The Evil of an American Commissar

Oregon Labor Commissioner Brad Avakian bears a strong resemblance to Mikhail Gorbachev. That comparison is misleading: There’s no reason to believe that the former Soviet ruler was ever as passionately devoted to Communism as his doppelganger from the Beaver State. Unlike Avakian, furthermore, Gorbachev conceded that there were limits to his power, and eventually stopped trying to abolish property rights by decree. Commissar Avakian has just gotten started on that mission.

Since 2008, Avakian has afflicted Oregon business owners as chief commissar of the Bureau of Labor and Industries (BOLI). Seeking to expand the compass of his power to visit ruin on a state from which he should be exiled, Avakian is running for the position of secretary of state.

As defined by the state constitution and statutes, that occupant of that office is little more than a glorified file clerk who administers public records, supervises elections and notaries public, and sits on a couple of bureaucratic panels. Avakian, who as BOLI commissar has made an art out of acting beyond his brief, believes that as secretary of state he would have the authority to audit private businesses, establish “equal pay” guidelines by fiat, and impose penalties on anybody who offends the canons of environmental correctness.

He has admitted on at least one occasion that the things no Oregon secretary of state has exercised the powers he describes, but blithely insists that “I think that’s a mistake” – thereby casually confirming that his whims constitute the only law to which he defers.

Not surprisingly, Avakian’s neo-Leninism has endeared him to cultural revolutionaries in Oregon but has alarmed what we might call the Menshevik faction within the state’s Democratic Party. He may not survive the May 17 primary; indeed, the last time he ran for a position other than BOLI Commissioner was 2011, when he was buried in a race to fill a vacant congressional seat.

Avakian’s most ambitious project doesn’t require him to change jobs. His office is data-mining US Census findings to create what he promises will be the “gold standard” index of wage information correlated by “gender, race, and religion – all the protected categories.” This information would be used to create an “action plan” to end “wage disparity” in the labor market. And, of course, in addition to using those findings to unleash litigation against employers in Oregon, “we’ll be sharing it with other states” in order to propagate similar misery elsewhere in the Soyuz, Avakian boasted in a recent campaign address.

It’s quite likely that Avakian is using both his current office and his campaign for Oregon secretary of state, to audition for a position in a Hillary Clinton administration. His resume is a bit thin, but his vaunting ambition and bottomless self-regard – coupled with his limitless hostility toward less enlightened human beings – might qualify him for a mid-level spot in the Department of Labor.

He would see that promotion as a reward – and Oregonians who belong to the productive class would see his departure as a relief. If this were to happen, Avakian’s successor would have to deal with the institutional unpleasantness that will ensue once his signature accomplishment, the ruinous $135,000 punitive award imposed on an innocent Christian couple who once ran a bakery in Gresham, is undone by an actual court.

Although it is an executive branch agency, the BOLI pretends to be a court, albeit one that reflects the Soviet, rather than the American, legal tradition. The Commissioner hires a cadre of prosecutors who present civil actions before an administrative law judge, who is also supervised by the Commissioner. The same Commissioner brings civil actions, in the agency’s name, against targeted businesses, so he is a party to every dispute that is brought before the “court” (or “forum,” as it is formally called). The administrative law judge then makes findings of fact and issues an order directing remedial action and a punitive award. That order is then reviewed by the Commissioner, who can revise it as he sees fit – despite, once again, being a party to the dispute.

Respondents in BOLI actions do not enjoy the same due process rights that are afforded in both criminal and civil trials. The administrative law judge in BOLI proceedings does not have the authority to impose sanctions on the Commissioner or his hired prosecutors in cases of misconduct.

All of this explains why Aaron and Melissa Klein, after being hit with a discrimination complaint in January 2013 for exercising their right to decline a business proposal, petitioned to have the case tried in a district court, rather than in Avakian’s proprietary Star Chamber. By the time the couple filed that motion, Avakian – who, recall, is the final arbiter of the controversy – had publicly pre-judged the case by openly stating that the couple, by refusing to create a wedding cake for a same-sex ceremony not then legally recognized by the State of Oregon, had committed an unlawful act of discrimination. He also characterized them as thought criminals who needed to be “rehabilitated.”

Since that motion was made before a forum Avakian controlled, it was denied, of course – but it’s worth focusing for a moment on his use of the term “rehabilitated.”

In addition to revealing the depth of Avakian’s totalitarian impulses, his use of that clinical term demonstrates the poverty of the case against the Kleins. They had supposedly injured the couple, Rachel and Laurel Bowman-Cryer, by declining to take their money to create a wedding cake. If the lesbian couple were the injured party, why was it the supposed offenders who needed to be “rehabilitated”?

During his testimony before the BOLI, Aaron Cryer, the brother of one of the supposed victims, stated that “the whole reason for pursuing this case is … to change [the] behaviors” of people like the Kleins, who subscribe to the pre-Obergfell definition of marriage as a union between a biological man and a biological woman. The ideologically motivated nature of the lawsuit against the Kleins was made clear in Avakian’s public comments, and discussed in email and social media conversations among the “victims” and their families early in 2013.

Those conversations were subpoenaed by the defense during the discovery process, and were among 109 pages of evidence withheld by the prosecution until practically the eve of the “trial.” Chief prosecutor Jenn Gaddis, lying with the practiced ease one expects from someone in her position, pretended that this was an oversight. However, 20 of the 26 prosecution exhibits drew from those 109 pages of long-withheld discovery evidence.

