Louis Nizer, a famous trial lawyer from the past, tells the story that he became inspired to become a lawyer when he gazed through a courtroom door window and was taken by the majestic proceedings of a jury trial unfolding before his eyes. Most assume that if they have need for one, they are entitled to a jury trial. In fact, right there in Oregon's Constitution it states: "In all civil cases the right to a jury trial shall remain inviolate." (Art 1, Section 17) It ain't so. Under our legal system most of your civil rights may be taken from you without a jury trial.
Let's start with a simple example. There is no right to a jury trial when you get a divorce. A divorce is a civil case. When you die, all of your worldly assets may be taken from your heirs in probate court without a right to a jury trial. Probate proceedings are civil cases. But, here is the stunner. In Oregon, your local government can occupy your personal residence this afternoon without notice and without compensation. And without a jury trial. Condemnation proceedings are civil cases. Is this a far fetched example? No. In a Washington County road widening project in 2001, Washington County used this right of immediate possession to take Warren Kohler's home of over sixty years. The classic tudor home was on Washington County's Inventory of Cultural Resources for saving. The road was widened. This once-beautiful historic structure now sits forlornly, vacant and deteriorating at 170th Ave and Blanton St. in Aloha. The right of governmental immediate possession without due process of law and without a jury is a leftover from government's right in wartime to engage in wartime activities without legal niceties getting in their way. In the hands of capricious politicians and unsavory government leaders condemnation proceedings are a wicked weapon indeed. An Oregon Supreme Court Justice observed in one case that Marion County officials located in the state's capitol of Salem have the legal right to immediate possession of the Oregon Supreme Court Building if they wanted to under the present state of the law. No matter, the Oregon Supreme Court cares little about your right to a jury trial even though it is clearly stated in Oregon's Constitution.
There are more subtle ways in which our right to a jury trial is eliminated. If an injured party from an auto accident hires 'Whiplash Willie" to process his sore neck case it will likely end up before an arbitrator, not a jury. This is not necessarily a bad thing for several reasons. First, an arbitration is more efficient and less expensive to present on behalf of the injured citizen. Second, the result may be appealed and one may have a jury trial at last. More egregious is the use of Motions for Summary Judgment. This is the most common way of getting rid of a civil rights complaint. There is a cottage industry of downtown lawyers that make a very good living through this device. Let us say your employer paid you less because you are a woman even though your performance results and your seniority are the same as the men in the same supervisory position. The employer's attorney will engage your attorney in expensive discovery then file a Motion for Summary Judgment. Studies have shown that the woman has a 63% chance of having her case thrown out of court through the use of this Motion. The result is no jury trial. Federal judges often have little sympathy for civil rights issues, and are allowed to toss your case out of court, as they did with Mrs. Ledbetter, when a jury would likely arrive at a different result.
You are not entitled to a jury trial before Judge Judy on small claims court matters unless the claim exceeds a certain monetary amount. You are not entitled to a jury trial on landlord-tenant matters and in particular, evictions. I could go on.
Our constitutional guarantees are just so many rights blowing away in the wind. Meanwhile, our legal system just stands and watches in their sheltered surroundings.
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