LAW OUT WEST
LEGAL ROT
PREPARED FOR: Law School Deans
Dean Robert Klonoff -- Northwestern School of Law
Dean Peter V. Letsou -- Willamette School of Law
Dean Michael Moffitt -- University of Oregon School of Law
Date: Friday, April 26, 2013
From: Bulletins From Aloha--Lauren Paulson
QUESTION FOR THE LEGAL PROFESSION AND LEGAL COMMUNITY: What if the legal profession/legal community is as ethically and morally bankrupt as our financial community? Locally and nationally?
Executive Summary
Objective
The Objective of this report is to ask the Legal Community if the same corruption that visited the Financial Community beginning in the 1970’s has also infected The Legal Profession from top to bottom. What if such legal rot results in the absolute loss of Due Process and The Rule of Law to plain citizens?
Summary
There is a disconnect between what is being taught in Law Schools and what is really happening in the Courtrooms of America. In short, Law Schools teach through the Case Law Method. The Case Law Method, also known as The Common Law; requires lonely law students to read thousands and thousands of pages of case law. The goal of this law school teaching method is to drill into a student’s skull cap how case law works and how it is supposed to set The Rule of Law. It is a sham. Judges do not follow case law. Many judges follow Natural Law. The reality is that judges often do what they want without regard to case law or precedent -- contrary to what law students are taught. For example, one author has noted that U.S. Supreme Court Justice Clarence Thomas does “...not believe in stare decisis, the law of precedent.” Jeffrey Tobin, The Nine, Doubleday, 2007, Page 102
Solution
The Solution is simple. But, first the Legal Profession has to recognize that judges at all levels and throughout the United States brazenly ignore The Rule of Law and Due Process. A Formal, National System of Judicial Performance Evaluations (JPE) will shine a spotlight on the Rot of the Judiciary and provide a blueprint for a comprehensive solution found below.
It is absolutely essential to understand the difference between the Common Law and Natural Law to see what is going on.
Definitions Required for Further Reading:
The Law
COMMON LAW -- Law developed by judicial decisions. This is the Anglo-American legal tradition which adheres to the principle of stare decisis (“let the decision stand”). This doctrine holds that judges must look to past judicial decisions or Man-made legislated laws to answer the case before them presenting identical or similar questions. Kermit L. Hall, ed., The Oxford Guide to the Supreme Court, Page 197 (2005)
NATURAL LAW -- This is the philosophical doctrine holding that there is a certain order in nature that provides norms for human conduct. It proposes that people can grasp certain principles through practical reason divined by nature and God.
If a judge makes decisions based on instincts and subjective reasoning then the philosopher George Santayana would call that Man’s imitation of divinity. Will Durant, The Story of Philosophy, (1926-1961) Page 493
Judges Should Be Following the Common Law -- They aren’t.
24 JUDGES--one case
Aquinas conceived of what is now known as the laws of nature. The Laws of Nature so conceived are different from Man-made laws such as statutes and case law. Judges are required to follow Man-made laws which are known as The Rules of Law. We are supposed to be a country subject to The Rules of Law. Laws of Nature are different. When judges follow the Laws of Nature they are being “free agents”. They are not applying nor following the Laws of Man. Therefore, they are not following Common Law. They are not following the Law of Precedents otherwise known as stare decisis. STARE DECISIS Lat. "to stand by that which is decided." The principal is that the precedent (previous) decisions are to be followed by the courts. It is only through this predictability can lawyers knowledgeably advise their clients. Stare Decisis is missing in action in our present legal system. We are not a country subject to The Rule of Law when judges follow the laws of nature or do whatever they want when they want. Lawyers cannot knowledgeably advise clients if judges do not follow established case law. See below.
Laws of Nature should be left to those who discovered them in the first place: scientists. Laws of Nature should be left to those who discovered them in the first place: philosophers. Laws of human conduct i.e.., Man-made laws or statutory laws are made by legislatures. Laws of Nature are discovered by scientists and philosophers. Man-made Laws are supposed to be discovered and applied by judges based on decisions in previous cases. Once so discovered and applied, these laws are supposed to be followed by subsequent judicial rulings as precedent. The public cannot possibly know how to conduct themselves in the field of human affairs unless they can rely on judge-made law or Common Law from previous judicial decisions.
