This is the Court case of Hill V John S Captain III
Arbitrator: Robert Dolton (I made 4 requests for A D A prior to this hearing)
Willard Merkel Lawyer
[ARBITRATOR]….. Ok, . Mr. captain if you will let me speak for a minute I want to be clear why we are on
the phone together… I’m not your lawyer Mr. Captain, I’m the arbitrator and because of that we have
certain rules that apply to your contacting my office…
[Mr. Captain]… oh ok…I did not know
[ARBITRATOR] Basically the only way you can talk to me is if Mr. Merkel is on the line also, otherwise it’s
what’s called ex-parte communication and our rules do not allow for that
[Mr. Captain] ok
[ARBITRATOR]…. just like you cant call up the judge without the other lawyer present, it’s the same
thing.is true for an arbitrator…ok So, I want to let you know, you cannot contact my office, by telephone
unless you also get Mr. Merkel on the line and frankly I would ask you not to do that.
What I want you to do is to communicate with my office in writing. I did receive from Mr. Merkel the
documentation that you submitted that you wrote motion 21 and like I told you last time we were all on
the phone together I will be considering that and making a written ruling in which it will be sent to both
parties along with the ruling on and any other matters which at this point it’s only Mr. Merkel’s motion
to compel.. so, I’ll be making a written decision on each of those matters and informing the party’s in
writing of my decision on those issues…
MR Captain . ok I have something I want to say
ARBITRATOR and I’m sorry that I had to yank both your chains and get you on the phone with me. I was
very concerned with a series of calls to my office and I don’t want to be rude to you Mr. Captain but it’s
against the rules for me to talk to you.
so I just want to make everyone aware of what I can and can’t do, and it was the purpose of the call…
Mr. Captain Sure . well go-ahead Sir.. ok well It would seem appropriate that in the event that they
do have consumers protecting their rights in court, that they will send a you know, maybe a brochure to
them maybe outlining how the court proceedings work or should proceed but that’s i guess neither here
nor there.
[ARBITRATOR] I understand and you’re right in many ways I will tell you there are public resources
available that will help you such as it is possible to contact the court administrator where this case has
been filed and talk to the administrator and they will give you the electronic website address Sorta
speak for the arbitration rules that apply to these proceedings
[ARBITRATOR] And if you look at those rules they will tell you very clearly Not only, what is allowed, but
also remember we talked about the pre-hearing statement of proof and how that has to be received by
me and with a copy to Mr. Merkel no less then 14 days prior to the hearing. those kinds of rules are
also in those documents.
I want you to be fairly treated I want you to, you know, get your day in the court sorta speak but we
have certain rules and one of them is no exparte communication.
[Mr. Captain]. Not a problem, and I have some stuff I want to say in doing that. Mr. Merkel, did you
contact his office for hearing? the one that was held by phone the other day? How did you contact him?
[ARBITRATOR. I did that.
[Mr. Captain] Oh you contacted him for his own hearing?
[ARBITRATOR) I set it up for both of you so you would be on the phone with me at the same time.
[Mr. Captain] My understanding, ok go ahead
[ARBITRATOR]. And the reason why I did that is to follow the rules that there is no exparte
communication.
[Mr. Captain] ..Correct
[ARBITRATOR] There are times just so you know in the practical sense how it will happen where my staff
will call up and ask Mr. Merkel if he’s available for a conference and his staff would say no, he’s not
available until 1:30. That’s exactly what happened in the last one. So, there will never be a time when
Mr. Merkel will be on the phone talking about the case, and your Not on the phone and the
convereverse Is also true, there would never be a time to be on the phone with you…
[Mr. Captain] Ok, I can understand that.
[ARBITRATOR]. And that’s how we keep the process pure
[Mr. Captain] And, so Mr. Merkel when you wanted to move a motion which is the motion that you
brought up on the telephone the other day, how is that you contacted his office for that motion to be
heard?
[ARBITRATOR] . I contacted Mr. Merkel, I got a copy of the document in writing and in order to allow
both parties to be heard I set up a conference. And it is not appropriate for you to ask Mr. Merkel
questions like that he does not have to answer to you.
[Mr. Captain] now you stated that there was 14 days’ time period which to respond, but you gave me 5
days, why is that?
