BULLETINS FROM ALOHA

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]



Here is what we know for sure!  These are the things we know are broken -- IN LIFE:

• The Entire Criminal Justice System:  The New York Times reported last week that the Unites States Senate Judiciary Committee appointed a Blue-Ribbon commission to decide if our entire criminal justice system is in need of an overhaul.  "A broad consensus has emerged that the system is broken," according to the article.
  
 

 Further, the Innocence Project has exonerated 251 people through post-conviction DNA evidence.  17 of these were on death row. 

• The Entire Banking System  --  The current financial meltdown confirms that the entire United States banking systems are dysfunctional.  Here is what happened.  Five men with outsized egos including President Clinton and Alan Greenspan decided that a lonely, intellectual woman attorney was not as smart as they were. 

• The Entire Political System:  Write to your Congressperson?? Give me a break!!  For the last three years I have literally written hundreds of letters to political representatives near and far, including, at his invitation, President Obama.  The only one to give a personalized specific response was Senator Jeff Merkley. 

What is really disappointing is the current Health Care Reform debate.  What is painfully clear is that both sides are being paid off by the local lobbyist.  Regular citizens do not have a seat at the table. 

• The Entire Legal System:  We are here to address Goal #2 of the state's highest court's four-year plan.  Goal # 2 of that plan is:  "Maintain Public Trust and Confidence"  But first, how do we know the public has confidence in our legal system to maintain.  We don't.   However, the University of Chicago Law School has rated the Oregon appellate courts at the bottom of the barrel in a comprehensive national study in 2008.  Why should we trust a court that is rated at the bottom of the barrel?

THE FIX  --  How do we fix our legal system?  It is a two step process:

STEP #1  --  ENSURE JUDGES ARE ELECTED AND NOT APPOINTED IN CIRCUMVENTION OF THE LAW AND THE STATE CONSTITUTION which requires that our judiciary be elected by the people.

Oregon’s best kept secret:     Oregon’s Constitution requires that judges “shall be elected” by the voters of the state.  (Article VII, Section 1).  However, “Most judicial positions are filled by gubernatorial appointment.”  (Oregon State Bar Committee on the Judiciary 2004) 

When Ted Kulongoski became governor in 2003 one the first things he did was to coordinate how his office could circumvent the Oregon Constitution.  Thus, the Governor’s Office came up with a policy statement “Judicial Appointment Process for Circuit Court Vacancies,” dated March 31, 2004. 

The Oregon State Bar described the process as follows in their May 24, 2004 memo for the Committee on the Judiciary:

“…voters have very little information to assist them in deciding who to vote for between competing judicial candidates.  ***”…sitting judges should be more receptive to feedback from the bar membership as to how well others perceive them to be performing their judicial duties.”

In short, the governor is selecting judges in Oregon instead of the public.  If the fix is in coming from the highest political officer of the state, what chance does a qualified judicial candidate have who is not politically connected? 

If a judge owes their fealty to a politician instead of the people why should they follow the rule of law.  They don’t.

STEP #2  --  STATEWIDE FORMAL EVALUATIONS OF ALL JUDGES.

What is needed is a sophisticated, comprehensive, formal, statewide system of judicial performance evaluations.  Our judge's leaders don’t want to be formally evaluated, yet they are asking you for raises. Our top judge claims that his department is accountable to the people; transparent and fair, but he does not want to be formally evaluated.  Yet he wants you to give him and his brethren/sisteren raises. Only through a statewide formal system of judicial performance evaluations will the people have information upon which to base their vote for judges  --  that are supposed to be elected in Oregon.  But are not. 

IN SUMMARY  --  Oregon’s judiciary believes the public has trust and confidence in the state’s legal system but there is no feedback system to determine if that is true. 

FEEDBACK  --  Write to me, EMAIL me, post a comment here and let me know if you have trust and confidence in your local legal machinery. 