“Aquinas conceives the Laws of Nature which the scientist discovers as laws implanted in the very nature of things at their creation by God.” Mortimer Adler, Great Ideas, The Lexicon of Western Thought, Macmillan Publishing Company, Page 417(1952, 1992)
The problem is that the judiciary has decided that it is free to follow the Laws of Nature; that is, the laws divined by God, rather than the Common Law. In a word, judges have decided they are Gods and may follow their own instincts and do not have to follow Man-made law. This chaotic process started in your lifetime.
A REAL-WORLD ANALYSIS, From the Biggest Court to the Trial Courts
According to the Court, the statewide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter'") could not guarantee that each county would count the votes in a constitutionally permissible fashion.
The Court stated that the per curiam opinion's applicability was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
Analysis -- Consider for a moment if Chief Justice Taney had suggested such a thing in the Dred Scott decision of 1857. The worst U.S. Supreme Court decision prior to Bush v. Gore.
Consistent with the Common Law/Natural Law analysis above, the U.S. Supreme Court simply wanted to make a ruling from the gut instead of from the U. S. Constitution just as Justice Taney did a century and half before. Who are we kidding?
The reoccurrence of the U.S. Immigration problem since the 1986 fix is nothing more than a failure to enforce the 1986 law. “For 20 years our country has done basically nothing to enforce the 1986 legislation against either the employers who hired illegal immigrants or those who crossed our borders illegally to work for them.” Janet Napolitano, The Myth of Amnesty, The Washington Post (6/10/07)
In short, the law makers became the law breakers because nobody was following nor applying The Rule of Law.
Nationally.
2. THE NINTH CIRCUIT COURT OF APPEALS -- Has the Highest Reversal Rate of any Circuit (Roy E. Hofer, Supreme Court Reversal Rates, ABA Journal 2010) It has a reversal rate of 81%
A Court reversed 81% of the time....!? Consider the attorney, being asked by an erstwhile client, about the chances on appeal to the Ninth Circuit from the U.S. District Court of Oregon. Or any of the U.S. District Courts in the Western States?
It is so bad in the Ninth Circuit that there is a “....9th Circuit Watch.”
The Ninth Circuit Court of Appeals is regarded as a Rogue Court. Recently, Northwestern School of Law of Lewis and Clark College honored Ninth Circuit Court Judge Diarmuid O’Scannlain. Judge O’Scannlain has written about this problem where he “.....ponders ten years of reversals.”
Harvard Law & Policy Review (September 27, 2010) 14 Lewis & Clark Law Review 1558 (2010)
Analysis -- Why all these reversals? Because the Ninth Circuit does not follow the law. Let me be specific. For over thirty years, the Ninth Circuit has been using the wrong standard for Civil Rights cases. Nobody cares. Even the ACLU doesn’t care. Consider the case of Greg Lang. Intel fired him because he was black, gay and had AIDS. Greg Lang v. Intel Corporation, 112 F3d 516 (9th Cir. 1997)
Confirming the U.S. District Court’s toss of the case out of Court, the Ninth Circuit Judges said:
“We agree that, literally read, the language of district court misstates plaintiff’s burden at summary judgment.” Lang at 516
Never mind, Greg loses anyway. In essence, the Ninth Circuit is honoring the trial court’s ignorance of The Rule of Law by dishonoring it themselves. How can an attorney advise the client if the Courts openly, brazenly and illegally ignore precedent and the standard of law to be applied?
Foreclosure cases are complex and meet four corners of The Rule of Law. It could have been the judiciary’s finest hour. An actual examination reveals the opposite -- local judges are an embarrassment; from top to bottom. They do not know what they are doing when it comes to foreclosure cases.
