From Oregon Journalism Project: Fire Victims Ask Court to Disqualify Appellate Judge

That reversal amounted to a huge victory for PacifiCorp. The jury in the lower court had found PacifiCorp grossly negligent and reckless in the fires that burned more than 1.2 million acres.

OJP reported that Judge Anna Joyce, who led the three-judge panel that reversed the lower court’s findings, had for years represented PacifiCorp while working as a lawyer in private practice.

At the time, OJP spoke to judicial ethics experts who said Oregon and virtually every other state have adopted similar language in laws governing possible conflicts  of interest on the bench: A judge “shall disqualify himself or herself in any proceeding in which a reasonable person would question the judge’s impartiality.”

Now, attorneys for the plaintiffs are seeking to make Joyce’s past an issue and have formally asked for her to be removed from any further proceedings. “Judicial fairness and impartiality go to the very heart of our system of justice,” the plaintiffs said in a new filing with the appeals court.

“Public trust of the courts depends upon it. In a case of such statewide importance, involving harm to thousands, Judge Joyce should have disclosed these facts and recused herself to avoid even the appearance of impropriety. Because she did not and still has not, plaintiffs bring this motion to respectfully request that she be disqualified from all further proceedings in this matter.”

What happens next is not entirely clear. Judge disqualification motions are relatively rare, largely because litigators don't want to offend somebody who may in future hear one of their cases. Because this motion was filed with the appeals court, Joyce will decide whether she wants to recuse herself. If she decides not to do so, then the decision rests with the court’s chief judge, Erin Lagesen. This case is complicated by the fact that attorneys for the fire victims have already asked the Oregon Supreme Court to review the case.

Joyce, who previously declined to answer questions about her role in the case, also declined to comment for this story, citing pending litigation. PacifiCorp, for its part, challenged the accusation that its prior relationship with Joyce constituted any sort of ethical breach.

The “motion to disqualify Judge Anna Joyce is baseless and without merit and doesn’t advance a constructive path forward towards resolution,” the utility said in a written statement. “The Oregon Court of Appeals’ decision in the James case was unanimous. All three judges agreed to reverse the liability verdict and remand the case, underscoring the strength and clarity of the court’s conclusions.”

PacifiCorp acknowledged that Joyce had previously done legal work for the company, but said it was limited in scope. “Her prior work for the company was limited to two small, unrelated regulatory matters over five years ago and has no bearing on this case or Judge Joyce’s ability to be fair and impartial,” PacifiCorp said in its statement. Joyce has never represented PacifiCorp in a wildfire case, the company added.

On Labor Day 2020, strong east winds fueled huge wildfires that roared down river valleys flowing west out of the Cascades. The flames burned thousands of homes and killed at least five.

PacifiCorp did not deenergize its power lines, which the plaintiffs maintain was the predominant cause of at least four of the fires. A Multnomah County Circuit Court jury determined in 2023 that PacifiCorp had behaved with gross negligence and recklessness. It was that ruling that Joyce and two other appeals court judges reversed last month and sent back to the lower court.

PacifiCorp insists it was confronted in 2020 by an unusual and deadly combination of high winds, heat and tinder-dry forests and that shutting off the power was no panacea under those conditions. The company pointed to a study by the Oregon Department of Forestry that absolved PacifiCorp of responsibility for the Santiam Canyon fire.

The utility also has said it is willing to settle all reasonable claims. Insiders say PacifiCorp’s definition of “reasonable” is about $500,000 per plaintiff, a tenth of what juries are awarding to plaintiffs in the class action case.

In this new motion to disqualify Joyce, attorneys for the fire victims also called out Ryan Flynn, president of Pacific Power, the PacifiCorp subsidiary, claiming he too had failed to alert the court of its business relationship with Joyce.At the time of the 2020 fires, Flynn was then the utility’s chief in-house lawyer. In that role, Flynn was ultimately responsible for retaining the Markowitz Herbold law firm, where Joyce worked prior to joining the bench.

Before her January 2022 appointment to the appeals court, Joyce led Markowitz Herbold as its managing shareholder and as head of its appellate practice group. She also led the firm’s utility practice, representing at times both PacifiCorp and Portland General Electric.

Several significant aspects of the wildfire case are still pending before the appeals court that Joyce could conceivably rule on. Among other things is the question of whether PacifiCorp, after prevailing at the appeals court, is entitled to collect money from the individual plaintiffs to cover its legal defense costs.

In filings, PacifiCorp has claimed it is entitled to $6.6 million—from people who are fighting to be made whole from fire damage. (Typically in a class action like this case, the plaintiffs’ law firms cover those expenses.)

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This story was produced by the Oregon Journalism Project (oregonjournalismproject.org), a nonprofit investigative newsroom for the state of Oregon.