminate the employment of the City’s Firewise Coordinator as a result of this Commissioner decision. And it’s fact that West voted to reduce fire standards for developments in the county (a code amendment which was later overturned by a state land use agency due to not being legal). These are all undisputable facts.
6) Hired unqualified political allies for key County employee and contract positions.
Morgan’s attorney: The term “qualified” is a matter of opinion and it’s clear that West participated in hiring employees and contractors that would be considered “political allies.” Also, the County’s former HR Director has testified to a hiring process which West participated in which meets this statement definition when deciding to hire someone for a newly created position of Director of both IT and Emergency Management.
West’s attorney: The attorney used the term…hired unqualified “cronies” in his argument and didn’t really make any statements that definitively refuted this point.
Editorial Opinion: We actually considered using the term “crony” when developing the recall petition language, but we thought the term could be considered a bit derogatory. It’s accurate, but somewhat derogatory and so even West’s attorney seemed to confirm that the use of this term would have been appropriate. If this court case goes further it will be easy to show West’s direct participation in the hiring of at least two “cronies.”
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After presenting details on each point above and in summary arguments, Morgan’s attorney argued that speech should be protected to the greatest extent possible, and that West has failed to show that anything in the recall petition is not true. Therefore, this recall petition is a protected opinion under law.
West’s attorney in final arguments stated that “Lily relied on other people that West is also suing because they are liars. Her case relies entirely on hearsay, and she has a vendetta against West due to how West tried to hold her accountable when she was in the commissioner’s office.” To me this seemed to be an unintentional admission that West’s other lawsuits are also frivolous cases, and that the Anti-SLAPP statute might also apply in at least one other case that West filed in relation to this recall petition.
West’s arguments seem to revolve around the theme of “one commissioner cannot act alone; these were Board actions not West’s actions alone.” This argument won’t hold much water in my opinion, given that West’s votes did directly cause these actions and that he was the tie-breaking vote in most of these controversial decisions. West’s arguments on Friday also seemed to be arguing the prudence of those votes and actions, rather than the legitimacy or factual nature of the recall points.
One of Morgan’s attorneys at the end made fun of West’s attorney by saying that anyone in the courtroom that heard his advice regarding campaign finance regulations got very bad legal advice. And one of Morgan’s attorneys at the very end of closing arguments stated, “talk of felonies is ridiculous and the Anti-SLAPP statute could be called the anti-bullying statute” for this very reason.
Attorneys on both sides submitted additional briefs on the day of the hearing, referencing recent opinions that came out of other court cases that they feel have a bearing on this case. Therefore, judge Bain had not had time to read this additional information and stated he would need to read those briefs before deciding on this motion to strike. Bain also stated he would issue an opinion letter when releasing the decision in the future. It was not immediately clear how long it would take before the decision would be issued.
In my opinion, regardless of what is decided on this motion to strike, Morgan appears to be the clear favorite to win this case. Morgan’s attorney presented clear evidence of the truth of all the recall petition points and I happen to know there is much more information that could be presented to document the truth in these points. Oregon’s Anti-SLAPP statutes also require West to pay Morgan’s legal fees if this motion prevails, so pursuing this frivolous lawsuit could be yet another costly decision by former Commissioner John West.
Oregon’s Anti-SLAPP statute states, “The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (4) of this section that there is a probability that the plaintiff will prevail on the claim. Subsection 4 states “(4) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. If the defendant meets this burden, the burden shifts to the plaintiff in the action to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case. If the plaintiff meets this burden, the court shall deny the motion.”
While I’m not an attorney, it seems clear that the burden has shifted to the plaintiff (West) to establish the probability that he will prevail on the claim. And in my opinion, West’s arguments didn’t even come close to establishing this probability. Only time will tell if the judge agrees.
