BULLETINS FROM ALOHA

Appealing a bad judge’s decision should be as easy as writing a term paper.

Several days ago I was standing behind a sophisticated-looking woman at the ‘civil’ court clerk window at the local courthouse.  This woman clearly had anguish over a small claims court judicial decision involving several thousand dollars.  The civil clerk was patiently explaining the options, but the woman was barely listening and soon began to tear-up.  The civil clerk’s empathy was palpable even as the woman started to repeat herself. 

Appellate Rules  --  I just printed off Oregon’s Appellate Court Rules.  All 285 pages of them.  So, it ALL oughta be there; right there, don’t ya think?  Contained in those pages are all sorts of things with special rules about ballot title appeals, criminal appeals, civil appeals, local government exceptions, land use appeals and so on.  But, it is not all right here.  Nope.

Oregon Statutes  --  You also have to look at Oregon Revised Statutes at Chapter 19 where you are going to find twenty two (22) more pages of statutory requirements for that special appeal of yours.  Is that about it?  Nope.

Oregon Rules of Civil Procedure  --  There is another book entirely for a very important component of your civil appeal.  Undertakings!  No, not underpants, undertakings!  It is going to do no good to file that appeal unless you supply an undertaking (security) with the court so the other party doesn’t start collection proceedings while you are writing the term paper. 

        So, by now, you should be about ‘home free’ and secure that these are all the rules you need to get that term paper done right??  Nope.  There are two OTHER places that you have to consult to make sure you provide the right security.  One is in the Rules of Civil Procedure at #82 and the other is at Oregon Revised Statutes, Chapter 19.300.

        End of Story?  Armed with about four hundred (400) pages of rules found in four different places in the multiple rule books, now that sophisticated lady ought to be able to figure it out for herself.  Shall we say!!?  Nope.  Depending on whether or not her appeal is taken from small claims court or justice (of the peace) courts, her appeal will be governed by Oregon Revised Statute Chapter 53 and none of those other tomes I mentioned will direct you to that chapter entitled “Appeals in Civil Actions”????

                                A TERM PAPER

        Writing an appeal is no more difficult than writing a term paper in high school, college or trade school.  All the appellate judge needs to know is what happened; the facts, and what went wrong, the law.  Writing an appeal is easy.  It is the rule(s) book that is hard.  I hope that sophisticated lady follows the adroit advice provided by that conscientious public employee.

        What we do in the law, is make thousands of rules that govern ourselves, but we forget that there is a public out there that should be able to have access to these rules and our courts too.   

        Now, do you want me to tell you where to find the special rules to appeal an arbitration decision……………………………………….?  Hint, it is called a “Request for Trial De Novo” (You did take Latin in high school did you not?)  Additional hint, it is located in yet another set of rules called “Uniform Trial Court Rules”.  You guessed it  --  the Arbitration Rules are found in the Trial Court Rule Book!

        Don’t forget that your opening appellate court brief has to be written on blue paper. 



Today is the fortieth (40) anniversary of the shootings at Kent State University in Ohio, May 4, 1970. Four students were killed and nine injured. Their protest was over the bombing of Cambodia. No one has ever been held accountable for those shootings.

The bombings by the United States set the stage for the Khmer Rouge and the 'killing fields' which, by 1979 produced the deaths of 3 million innocent Cambodian civilians.  In 1979 communist Vietnam invaded Cambodia and toppled the Pol Pot Khmer Rouge Regime. 

America, through the Nixon administration secretely bombed and invaded Cambodia at various times during the Vietnam War.  Subsequently, the Carter administration backed the Pol Pot Khmer Rouge even though they thought Pol Pot was an abomination. 

It appears only the Kent State Students had it right. 

A CIVIL JURY TRIAL?  --  NOT!

So, you think you are entitled to a jury in civil disputes?

Newbie Washington County Judge Andrew Erwin thought he would do it himself.  Any trial attorney will tell you they can see it in the judge’s eye; that cold glance, that averted eye.  The judge doesn’t like you!!  What can you do?  Nothing.  There is no recourse.  If a judge wants to take away your right to a jury trial of your peers,  there is not one thing you can do about it.

Our judges do this even though the right to a jury trial is right there in the constitution.  Section 17 of Article 1 of the Oregon Constitution says:  “Jury trial in civil cases.  In all civil cases the right of Trial by Jury shall remain inviolate.”

When is the last time you have seen a jury decide a divorce?  That is a civil matter.  How about a civil commitment to a mental hospital?  A will contest?  A condemnation of your home?  The list is legion of where your right to a jury trial has been taken away. 

