Oregon State Bar Bulletin — MAY 2002


A Ways to Go
While it is difficult to disagree with Bennet Langlotz’s restatement of the tired bromide that ' statistics can tell almost any story one wants,' it is more difficult to discern the point of his letter (Letters, February/March 2002). My goodness, the percentage of large firm partnerships held by attorneys of color skyrocketed by almost 5 percent per year over the last eight years! Followed closely by a whopping 3.5 percent per year increase for women partners. And remember, Mr. Langlotz, an increase from one to two is a 100 percent increase.

It is disheartening that anyone can suggest such numbers are acceptable when for most of the last decade law school graduating classes have been nearly 50 percent female, and have contained increasing numbers of people of color. The thinly veiled sexism and bigotry behind such a suggestion are clear evidence that attending a constitutional law class is no guarantee of enlightenment, as suggested by other letters. Rather, it is but further evidence of the long distance we have to go to close the gap between the ethnicity and gender of the legal profession and that of the society we are supposed to serve, and of the urgent need to go that distance.
Robert G. Deveny

Protecting the Powerless
Edward Trompke’s article, 'A Natural Tension' (February/March 2002) claims there is a conflict between democratic principles and judicial independence. Mr. Trompke first fails to credit the important principles underlying judicial independence. Judicial independence ensures litigants have a decision-maker with no direct interest in the outcome. Independence protects the powerless: Judges who can be punished through loss of position based on their rulings are not free to decide cases based on the law but rather will be tempted to rule for the more powerful litigant.

Mr. Trompke makes two points:
1) judges should decide legal, not political questions; and
2) judges should not use their office to make policy decisions.

He does not explain how we can distinguish between legal and political issues. In a democracy, a political issue is whatever groups of people say it is. Should judges rule on issues until some legislator or important interest group complains and then reverse themselves because the issue is now political rather than legal? This distinction is merely a euphemism for saying judges shall not cross politically powerful groups.

Mr. Trompke’s second point is hardly better. Judges must make policy decisions when deciding constitutional issues which judges are duty bound to interpret and apply. Constitutional provisions are policy choices; they are just fundamental policy choices. That is as true for provisions describing the initiative and referendum process as any other constitutional provision.

Absent any reasoned criticism of judicial decisions, let us be plain and call the current crop of complaints what they really are: an attempt to threaten judges by those who believe themselves powerful enough to fulfill their political agenda thereby.
Eric M. Cumfer

Widespread Cheating?
I was surprised to learn that lawyers are engaged in widespread cheating on their bills as described in Alan G. Greer’s article 'Billing' (February/March 2002). I believe the vast majority of lawyers are eking out only five to seven hours of billable time five to five and one-half days a week (and many less), although there are limited stretches such as major litigation or closings of large transactions and similar crushes of work where lawyers may work 10 to 12 billable hours a day seven days a week. Further, I think most lawyers write off a great deal of time they actually worked that they feel is not justified for the service they performed or to placate a complaining client.

If a lawyer intentionally bills a client for time the lawyer did not work in violation of a fee agreement, the lawyer is guilty of several crimes and ethical violations that would likely justify permanent disbarment and possible jail time. A lawyer would be a fool to risk a career and years of education by cheating on hours and bills. If there are practices such as Mr. Greer describes occurring in Oregon, let us hope that there is a John Dean in those firms who will help bring to justice the Jeb Magruders (to whom Mr. Greer refers) who have lost their moral, ethical and legal compasses and are stealing money from their clients by fraud and deception.

I sincerely hope and believe that Mr. Greer is wrong in his allegations of widespread lawyer dishonesty.
Charles R. Williamson III

Focus on Conduct
My compliments to Edward H. Trompke on his well-researched article on judicial independence (February/March 2002). I agree completely that there must be a balance between judicial independence and judicial accountability, but the suggestion that judges 'might ordinarily uphold initiated measures and referenda, and not entertain novel challenges to them,' is an anathema to the role of the judiciary in our government. At what point does the rule of law protect individuals from popular tyranny? When only well-established legal rights are challenged by the 'tyranny of the majority' — or does it begin with the subtle eroding of those rights? The ability of the people to present novel challenges and for the courts to consider them are what keeps our law alive and our individual rights viable. The constant probing and testing of the laws brought into effect by the political process is a basic premise of our system of checks and balances. This can only occur in an environment of thoroughgoing judicial independence from the tyranny of the political majority. To suggest that novel challenges be ignored where the public has spoken, simply fails to recognize the high value that should be placed on judicial independence.

Yes, judges need to be accountable, but that accountability must focus on judges’ ethical conduct, judicial intellect and reasoning, temperament and character perhaps, but not on the underpinnings of our basic constitutional scheme.
Jacques A. DeKalb

Judges to Blame Too
I place a lot of the credit for hardball tactics at the feet to the judiciary ('Is Winning Everything?', April 2002). Judges generally don’t like to hear about the misfeasance of lawyers, they downplay the problem and generally admonish both lawyers to just 'knock it off.' Repeat visits don’t generate results and you have just burned up a lot of your time getting nowhere, therefore you retaliate. Guess where that leads.
John M. Wight

Repeal is Warranted
In 'A Time to Kill?' (April 2002), William R. Long writes of the extraordinary (and still incomplete) appellate history of the death penalty case of State v. Dayton Leroy Rogers. It appears that the various forms of post-conviction litigation over the sentence imposed on Mr. Rogers may not be exhausted until over 30 years after the jury’s verdict. To me, this is yet another indication that it is time to repeal the death penalty in Oregon.

In this state, whether a homicide qualifies for the death penalty depends on a grab bag of 'aggravating factors,' many having little to do with the heinousness of the crime. By contrast, when I practiced in Michigan back in the 1970s, there were two degrees of murder. The only possible sentence for first-degree murder (premeditated and deliberate) was life in prison, with no possibility of parole. The penalty for second-degree murder (with malice aforethought, but not premeditated) was life, but with the possibility of parole after a term of years.

As a Michigan circuit court law clerk and prosecutor, I attended several five-minute sentencings of defendants convicted of first-degree murder. Anything said by the judge to the defendant beyond, 'Having been convicted of the crime of murder in the first degree, you are remanded to the custody of the department of corrections for the rest of your natural life, without the possibility of parole,' was surplusage. For obvious reasons, appeal of a murder sentence (as opposed to the underlying conviction) was unheard of.

Oregon would do well to enact similar statutes.
Chris W. Dunfield

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