BULLETINS FROM ALOHA

 How does the Supreme Court of Oregon rate with the other Top Courts of the fifty (50) states of the Union?  The  report card is in.  The Supreme Court of Oregon would get a spanking if the report card were shown to their parents.  Out of all fifty (50) states, Oregon's Supreme Court is fourth from the bottom in productivity.  Worse, the Supreme Court of Oregon is the least influential court in the nation save Oklahoma and Texas.

In a May, 2008 study by the University of Chicago Law School (Chicago), the Oregon Supreme Court rates at the bottom of the barrel in both the number of written judicial opinions per justice and the number of times Oregon Supreme Court opinions are cited by other state courts.   This definitive study entitled "Which States Have The Best (and Worst) High Courts?", authored by Professor Eric A Posner, advances the methodology of previous studies of state high court performance.

Previous state high court studies have followed a myriad of methodologies.  The annual U.S. Chamber of Commerce (Chamber) study asks senior lawyers at corporations that earn more than $100 million per year to grade their state court systems using an A to F rating.  A 2007 study by Dear & Jesson (Dear) focuses on how often a high court's written opinion is cited as authoritative by other state high courts.   The Chicago study opines that the Chamber method might give high marks to state courts that decide cases in a manner that businesses like, ---rejecting punitive damages, for example.  

The results of these studies can be used by legislatures to criticize or praise their judiciaries;  ask for reform or use the ratings to decide on the appropriate compensation for state court judges.  Business friendly high courts could be used to attract out-of-state business.   The report states that "...public institutions that are not carefully monitored and evaluated will rarely have strong incentives to perform well."

Productivity  -- The productivity ranking refers to the number of written opinions a judge/justice publishes in a year.  The Chicago study states that publication rates provide an objective measure of individual judge effort and also shares that judicial  legal reasoning with the parties and the public.  Given that the practice of law is based on an individual lawyer's ability to predict what a judge is likely to do in a given fact situation, the more a state lawyer knows about how the state high court reasons the better.

Rating:    The most productive state high court was Georgia whose high court issued 58 opinions per judge per     year. The median was Kansas which issued 23 opinions per judge per year.  Oregon issued 12 written opinions per judge per year and ranks 47th in productivity or almost at the bottom of all fifty states.  

Influence (or Opinion Quality) -- This ranking refers to the quality of the reasoning in an opinion.  It is done by proxy.  This method measures the sum of all citations to Oregon Supreme Court cases by other state high courts, federal courts and the U.S. Supreme Court.  The study reasons that a high-quality written opinion is more likely to be useful for out-of-state courts and therefore more likely to be cited by those other courts as authoritative on a particular legal subject.   Once again these well reasoned opinions help lawyers across the land predict outcomes for their clients.  

Rating:    California was the most-cited court with 34 outside citations per judge/justice per year.  The median was South Dakota with 13 outside citations per judge/justice per year.  Oregon was at the bottom (48th) with
less than 7 outside citations per judge/justice per year.  

To download the study go to  --   www.law.uchicago.edu/Lawecon/index.html

We may know now why the Supreme Court of Oregon eschews judicial evaluations.

This is a roadmap for the ordinary Oregon lawyer to effect change.  The real power at the State  of Oregon Bar (SOB) lies where?  Give up?  No, it is not with the Executive Director (who is retiring at the end of this year).  Nor with the President of the Oregon State Bar.  Not even with the Chief Justice of the Supreme Court of Oregon.  The real power of the SOB lies with the Sections and Committee groups along with local bars.  Let me explain why.

The Power  --  The manifest  heartbeat of the Oregon State Bar is located at the twenty Committees and forty Sections of the Bar.  (Sections are supposed to assist the Bar Board of Governors (BOG) in policy-making while Committees are intended to sharpen lawyer subject-matter skills.)    There are about one thousand (1,000) of you in Bar Sections/Committees.   This dwarfs the sixteen members of BOG, the one hundred members of the House of Delegates and the twenty local county bar organizations.   Enthusiasm resonates at the Sections/Committee level and with many of the local bars. 

Judicial Evaluations  --   As previously reported, in 2004 the Oregon State Bar Board of Governors decided to implement a statewide judicial evaluation program in Oregon to begin in 2007.  In 2005, the American Bar Association voted unanimously  that each state in the United States should have a statewide judicial evaluation program.   The ABA developed black-letter guidelines and a package of evaluation forms all available on the internet.  In 2006, under Dennis Rawlinson's leadership, the Oregon State Bar Board of Governors yielded to political correctness and timidity and decided not to have judicial evaluations in Oregon.  

