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!