[ARBITRATOR] No, no no, that’s a different situation,
[Mr. Captain] ok
[ARBITRATOR] Pre-hearing statement of proof relates to the arbitration date and the ability to offer
evidence The 5 days I gave you was a response time for a motion and that also is covered in the rules
and indeed the response time for a motion is five days, so…
[Mr. Captain] I also… ok go ahead… sorry
[ARBITRATOR] I’m just trying to give you an opportunity to be heard and that’s why I did what I did.
[Mr. Captain] Due to the fact that I’m completely confused by the admissions of his things, not mine I
would like to ask the court to provide me with ADA accessibility for my ADHD which I notified your
office of originally and when I requested the hearing that didn’t happen for me, but it happen for him.
So can you provide me with ADA accessibility for my ADHD? Because I’m getting confused by all this
very quickly.
[ARBITRATOR] I don’t know how to respond to that im unaware our office is handicap accessible but I
don’t know how it relates to diagnosis of ADHD Mr. Merkel do you have anything to say on this
subject
[Mr. MERKEL] No. I don’t think.., my understanding on the rules is that the court isn’t required to
provide that assistance but I know there are public resources available that might be accessed…
[Mr. Captain] So, I’d like to delay all further proceedings for 30 days until which time I could receive
my equal rights under the ADA code because I’m getting confused not by the subject matter, but by
the way in which you’re handling the subject matter, like I filed my motion 20 long ago, and I don’t get
that but you’re going to make me file more, so, I’m getting confused by the dates and times because
of my ADHD and Mr. Merkel. I’d like to postpone all hearings until a full review can be done by
somebody who has more knowledge of the ADA code then me if you don’t mind.
[ARBITRATOR] If you’re and let me be clear here, Mr. Captain if you’re telling me that you want to
have a delay on the proceeding.. to obtain legal counsel lawyer that represents you…
[Mr. Captain] no, I dont want that
[ARBITRATOR] I will grant a motion If you’re telling me that you’re not going to get a lawyer I will not
grant any motion to delay the proceeding and eventually after once my process is over and if you wish
to appeal from the arbitration award than you can go on to a full-court.. you can tell the court for the
basis for your motion.. and perhaps the court will suspend the proceedings at that time, but I’m
unaware of any rule that allows me to violate the timelines for the arbitration process which are very
tight, and are binding on both parties aware unaware of any basis for which I could postpone or delay
the proceedings due to ADHD. or frankly any other handicap. I’m unaware of any requirement or, they
wont allow me to do that.
[Mr. Captain] Well, if a they, I can provide you with whatever you need to prove that this is causing
issue with my ADHD. And therefore, I’m not getting a fair trial. A delay of the court by 5 or 10 days has
no bearing on the court at all or any burden by any party
[ARBITRATOR] Actually, it does if you miss timelines within your arbitration process that you require to
be certain completed in a certain number of days and if it isn’t and the parties violate the courts rules in
the cases subject to dismissal.
[Mr. Captain] And I request to your office
[ARBITRATOR] Well I’m gonna follow the timeline on the arbitration To, adhere to those timelines so
that the court system moves efficiently. And I’m going to do that.
[Mr. Captain] I requested this issue to your office prior to the court ever starting your arbitrational
beginning be proceeding that my ADA needs be met and I made that to your office since the beginning
of this proceeding or assignment to you that I need assistance by ADA law and the denial…
[ARBITRATOR] I can’t help you in that regard you can talk to the circuit court., you can talk to the judge
and if. The judge rules that I have to, you know, provide you with special assistance, they are going to
have to be the ones to tell me what it is, I’m supposed to do because I’m unaware of any rule relates to
that.
[Mr. Captain] But unaware.
[ARBITRATOR] There are physical access rules that apply under ADA to my office a kind of accessible so
any rule that I’m unaware about that I have no knowledge of anything related to ADHD with respect to
ADA requirement for accessibility in the courts, you gonna have to get a ruling from a judge if you want
these proceedings the delay I’m going to need the document called in order from the judge telling me
that I cannot proceed. Otherwise, I’m going to do my duty under the court system which is due adhere
to the timeline set a time for hearing all this hearing on that day under the rules that apply to arbitration
hearing and in state of Oregon if you comply with the rules to provide me with the right
documentation. I will consider your evidence, and Mr. Merkel will be under the same rules and if he
doesn’t provide his . pre hearing statement of facts. he wont be able to.. Its that simple.
