The Oregon couple who refused to bake a cake for a same-sex wedding says the case against them should be “pulled out” of the state’s administrative court system due to concerns that the government agency responsible for overseeing the trial is biased.
The Daily Signal obtained communications between Basic Rights Oregon, a prominent gay rights group, and the Bureau of Labor and Industries, which is the state agency pursuing the case against Aaron and Melissa Klein.
Based on that information, the couple’s lawyers suggested potential bias against the Kleins and requested the judge re-open the case for further investigation.
Now the Kleins, who are facing a $135,000 fine, believe their case should be withdrawn from the Bureau of Labor and Industries administrative court system completely.
“I think the case should be pulled out of [the Bureau of Labor and Industries] court and put into a civil court because I cannot get due process here,” Aaron Klein, co-owner of Sweet Cakes by Melissa in Gresham, Ore., told The Daily Signal in an exclusive phone interview.
“We were shut down at every turn, so to say that Basic Rights Oregon should have access to [Bureau of Labor and Industries Commissioner Brad Avakian], that is absolutely ludicrous,” he said.
The Kleins were forced to close their bakery after facing boycotts and public backlash.
In April, a judge for the Oregon Bureau of Labor and Industries recommended they pay $135,000 in damages to Rachel and Laurel Bowman-Cryer, the same-sex couple the Kleins refused to serve.
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Brad Avakian, the commissioner for the Bureau of Labor and Industries, is supposed to make the final judgment in the case this month by determining whether the recommended fine should be raised, lowered or kept the same.
“I had a gut feeling that he was in cahoots with [Basic Rights Oregon] from the get go,” Aaron Klein said. “We already knew that he had a premeditated idea about what was going on.”
Aaron Klein was referring to Facebook posts written in 2013 by Avakian, in which he accused the Kleins of “disobeying” the law before hearing any evidence.
Both he and his wife believe the commissioner should recuse himself from the case.
“My first thought was just, this was so ridiculous,” Melissa Klein said of her reaction to the communications. “[Avakian] has an agenda and it’s so obvious.”
Aaron Klein said the emails, text messages and phone calls between the Oregon Bureau of Labor and Industries and Basic Rights Oregon show “their Constitutional rights don’t matter in this court,” and that the commissioner has a bias.
The Bureau of Labor and Industries maintains the agency and its commissioner are “committed to fair enforcement” of the state’s anti-discrimination measure, and told The Oregonian, “we will be responding to the motion [to re-open the case] directly.”
The agency did not respond to further requests for comment from The Daily Signal.
Basic Rights Oregon released a statement yesterday denying any involvement in the case against Sweet Cakes by Melissa, calling allegations of collusion “ridiculous.”
“The Oregon Bureau of Labor and Industries did not consult Basic Rights Oregon on the Sweet Cakes by Melissa discrimination case,” they said in a press release. “To the extent Basic Rights Oregon has been in contact with BOLI staff about this case, it was to stay informed about timeline and process only.”
Lawyers for the Kleins said even the “possibility” of undisclosed collusion between the complainants, the Oregon Bureau of Labor and Industries and Basic Rights Oregon, is a problem.
“[It] is sufficient to taint the integrity of the proceedings and deny respondents [Aaron and Melissa Klein] fundamental due process or a fair hearing,” they wrote in a formal request to re-open the case.
“[B]ias has effectively precluded respondents [Aaron and Melissa Klein] from receiving due process in this case because the agency’s and the commissioner’s own undisclosed interests are intertwined with those of the complainants [Rachel and Laurel Bowman-Cryer] and other advocacy organizations, including Basic Rights Oregon.”
If the judge agrees, he will essentially be green lighting an investigation into potential collusion by his own employer, the Bureau of Labor and Industries.
“You can’t have an office that has a judge, jury and executioner,” Aaron Klein said. “Judges should be unbiased and they should be elected by the people without the power to legislate, investigate and do everything else.”
The relationship between the Bureau of Labor and Industries and Basic Rights Oregon came to light during testimony by Aaron Cryer, the younger brother of Rachel Bowman-Cryer, who was living with the couple when they were rejected service by the Kleins in January 2013.
“There was a point in time where [the Bureau of Labor and Industries] was unsure on whether or not we should pursue the case right now or wait, just because of marriage equality in Oregon becoming a thing, and we were looking at the scope as a bigger whole. Because the whole reason of pursuing this case is to change these behaviors,” Aaron Cryer said.
A prosecutor for the Bureau of Labor and Industries, who is representing the Bowman-Cryers on behalf of the agency, later appears to encourage Aaron Cryer to “clarify” his statement.
“Do you recall Basic Rights Oregon reaching out to Laurel and Rachel?” the prosecutor asked.
“[The Bureau of Labor and Industries] and Basic Rights Oregon. I think I kind of put the two together,” Aaron Cryer said. “Basic Rights Oregon was the organization that me and Laurel and the rest of the family had a conversation about, about pursuing the case, if I remember correctly.”
Based on the new communications and Aaron Cryer’s testimony, Aaron Klein said it’s a “fact” that the Bureau of Labor and Industries worked in an inappropriate capacity with Basic Rights Oregon.
“This is not a conspiracy, this is just fact,” he said. “[The communications] just really confirmed that my constitutional right to due process is not even close to happening.”
After two years of litigation, Melissa Klein said she, Aaron and their five children are “ready for a vacation,” but told The Daily Signal she plans to “fight this all the way we can.”
“We’re definitely not going to back down,” she said. “We take this very seriously … for not just ourselves but for other business owners who this could happen to.”