Eric Nisley, the former Washington County district attorney , is suing Oregon’s attorney general and deputy, alleging they violated his due process rights by unlawfully advising that he be removed from office due to his temporary law license suspension.
The suit alleges that the actions by Attorney General Ellen Rosenblum and her Deputy Attorney General Frederick Boss “stigmatized him, tarnished his reputation, and limited his ability to pursue his chosen profession.’’
Nisley and his lawyer argue in the suit that no other district attorney who faced a temporarily suspended law license was removed from office, and that Rosenblum and her deputy’s interpretation of state law was ” strained, unfounded, and incorrect.”
“Every other Oregon District Attorney who had previously been suspended from the active practice of law, continued to hold the office of district attorney, continued to be paid his or her regular salary and benefits, and continued to enjoy all of the perquisites of the office during the period of their suspension and until they left the office through resignation, recall, or the expiration of their term of office,” Nisley’s lawyer William F. Gary wrote.
The suit, filed in U.S. District Court in Portland Friday, follows a ruling by the Oregon Supreme Court in September that found Nisley remained the lawful holder of the office despite his 60-day suspension from the practice of law earlier in the year.
Rosenblum had advised Oregon Gov. Kate Brown that Nisley’s suspension would render the Wasco County district attorney’s office vacant, and Brown directed the attorney general to “discharge the responsibilities” of Nisley, starting the first day of his suspension, and until she appointed a successor or one was lawfully elected.
Nisley argued that he had a right to complete his term as district attorney once his suspension concluded on April 15, 2020.
Nisley had his law license suspended for 60 days for lying to state bar investigators about an investigation he pursued into a loan made by a county finance director.
“We will vigorously defend the state’s role and conduct in this matter,” said Kristina Edmunson, spokeswoman for the Oregon attorney general, on Monday. “All actions taken were done in the best interests of the state in ensuring that all criminal cases were properly handled in Wasco County during the disciplinary suspension period of DA Nisley and thereafter. That required obtaining a court ruling from the Oregon Supreme Court. We were glad to get that clarification regarding the DA’s status, which reassured us that no criminal case would slip through the legal cracks.”
The state Supreme Court examined state law, which says that an office becomes vacant before a term has expired if the incumbent “ceases to possess any other qualification required for election or appointment to such office.”
The state’s high court found that Nisley’s brief suspension from practicing law “did not create a vacancy” in the district attorney’s office, as his suspension was brief and his right to reinstatement was assured.
The state Supreme Court was persuaded that state lawmakers intended the phrase “ceases to possess any other qualification” to “capture an event carrying a greater degree of permanence than respondent’s brief inability to practice law in this case,” the ruling said.
The attorney general argued that active Oregon State Bar membership is a qualification for serving as a district attorney , and that when he was suspended from practicing law, he “ceased to possess” the qualification required to hold onto his office.
Nisley said his removal from the Wasco County district attorney’s office derailed his effort to seek re-election, as he campaigned for a sixth term as district attorney from his wife’s home office in The Dalles. Criminal defense lawyer Matthew Ellis handily defeated Nisley in the May 2020 election for the job.
Now, Nisley is seeking economic damages totaling $1 million, including lost wages and benefits, and $2 million in punitive damages in the civil rights suit against the attorney general.
Rosenblum and Boss caused the state to stop paying him as of Feb. 10, 2020, and the state also cut off his health insurance, the suit says.
Nisley “was not informed of any of the above actions until the day he was expelled from office,” and he was not given a chance to challenge the state’s action, the suit says.
After the Oregon Supreme Court ruling, the state rescinded its action, and restored Nisley to office with pay, but no one told him about the state’s reversal until two weeks afterward in October 2020, the suit contends.
Nisley said the taint on his reputation from his abrupt removal from office has also harmed his effort to seek other jobs as a prosecutor in the state. Early this year, he was offered a temporary job as a Hood River County deputy district attorney but the offer was later rescinded, the suit says.
Then, he was offered a deputy district attorney’s job in Jefferson County, which later altered the offer to a temporary one – a job he holds now, according to the suit. If the job becomes permanent, he’ll have to relocate his family, his lawyers wrote in the suit.
In addition to violating his due process rights, the suit alleges Rosenblum and Boss violated his equal protection rights by treating him differently than other prosecutors in the state who had their licenses suspended temporarily. He accuses the state officials of negligence, interfering with economic relations and usurping his office.
— Maxine Bernstein
Email firstname.lastname@example.org; 503-221-8212
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