Lauren Paulson

3980 SW 170^th Ave.

Aloha, OR 97007           laurenjpaulson@yahoo.com

This is the third article analyzing the Oregon Supreme Court’s four year strategic plan.  The previous two articles can be found two 'clicks' down. 

The Oregon Supreme Court's Four Year Strategic Plan can be found by clicking here.  Goal #1 of the Court’s five part “Plan” is to: “Protect Public Access to Justice.” 

The Oregon Supreme Court Concept  --  The overall concept of “The Plan”, their four year strategic plan, is to isolate what has to be done now and what can wait until later.  The Oregon Supreme Court decided last year that what must be done now in the field of Access is:

               "Improve the scope and quality of services for self-represented

                 litigants through both staff training to improve customer service

                 and the development of user-friendly, multilingual court forms and guides"(sic)

The Plan also wants to expand court interpreting services. 

What can wait until later, according to the Court, is “…access to and use of no-cost and low-cost legal services.” (Note:  The Oregon State Bar took on this Task over a decade ago and has a myriad of practical, low cost programs for those who cannot afford a downtown lawyer)

So, the questions are; who is going to do this, how is it going to be measured and how do we know when we “get there”?

The Bulletin’s Analysis  --  The Oregon Supreme Court should be applauded for its interest in opening up the court process to our diverse community.  What is missing, (and you will be alerted to this concept from time-to-time) is breakthrough change.  A day in any court facility will reveal thoughtful, helpful customer service.  A day in any court facility will reveal surly, rude customer service. 

The Bulletins Better Idea  --  Simplify!  All court processes should be simplified so the Everyman or Everywoman can use our court systems without the need of extraordinary understanding. 

A Model Legal System #1  --  The law and court procedures should be simply stated on all subjects, predictable and easily available to anyone including ordinary citizens; not just convenient to lawyers.

Think of it from an ordinary citizen’s vantage point.  What is intimidating to the ordinary citizen when they walk in a court house, with or without a lawyer, is that THEY DON’T KNOW THE RULES.

I learned a valuable lesson when I was about five years old, from Keith Taylor, my neighbor.  Our favorite summer pastime was to play monopoly.  He always won.  We protested.  He challenged us.  He would take our rolls of the dice and still beat us because HE KNEW THE RULES better than we did.  Whoever knows the rules wins.  If Court rules are too complicated for a 12 year old, then we should fix them. 

What the Oregon Supreme Court Strategic Plan has wrong, overall, is this:  The legal experience for regular citizens is broken long before anybody gets to the courthouse.  The Court likens the courthouse to the emergency room at a hospital.  A moments reflection pictures the chaos of the emergency room is a lot like the chaos for ordinary citizens at the courthouse.  We need to simplify the rules of the road so the smash-up victims of our legal system don’t have to rely on the court emergency room to get legal solace. 

NEXT  --  Goal #2 for the Oregon Supreme Court is:  “Earn the public’s enduring trust and confidence”.  They raise the question:  Is everyone equal before the law?  It should come as no surprise that Bulletins has a thoughtful rejoinder.

FEEDBACK  --  critiques, criticism, or comments are welcome.  Email me at laurenjpaulson@yahoo.com

     As stated in last week’s article, the present task is to decide who has a better game plan for the future of our local legal system  --  Bulletins or the local chief  --  The Chief Justice of the Oregon State Supreme Court? 

Here, in a nutshell are the State Supreme Court’s aspirations for the next four years:

1. Access:   Ensure access to court services for all people

     2. Trust and Confidence:    Earn the public’s enduring trust and confidence.

     3. Dispute Resolution: Help people choose the best way to resolve their disputes.

     4. Partnerships:  Build strong partnerships with local communities to promote public safety and quality of life.

     5. Administration:      Make courts work for people.

OK.  Anything wrong so far?  As one strategic planner (hired, but ignored by the Oregon State Bar Association) stated it, “How do you know when you get there?”  That is, goals must have a measuring device to tell you whether or not you achieved your stated goal.  See any there in 1-5 above?  How will the Chief or the public know if and when the Oregon Supreme Court has successfully fulfilled their goals at the end of 2013?

