This Week in the Mercury
Tuesday, April 7, 2009
Courts Ruling Opens Door For Secret List Lawsuit
Posted by Matt Davis on Tue, Apr 7, 2009 at 10:50 AM
The City of Portland's controversial secret list program may or may not be constitutional. That's the upshot of a ruling in Multnomah County Circuit Court this morning that could leave the door open for a class action civil rights lawsuit by more than 400 people who have been affected by the list since 2003.
JUDGE KOCH: MADE A LIMITED RULING ON SECRET LIST TODAY...
Judge Dale Koch ruled that the secret list, which is part of the city's Neighborhood Livability Crime Enforcement Program, is not an appropriate basis for defendants to be denied access to the county's drug court. He ruled that three defendants who have been denied access to the county's STOP court because they're on the list should in fact be given the opportunity to go through STOP: Ronald Terence Washington, Deandro Lamar Shavers and Jamie Helen Rodenbaugh.
Meanwhile, Koch said that the constitutionality of the list itself would be up to another court to decide. "These are very appropriate questions that are being raised here, but they are not questions for this court," he said.
Instead, Koch ruled that in the case of the five defendants in front of him this morning—Washington, Shavers, Rodenbaugh, Sylvester Brown and Janet Mary Strachan, the District Attorney's office had reviewed each of the cases independently of the defendants' status on the secret list, and so their potential convictions could still be constitutionally viable. He made no ruling on the constitutionality of the list itself, however.
ACLU partner attorney Elden Rosenthal got involved with the case as co-counsel for the defendants back in January. He asked Judge Koch this morning to write an order that states that it is unconstitutional for the District Attorney's office to make charging decisions based solely on the secret list, prior to their independent review by a deputy DA. Koch agreed to do that.
"I'm hopeful that the city will now work with the various concerned parties, the public defender's office, the rehab and civil liberties community to fix the system," said Rosenthal, afterward. "I think based on [Koch's] ruling that the use of a secret list in Portland, Oregon is inappropriate. I think it is very important that Portland recognize that there's a secret list that was affecting the civil rights of people in this city."
"We're hopeful about this," said Rosenthal. "So that the city doesn't get into costly litigation and potential damages claims. Litigation is always the last resort, but there could be potential separate actions filed and damages filed."
ROSENTHAL: HAS BEEN DOGGED IN HIS PURSUIT OF THE LIST...
Old Town cop Jeff Myers, who came up with the list idea back in 2003, said he was pleased with the ruling because it technically means that the city can go on using the list as a basis for independent review by District Attorneys. "This has always been about helping these people," he said.
MYERS: Will continue using the program...
Deputy District Attorney Dave Hannon said: "I'm pleased. We do independent review on every case as it comes in."
Neither Hannon nor Myers indicated that the city would comply with Rosenthal's suggestion to "fix" the secret list program.
The Mercury first uncovered details of the secret list last April, when it emerged that 52 percent of those on the then 408-strong list were African American—even though African Americans make up only six percent of the local population ["Blacklisted," News, April 24, 2008]. In May, the Mercury discovered that the criteria for getting on and off the list aren't written down anywhere ["The Policy that Wasn't There," News, May 22, 2008].
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