[Mr. Captain] Well regardless of whether your office is ADA Compliant or not. I’m not asking whether
you have bathrooms or those sorts of things for or for your front doors. I’m simply telling you that the
court should be, I should be allowed under ADHD and ADA additional resources that are available to
me through the law and rights by the law to that seek assistance because the tricks that Mr. Merkel
uses are not favorable to an ADA disability. Of course, I have the right to get assistance under ADA.
There’s no question about that and if you’re not aware of that doesn’t mean it’s not legal.
[ARBITRATOR] you need to adhere to the assistance that the court (…?)
[Mr. Captain] I ask a motion to move the court to give me time because of the fact that I am being
subjected to additional issues regarding my ADHD putting the timeline in the back. I had already
submitted things and those were not heard yet and you’re hearing his, now I’m completely confused at
what to do next. You told me to write you a letter within five days heck the male takes five days at
Christmas time.
I mean. so . simply I cannot keep up with the request and way in which you’re presenting them to me
because my ADHD does not allow it. Of course, the court allows for accessibility rights to people with
disabilities and everybody knows that, I mean, the whole system would be flawed if we didn’t know that
[ARBITRATOR] Mr. Merkel he Has moved for a continuance of the proceedings. what is your response?
[Mr. MERKEL] My response is that we would like the proceedings to go according to schedule. I know
that there are resources that he’s referring to that you can access but they don’t have anything to do
with the proceedings before you, in other words, he must access those resources and then be
available with those resources to proceed as scheduled.
[Mr. Captain] I object to that!
[ARBITRATOR] your motion was denied Mr captain, we are going to stick to the timeline…
[Mr. Captain] under protest and I will proceed with you guys, and I accept the fact that I have been
denied my ADA right to equal access to the courts and I will proceed with the proceedings under
protest.
[ARBITRATOR] Okay, very good, thank you
[Mr. MERKEL] Thank you, bye.
Letter John to Dolton he did not reply.
——————————————————————————
February 16, 2015
Mr Robert Dolton, Arbitrator
13100 SE Sunnyside Road
Clackamas, Oregon 97015
RE: Derek Hill, v. John Captain, III, Multnomah County Case No.
14CV10389
Mr. Dolton:
This is being written to both: 1) object to the claim and form of the cost bill submitted by
Plaintiff's attorney for his fees, and 2) Request 20 days for me to get a lawyer for help in this
matter and to demand that you withhold your written order in this matter, and withdraw as
arbitrator, for your blatant failure to afford me due process, and your outright refusal to abide by
the applicable rules and statutes. Since that is the more serious matter, I will address those
concerns first.
Initially, you erred by ruling on my ORCP 21 Motion in the first place; I call your
attention to Rule 13.042 of the Multnomah Supplementary Local Rules, entitled, "Assignment to
Arbitration", which reads as follows: "If the first appearance of a defendant is not an answer, but
is a motion directed to the complaint or a dispositive motion, the motion shall be decided before
the case is assigned to arbitration." Since my Rule 21 Motion to Strike was clearly directed both
to the complaint, as well as requesting dispositive relief, it should not have been considered or
heard by yourself.
Additionally, and even assuming that you were empowered to rule on my Rule 21
Motion, you further erred by failing to schedule and hold a hearing on my ORCP 21 Motion as
soon as you were appointed. At that point, my motion had been of record for almost two
months; I was entitled to a speedy hearing and determination, without clouding the issue with the
extraneous - and longsubsequently filed - cross-discovery motions. Additionally, as soon as you
were appointed arbitrator, I contacted your office to obtain a hearing date for my motion to your
staff, and was specifically told that I could not have one. yet, as soon as Mr. Merkel contacted
your office seeking a hearing on his discovery motion, he was accommodated - hardly an even
scale. like the entire process.
Secondly, I had requested oral argument on both my ORCP 21 and discovery motions,
yet you went ahead, and - in essence - conducted a "star chamber" hearing, without giving me
the oral arguments to which I was entitled. This not only violated my basic rights to substantive
due process, but also violated my specific rights under the ADA, which rights I had previously
made you aware, of and made demand for accommodation of those rights, as guaranteed by the
ADA. and my reqest by you was refered to Mr Merkel and he said NO.