Foreclosure cases mix four of the following complex areas of the law:
Let us take the local foreclosure case of Natache Rinegard-Guirma. No different than the rest of us, she wound up behind the eight-ball. Happily, Judge Michael Garr King of the U.S. District Court schooled himself on the applicable law, differentiated these four corners of the complexities of foreclosure law and reached a right result. Unfortunately, his magistrate judge (the junior-partner judge) does not have a clue. Thus, the magistrates’ erroneous rulings that have no foundation in the Common Law whatsoever and leaves Natache spinning in the wind three years later. Then she will probably have to run the gauntlet (?) in the Ninth Circuit depending on whether The Rule of Law intervenes again or remains absent at the trial court level.
It is no accident that former Chief Justice of the Oregon Supreme Court Paul De Muniz is retiring after only one term. The replacement is a political appointee.
Upon appeal, Oregon law requires the appellate lawyer to notify the County trial court administrator to get the entire trial court record and notify the Oregon Supreme Court accordingly. Then according to law which requires de novo review, (review of the entire trial court record including the recorded proceedings) the Oregon Supreme Court is then supposed to request the file from the Trial Court Administer. The Oregon Supreme Court is then supposed to review the entire record before rendering a decision.
They don’t. The Oregon Supreme Court renders formal decisions without reviewing the trial court record de novo as required by law. No wonder other state appellate courts pay no attention to Oregon cases.
At the crucial point of this foreclosure eviction, Ms. Steele’s mustered-forces asked.............asked the crucial, absolutely crucial question. “Where, your honor are the BLUE ink copies of my loan documents??????”
You could see the color drain out of the the judge’s visage. Pale. Wide eyes. Stammering. The good judge clearly did not know what to do. So, she did what any good judge would do. She called a halt to the proceedings, stepped off the bench and called Presiding Judge Nan Waller for what to do. The minutes went by. Everybody fidgeted. Ms. Steel had brought an entourage of her supporters into the proceedings, so there was an audience to this pathetic proceeding.
Finally, the good Judge Alicia Fuchs stepped back on the bench, announced that the bank did NOT have to produce original documents, announced that Annette Steele had lost, was going to be evicted, case closed.
Here is the problem. It is significant. Oregon’s constitution says many good things. One of the things it says, is that there may not be secret court proceedings. In other words, EVERYTHING MUST BE DONE in Open Court:
“Section 10. Administration of justice. No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” —Constitution of Oregon Article I, Section 10 (2012)
Now, we are talking about an Oregon judge not even following the Oregon state constitution, in addition to not following The Rule of Law requiring original blue ink copies in foreclosure cases. Judge Fuchs is barred by the Oregon Constitution from having a ‘secret‘ conversation with another judge during the pendency of Ms Steele’s trial.
If I haven’t convinced you yet let me yield to you two small further examples. Take Judge Ed Jones in the same state court as Judge Fuchs, telling litigants that he couldn’t deal with a particular foreclosure case, because he didn’t know much about foreclosure law and he punted. Want to know how pathetic? I have the video of this lamentable event, free for the asking.
Finally, I wrap up my case in eviction court. Where people’s lives are changed every day by the foreclosure catastrophe and we don’t even send them to a real judge. Neither do we help them with legal assistance (notwithstanding all the false self-accolades called ‘pro bono’ help. The website is funded by Bank of America. It is a fiction. Legal Aid for poor folks is a fiction in Oregon.) While Oregon law leadership yawns and watches. Mute. And holds another award event. For a fine politically connected lawyer ‘leader’.
THE EVICTION SAFETY NET ~ EVICTION COURT
Any way you look at it; you don’t want to be there. Eviction Court. First floor of the Multnomah County Courthouse. It is a desultory place. The welcome mat is not there for you.
To get in you have to get naked. Well almost. There is a gauntlet of ten (10) uniformed Sheriff/search/security people there to ensure you don’t bring in a bazooka. I counted them. Ten. Uniformed. Most have their ample arms crossed, gabbing.
Here are the things I had to take off to be sure I did no harm. Shoes, wrist watch, belt, computer, keys, telephone, coins...and so on.
