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A retired chief justice of the Oregon Supreme Court says that Gov. Kate Brown made a serious mistake when she appointed her general counsel, Misha Isaak, to the Oregon Court of Appeals on Aug. 30, flouting the normal judicial selection process.
"It doesn't smell right, it doesn't look right and it is not right," says Edwin J. Peterson, who served on the state's highest court from 1979 to 1993, including eight years as chief justice. He is now a distinguished jurist in residence at the Willamette University College of Law.
As WW first reported, Brown appointed Isaak, 37, to the court on Aug. 30. What was not immediately apparent, however, is that she was handing him a plum position unavailable to other candidates.
Typically, judicial vacancies are announced publicly through postings with the Oregon State Bar and local bar associations. It's common for a dozen applicants to apply.
But when current Oregon Court of Appeals Judge Erika Hadlock told the governor's office on June 25 that she wanted to retire Nov. 1, the vacancy was never made public and only one candidate—Issak—was given an interview for the job.
Peterson says there's no legal requirement that Brown follow the vetting process that she and other governors have used for other vacancies: posting the job, then forming independent vetting and interview committees to review interested candidates.
Peterson says, however, that an open vetting process is a time-honored way to ensure confidence in the judicial system.
"It's a tradition that many governors have used," he says.
Brown did follow that process on numerous occasions since becoming governor in 2015, and employed an open, public selection process for an identical position as recently as May when she appointed Judge Josephine Mooney to the court of appeals.
But in Isaak's case, the appointment was neither made public or open to other candidates. (The resumes of three applicants for a previous vacancy were included in the process but none was given an interview.)
There was initial grumbling in the legal community upon the first report of Isaak's appointment because of his relative youth and lack of trial experience. He worked as an associate at the Perkins Coie law firm in Portland for less than four years before joining the governor's office in 2015. Isaak was also the third Brown staffer named to a judgeship in the past two years, giving rise to concerns about cronyism.
The grumbling got louder this week after WW reported that Isaak had allegedly brow-beaten Ginger McCall, the state's first-ever public records advocate. Brown hired McCall, a lawyer who specializes in helping citizens and the media obtain government documents, to further Brown's pledge to increase transparency. But McCall resigned abruptly after 18 months on the job Sept. 9, citing Isaak's efforts to force her to serve the governor's political agenda rather to further the principles of open government.
In a statement after McCall quit, Brown pointed a finger at Isaak, without naming him. "It appears this is a situation where staff were conflicted between the goals of serving the Governor and promoting the cause of transparency," Brown said in a statement. "Let me be clear, there should be no conflict."
Peterson says Brown needs to do more than talk; she should revoke Isaak's appointment.
"It's a lamentable situation," Peterson says. "The governor would be well advised to re-open the process and follow the procedure she's followed again and again and again for judicial appointments."
Brown's spokesman Chris Pair declined to comment.