Practical Magic  --  Well guess what folks, there already IS a user friendly statewide judicial evaluation program for Oregon on the internet.  It is located at ---therobingroom.com.  Here is how to use it:

    1.  Put   ---therobingroom.com  --  in the address bar.

     2.  Scroll down the left side and click on 'Oregon'.

    3.  A map of Oregon will appear and click on your county directly on the state map.

    4.  A list of your county judges will appear.  Click on 'rate this judge'.

    5.  Follow the instructions and provide comments if relevant.

Potential Power to Implement Judicial Evaluations in Oregon:  Phase 1.  Individual Oregon lawyers can begin evaluating your local judges now at this internet site.  Phase 2.  The Section/Committee chairs could alert their organizations about this judicial evaluation opportunity now.  Phase 3.  Local bar presidents could obtain the ABA judicial evaluation program and implement the entire comprehensive judicial evaluation program in their counties during the next year.  Phase 4.  Each Section/Committee chair and local bar president could alert their local media of the judicial evaluation results before the next local election cycle.   Moral of the story  --  All of us should be judged fairly if we are judged at all.  

It has been pointed out to me that I identified the wrong judge in my May 13, 2008 tome on judicial evaluations.  I meant to identify Multnomah County Circuit Court Judge Robert P.  Jones in the fourth paragraph.  Thank you readers for that information. 

The Honorable Sandra Day O'Connor

Supreme Court of the United States

One First St. NE, Washington D.C. 20543

Dear Justice O'Connor:

     I read with interest the entreaty for citizen involvement to save our courts in your article in Parade last month (2/24/08).  Is this a two way street?  The reason I ask is because I have written to Justice Ginsburg and Chief Justice Roberts on pertinent parallel issues plaguing our courts with no response.  Those letters are enclosed.  You look at these matters from the top down.  My view is from the bottom up.  Way at the bottom.

      To Justice Ginsburg:      I wrote to her in 2006 that judges in Oregon have no accountability.  Indeed, a 2004 proposal for statewide evaluations of trial court judges by the Oregon State Bar Board of Governors, on which I served, was killed two years later by political correctness and lack of enthusiasm by Oregon's Supreme Court.  You state that "...the long term solution to the politicization of the judiciary process is education".  The primary proponent of Oregon's statewide judicial evaluation program was the public member (nonlawyer) on Oregon Bar's Board of Governors , who was an educator.  His reasoning for a statewide judicial evaluation program in Oregon was that the public would have a tool to make an informed vote at the polls if there were  regular written judicial evaluations of the judges to draw from.  There is already a judicial evaluation program in Oregon for administrative law judges.  Why should it be any different for trial judges?

      To Chief Justice Roberts:     Having recently discovered that judges (and justices) often rule, even in de novo cases, without having read the submissions by the lawyers, nor the cases, nor the record;  I protested to the Oregon Supreme Court.  They answered me not.  I then protested to Chief Justice Roberts in 2007 and he did not respond.  This problem is rampant at the trial court level, in the Ninth Circuit and at your level.  There is a simple remedy.  Each judge (and justice) should affirm in writing before any ruling that they have read the submissions by the lawyers, the record and the cases cited.  This would prevent a judge  from 'winging it' and gain the respect of the public for the rule of law and our judiciary. 

     My experience is unique.  I have physically worked in every geographical subdivision of the United States as a lawyer.  As a lawyer I have been responsible for complex litigation across the entire country ending up as a senior officer of a major corporation on Wall Street before entering private practice.  In those thirty years I can affirm that judges (and justices) do not follow the rule of law.  Indeed, it is observed that Justice Clarence Thomas does not even believe in stare decisis;  that he follows natural law which is not the same as your requirement to follow common law.  See Jeffrey Tobin The Nine, Page 102 (2007).  One need not even mention Bush v. Gore. 

     In your article you state that politics is threatening the rule of law in the U.S. today.  It is worse than that.  Regardless of politics, judges are not following the rule of law at any level of our dysfunctional legal system.

     Leaders in our profession treat the unwashed lawyer at the ground level like pip-squeaks.  This week Admiral Fallon resigned as the top military leader responsible for Iran among other CENTCOM countries.  It is reported that his departure occurred because he stood in the way of President Bush attacking Iran now.  In 1953, Kermit Roosevelt along with our CIA under Allen Dulles and President Eisenhower caused a coup to overthrow the democratically elected prime minister of Iran, Mohammad Mossedegh.  Britain's Lord Fraser, First Lord of the Admiralty, in promoting this unfortunate coup to protect their oil concession declared that Britain would not tolerate "...being pushed around by Persian pip-squeaks."   The United States and Britain have paid dearly for not adhering to the rule of law and democratic principles when it comes to dealing with pip-squeaks.