But, get in there I did only to have my heart torn out. As I walked into room 120, there was something already going on. A well-quaffed middle-age woman at one counsel table, an older, skinny woman with unkempt hair at the other. It seems that my hero had not gotten her mail. (When one is evicted, getting mail is an uncertain thing). Thus, the landlord threw her personal property away, but the tenant had not gotten notice-------because she had not gotten her mail. The Referee -- they are not real judges, said, “So sad, too bad”. Yeah, but...........stuttered the aged, skinny one, she did not know the consequences and was out of touch trying to get housing somewhere. All her belongings gone.
When the reality sank in, the skinny one began to cry. No one cared. Case closed. Having just got there, I was adjusting to my surroundings and lost touch with the aged one as other cases got called.
A REPUGNANT, SAD SCENE
The winners and losers (1% v. 99%) are very obvious. The diverse tenants are on tenterhooks; pins and needles even. The landlords or their representatives have seen it all before and are smug, joking with each other. The Referee too.
BUT THERE IS EVEN A WORSE SCENE
A knot of three or four have ties on. They mill in and out, full of themselves. You know the types. They are all whispering at the Judge’s bench, smiling, looking out at the audience from time-to-time. There is a woman with five to ten files in her crooked arm sitting front and center. She, it turns out, is the legal assistant for the three or four lawyers in the room. All smiling. All looking confident. Chatting amiably.
THE SKINNY ONE AGAIN
I had all but forgotten about the aged one by now as I went out into the hallway. I hadn’t seen her from the front, but immediately recognized her from the hair askew as she walked by. On impulse, I asked her if she knew about Legal Aid Services of Oregon located on 921 Washington St., nearby. She looked at me with beseeching eyes and asked “............isn’t it too late?? Now, I got a good look at her.
IS THIS WHAT THE SAFETY NET LOOKS LIKE?
She was literally crushed. She was Sad beyond description. Devastated. Lost. I stammered that maybe something could be done, like an appeal. She fell almost onto my shoulder, streaming grateful tears. Her countenance and aged face are from The Grapes of Wrath. Beautiful in some sort of way. But, so torn apart. So very sad. Crushed. Her lined face contorted; eyes drowned by tears.
Eviction Court in Portland, Oregon. Any weekday.
CONCLUSION
"Thirty years ago if you were looking to get on the escalator to upward mobility you went to business or law school. Today the law school escalator is broken."
WILLIAM D. HENDERSON, a professor of law at Indiana University, on the declining number of applications to United States law schools.
The drastic drop in law school applications and enrollment has plunged law school administrations into soul-searching debate about the future of legal education and the profession over all. New York Times, 1/31/13 In a current Lewis and Clark article with this subheading: “Preparing Students for the Real World”
.....Bobbie Hasselbring reports:
“It’s no secret that the current job market for attorneys is challenging.” The Lewis and Clark Chronicle Magazine, Winter 2013, Page 35
Law Schools are defrauding the public if they do not teach the realities of the Market Place.
The solution to the due process problem was identified in 2005 by the American Bar Association (ABA). The ABA produced a comprehensive program of judicial performance evaluations.
In 2006, the University of Denver produced a complete template for installing a formal performance evaluation program for judges in every state.
Thus far, almost half of the states have done so. Oregon is lagging. Lagging badly.
Where in the wide-wide world is the Oregon legal community’s leadership? by Lauren Paulson c2013
PREPARED FOR: Law School Deans
Dean Robert Klonoff -- Northwestern School of Law
Dean Peter V. Letsou -- Willamette School of Law
Dean Michael Moffitt -- University of Oregon School of Law
Date: Friday, April 26, 2013
From: Bulletins From Aloha--Lauren Paulson
QUESTION FOR THE LEGAL PROFESSION AND LEGAL COMMUNITY: What if the legal profession/legal community is as ethically and morally bankrupt as our financial community? Locally and nationally?
Executive Summary
Objective
The Objective of this report is to ask the Legal Community if the same corruption that visited the Financial Community beginning in the 1970’s has also infected The Legal Profession from top to bottom. What if such legal rot results in the absolute loss of Due Process and The Rule of Law to plain citizens?