Judges do it all the time. It is what noble, nubile, nubilous Judge Erwin did to me yesterday.  Sixty three percent of all civil trials never even get to a jury even where there is a right to a jury.  How do judges do it?  Through the devises of a Directed Verdict or a Summary judgment.  It was a Directed Verdict that did it to me yesterday.  Here is how it happened.

Judges in Washington County (and throughout the State) don’t like me because I am challenging Oregon’s legal power structure.   I am recommending a formal statewide system of judicial evaluations.  Judges don't like cameras in the courtroom because they don't like accountability.  Yet, our whole system of justice is based on a public system open to everyone.  The Oregon Constitution provides:

     "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man (sic) shall have remedy by due course of law for injury done him in his person, property, or reputation."  Article 1, Section 10

When I walked into the courtroom Tuesday, I knew I was going to get fried.  I was entitled to a jury trial and honest Judge Andrew Erwin knew from the beginning he wasn’t going to let the jury decide my case.  He wanted to do it, and decide it he did. He threw the jury out through a Directed Verdict even though the jury had to sit through two days of the sordid affair; all the way to the end.  Judge Erwin just unilaterally snatched the decision making away from a jury of my peers. There is nothing I can do about it.  The Commission on Judicial Fitness and Disability does not care.  They don’t even care if a judge lies.  The Court of Appeals doesn’t care because they are “brothers” in arms.  The Oregon State Bar does not care.  Nobody cares.  Yet the Oregon Code of Judicial Conduct states that "A judge shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation."  JR 1-101(D)  Moreover, the Code requires a judge to disqualify him or herself if they cannot be fair or if they are biased.  JR 2-106(A)

When I walked into the courtroom I could see it in his face and it was not long before he gave it to me with both barrels.  Even before we were out of the chute he openly accused me of misrepresenting something.  When I offered to provide proof of what I had said, he backed down. 

Then he eliminated half my case by the simple expedient of not allowing my evidence into the case while letting in all of my opponents case.

Thus, through the device of a Directed Verdict in my opponents favor, he removed the attentive jury from deciding the case.

Virtually, the same thing can be done before a jury is sworn in through the analogous device of a summary judgment. 

Recourse?  An appeal?  It is not a satisfactory remedy because it is a Byzantine process (See A Civil Action—the John Travolta movie or read the book) in which only about 17% of appellants win.

My remedy, therefore is to rate the judge:  Here we go.

_______________________________________________________ 

MODEL LITIGANT SURVEY FOR TRIAL JUDGE EVALUATIONS (CIVIL CASES)

We are interested in learning about your recent experience with our court system.  Please take a few minutes to complete this survey regarding your perceptions of Judge Andrew Erwin and the court’s handling of your case.  Your responses will be kept (somewhat) anonymous and will help us maintain a legal system and a court system that is efficient, effective and FAIR.

Please answer the following questions about your case:

1.     Were you the plaintiff or defendant in your case? (circle one). 

2.     How long did the court proceeding last?                3 Days

3.     Did you win or lose?  (circle one).  Other____________

Please answer the following questions about the judge:

1.     Did the judge appear well-prepared for your case?      Yes  No

2.     Did the judge deal with your case promptly?                 Yes   No

3.     Was the judge respectful to you?                                  Yes   No

4.     Was the judge respectful to the other parties?             Yes  No

5.     Did the judge manage the process efficiently?               Yes  No

6.     Did the judge listen to your side of the case?                Yes   No

7.     Were the judge’s rulings clear?                                      Yes   No

8.     Did the judge explain the rulings?                                  Yes   No

9.     Was the judge fair?                                                        Yes   No

10.    Was the judge respectful to staff personnel?               Yes  No

Please add any other comments you would like to make about the judge.

Judge Erwin was clearly biased against me from the beginning to the end.  He made up facts so he could deny my Motion for Summary Judgment.  Judge Erwin, an ex DA, did not know who starts first in picking a civil jury.  The judge delayed ruling on all motions until the day of trial.  This prevents the parties from knowing what part of the case will go to a jury until the morning of trial.  The judge admonished me in front of the jury.  The judge listened patiently to the other side’s arguments and to mine not at all.  The judge did not understand the law nor did he care about the law.  There was not even a pretense of a fair trial. 

