|Oregon State Bar Bulletin JULY 2006|
By Barbara Smythe
Oregon’s new chief justice wants to put together a deal he thinks could prevent disaster in his home state. And, like any deal-maker, he’s on a mission to persuade decision-makers statewide to take him up on his offer. "Associated Oregon Industries, the Hispanic National Bar Association, the Rotary, the Kiwanis, the Oregon Business Council… Ontario, Hermiston, Lake Oswego, Linn County…," he ticks off the names of groups and locales he’s visited, relentlessly promoting the partnership agreement he hopes to negotiate between Oregon’s judicial branch and the rest of the state. What the deal boils down to, as he’ll gladly tell anyone who will listen, is this: Oregon — and everybody who lives here — needs a strong, independent judiciary, and your judicial branch needs you.
"Courts are community problem-solvers," says De Muniz. "Business, labor, the mental health community, the public safety community…. Any group you can name has a stake in the strength and integrity of the judiciary," says De Muniz. "The most difficult problems of our society are laid at the steps of the courthouse."
Not only do the courts resolve problems, he says, but a strong judicial branch is essential to a functioning democracy and to Oregon’s economic health. "It may not be something Oregonians think about all the time, but they understand that our representative democracy works because we have three effective branches of government."
De Muniz has served on the court since 2001 and took over the duties of chief justice in January after being selected by a unanimous vote of his colleagues to succeed the retiring Wallace Carson, who had presided over the court since 1991. De Muniz is wasting no time in setting forth his ideas on the role of the judiciary and its constitutional responsibilities to the people of Oregon, a task De Muniz says is guided by three principles: "First, the judicial branch should be recognized as a prudent manager of resources. Second, the public and the other branches of government need to see us as solid producers of our work and as a department that treats litigants fairly and in a way that is timely, thorough and complete. Third, I hope we can enhance access to justice."
Gov. Ted Kulongoski, who sat on the state supreme court with the new chief before departing for Mahonia Hall, thinks De Muniz is the "right person at the right time" to lead a judicial advance while defending the courts from detractors. "Paul is a coalition-builder and is the calm, steady hand at the helm that the courts need. I think he will be very effective at driving the courts’ needs to the forefront. He has the skills to build a better understanding between government and its citizens as to why we must always protect the independence and integrity of our judicial branch of government."
The governor adds: "I’ve known Chief Justice De Muniz for over 25 years, as both a practicing lawyer and a jurist. No one should underestimate Paul’s abilities or determination." Apparently reflecting on the implications of that statement, he added, "Including…me."
Carson, who will retire from the court at the end of this year, agrees with Kulongoski’s assessment. He says De Muniz’ fellow justices elected him as the new chief because they believe he is the person who will be most able to provide the leadership that’s needed right now.
"Each chief gets to chart a course for the court," says Carson, who presided as chief for 14 years. "Chief Justice De Muniz has a lot of plans, and he’s going about achieving them in the right way."
SETTING A COURSE
The course De Muniz is charting has a lot to do with the implicit contract he sees between the public and its elected representatives in the legislative and executive branches of government, on the one hand, and the judicial branch, on the other: The judiciary solves problems and upholds the rule of law, while the public respects the judiciary’s authority and enables judges to do their jobs. A failure anywhere in the system threatens the entire arrangement.
In order to fulfill its side of the bargain, De Muniz believes the Oregon judicial branch currently needs help from the other two branches in a couple of specific areas: judicial compensation and court facilities. He points out that the National Center for State Courts ranks Oregon 49th in judicial pay and that a trial judge in Pendleton makes $30,000 per year less than a trial judge across the Columbia River in Walla Walla, Wash. Indeed, in some large firms, a first-year associate would likely earn more than a former partner who has accepted an appointment to the circuit court bench.