Third, and perhaps most egregiously, you allowed - and in fact, apparently engaged in improper ex parte conduct with counsel for plaintiff. On two separate occasions - January 8th
and again on January 20th, you accepted, and apparently considered, pleadings and
correspondence which were sent to by Mr. Merkel by facsimile transmission, but were sent to
me by standard mail, meaning that you permitted and condoned - affirmatively, by your failure
to repudiate - Mr. Merkel's improper ex parte communications. You may be of the belief that
merely delaying my knowledge of the communications between you for three days does not
actually comprise ex parte contact, however, I am not sure that either the Multnomah Arbitration
Commission, or the Disciplinary Committee of the OSB would agree.
The fact that you actively participated in improper ex parte conduct, is clearly
demonstrated by the fact that Mr. Merkel mailed out his "Notice of Intent to Take Default" on
January 8, 2015 - the very same day that you mailed out your opinion letter regarding the
motions. Since Mr. Merkel clearly could not have possibly known that he had the right to send
such a notice, absent a corresponding knowledge of the substance of your decision on the Rule
21 Motion, and since your opinion letter was supposedly according to the heading - sent only by
regular U.S. Mail, it raises only two possibilities. Either Mr. Merkel is clairvoyant - which
seems unlikely, or you and he engaged in direct, ex parte communication, regarding the
substance of your decision.
As regards Mr. Merkel's January 8th "Notice of Intent to Take Default", it concerns me that:
either you are unaware of the mailing restrictions of ORCP 10 C, or in the alternative, you
assume that I am unaware of the rule, and so deliberately seek to disadvantage me; either one is
unacceptable however. Mr. Merkel mailed his 10-day notice on Thursday, January 8, 2015;
pursuant to ORCP 10 C - which adds three days to any time requirement, if sent via standard
mail - I could not be presumed to have received it prior to Monday, January 12, 2015 (January
11th being a Sunday). Therefore, I had until January 22, 2015 to file my responsive pleading
with the Court, and it was so filed on January 20, 2015. Yet you received, and apparently acted
on, a motion for default, which was improperly filed a full three days before my response could
even have been deemed to have been late.
As to your alleged failure to timely receive my "Prehearing Statement of Proof", I should
point out to you, that I have in hand a facsimile transmission confirmation sheet, which clearly
shows the first page of the Statement, and moreover, shows that it was sent to - and more
importantly received by - your office fax number of (503) 698-5112 on January 26th - exactly
fourteen days prior to the hearing.
Finally, and quite frankly inexplicably, although you declined to accept my testimony at
the hearing, you also failed to take Plaintiff's as well. That is because you pointedly failed to
administer an oath to Mr. Hill, before "taking" his testimony - there was, therefore, no testimony
offered by the Plaintiff at the hearing, and his case was therefore, not proven to the standard
required by law. in addition to the two names listed, I personally offered my credit card and cash
at the proceeding. in your letter dated February 11th you stated on page two that you sent a letter
dated February 10th regaring my fees. although we had not had any hearings on site you claim
Mr. Merkel conformed what date did he pay his fees. since I thought he paid his at the hearing
that day. but I could be wrong. I did however notify you I was out of town for that week for my
murdered girlfriends MLK march in new York. the same letter you spoke about in your trail
without my input. and please show me that you actually sent me a statement. I did not recall
getting one.
As to the issue of Mr. Merkel's claimed billing documents, they contain numerous bogus
or improper charges. As set forth above, Mr. Merkel could not have legally moved for default
prior to January 23rd; therefore, allowing him to bill 1.30 hours for a "Letter to arbitrator,
prepare Order of Default with Supporting Affidavit", prepared on January 20th - 3 days early would be clearly improper. Further examples include a .40 hour claim for a "Letter to
Defendant's building manager, telephone conference with same", on October 31, 2014; for the
record, no such person exists. Defendant neither employs or utilizes a "building manager".
Attorney Merkel also claims a .80 hour charge on December 8, 2014; again, a totally bogus
charge, in that he never filed a Response to my Request for Production. So, even if he actually
prepared it, he never actually sent it; I am therefore not actually paying for it.
John Captain, III
8028 SE Stark Street
Portland, Oregon 97215
cc: Willard Merkel