Summary
There is a disconnect between what is being taught in Law Schools and what is really happening in the Courtrooms of America. In short, Law Schools teach through the Case Law Method. The Case Law Method, also known as The Common Law; requires lonely law students to read thousands and thousands of pages of case law. The goal of this law school teaching method is to drill into a student’s skull cap how case law works and how it is supposed to set The Rule of Law. It is a sham. Judges do not follow case law. Many judges follow Natural Law. The reality is that judges often do what they want without regard to case law or precedent -- contrary to what law students are taught. For example, one author has noted that U.S. Supreme Court Justice Clarence Thomas does “...not believe in stare decisis, the law of precedent.” Jeffrey Tobin, The Nine, Doubleday, 2007, Page 102
Solution
The Solution is simple. But, first the Legal Profession has to recognize that judges at all levels and throughout the United States brazenly ignore The Rule of Law and Due Process. A Formal, National System of Judicial Performance Evaluations (JPE) will shine a spotlight on the Rot of the Judiciary and provide a blueprint for a comprehensive solution found below.
It is absolutely essential to understand the difference between the Common Law and Natural Law to see what is going on.
Definitions Required for Further Reading:
The Law
COMMON LAW -- Law developed by judicial decisions. This is the Anglo-American legal tradition which adheres to the principle of stare decisis (“let the decision stand”). This doctrine holds that judges must look to past judicial decisions or Man-made legislated laws to answer the case before them presenting identical or similar questions. Kermit L. Hall, ed., The Oxford Guide to the Supreme Court, Page 197 (2005)
NATURAL LAW -- This is the philosophical doctrine holding that there is a certain order in nature that provides norms for human conduct. It proposes that people can grasp certain principles through practical reason divined by nature and God.
If a judge makes decisions based on instincts and subjective reasoning then the philosopher George Santayana would call that Man’s imitation of divinity. Will Durant, The Story of Philosophy, (1926-1961) Page 493
Judges Should Be Following the Common Law -- They aren’t.
24 JUDGES--one case
Aquinas conceived of what is now known as the laws of nature. The Laws of Nature so conceived are different from Man-made laws such as statutes and case law. Judges are required to follow Man-made laws which are known as The Rules of Law. We are supposed to be a country subject to The Rules of Law. Laws of Nature are different. When judges follow the Laws of Nature they are being “free agents”. They are not applying nor following the Laws of Man. Therefore, they are not following Common Law. They are not following the Law of Precedents otherwise known as stare decisis. STARE DECISIS Lat. "to stand by that which is decided." The principal is that the precedent (previous) decisions are to be followed by the courts. It is only through this predictability can lawyers knowledgeably advise their clients. Stare Decisis is missing in action in our present legal system. We are not a country subject to The Rule of Law when judges follow the laws of nature or do whatever they want when they want. Lawyers cannot knowledgeably advise clients if judges do not follow established case law. See below.
Laws of Nature should be left to those who discovered them in the first place: scientists. Laws of Nature should be left to those who discovered them in the first place: philosophers. Laws of human conduct i.e.., Man-made laws or statutory laws are made by legislatures. Laws of Nature are discovered by scientists and philosophers. Man-made Laws are supposed to be discovered and applied by judges based on decisions in previous cases. Once so discovered and applied, these laws are supposed to be followed by subsequent judicial rulings as precedent. The public cannot possibly know how to conduct themselves in the field of human affairs unless they can rely on judge-made law or Common Law from previous judicial decisions.
“Aquinas conceives the Laws of Nature which the scientist discovers as laws implanted in the very nature of things at their creation by God.” Mortimer Adler, Great Ideas, The Lexicon of Western Thought, Macmillan Publishing Company, Page 417(1952, 1992)
The problem is that the judiciary has decided that it is free to follow the Laws of Nature; that is, the laws divined by God, rather than the Common Law. In a word, judges have decided they are Gods and may follow their own instincts and do not have to follow Man-made law. This chaotic process started in your lifetime.
A REAL-WORLD ANALYSIS, From the Biggest Court to the Trial Courts
- THE UNITED STATES SUPREME COURT -- Equal Protection Clause -- Bush v. Gore
According to the Court, the statewide standard (that a "legal vote" is "one in which there is a 'clear indication of the intent of the voter'") could not guarantee that each county would count the votes in a constitutionally permissible fashion.