     Mohammad Mossedegh is now viewed as a visionary  who favored democracy and who was opposed to dictatorial rule according to the most knowledgeable historical commentators.  Stephen Kinzer, All The Shah's Men, Wiley Press, (2008)   President Truman paid attention and supported Mossedegh.  President Eisenhower did not pay attention and deferred to the Dulles brothers who had an agenda of their own in deposing him.  President Eisenhower should have paid attention. 

      Thank you for your interest in these matters.

Very truly yours,

Lauren Paulson
 

State court judges in Oregon are not accountable to the public (except at this blog site), but at least they are elected.  This means the public could throw them out of office (including the Supreme Court justices of Oregon) if there was any way for the public to determine (which there isn't) if they are doing a good job or not.   Federal judges are not even elected;  they are appointed by the likes of President Bush.  At great risk to life and limb, Oregon's federal court judges are evaluated here.

     Most litigation in Oregon is carried out in the Oregon state court system.  Last year over 600,000 cases were filed in the state court systems of Oregon located in twenty five (25) districts around the state.  Oregon's federal court has four subdivisions located in Portland, Medford, Pendleton and Eugene.  The Chief Judge is Ancer Haggerty.  The Portland federal court is housed in the sixteen stories of dubious architecture known as the Mark O. Hatfield courthouse built at great expense to the taxpayers in 1996 and located downtown. 

     A highly respected Professor of Law at Northwestern School of Law at Lewis and Clark College, Ron Lansing, told eager law students a story about Oregon federal court judge Gus Solomon.  Appearing before him years ago as a private lawyer, Professor Lansing began his oral argument by stating that as to the particular legal point he was arguing, "...it was axiomatic that...."  Judge Solomon exploded.  He told lawyer Lansing that in his court nothing was axiomatic.  That harshness was replaced by kindly Judge Malcomb Marsh who, in a swearing-in ceremony in 1987, told us that Oregon federal court was now a kinder and gentler place to practice law from Judge Solomon's days.  Is that really so?

     First Impressions  --  In theory, litigation in federal court is conducted on a higher intellectual plane than in state court.  In filing my first civil rights case in Oregon federal district court I freely confess I did not know what I was doing.  Nervously appearing before Senior Judge Owen Panner on a preliminary motion, I was dismayed to observe that the gallery was peopled by a contingent of Northwestern School of Law students.  Judge Panner's clerk recited to the audience what the case and motions were about.  This clerk knew the case and the issues better than I did and it was my client's case.  Judge Panner then ascended the bench and told the gallery that the case had been "...well briefed by the lawyers..." and he would now hear oral argument.  First, the case had not been well briefed by me.  Second, I knew little of what I was talking about in oral argument before the good judge.  Following our cursory oral arguments, Judge Panner thanked each lawyer for doing such a good job and stated he would take the case under advisement.  The theater was over.  It was clear to me that the only person that knew what he was talking about in court that day was Judge Panner's law clerk. 

     Second Impressions  --  My second appearance on motions on another civil rights case was before Judge Ancer Haggerty.  Sadly, I was no more knowledgeable than on my previous escape.  The issue in this motion was whether federal court had jurisdiction.  I had no clue on the finer points of the question before the house.  Happily, my opposition attorney was from a large firm, but had sent a stand-in to argue the motion and he also had no clue about the issues nor the case.  Even more serendipitous, Judge Haggerty called on my opposition first, assuming he would know more about these abstruse issues that a yokel from the hinterlands.  The brief oral argument ended with no erudite admissions by anybody.  Again, the court took the case under advisement with no meaningful result.

     Following these desultory beginnings, I have had an opportunity to appear before a representative sampling of our best and brightest on the federal bench of Oregon with these thoughts:

1.  Malcomb F. Marsh  --  My first full, formal settlement conference was with Judge Marsh.  He was superb.  He was knowledgeable about the case, he was fair, even to a non-local, and the case settled largely due to his effort and skills.  Later, he proved equally adept at all aspects of the few cases I had before him.

2.  Owen M. Panner  --  He used to throw great parties in Bend before being elevated to the federal court bench.  I believe his legal skills are impressive, but my one appearance before him was not.

3.  James A. Redden  --  My unfortunate initiation into the true prevailing currents in Portland's federal district court began here.  I learned how the playing field for Portland's legal oligarchy is horribly slanted in favor of the rich and powerful.  More horrifying, I learned that legal precedent is not only ignored by those in power in federal court, but also that certain judges blatantly favor their cronies.  In my case before Judge Redden, the court's written opinion is plagerized directly and verbatim from my opposition's brief.  The only problem is that brief cites a case in support of a proposition that is nowhere stated in that case.  This mistake on a key point was repeated in the court's written opinion.  When I brought this grievous error to the court's attention I was unceremoniously blown off.  Most disappointing was that at the conclusion of my opponent's oral argument, Judge Redden stated he was prepared to rule.  The hitch was that I hadn't offered my oral argument yet...............