If this case had been heard before a legitimate court – even in the People’s Republic of Western Oregon — that act of prosecutorial misconduct would have been sufficient to have the complaint thrown out with prejudice.

The 614-page appeal contains extensive excerpts from the official record of the case documenting that Avakian, working in collusion with a pressure group called Basic Rights Oregon, misrepresented the state’s anti-discrimination law, pre-judged the case prior to a hearing, exceeded his agency’s mandate, and violated the constitutional rights of the Kleins by claiming that they were required to participate in a ritual that violated their long-established and deeply held religious beliefs. Their refusal to create a specific product containing a message with which they disagreed was not a denial of “public accommodations,” but the lawful exercise of their free speech rights – a distinction that is recognized in the controlling Supreme Court precedent.

The Kleins were denied the opportunity to depose key witnesses. They were likewise not permitted to follow up on a critical question that arose when they were tardily provided with the suppressed 109 pages of discovery evidence: Why did Rachel, in a January 17, 2013 email written immediately after Aaron Klein had declined to make a wedding cake for the couple, claim that “This is twice in this wedding process that we have faced this kind of bigotry.”

Had they previously been turned down by another baker before seeking out the Kleins? Three years earlier, the couple had bought a wedding cake from the Kleins for Rachel’s mother, Cheryl McPherson. The Kleins, who knew that Rachel and Lauren were a gay couple, happily and respectfully provided them with that service, because it did not involve expressing a message, and participating in a ritual, to which they had moral objections. The couple complied with anti-discrimination law by accommodating customers of all varieties, but they did not offer products that were incompatible with their Christian worldview.

Again, this is a valid and legally recognized distinction, even under the prevailing anti-discrimination regime. If Rachel and Lauren had been previously stiff-armed by another baker, why didn’t they file a discrimination complaint in that instance?

Another – in my opinion, likelier – explanation is that the “bigotry” they describe was displayed by a county clerk who refused to grant the couple a marriage license because, once again, the State of Oregon at the time did not legally recognize same-sex marriage. Aaron and Melissa Klein were aware of this. What Commissar Avakian describes as “unlawful discrimination” by the Kleins was actually an act in which they obeyed the law as it stood at the time.

“Oregon state agencies, including BOLI, were and are places of public accommodation [under state law],” notes the couple’s appeal. “Until May of 2014, county clerks, acting as agents of the state, were openly denying marriage licenses to same-sex couples because Oregon’s Constitution limited marriage to the union of one man and one woman. Thus, it is evident that the state of Oregon itself distinguished between same-sex marriage and sexual orientation” for the purposes of public policy, just as the Kleins did for purposes of business transactions. “If BOLI now wants to take the contrary view and hold itself to the same standard it seeks to reply to Respondents, it must confess the state of Oregon engaged in official discrimination based on sexual orientation,” the appeal continues. This would mean either that the state officials who carried out that policy would be personally liable to pay restitution to the “victims” of that policy, or that the judgment against the Kleins must be vacated.

Without using the term, the Kleins’ appeal is describing is a form of “entrapment by estoppel,” a defense arising when “a government official affirmatively assures the defendant that certain conduct is legal” and the defendant acts on that assurance – only to be prosecuted for the same conduct. Where this case differs from others dealing with entrapment by estoppel (apart from the fact that it is a civil, rather than criminal, matter) is that there was no existing law that defined what the Kleins did as “unlawful discrimination.”

The BOLI, which has no legislative authority, is in the habit of inventing “law” through its own rulings – and then discarding those “laws” at the Commissioner’s whim. This is demonstrated by the fact that Avakian imposed a $135,000 penalty on the Kleins for a single act of supposedly unlawful discrimination that occurred during a ten-minute conversation. To palliate their hurt feelings, Rachel was awarded $75,000, Laurel the relative pittance of $60,000. Avakian had originally demanded $75,000 for each of them, but the administrative law judge, exercising a particle of discretion at a time when it did no material good, reduced Laurel’s award because she wasn’t actually in the room when Aaron Klein expressed his supposedly unlawful view of marriage.

Avakian pretends that this punitive award “is consistent with [BOLI’s] prior orders.” The Kleins’ appeal points out that in a previous case the agency awarded $50,000 to a victim who was “repeatedly assaulted and threatened with a firearm,” and in another it awarded the same amount to a victim “who had been punched in the head” and “sexually harassed” over a prolonged period.

Through ideologically inspired capriciousness, Avakian concluded that hurting the feelings of someone belonging to a “specially protected class” is a graver offense than physically and sexually assaulting someone who doesn’t qualify for that status.

The BOLI, summarizes the Kleins’ appeal, invented a “novel interpretation” of Oregon’s anti-discrimination statutes in order “to stamp out dissent to a new social orthodoxy that embraces same-sex weddings….” As Aaron Cryer testified, that was “the whole reason of pursuing this case.”

If Commisar Avakian is elected Oregon’s secretary of state, he will give himself permission to stamp out dissent of many other kinds. Since he has pledged to use that office to battle “climate change,” it’s reasonable to expect that he would enlist in ongoing efforts to punish “climate deniers,” for example. He has no opponent in his re-election campaign for Labor Commissioner, and he would continue to aggrandize himself, and the powers of that office, until and unless Oregon’s long-suffering business owners do whatever is necessary to lance the BOLI boil.

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