Scorecard:

My motion for change of venue—I lost

My motion to compel discovery --I lost

My motion to dismiss  --  I lost

My motion to postpone  --  I lost

My motion for mistrial  --  I lost

Their motion to sever  --  They won

Their motion to strike  --  They won

Their motion to quash  --  They won

Their motion for directed verdict  --  They won

_____________________________________________________________

FEEDBACK REQUEST  --  

If our judiciary can bulldoze over me in this fashion then they can do it everyday to everybody.  They ignore The Rule of Law and they ignore Fairness.  It is a power trip by many mental midgets.  Give me your court experience feedback on your Judge Erwin right here.  It will be kept anonymous.  I assure you. 

.....What you send them?  This letter to Judge Steven Price traces three cases in Washington County Circuit Court of the State of Oregon where the judge admitted on the record that he had not read the documents before him.  Then that judge ruled anyway.  How common is this?  Answer  --  Very common!

March 29, 2010

Judge Steven L. Price

Washington County Courthouse

146 NW 2^nd Ave

Hillsboro, OR 97124

Re:   A March 25^th Visit to Your Court

Dear Judge Price:

Attorney Craig Russillo, from the Portland downtown firm of Schwabe, Williamson and Wyatt, and I visited your court last week.  These visits were in accordance with March 17, 2010 notices issued by the Court which I received on March 24, 2010.  (Exhibit 101)  The only notices I received by then indicated that the hearing would only be on my Motion to Change Venue. 

The purpose of this letter is to request that you reconsider your rulings that day for the reasons that follow. 

First, you ruled in favor of Attorney Russillo on all matters he filed even though I had not received any of those documents until March 24, 2010 so, I had no opportunity to formally respond. You admitted on the record that you had not read any of these documents.  Why do you rule on matters that you have not read? 

Second, you followed neither the rule of law, Oregon’s Uniform Trial Court Rules nor Oregon Rules of Civil Procedure in your rulings. 

Third, you demonstrated blatant bias against me which has also been demonstrated by your fellow Judges Michael McElligott and Judge Marco Hernandez.  This is precisely the reason I filed for a Change of Venue to Clackamas County. Washington County has denied my clients and me due process like this for over ten years in multiple cases. I can document every one of them and discuss two of them below because they are relevant here.   

Finally, you ruled without allowing me the statutory time to respond to the filings of Mr. Russillo.  Fundamental principles of due process require that I be given notice and an opportunity to be heard.  Notice and a statutory opportunity to file a written response necessarily precede the opportunity to be heard.  You truncated both statutory requirements. 

You will further note that the court notices on Mr. Russillo’s Motions were misdirected by your clerk’s office to a wrong address as documented in the Washington County Court’s envelope provided here.  I did not receive court notice of Mr. Russillo’s Motions you heard on March 25, 2010 (and which you ruled on that day) ---  until the following day, March 26, 2010.  (Exhibit 103) 

        In short, I was denied the seven days allowed by UTCR 5.030(2) to Reply to the opposing party’s Response to my Motion to Change Venue.  I was also denied the fourteen days allowed by UTCR 5.030(1) to respond to the opposing party’s Motion to Strike and Motion to Sever.

        Moreover, Mr. Russillo is required by the UTCR 5.010(1) to confer on a Motion to Strike and he did not do that.  That omission is compounded by his admitted failure to confer on the previous Remand motion in federal court.  (Exhibit 102)  Why is Mr. Russillo given a pass to not comply with the rules and why am I denied the due process protections of those same rules? 

                Washington County Judicial Corruption

1.  Judge Michael McElligott:  -- On an unrelated matter, I successfully reversed a judgment rendered by Judge McElligott in my client’s appeal to the Oregon Court of Appeals a number of years ago.  Judge McElligott has demonstrated a notable antagonism to me when I have been before him since that Court of Appeals ruling. 

In 2001, during a road widening project, Washington County sued me in (Case No. C020359CV) to condemn part of my historic property in Aloha where I had my law office.  This is the same property at issue here.  (In a blatant conflict of interest, Schwabe’s office, where Mr. Russillo works, represented me in that condemnation proceeding involving the identical property.)

Washington County Courts have had a policy, (inconsistently applied), where a visiting judge is hired to handle litigation when a local lawyer is a party ( as is the case here).  Accordingly, Senior Judge Harl Haas from Multnomah County was assigned to the condemnation case.

I requested oral argument in that condemnation case on a change of venue motion just as I have done here and for the same reasons.  Even though the condemnation matter was assigned to Judge Harl Haas, Judge McElligott illegally decided that I WAS NOT entitled to a hearing. His actions were illegal for two reasons.  First, the matter was assigned to Judge Haas, so Judge McElligott had no right to be involved in the case since the whole purpose of having an out-of-county judge handle such matters is to avoid prejudice to any of the parties.  Second, WHAT Judge McElligott did was illegal.  He denied me a right to be heard when I formally requested a right to be heard under the rules. 