4.  Anna Brown  --  Here is a paradox.  In my initial research and encounter with Judge Brown, the word was that she would always be the most knowlegeable person in the courtroom about the facts and the law.  This I found to be true.  But, here is the rest of the story.  As with Judge Haggerty, I learned that one doesn't always get a fair shake from a federal judge who is the same gender or color as one's client.  That may be as it should be since we don't want bias in any courthouse.  What was odd was when Judge Brown went out of her way to be mean to my blue collar female client. 

Subsequently, I appeared before Judge Brown to save my historic office property from a taking by Washington County for a road widening project.  On these issues I was thorougly prepared.  Judge Brown began, as often happens, by wanting to hear from the opposition, County Counsel in this instance,  who she assumed would be fully prepared and conversant with the cases proffered by me.  He wasn't.  Judge Brown struggled as to how she could get around my winning arguments yet still rule for the government.  My office building on the National Register of Historic Places now stands deeply scarred by the road widening project as a result of her biased opinions.  How much of her full membership in the oligarchy colored her decisions is a question without an adequate answer nor a way of getting one unless she wants to 'fess up.  Oh yeah, Judge Brown's ruling saved the bland Plaid Pantry building across the street from any deep scars. 

     5.  Garr M. King  --  Since I am currently in litigation with him, I am loath to extrapolate.  Suffice it to say that on my first appearance before him on another matter, once again a federal court judge stated he was prepared to rule without hearing from the lonely non-Portland lawyer.  When I asked him "If I may be heard.....?", he replied, "no".  I documented this sorry episode in a letter of protest to him, to which he did not reply.  It was my short straw to get him again. 

     6.  Dennis Hubel  --  Even though I had an unfortunate experience with Judge Hubel resulting in him recusing himself, I believe that Judge Hubel is one of those rare persons in our business that has complete humility notwithstanding his high position.  One day while waiting for my case to be heard by him, I observed him address a series of criminal matters in progress before I arrived.  One had several prosecutors and several court-appointed attorneys battling it out on the issue of whether the prisoner would be released now or not soon.  There were multiple complex arguments on both sides and at one point Judge Hubel asked the parties to wait while he went and studied a particular matter.  Emerging after the short hiatus, Judge Hubel explained his rationale for releasing the prisoner now.  I was quite surprised because the center of gravity seemed to be weighing the other way.  Once the defendant's attorney had finished, he sat down beside me to await a following matter.  We were casually discussing the pros and cons of the issues he had just argued before Judge Hubel and I expressed my mild surprise at the result.  This attorney generously observed that regardless of whether one represents the defense or the prosecution, one could always count on getting a fair result from Judge Huble. 

7.  John Jelderks  --  One of the nicest judges in this or any other courthouse.  A specialty of his is settling civil cases.  My cases have been the beneficiary of his process many times because he is the most effective settlement judge in Oregon Federal District Court.  Judges that excel in this underused track do not get the recognition they deserve.  Judge Jelderks is a stellar federal court judge and a credit to our system.

8.  Janice Stewart  --  Judge Stewart demonstrates that she cares about the litigants and their attorneys more than any other judge in her building in my experience.  She combines this quality with fair legal scholarship.  Like Judge Jelderks she is willing to put in that extra effort to help achieve settlement without the necessity of an expensive trial.  Judge Stewart is an impressive federal district court judge. 

9.  Michael R. Hogan  --  Another paradox.  Once again I experienced a judge who made up his mind before hearing from me and it was as palpable as it was in any case I have had before the federal court judicial line-up.  We lawyers are not dumb.  We can tell when a judge has already made up his or her mind before hearing from us.  Judge Hogan ill-conceals his biases.  Then he did a remarkable thing.  After his preconceived ruling, he immediately discerned the coming litigation train wreck that was going to arise thereby.  He appropriately discussed with the parties about a course that could be followed from here and nurtured a good result notwithstanding his prejudice.  His  benign handling of the case produced ultimate justice on all sides and one can't ask more than that. 

     Portland's federal court garish architecture is symbolic of our legal system.  It is bloated and egoistic.  Singularly offensive is the full floor balcony afforded to the chief judge which faces a beautiful view of Mt. Hood and the Willamette River to the east since it is on the top floor of this sixteen (16) floor building.  Stuffed on the south side on the eighth (8) floor is a tiny balcony for the public without a view.  Our federal courts serve the high and mighty, not the general, unwashed people of Oregon.  The distinguishing positive characteristic of the successful federal court judges seems to be a strong element of caring.  The distinguishing negative characteristic seems to be naked ego.