Judging from the Oregon Supreme Court’s 1914 building situated between State and Court streets in Salem, the Oregon Judicial Department is nothing if not careful with public resources. The chief justice’s third floor office is, well, not exactly partner-size. The elevator to it creaks and sways. Beyond the lockable door, there is no evidence of security and no receptionist. De Muniz’ office, however, proves deceptively hospitable, offering the choice of an overstuffed chair or a cozy sofa, and a view of the Capitol gardens.
His bookcases boast of the varied trophies of an interesting career and numerous long-held friendships: copies of books dedicated to him or in which he is mentioned; commemorative "commander coins" from his service on a Department of Defense committee (they’re supposed to protect you from the obligation to buy a round of drinks at an officers’ club, but De Muniz says he hasn’t tried them out); family photos; a copy of a U.S. Supreme Court opinion citing a law review article he wrote.
"I view judicial compensation not as a matter of our own self-interest," says De Muniz. "It’s a matter of the institution’s integrity. We need a rational, market-based system of compensation that allows us to compete for good lawyers from a broad range of backgrounds. It’s especially important for the trial court judges (who earn somewhat less than judges who sit on Oregon appellate courts)."
De Muniz hopes to win the trust of Oregon’s business community, which he sees both as essential to any successful effort to increase funding of the judicial branch and as vital clients of the legal system as a whole. Indeed, he appears to be on a one-man public relations campaign to educate business leaders about the relationship between a healthy court system and a healthy bottom line.
"Public law is important to business," says De Muniz. "Business people need to be able to assess risk and make decisions based on a predictable, available body of law. You don’t get that with private adjudication." To accommodate complex business cases, De Muniz has initiated the Complex Litigation Court, a pilot program in Lane County where complex business litigation matters are to be assigned to specific judges with relevant expertise. Until now, most members of Oregon’s judiciary have had no choice but to remain the ultimate generalists while the lawyers practicing before them have become increasingly specialized.
Multnomah Bar Association President Kelly Hagan welcomes both the prospective increase in judicial compensation and the idea of creating specialized courts to hear complex business matters. "Complex business law questions are increasingly becoming state court issues," says Hagan. "You can’t expect the same judge to handle a probation violation at eight o’clock, a domestic relations matter at nine o’clock and intellectual property litigation in the afternoon." Hagan adds, "Unless judges have experience in the relevant areas, they aren’t going to generate the consistent body of law that the courts need to create."
De Muniz hopes to convene an independent commission that would evaluate judicial pay on a quadrennial basis and make recommendations to the legislature. In Washington State, he points out, if the legislature doesn’t take action on a similar commission’s recommendations, they become law automatically. During the interim, he suggests, judges should receive indexed cost-of-living raises. He bemoans the absence of a system of step increases by which judicial pay would grow as a judge gains experience and seniority.
He also suggests the state lend a hand — or at least its bonding authority — when it comes to the problem of Oregon’s court infrastructure. The only Oregon county that has built a courthouse since 1960 is Klamath County, which opened a new courthouse in 1999 after its old one (vintage 1918) was destroyed by an earthquake. The Oregon Supreme Court and Court of Appeals are themselves housed in a building that is nearly a century old.
"I’m proposing that this be a joint state-county matter," suggests De Muniz. "I would like to create an independent court facilities commission that would include people from the state, the counties and the courts."
De Muniz appears to be finding receptive ears among at least some key decision-makers within the legislative branch of the state government as well as the executive. Sen. Ginny Burdick, chair of the Oregon Senate Judiciary Committee, applauds his efforts. "I’m very pleased that he’s focusing on this," she says. "With our budget problems the past few years, things have reached a point where we simply have to take some action to strengthen our judiciary."
AT HOME IN OREGON
Long before he began to worry about the delicate balance of government and its effect on his home state, De Muniz grew up in Northeast Portland, where he attended Harvey Scott Elementary and Madison High School.