Here, in a nutshell are Bulletin’s aspirations for the next four years:

1.  SIMPLE LAWS  --  The law should be simply stated on all subjects, predictable and easily available to anyone including ordinary citizens; not just convenient to lawyers.

2.  DISPUTE RESOLUTION SYSTEMS FREE OF BUREAUCRACY  --  There should be dispute-resolution forums available to the public that are free of bureaucracy and legal trappings.

3.  EFFICIENT COURT SYSTEMS  --  If a dispute cannot be resolved in public dispute-resolution forums then case disposition should be through efficient, objective hearings marked by  common sense and evidentiary rules that allows the truth to emerge through predictable, routine application of the law to the facts.

4.  JUDICIAL PERFORMANCE EVALUATIONS  --  A judiciary that is competent, fair, free of bias,  regularly publicly evaluated by citizens and lawyers through the Internet or in systems already available in every local area throughout the United States including Oregon (See www.therobingroom).  

5.  TAKE THE PROFIT OUT OF THE LEGAL BUSINESS AND PUT BACK IN FAIRNESS AND JUSTICE  --  Lawyers and paralegals should be motivated by justice and fairness rather than greed, power (never underestimate the motivation for power) and expensive advocacy.  The movie Michael Clayton would be required viewing for all lawyers who aspire to work downtown.  

6.  A PUBLIC FORUM  --  Bar Associations dedicated to serve the general public rather than the legal-power elite.

OK, now let’s make the Bulletin’s game plan measurable, so we know when we get there; to the stated goals!

1. Simple Laws   -- The Oregon Law Commission is in charge of state legal reform of the laws.  I am going to send this to them to see what they think.  I have checked with the Oregon legislature and they are committed to making new laws simpler.  I will follow up with them to see if it is happening.  This is a huge, but worthwhile task.
2. Alternate Dispute Resolution Systems  --   available to everyone free of bureaucracy.  Oregon did away with the state coordinating body for mediations and arbitration systems in 2004.  It is time to get a statewide central coordinating body back in business and get the Oregon Supreme Court committed to expanding alternate dispute resolutions systems rather than expanding court systems.
3. Efficient Court Systems --  The current system tracks quantity.  Now we need to track quality.  This project must be headed by the Chief Court Administrator. 
4. Judicial Performance Evaluations (JPE) --  Recommended by the Oregon State Bar Board of Governors in 2004, by the American Bar Association in 2005, rejected by the Oregon Supreme Court in 2006, it is time to ensure that all judges adhere to The Rule of Law.  A JPE package has been delivered by Bulletins to the State Supreme Court, the Oregon Legislature, to the Oregon State Bar and here in 2009.
5. Take Greed out of the Justice System:  --  There is a powerful organization in Oregon that is perfect to take on this project:  Oregon’s Bench/Bar Professionalism Commission.  This project will be submitted to them.  And we all have to watch the movies Michael Clayton, The Verdict, A Civil Action and Cary Grant in the movie, The Talk of the Town.
6. A Public Forum  --  It is time that the Oregon State Bar Association hold an open house for the public in their new $20 million dollar building located, in all places?, Tigard, Oregon.  May Day should be the focus of opening up our legal systems to everyday people. We should open up our law offices, our court staffs, our local bar associations and put local lawyers on TV to answer the public’s questions.

     Now, we will take the goals as stated by the Oregon Supreme Court  and discuss them one by one.  Next week, Access will be the subject.  Who has the better plan is the challenge?

It is a new year and a new decade.  Does this mean that the State Supreme Court has any new ideas?  What is the ‘Plan’ for our state legal system for the foreseeable future?

Each January since he became Chief Justice of the State Supreme Court in 2006, the Honorable Paul J. De Muniz delivers what he calls “The State of the Courts” address to the Salem City Club.  In it he thanks everybody and purportedly charts out what the justice system has planned for state citizens in the next twelve months.  In addition, the State Supreme Court has a larger “plan” yclept 2009-2013Strategic Plan which came out last year.

