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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Respondent Terri Horman (Wife) appears and responds to the motion of Multnomah County (the County) to Quash a subpoena

issues by Wife for the deposition of Bobby ODonnell. 1. The County Improperly Submitted Documents to the Court for an In and TERRI LYNN MOULTON HORMAN, Respondent. IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH In the Matter of the Marriage of: Case No. 100666084 KAINE ANDREW HORMAN, Petitioner, RESPONDENTS RESPONSE TO MULTNOMAH COUNTYS MOTION AND MEMORANDUM OF LAW FOR ORDER QUASHING SUBPOENA

Camera Review. Multnomah County Supplemental Local Rule (MSLR) 5.036 provides a mandatory procedure for the submission of documents to the court for an in camera review of documents. The rule applies to a party. UTCR 1.110(1) defines party as a litigant or litigants attorney. The definition of the word litigant includes one engaged in litigation. Blacks Law Dictionary 934 (6th ed 1991). Plainly, by virtue of the motion it filed, the County is a litigant in this proceeding. Accordingly, the County had a duty to comply with MSLR 5.036. That rule provides safeguards to litigants and to fairness and ////

Page 1 - RESPONDENTS RESPONSE TO MULTNOMAH COUNTYS MOTION AND MEMORANDUM OF LAW FOR ORDER QUASHING SUBPOENA
K:\PB\HORMAN, TERRI\RESPONSE TO MULT CO MOTION TO QUASH.DOC THE LAW FIRM OF PETER BUNCH, LLC 511 SE 11th Avenue, Suite 201 Portland, Oregon 97214 Telephone: 503.688.5123 Facsimile: 503.961.1559 email: peter@peterbunchlaw.com www.peterbunchlaw.com

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impartiality of the judicial process. Specifically, a request for an in camera inspection of documents must be made by motion. If the motion is granted, a judge who is not is the trial judge reviews the documents. As set forth in the Declarations accompanying the Countys Motion to Quash, rather than following the procedures set forth in MSLR 5.036, the County directly provided to the court documents from its investigation files. The Countys conduct was impermissible ex parte contact with the court. Wife should be awarded her reasonable attorney fees and costs associated with defending against the Countys improper conduct pursuant to UTCR 1.090. 2. The Court Should Deny the Motion to Quash.

In its motion to quash, the County seeks to preclude Wife from asking any questions of Sherriff Bobby ODonnell by asserting without any elaboration, in part, that its presentation to Petitioner Kaine Horman (Husband) was for criminal investigatory purposes. The County misapprehends the scope of ORS 192.501(3), which exempts from disclosure [i]nvestigatory information complied for criminal law purposes.1 ORS chapter 192.501(3) does not define the scope of such information. Thus, the issue before the court involves an issue of statutory construction. In construing a statute, the court examines the statutory text in its context, any relevant legislative history, and, if necessary, relevant canons of construction, to ascertain the intention of the legislature that enacted it. State v. Gaines, 346 Or 160, 171-72 (2009). In the courts examination of the statutory text, it gives terms that are undefined in the statute their plain and ordinary meanings. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). ORS chapter 192 et. seq sets forth a statutory scheme regarding the definition of and access to public records. It is evident from various statutory provisions that records
It bears repeating that Husband successfully has denied Wife access to their child for over three years based on this information.
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Page 2 - RESPONDENTS RESPONSE TO MULTNOMAH COUNTYS MOTION AND MEMORANDUM OF LAW FOR ORDER QUASHING SUBPOENA
K:\PB\HORMAN, TERRI\RESPONSE TO MULT CO MOTION TO QUASH.DOC THE LAW FIRM OF PETER BUNCH, LLC 511 SE 11th Avenue, Suite 201 Portland, Oregon 97214 Telephone: 503.688.5123 Facsimile: 503.961.1559 email: peter@peterbunchlaw.com www.peterbunchlaw.com