After graduating from Madison, De Muniz enlisted in the Air Force and served for four years, including a tour in Vietnam in 1968-1969. "I was an enlisted man attached to an engineering unit," De Muniz recalls with a smile. "That meant I hauled supplies for engineers."
While in the Air Force, De Muniz befriended fellow serviceman Clifton Taulbert, who later penned Once Upon a Time When We Were Colored, a bestselling memoir (and later a film) describing his childhood in segregated Mississippi. Taulbert’s later memoir of his young adulthood during the 1960s, The Last Train North, which was nominated for a Pulitzer Prize, contains a photograph of a young Sgt. Paul De Muniz in jungle fatigues. De Muniz and Taulbert were "best men" in one another’s weddings and remain close friends.
Perhaps inspired by Taulbert, De Muniz says he is working on a novel about an Oregon lawyer who defends a murder case in the Russian far east, where De Muniz has taught law as a visiting professor at Khabarovsk State University. "I thought I had the book finished until Clifton suggested I send the manuscript to a ‘book doctor,’" admits De Muniz. "I did, and I am currently revising it."
Another unforeseen result of De Muniz’ status as a Vietnam veteran was his appointment in 1997 to the Defense Advisory Committee on Women in the Services, established initially by Gen. George C. Marshall. As part of his work on the committee, De Muniz investigated issues relating to the feasibility of women serving in submarine, field artillery and special operations helicopter units.
"I was a teenager in the Air Force," De Muniz laughs at his unexpected good fortune. "On the committee, I was equivalent to a three-star general!" As a bona fide member of the top brass, De Muniz trained with military personnel in places as diverse as Kansas and Bosnia. He also traveled to Jordan, where he conferred with King Abdullah’s sister, Princess Aisha, a lieutenant colonel in the Jordanian army and the director of the Directorate of Women’s Affairs for the Jordanian Armed Forces.
Following his discharge from the Air Force, De Muniz attended Portland State University, where he majored in sociology. "I was overjoyed just to be admitted to college," says De Muniz. "I had no plans." At PSU, a class in constitutional law piqued De Muniz’ interest, and he applied to and was accepted at Willamette College of Law.
The chief’s window overlooks not only gardens but also his legal alma mater, Willamette University, where Mary De Muniz, his wife of 34 years, works as production coordinator in the Communications Department. "I can almost see her office window from mine," he says.
Paul and Mary De Muniz were introduced by, of all people, Paul’s mother, a divorcee who had raised her son alone from the time he was months old and a figure both Paul and Mary De Muniz speak of with reverence. "She was a wonderful person," says Mary.
In 1970, Mary and her future mother-in-law were both working temporarily at Poor Richard’s restaurant in Portland, and had become friends. "When she started talking about her son, I didn’t want to meet him," says Mary. "I really liked her, and I was afraid that if things didn’t go well with him, I’d have to break up with her, too!"
The future chief’s mother, however, was not to be deterred. "She wouldn’t give up," says Mary. The couple was married in 1972. Daughter Carrie and sons Peter and Mike were born a few years later. All three De Muniz children live in Salem.
A DEVOTION TO PRO BONO
The secret to De Muniz’ career success, says Mary, is that "he loves what he’s doing." Her husband, she says, rarely spends an evening without a brief in front of him. "He’s a hard worker who likes his work."
During his third year of law school, De Muniz was clerking at the State Public Defender’s office when he wrote an appellate brief on behalf of an indigent client who was serving time for manslaughter in the Oregon State Penitentiary. His supervising attorney asked De Muniz whether he would like to argue the case before the Court of Appeals. "We went out to the Penitentiary and talked to the client, and he agreed to let me argue the case," says De Muniz, still incredulous that the convict placed his future in the hands of a law student. The man’s trust proved not to be misplaced, as De Muniz won the appeal. "A few days after I received the bar results (he passed), I got a call from the State Public Defender’s office," says De Muniz. They offered him a job.