The Court stated that the per curiam opinion's applicability was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."
Analysis -- Consider for a moment if Chief Justice Taney had suggested such a thing in the Dred Scott decision of 1857. The worst U.S. Supreme Court decision prior to Bush v. Gore.
Consistent with the Common Law/Natural Law analysis above, the U.S. Supreme Court simply wanted to make a ruling from the gut instead of from the U. S. Constitution just as Justice Taney did a century and half before. Who are we kidding?
The reoccurrence of the U.S. Immigration problem since the 1986 fix is nothing more than a failure to enforce the 1986 law. “For 20 years our country has done basically nothing to enforce the 1986 legislation against either the employers who hired illegal immigrants or those who crossed our borders illegally to work for them.” Janet Napolitano, The Myth of Amnesty, The Washington Post (6/10/07)
In short, the law makers became the law breakers because nobody was following nor applying The Rule of Law.
Nationally.
2. THE NINTH CIRCUIT COURT OF APPEALS -- Has the Highest Reversal Rate of any Circuit (Roy E. Hofer, Supreme Court Reversal Rates, ABA Journal 2010) It has a reversal rate of 81%
A Court reversed 81% of the time....!? Consider the attorney, being asked by an erstwhile client, about the chances on appeal to the Ninth Circuit from the U.S. District Court of Oregon. Or any of the U.S. District Courts in the Western States?
It is so bad in the Ninth Circuit that there is a “....9th Circuit Watch.”
The Ninth Circuit Court of Appeals is regarded as a Rogue Court. Recently, Northwestern School of Law of Lewis and Clark College honored Ninth Circuit Court Judge Diarmuid O’Scannlain. Judge O’Scannlain has written about this problem where he “.....ponders ten years of reversals.”
Harvard Law & Policy Review (September 27, 2010) 14 Lewis & Clark Law Review 1558 (2010)
Analysis -- Why all these reversals? Because the Ninth Circuit does not follow the law. Let me be specific. For over thirty years, the Ninth Circuit has been using the wrong standard for Civil Rights cases. Nobody cares. Even the ACLU doesn’t care. Consider the case of Greg Lang. Intel fired him because he was black, gay and had AIDS. Greg Lang v. Intel Corporation, 112 F3d 516 (9th Cir. 1997)
Confirming the U.S. District Court’s toss of the case out of Court, the Ninth Circuit Judges said:
“We agree that, literally read, the language of district court misstates plaintiff’s burden at summary judgment.” Lang at 516
Never mind, Greg loses anyway. In essence, the Ninth Circuit is honoring the trial court’s ignorance of The Rule of Law by dishonoring it themselves. How can an attorney advise the client if the Courts openly, brazenly and illegally ignore precedent and the standard of law to be applied?
- U.S. DISTRICT COURT -- Granted, hard (difficult) cases make bad law. Foreclosure cases are a perfect example. The ‘foreclosure tsunami‘ that is sweeping across the nation, worse than a cholera plague; and is meeting the front lines of federal courts across the nation. There is even a website that is keeping up with all this called stop foreclosure fraud. You can locate all the 404 foreclosure cases filed in the U.S. District Court of Oregon here.
Foreclosure cases are complex and meet four corners of The Rule of Law. It could have been the judiciary’s finest hour. An actual examination reveals the opposite -- local judges are an embarrassment; from top to bottom. They do not know what they are doing when it comes to foreclosure cases.
Foreclosure cases mix four of the following complex areas of the law:
- Real Estate law governed by case (judge made) law.
- Commercial law governed by the Uniform Commercial Code (statutory law) pertaining to commercial contracts.
- Commercial law governed by the law of Security Interests (statutory law) pertaining to liens and such.
- Real Estate law governed by statutory (legislative) enactments. The entire legislative new approach to real estate law begins with nonjudicial foreclosure laws. So the banks could get your stuff and your place without the delay and expense of judicial supervision. We all now see how well that worked.
