Steven Wilker recently presented arguments to the Oregon Supreme Court on behalf of the ACLU of Oregon. At issue is the ACLU’s request for the release of public records from the City of Eugene relating to an incident in 2008 in which a Eugene police officer twice "tased" protestor Ian Van Ornum while he was prone on the ground at an anti-pesticide rally. After an internal affairs investigation, the Chief of Police found that the officer's use of force was within policy and justified and recommended no discipline. Eugene's Citizen Review Board (CRB) designated the case as a Community Impact Case, the first time it had ever done so, and, after an extended hearing and confidential review of the investigative reports, agreed with the chief's recommendation by 4-2 vote. Mr. Van Ornum was tried and convicted for resisting arrest, but his conviction was later overturned on appeal.
The ACLU first sought the records in 2009 and then again in 2010. The City refused to make the documents available claiming an exemption from the Public Records Law for records regarding an investigation of a public safety officer that does not result in discipline. That statute also provides that the exemption does not apply when the public interest requires disclosure. Wilker filed a petition with the Lane County District Attorney asserting that the public interest required disclosure in this case because of the heightened community interest in the case and the role of the CRB. After the City provided some documents in response to the petition, but continued to withhold the investigative reports considered by the Police Chief and the CRB, the DA declined to require the City to disclose any additional documents. Wilker then filed an action for the ACLU in Circuit Court seeking an order requiring disclosure. After a one-day trial in October 2011, the court denied the claim, concluding that there was a countervailing public interest in confidential internal affairs investigations. Undaunted, Wilker and the ACLU took an appeal to the Oregon Court of Appeals. The case was argued in August 2013. Nearly two years later, in May 2015, that court affirmed the trial court. Wilker then petitioned for review to the Oregon Supreme Court and the court accepted review and set the case for argument at its annual session at the University of Oregon Law School.
Wilker's argument to the Oregon Supreme Court focused on the importance of transparency and the presumption that public records be made publicly available. In this case, the statutory exemption protects an officer's interest in confidentiality when charges are not sustained, but the officers involved here had no legitimate expectation of confidentiality because their conduct was the subject of a public criminal trial and the public had a significant interest in ensuring police accountability through transparent investigation and review process. The case also presents a significant issue regarding the burden of proof in cases involving claimed exemptions to the Public Records Law and the standard of review that should be applied. The case is potentially significant because it presents an opportunity for the Oregon Supreme Court to shape the use and application of the Public Records Law – an area of law on which the court has rarely ruled.
Wilker has been active with the ACLU of Oregon for more than a dozen years. He has served as a cooperating attorney as well as a member of the Board of Directors, including serving on its Executive Committee as Vice President for Legal Affairs and Chair of the Lawyers Committee, which selects which cases the organization will pursue by representing clients or filing briefs as a friend of the court. Although his board term ended in 2015, he continues to serve as Vice Chair of the Lawyers Committee.
He was honored at the ACLU of Oregon Liberty Dinner held in Portland for being one of only three Oregon attorneys who have brought ACLU of Oregon cases all the way to the U.S. Supreme Court. In 2014 Wilker argued to the U.S. Supreme Court in Wood v. Moss that Secret Service agents should be held liable for moving peaceful protesters away from the President because of the viewpoint of their speech. More information on the case, which Wilker has been working on since 2006 (and continues to work on), can be found here.