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do not include speech directed to citizens that is not reduced to a written report or otherwise recorded. See, e.g., ORS 192.005(5)(H), ORS 192.210(2), (3), ORS 192.230(1), ORS 102.270(2), ORS 192.310, ORS 192.405(3), ORS 192.410(4)(a), ORS 192.423(1), ORS 192.440, ORS 192.445, ORS 192.450, ORS 192.496. Further, the plain meaning of the words investigatory information cannot logically apply to voluntary sharing with citizens information from the investigatory file; if the police share information with members of the public, including lawyers, the press, and others, they cannot then claim the information remains confidential. Although there is no case precisely on point, those decisions that discuss ORS 192.501(3) indicate that investigatory information does not include speech that the police fail to record or otherwise make part of a written record or file. See, e.g., State v. K.P., 324 Or 1, 10 (1996); Colby v. Gunson, 224 Or App 666, 674 (2008); Ogden v. Bureau of Labor, 68 Or App 235, 250 (1984), revd on other grounds, 299 Or 98 (1985); Jensen v. Schiffman, 24 Or App 11, 14 (1975). Next, and perhaps most importantly, the police can waive the privilege against the disclosure of exempt public records by providing information from otherwise exempt materials. Oregon Publishing v. Portland School Dist. 1J, 152 Or App 135, 139 (1998), affd, 329 Or 393 (1999). The waiver can occur even as a result of the transfer of investigatory information between law enforcement agencies. Ward v. Bolek 2013 WL 145828 at *7 (D Or January 13 2013). Here, it is apparent that the police waived the privilege, at least in part, by voluntarily divulging information to Husband and other citizens. The conversations the police had with those persons are not exempt from disclosure. Finally, as counsel for Wife has repeatedly represented to County counsel, Wife will not seek protected investigatory information in the deposition of Sherriff ODonnell

Page 3 - RESPONDENTS RESPONSE TO MULTNOMAH COUNTYS MOTION AND MEMORANDUM OF LAW FOR ORDER QUASHING SUBPOENA
K:\PB\HORMAN, TERRI\RESPONSE TO MULT CO MOTION TO QUASH.DOC THE LAW FIRM OF PETER BUNCH, LLC 511 SE 11th Avenue, Suite 201 Portland, Oregon 97214 Telephone: 503.688.5123 Facsimile: 503.961.1559 email: peter@peterbunchlaw.com www.peterbunchlaw.com

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because it would be unlawful and unethical to do so. Rather, Wife will limit her questions to voluntary statements by law enforcement about the facts of their investigation made to Husband and other citizens who are not a party to this lawsuit. To the extent that the court believes a protective order is necessary to limit the scope of the depositions, that is the appropriate remedy for the Countys concerns. Without the opportunity to obtain information supplied to Husband and others, Wifes ability to participate fairly in this dissolution of marriage proceeding will be unalterably and unfairly compromised. 3. Conclusion

For the reasons set forth above, the court should dismiss the Countys Motion to Quash. To the extent that the court believes that a protective order is necessary to limit the scope of the inquiries in Sherriff ODonnells deposition, it should preclude questions about documents in the investigatory file. Dated August 28, 2013. THE LAW FIRM OF PETER BUNCH, LLC

Peter Bunch, OSB No. 942210 Attorney for Respondent Trial Attorney: Peter Bunch

Page 4 - RESPONDENTS RESPONSE TO MULTNOMAH COUNTYS MOTION AND MEMORANDUM OF LAW FOR ORDER QUASHING SUBPOENA
K:\PB\HORMAN, TERRI\RESPONSE TO MULT CO MOTION TO QUASH.DOC THE LAW FIRM OF PETER BUNCH, LLC 511 SE 11th Avenue, Suite 201 Portland, Oregon 97214 Telephone: 503.688.5123 Facsimile: 503.961.1559 email: peter@peterbunchlaw.com www.peterbunchlaw.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Stephen A Houze 1211 SW 5th Ave #1240 Portland OR 97204 Brett E Engel Gearing Rackner Engel et al 121 SW Morrison St Ste 750 Portland OR 97204

CERTIFICATE OF SERVICE I certify that I served a copy of the foregoing RESPONDENTS RESPONSE TO MULTNOMAH COUNTYS MOTION AND MEMORANDUM OF LAW FOR ORDER QUASHING SUBPOENA on the following attorney for Petitioner, associated counsel for Respondent, and attorney for Multnomah County on August 28, 2013, by hand delivery, placed in sealed envelopes, addressed to the following at the addresses set forth below.

Carlos J. Calandriello Multnomah Co Atty's Ofc 501 SE Hawthorne Blvd Ste 500 Portland OR 97214

_____________________________________ Peter Bunch, OSB No. 942210 Attorney for Respondent

Page 5 - RESPONDENTS RESPONSE TO MULTNOMAH COUNTYS MOTION AND MEMORANDUM OF LAW FOR ORDER QUASHING SUBPOENA
K:\PB\HORMAN, TERRI\RESPONSE TO MULT CO MOTION TO QUASH.DOC THE LAW FIRM OF PETER BUNCH, LLC 511 SE 11th Avenue, Suite 201 Portland, Oregon 97214 Telephone: 503.688.5123 Facsimile: 503.961.1559 email: peter@peterbunchlaw.com www.peterbunchlaw.com