Enclosed is the document dated 3/27/02 where Judge McElligott wrote “Denied w/o hearing” followed by his signature.  (Exhibit 104)  As you know, in Oregon a party is entitled to a hearing and oral argument if requested by a moving party which I had done in that case.  UTCR 5.050 (1) 

I have no idea why the judges in Washington County are biased, but biased they are.  I have no idea why Washington County judges have decided that they do not have to read matters pending before them before they rule, but rule without reading the pleadings they do, as you have done here.  I have no idea why I am not entitled to a fair and unbiased judge to rule on cases where I am a party, but Washington County judges do just that as we have seen above and will see below.      

  2.  Judge Marco Hernandez  In Case No. C032263CV as trustee of an estate I filed an interpleader action to resolve multiple claims against the estate.  On May 14, 2004 Judge McElligott called for a "status" hearing in this estate matter without providing anybody with notice of what was to be heard.  Again, this is a blatant violation of fundamental due process and Oregon rules of procedure. 

At this estate matter hearing, Judge McElligott made various substantive rulings without receiving any evidence nor did he take any testimony under oath from any witnesses.  I am providing you with the first page of a transcript of that hearing where Judge McElligott lied.  He stated “I think that matter (Case No. C032263CV  --the interpleader action I had filed) has actually been dismissed.” (Exhibit 105)

That was a lie.  I am sending a certified copy of Judge McElligott’s unilateral dismissal of the interpleader action dated 10/6/04  --  five months after Judge McElligott represented to the assemblage on May 14, 2004 that it had been dismissed. (Exhibit 106)  So, he lied on the record. 

The problem is that Judge McElligott did not tell anyone that he dismissed this case.  The further problem is that it is clear law that a judge may not unilaterally dismiss a pending case.  The irony is that this is the precise issue upon which I had reversed Judge McElligott’s judgment before.  We know then that local judges are not guided by what the Oregon Court of Appeals decides is The Rule of Law.  The final problem is that this case WAS NOT dismissed for lack of prosecution as Judge Hernandez later represented in a later letter opinion.

So, this is where Judge Marco Hernandez comes in.  Following a subsequent hearing restricted to attorney fees on this estate matter, Judge Hernandez decided to make a sweeping ruling on multifarious matters not before him, violating yet another rule.  You did the same thing last Thursday.  You will note that in Judge Hernandez’ letter ruling of February 28, 2005 he states:  “The interpleader action was dismissed for want of prosecution.”  (Exhibit 107)  That was a lie also.  Thus, both judges have gotten away with a patent lie.    

On March 11, 2005 I filed a meticulous response to Judge Hernandez ruling to bring to his attention, among other things,  his error on the interpleader case. (Exhibit 108) Judge Hernandez did not respond.  Facts are troublesome things.  No one in Washington County Court leadership cares.  No one at the Oregon Supreme Court cares.  Like you, Judge Hernandez admitted he had not read the court file prior to the January 26, 2005 proceeding before him. 

The precise issues of Judge McElligott and Judge Hernandez misconduct and my Bar status is now before the Oregon Supreme Court.  Thus, judges from Washington County have been witnesses against me in Bar proceedings. That is one of the painful reasons for requiring a Change of Venue.  (Exhibit 109)

                                In Summary

Judge Price, as you know, judges have the power to make life and death decisions.  I do not believe you can decide to follow the rules for one party and ignore the rules for the other party. I don’t believe you may make rulings when you have not read the pleadings upon which you are ruling.   That is what you have erroneously done here.  It follows a pattern that must be stopped in Washington County. Please take this opportunity to reconsider what you did on March 25, 2010.  My rights, due process and The Rule of Law are at stake. 

                                                Very truly yours,

                                                Lauren Paulson

The Oregon Supreme Court is in a dream world.  This unfortunate court is totally disconnected from reality.

‘Bulletins’ is taking a look at the Oregon Supreme Court’s Four year Strategic Plan.  The analysis is whether the State Top Court’s plan has practical use to the citizens of this fair state. We have looked at Goal # 1 and Goal #2.  Now we are on to Goal # 3 which has to do with a useful subject: Alternate Dispute Resolution which means arbitration and mediation. 

I am truly dumbfounded.  Here is the Oregon Supreme Court’s Goal # 3: 

• "Offer the full range of dispute resolution options to resolve cases before trial". 