What does this mean to you, the ordinary citizen seeking fairness and justice in your state legal system?  Howard Zinn in his book Essays on War and Justice reminds us of the problem this way:

     “Under the rule of men, the oppressor was identifiable, and so peasant rebels hunted down the lords, slaves killed plantation owners, and revolutionaries assassinated monarchs.  In the era of the corporate bureaucracies, representative assemblies, and the rule of law, the enemy is elusive and unidentifiable.  In John Steinbeck’s depression-era novel The Grapes of Wrath, a farmer having his land taken away from him confronts the tractor driver who is knocking down his house.  He aims a gun at him but is confused when the driver tells him that he takes his orders from a banker in Oklahoma City, who takes his orders from a banker in New York.  The farmer cries out:  “Then who can I shoot?”

In this state, the Chief Justice is the administrative head of the Judicial Department and he has it all wrong.  Here is his frame of reference:  The whole world looks like a nail to him because all he has in his hand is a hammer.  In his 2009 annual report the Chief states:  “…Oregon’s courts are the legal equivalent of the emergency room.  We do not control what comes through our doors.”  He is wrong.  Our judiciary has preeminent control over what happens at the court house doors. 

Now, let us look at his 2010 Annual Report in juxtaposition to this previous “emergency room” statement.

If the courts are the legal equivalent of hospital emergency rooms, then that is the arena where lawyers and judges do surgery.  But, only 1-3% of all legal disputes end up in ‘surgery’.  What does the Chief Justice have planned for 97% of all the other legal disputes?  Nothing!  Chief Justice Paul J. De Muniz says not one thing in his 2010 annual report about Alternate Dispute Resolution systems --  Arbitration, Mediation, Neighborhood Dispute Resolution systems, Consensus building, etc., etc.  His entire report is centered on all the money (a half billion dollars) the Justice Department spends on bricks, mortar and trial court staff salaries. 

       Arbitration  --  My father came to America after the turn of the century and following a stint at logging became an automobile mechanic.  After awhile he started up his own shop.  In his quest for a successful business he bought the 1911 version of the “New (sic) Standard American Business Guide”, Hertel, Jenkins & Co.  At page 184 there is a chapter on Arbitration with forms underneath a picture of Abraham Lincoln where it says:  “Think twice before you sue your neighbor.”

       So, what has God and Country done for you in the way of resolving disputes through arbitration since 1911?  Quite a lot really.  There is court diverted arbitration.  There is statutory arbitration required, for example, on disputes with contractors.  There are any number of private arbitration companies.  Some cities have public arbitration forums. There are legions of arbitrators willing to work for the good of the order or at much reduced cost than a judge.  Arbitration is a good thing. 

Only, Chief Justice Paul J. De Muniz wants to go backwards.  He is proposing an Expedited Civil Jury Case program where you go directly to a jury, dispensing with all these troublesome discovery and legal motion issues.  While explaining the details of his new program he states that “…cases eligible for the program will not be subject to arbitration…”.  He is doing away with a successful court diverted arbitration program which, as a practical matter, is normally where cases headed for the civil jury sustem are resolved early at minimal cost.

Why is he going backwards?  Because he is shooting from the hip and he did not consult with you or me in the process.  He is going backwards just as surgeons are trained for surgery actually like to do those procedures.  Citizens want the friendly confines of arbitration rather than the intimidating and expensive trappings of a jury/court scenario to resolve cases on the fast track.

THE NEXT FIVE WEEKLY ARTICLES ARE DEVOTED TO ANALYZING THE FIVE GOALS OF THE SUPREME COURT’S 2009-2013 STRATEGIC PLAN mentioned above.   Bulletins has a better plan than the Supreme Court.  These next five articles will point out clearly where and why.  STAY TUNED!