After 18 months at the State Public Defender, De Muniz took a job with the Salem firm that later became Garrett, Seideman, Hemann, Robertson & De Muniz, P.C., where he litigated a variety of cases for large clients until he was appointed to the Oregon Court of Appeals in 1990.
While at the Garrett firm, De Muniz accepted a number of pro bono murder and death penalty appeals, including the highly publicized case of Santiago Ventura Morales, a Mexican migrant worker who was then serving a life sentence for murder. As many lawyers will remember, Ventura’s conviction was vacated when it was discovered that another man had confessed to the murder.
John Hemann, one of De Muniz’ former law partners, was already working at the Garrett firm when the future chief joined the firm in 1977. They and their families became close friends, and the two have been running (actually, "lumbering," jokes Hemann) together most mornings each week for the past 25 years.
"Paul is very thorough and very disciplined. He would stop and analyze a legal problem from every direction," says Hemann. According to Hemann, De Muniz was often sought out by judges to take difficult court-appointed matters.
Will he get buy-in for his proposals from the legislative and executive branches of Oregon’s government and from the private sector? "When Paul puts his mind to something, I wouldn’t bet against him," says Hemann.
THE LONG TERM
De Muniz ran against four other candidates in a contested election for an open seat on the Oregon Supreme Court in 2000; he is currently running unopposed for re-election. While he feels his 2000 campaign was valuable to him personally, in that it forced him to "think deeply about my principles," he’s not excited about the idea of electing judges, a selection method he thinks Oregonians should "reconsider."
"What worries me in the long term is that the combination of a permissive federal free-speech jurisprudence in the context of judicial campaigns and the special interests’ financing of them can seriously erode the public’s confidence in our impartiality," he says.
"Our authority is dependent on the public’s confidence," De Muniz says. "Who do you worry about: the judge who doesn’t keep his campaign promises or the judge who does?"
De Muniz has authored two law review articles on the politicizing of judicial elections,1one of which was quoted extensively by U.S. Supreme Court Justice John Paul Stevens in his dissent in Republican Party of Minnesota v. White, 247 F.3d 854 (2002). Stevens sent De Muniz an autographed copy of the slip opinion, which De Muniz keeps among the other mementos in his office.
If De Muniz wants to enhance public respect for the 200 or so judges who work in Oregon’s state courts, his own enthusiasm for them might set the standard. "I appreciate the work of the judges in our state," he says deliberately and precisely, making sure the message is not lost. "I particularly appreciate the day-to-day serious work of the trial judges. They are the face of the judiciary, and I appreciate their work ethic and the dignity they bring to the job."
De Muniz’ plan to strengthen the hand of those judges seems simple enough. The judiciary holds to a tight budget, delivers a quality product and widens access to the courts, thereby upholding the rule of law and enhancing the state’s economic base. In return, the public compensates judges well enough to keep quality people from a range of practice areas on the bench, keeps the courthouses where they work from falling down around them and, ideally, refuses to further politicize the judicial selection process.
But, as with all agreements, the devil is in the details, and, as in all politics, the outcome will look a lot like the people who eventually are involved. Undaunted, Oregon’s new chief justice is making the offer, negotiating with an abundance of stakeholders and refusing to rest until he’s persuaded his fellow Oregonians to sign on the dotted line.
1. "Politicizing State Judicial Elections: A Threat to Judicial Independence," 38 Willamette Law Review 367 (2002) and "Eroding the Public’s Confidence in Judicial Impartiality: First Amendment Federal Jurisprudence and Special Interest Financing of Judicial Campaigns," 67 Albany Law Review 763 (2004)
ABOUT THE AUTHOR
Barbara Smythe is a contract attorney in Portland. She was the author of "Retired But Remembered," a profile of Oregon lawyers’ reminisces on retired U.S Supreme Court Associate Justice Sandra Day O’Connor, which appeared in the February/March 2006 of the Bulletin.
© 2006 Barbara Smythe