Let us take the local foreclosure case of Natache Rinegard-Guirma. No different than the rest of us, she wound up behind the eight-ball. Happily, Judge Michael Garr King of the U.S. District Court schooled himself on the applicable law, differentiated these four corners of the complexities of foreclosure law and reached a right result. Unfortunately, his magistrate judge (the junior-partner judge) does not have a clue. Thus, the magistrates’ erroneous rulings that have no foundation in the Common Law whatsoever and leaves Natache spinning in the wind three years later. Then she will probably have to run the gauntlet (?) in the Ninth Circuit depending on whether The Rule of Law intervenes again or remains absent at the trial court level.
- STATE SUPREME COURT -- It is a well-kept secret that the Oregon Supreme Court is regarded as the absolute worst appellate court in the entire United States, save two. This report came in 2008 after an exhaustive, sophisticated study by the Chicago Law School. The criteria was simple. Did any other states follow Oregon appellate decisions? How productive was the Court: How many written decisions did the Court produce? Oregon ranked 48th and 49th in those comparisons.
It is no accident that former Chief Justice of the Oregon Supreme Court Paul De Muniz is retiring after only one term. The replacement is a political appointee.
Upon appeal, Oregon law requires the appellate lawyer to notify the County trial court administrator to get the entire trial court record and notify the Oregon Supreme Court accordingly. Then according to law which requires de novo review, (review of the entire trial court record including the recorded proceedings) the Oregon Supreme Court is then supposed to request the file from the Trial Court Administer. The Oregon Supreme Court is then supposed to review the entire record before rendering a decision.
They don’t. The Oregon Supreme Court renders formal decisions without reviewing the trial court record de novo as required by law. No wonder other state appellate courts pay no attention to Oregon cases.
- STATE TRIAL COURTS -- It will come as no surprise that the state trial courts take their cue accordingly. Staying on the theme of foreclosure; --Annette Steele is an impressive and formidable lady from the far end of town. She was undergoing the lamentable foreclosure meat grinder subjected on thousands of households locally; millions across the nation.
At the crucial point of this foreclosure eviction, Ms. Steele’s mustered-forces asked.............asked the crucial, absolutely crucial question. “Where, your honor are the BLUE ink copies of my loan documents??????”
You could see the color drain out of the the judge’s visage. Pale. Wide eyes. Stammering. The good judge clearly did not know what to do. So, she did what any good judge would do. She called a halt to the proceedings, stepped off the bench and called Presiding Judge Nan Waller for what to do. The minutes went by. Everybody fidgeted. Ms. Steel had brought an entourage of her supporters into the proceedings, so there was an audience to this pathetic proceeding.
Finally, the good Judge Alicia Fuchs stepped back on the bench, announced that the bank did NOT have to produce original documents, announced that Annette Steele had lost, was going to be evicted, case closed.
Here is the problem. It is significant. Oregon’s constitution says many good things. One of the things it says, is that there may not be secret court proceedings. In other words, EVERYTHING MUST BE DONE in Open Court:
“Section 10. Administration of justice. No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.” —Constitution of Oregon Article I, Section 10 (2012)
Now, we are talking about an Oregon judge not even following the Oregon state constitution, in addition to not following The Rule of Law requiring original blue ink copies in foreclosure cases. Judge Fuchs is barred by the Oregon Constitution from having a ‘secret‘ conversation with another judge during the pendency of Ms Steele’s trial.
If I haven’t convinced you yet let me yield to you two small further examples. Take Judge Ed Jones in the same state court as Judge Fuchs, telling litigants that he couldn’t deal with a particular foreclosure case, because he didn’t know much about foreclosure law and he punted. Want to know how pathetic? I have the video of this lamentable event, free for the asking.
Finally, I wrap up my case in eviction court. Where people’s lives are changed every day by the foreclosure catastrophe and we don’t even send them to a real judge. Neither do we help them with legal assistance (notwithstanding all the false self-accolades called ‘pro bono’ help. The website is funded by Bank of America. It is a fiction. Legal Aid for poor folks is a fiction in Oregon.) While Oregon law leadership yawns and watches. Mute. And holds another award event. For a fine politically connected lawyer ‘leader’.
