Oregon State Bar Bulletin — MAY 2005

Letters

Ode to Saint Ivo
I have recently learned that Saint Ivo of Kermartin is the patron saint of lawyers. A feast is held to him each May 19.

Ivo was the lucky recipient of the best legal education available to Bretons in the 14th century. Time did not serve him well however, and the stress of his work took its toll. He wore a hairshirt, abstained from meat and wine, fasted during Advent and Lent, and slept on a mat with either a stone or a book for a pillow (maybe this is the origin of "Iíll sleep on it").

Ivo had ethics. He is undoubtedly deserving of recognition for his pro bono work. He was known as the poor manís advocate and refused to take bribes. He was an early disciple of ADR ó often encouraging out-of-court settlements. As a result, a nursery rhyme was created in his honor. Purportedly it rhymes in Latin:

Saint Ivo was a Breton and a lawyer
But not dishonest
An astonishing thing
in peopleís eyes.

He was also a priest, and he opened a hospital for the poor (obviously lawyers were type A people seven centuries ago also). He was kind and generous and oft taken with caring for the down trodden. He was known to be able to feed hundreds from a single loaf of bread.

St. Ivo is typically depicted as a lawyer enthroned between rich and poor litigants, an angel at his head and a lion at his feet.

I doubt CLE credit will follow for this, but I encourage all lawyers to take a moment of thought on May 19 in honor of our patron saint.

Deanne L. Darling
Clackamas County Circuit Court
Oregon City

In Support of Salem
I read with interest the piece written by my former classmate, Frank H. Hilton Jr. ("Building for the Future," February/March 2005), regarding the probable need to construct a new bar center. What prompted me to write was Frankís comment that: "While the Hillsboro area offers some big bargains, the location does not appear to work for our membership. Moving back to the central metro area may work."

I assume the reference to "our membership" includes all members of the bar and not just those who reside in Portland. Perhaps if a new bar center is necessary, the Board of Governors would consider a more central location so that all of the membership has easier access to it. Perhaps Salem would be a good spot.

Jerry O. Lesan
Coos Bay

Ö or Wilsonville?
I read the article about moving the OSB offices to a new location. I remember many, many discussions about this before the move to Kruse Way. A major reason for that location was to put the office farther south along I-5 to make it more accessible to us downstate lawyers who travel north for various bar functions. The Portland metro area lawyers also were tired of fighting downtown traffic every time they went. It was only convenient for the few lawyers who had offices in the downtown area and even then, the drive down the freeway to Kruse Way was in many cases just as easy as a cross-town drive. The idea was to get away from Portland traffic as much as possible and the Kruse Way location has been a success in helping with that.

The article suggests perhaps a consideration of some downtown Portland location. Donít even consider that. OSB governors should be looking at a location farther south along I-5 ó perhaps Wilsonville area ó maybe half way between Salem and Portland. Better prices on farm land and room to grow.

Steve Hutchinson
Eugene

Opportunity for Trouble
I write in response to the article "A Senior Duty" by Richard J. Vangelisti (February/March 2005).

Mr. Vangelisti urges that a duty be imposed on Oregon lawyers, similar to the existing duty pertaining to child abuse reporting, to report suspected elder abuse.

I disagree with Mr. Vangelisti. Rather than impose an additional reporting requirement on Oregon lawyers, the existing requirement that Oregon lawyers report suspected child abuse should be eliminated.

Given the existing exemption for attorney-client privilege and information obtained in connection with the representation of a client where such a report could be to the detriment of the client, the existing reporting requirement is worthless except to the extent that it imposes a MCLE requirement on lawyers.

Mr. Vangelisti mentions "financial abuse" in his article (page 18, last paragraph). What is that? The reporting obligation Mr. Vangelisti advocates would simply create another opportunity for aggressive lawyers to cause trouble for other lawyers by complaining that reports should have been made.

Peter M. Appleton
Salem

Originalism v. Traditionalism
Barry Adamsonís assertion that Measure 36 represents a mere "confirmation" of the current meaning of Oregonís constitution (Parting Thoughts, February/March 2005) represents an odd form of constitutional cowardice that argues against, rather than in favor of, the amendment. If Mr. Adamson is so confident that the constitution so clearly means what he says it means, why is he unwilling to risk it in front of the Oregon Supreme Court?

If Measure 36 changes nothing, thereís no need for it. If it changes something, there needs to be an open and public debate about what.

Among the many sophistries in Mr. Adamsonís column, the worst is the idea that a "law passed" can only mean a law passed after the enactment of the Constitution. That runs contrary to hundreds of years of state and federal constitutional understanding. By that logic, the formulation in the First Amendment "Congress shall make no law" means that any censorship laws passed before 1789 would be perfectly constitutional. Under similar reasoning, since the First Amendment was incorporated to the states long after the common law of libel was developed, New York Times v. Sullivan is wrong, because the pre-existing common law isnít subject to the First Amendment. Constitutions, by their very nature, apply retroactively.

The pages of this magazine are no place to enter into a debate on constitutional originalism versus translation, but at least the idea that the voters of Oregon need to pass an amendment to "confirm" what the state constitution already says can be dispatched with alacrity.

Paul Gowder
Alexandria, Va.

Just the Facts
I read with interest Richard Vangelistiís article (Parting Thoughts, April 2005) regarding the rights to jury trials. I, too, am bothered by political interference with the judiciary, but in a broader sense, not limited solely to concerns regarding preserving the right to jury trials.

However, with respect to Mr. Vangelistiís concerns, as the quote from the Seventh Amendment stated, no fact tried by a jury shall be re-examined. I suspect that itís the interpretation of whether a jury is making factual determinations that lies at the heart of my disagreement with Mr. Vangelistiís message.

When a jury makes a finding as to an amount for exemplary damages, it is not finding a fact. It is making a value judgment: what amount of money should the defendant pay as punishment, or what amount will deter such conduct in the future. Employing the Eighth Amendment, the courts are now holding that excessive punitive damage awards violate due process protections. Presumably, the U.S. Supreme Court does not view itself as violating the Seventh Amendment in finding that juries give impermissible punitive damage awards. Instead, they recognize, at least implicitly, that juries can be swayed by emotion in making such findings and are not making them based upon factual considerations.

Furthermore, most legislation seeking to limit damages generally seeks to cap non-economic damages ó the very type of damages that are not fact-specific. These types of awards are often mitigated on appeal, despite constitutional prohibitions against reviewing a juryís findings of fact. Most often, the courts of appeal find that there was no or insufficient evidence to support the juryís award. Whether that is a distinction without merit, Iím not sure I can say; it probably depends on each caseís facts. However, this type of check on awards which may have been given on improper grounds, in my opinion at least, is preferable to having the legislators make these decisions. As lawyers, regardless of how you felt about the moral issues, we should all have been appalled at Congressí attempt to dictate the outcome of the Schiavo case by monkeying with federal court jurisdiction. Lawyers and citizens alike are better off having qualified, experienced jurist review a juryís findings upon the full record than having such determinations made in advance by Congress.

In summary, Mr. Vangelisti should be applauded for voicing his concern about preserving citizensí rights to trial by jury. However, I believe he does a disservice to his argument by couching the danger in economic terms, as it calls into question the motivation for his concern. Rather, the right to have juries make determinations as to factual disputes must be preserved as a matter of principle, not because we fear for the outcome of certain types of cases.

Todd H. Tinker
Eugene


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