This is the problem  --  Almost all arbitration and mediation forums are provided outside of our court systems.  What is worse; the Oregon Supreme Court itself provides no arbitration or mediation options.  Worser still, the Oregon Supreme Court does not track either mediation nor arbitration results in their Annual Performance Progress Report.  So, I again ask a question asked before:   “How do we know when we get there  --  to the Goal#3 prescribed by the Oregon Supreme Court for themselves?”

       A Primer in Alternate Dispute Resolution Systems

As pointed out before, arbitration of business disputes has been around forever.  Oregon and Oregon courts became enamored with mediation in the early 1980’s.  Many courts instituted mediation into their small claim and eviction courts.  Portland and Beaverton created neighborhood mediation programs to resolve local disputes over a variety of subjects.  Mary Forst was going to save the world through the peaceful resolution of disputes through collaborative processes.    These programs were wildly successful and loved by citizens because it took the intimidation out of the dispute resolution business.  The shiny, smiling faces of your friendly local mediator (and arbitrator) started appearing in local yellow page ads. (Most of these are burnt-out lawyers or lawyers whose practices were failing)

Oregon began professionalizing mediations through the Oregon Dispute Resolution Commission which was created by statute in 1989.  Private organizations such as the Oregon Mediation Association formed in the late 1980’s. The Oregon Court of Appeals Settlement Conference Program began in 1995.   

                                  Worse

Then something incredibly bad happened.  Turf wars developed and the whole subject of alternate dispute resolution became bureaucratized and splintered. Now there is a blizzard of misnomered organizations divided between the private sphere and various state agencies.  But, none are controlled by the Oregon Supreme Court.  None of the myriad of alternate dispute resolution programs throughout the state are reported on in the Oregon Supreme Court’s “key performance measures” annual report. 

Indeed, even the Oregon court-diverted arbitration and court voluntary mediation systems are not reported on anywhere in the Oregon Supreme Court “Annual Performance Progress Report" (APPR).  The Oregon Dispute Resolution Commission, which ostensibly was a unifying force for mediation and arbitration in Oregon went out of business in 2003.

                                  ‘Worser’

But something even worse happened.  Mediation stagnated and is still confined to small disputes in the court systems throughout the state.  That is why the Oregon Supreme Court is living in a dream world.  They exercise no control over alternate dispute resolution in this state.  They do not keep track of alternate dispute resolution in their statistics and reports.  Who are they kidding?  They don’t care about providing the citizens of Oregon with timely and efficient dispute resolution.  They only care about their court “emergency rooms” where judges routinely perform litigation's surgery on innocent victims  --  the citizens of the State of Oregon.

                                  Worst

       There is neither cohesion nor central organizing authority for alternative dispute resolution in the State of Oregon.  There are dozens of organizations with weird names providing dispute resolution services.  The problem is that a normal citizen would have no idea where to start to find a mediation program to resolve their particular dispute.  There is no uniformity as to programs or people providing the services. 

How, for example, would you decide whether to use one of the following forums available in this state?

• Oregon Consensus Program
• Oregon Department of Justice ‘Appropriate Dispute Resolution”
• Oregon Solutions Network
• Oregon State Agency Dispute Resolution Program
• Oregon Mediation Association
• Oregon Office for Community Dispute Resolution
• Resolutions Northwest
• The Association for Conflict Resolution
• Oregon State Bar Alternative Dispute Resolution Section
• Victim Offender Mediation Association
• National Policy Consensus Center
• Rural/Urban Solutions Center
• Policy Consensus Initiative
• Oregon Consensus Neutrals Network
• American Arbitration Association
• U.S. Arbitration and Mediation Service
• Arbitration Forums, Inc.

The list could go on to twice this length if all the individual community or state agency based alternative dispute resolution programs were separately identified here.  The Oregon Supreme Court has no responsibility for any of these programs nor do they care.  Goal #3 is pure eyewash. 

And here is the final irony.  The Oregon Supreme Court has ceded total control over mediation and arbitration in Oregon to the Dean of the University of Oregon Law School under Oregon Revised Statute 36.135:

      36.135 Review of dispute resolution programs; suspension or termination of funding. The Dean of the University of Oregon School of Law shall periodically review dispute resolution programs in this state. If the dean determines that there are reasonable grounds to believe that a program is not in substantial compliance with the standards and guidelines adopted under ORS 36.175, the dean may suspend or terminate the funding of the program under ORS 36.155 and recover any unexpended funds or improperly expended funds from the program. [1989 c.718 §8; 1995 c.781 §31; 2003 c.791 §12; 2005 c.817 §4]