THE EVICTION SAFETY NET ~ EVICTION COURT
Any way you look at it; you don’t want to be there. Eviction Court. First floor of the Multnomah County Courthouse. It is a desultory place. The welcome mat is not there for you.
To get in you have to get naked. Well almost. There is a gauntlet of ten (10) uniformed Sheriff/search/security people there to ensure you don’t bring in a bazooka. I counted them. Ten. Uniformed. Most have their ample arms crossed, gabbing.
Here are the things I had to take off to be sure I did no harm. Shoes, wrist watch, belt, computer, keys, telephone, coins...and so on.
But, get in there I did only to have my heart torn out. As I walked into room 120, there was something already going on. A well-quaffed middle-age woman at one counsel table, an older, skinny woman with unkempt hair at the other. It seems that my hero had not gotten her mail. (When one is evicted, getting mail is an uncertain thing). Thus, the landlord threw her personal property away, but the tenant had not gotten notice-------because she had not gotten her mail. The Referee -- they are not real judges, said, “So sad, too bad”. Yeah, but...........stuttered the aged, skinny one, she did not know the consequences and was out of touch trying to get housing somewhere. All her belongings gone.
When the reality sank in, the skinny one began to cry. No one cared. Case closed. Having just got there, I was adjusting to my surroundings and lost touch with the aged one as other cases got called.
A REPUGNANT, SAD SCENE
The winners and losers (1% v. 99%) are very obvious. The diverse tenants are on tenterhooks; pins and needles even. The landlords or their representatives have seen it all before and are smug, joking with each other. The Referee too.
BUT THERE IS EVEN A WORSE SCENE
A knot of three or four have ties on. They mill in and out, full of themselves. You know the types. They are all whispering at the Judge’s bench, smiling, looking out at the audience from time-to-time. There is a woman with five to ten files in her crooked arm sitting front and center. She, it turns out, is the legal assistant for the three or four lawyers in the room. All smiling. All looking confident. Chatting amiably.
THE SKINNY ONE AGAIN
I had all but forgotten about the aged one by now as I went out into the hallway. I hadn’t seen her from the front, but immediately recognized her from the hair askew as she walked by. On impulse, I asked her if she knew about Legal Aid Services of Oregon located on 921 Washington St., nearby. She looked at me with beseeching eyes and asked “............isn’t it too late?? Now, I got a good look at her.
IS THIS WHAT THE SAFETY NET LOOKS LIKE?
She was literally crushed. She was Sad beyond description. Devastated. Lost. I stammered that maybe something could be done, like an appeal. She fell almost onto my shoulder, streaming grateful tears. Her countenance and aged face are from The Grapes of Wrath. Beautiful in some sort of way. But, so torn apart. So very sad. Crushed. Her lined face contorted; eyes drowned by tears.
Eviction Court in Portland, Oregon. Any weekday.
CONCLUSION
"Thirty years ago if you were looking to get on the escalator to upward mobility you went to business or law school. Today the law school escalator is broken."
WILLIAM D. HENDERSON, a professor of law at Indiana University, on the declining number of applications to United States law schools.
The drastic drop in law school applications and enrollment has plunged law school administrations into soul-searching debate about the future of legal education and the profession over all. New York Times, 1/31/13 In a current Lewis and Clark article with this subheading: “Preparing Students for the Real World”
.....Bobbie Hasselbring reports:
“It’s no secret that the current job market for attorneys is challenging.” The Lewis and Clark Chronicle Magazine, Winter 2013, Page 35
Law Schools are defrauding the public if they do not teach the realities of the Market Place.
The solution to the due process problem was identified in 2005 by the American Bar Association (ABA). The ABA produced a comprehensive program of judicial performance evaluations.
In 2006, the University of Denver produced a complete template for installing a formal performance evaluation program for judges in every state.
Thus far, almost half of the states have done so. Oregon is lagging. Lagging badly.
Where in the wide-wide world is the Oregon legal community’s leadership? by Lauren Paulson c2013
No comments:
Post a Comment