Oregon State Bar Bulletin — JUNE 2003


Reversing Newdow
The establishment of religion clause originally prohibited only a taxpayer-financed or tightened official 'established church:'

'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …'

'Wedge of Allegiance' by Jacob Pugh (May 2003) does not analyze 'establishment of religion' as the clause was understood when the states approved the First Amendment.

Various colonies such as the Commonwealth of Massachusetts had official churches that colonists were compelled to support. The coercion created resentment and the establishment of religion clause of the First Amendment.

Drafters of the First Amendment considered the freedom of religion clause important. It is listed first in the first of the original ten amendments proposed by Congress in 1789 and approved by the states in 1791.

Jefferson’s separation of state and church remark meant, I believe, that the state would not dictate to or interfere with religion and churches, as England and other European nations had done. In turn, churches would not dictate to or interfere with governments.

Religious persecution by Charles I of England in favor of the Established Church led to the founding of the Plymouth Colony and the Massachusetts colony in the 1600s. Victims of religious persecution in nations with 'established' or official churches peopled the colonies.

Memories of religious persecution in Europe and compelled support of colonial established churches led to adoption of the establishment of religion clause of the Constitution.

The U.S. Supreme Court generally construes the Constitution in terms of what its words meant when the states adopted the Constitution.

Unfortunately, the high court did not do so in a confusing line of First Amendment opinions that apparently compelled the Ninth Circuit’s Newdow v. U.S. Congress opinion.

On April 30, 2003, the Bush administration petitioned the U.S. Supreme Court to reverse Newdow.

The May 1 Oregonian reported the 30-page opinion said in part: '***this court’s precedents make clear that it does not forbid the government from officially acknowledging the religious heritage, foundation and character of this Nation. That is what the reference to God in the Pledge of Allegiance does.'

Based on the frequency the high court reverses 9th Circuit decisions, the court is likely to accept the petition and reverse the 9th Circuit.

Americans have reversed high court opinions they consider wrong: 11th Amendment (judicial power does not extend to certain suits by the states); 13th Amendment (abolished slavery); and 16th Amendment (authorizing the federal income tax).

Mr. Pugh concludes:

'…It is quite understandable that religious people feel the judicial system launched a senseless attack against them.… The philosophy behind their decision is more than enough to make sane people fear a future where religion is banned from the public square.'

If the Supreme Court affirms, voters will reverse and have the last word.

Henry Kane

Jury Pools, Revisited
I am heartened to find that our state jury system can raise questions and provoke debate both inside and outside of a courtroom. The current policy shift towards shutting out public scrutiny of court and other legal processes, is one that I openly oppose on a local and national level. See, e.g., Rose Jade, Letter, Juror Privacy or Court Secrecy? 85 Judicature 265 (May-June 2002). In my opinion, the fair resolution of current issues, such as who should be allowed to be a juror and who should be allowed to audit the jury system, is assisted by a willingness to identify and respect the different rights involved (e.g., the rights of prospective jurors, the rights of litigants, the rights of court administrators), and to learn from our past behavior. Towards that end, I have written a history of Oregon jury service that I hope will be useful to legislators, courts, litigants and the general public. For instance, a detailed history of the changing eligibility standards for Oregon jury service, and a partial list of past Oregon jury studies can be found in Part II of Voter Registration Status as a Jury Service Employment Test: Oregon’s Retracted Endorsement Following Buckley v. American Constitutional Law Foundation, 39 Willamette Law Rev 557 (Spring 2003), pg. 562-573, 587 (n 87).

Respondents to my January article ('Jury Pools' 63 Or St Bar Bull 21 (2003)) appear to take issue with my legal analysis of the current laws regarding access to jury lists; the basis, need and import of my factual in-court testimony; and also pose questions regarding the scope and goals of jury audits. I welcome constructive arguments and criticism. However, my analyses of Oregon’s current, complex legal problems surrounding jury service – whether it be issues of source-list inclusion, later-stage exclusion, audits or basic working environments (e.g., pay, and the propriety of holding jury trials inside state prisons) – are not fairly suited to cursory back-and-forth debate in these pages. Indeed, it may be time for a new task force for those bitten by the jury bug.

I would like to point out that the March 2002 study of the Multnomah County jury system, referred to by Charles French in the April 2003 issue ('Different, but Dignified') was neither designed nor performed as an in-depth study of the Multnomah County jury system, and thus its usefulness is quite limited. I do encourage people to review it and other studies done on Oregon jury pools: copies are available for the asking from the Jury Service Resource Center. The JSRC is a 501(c)(3) organization and Oregon charity. Requests for copies of studies can be made by contacting the Center through its web-site: www.juryservice.org or via mail: JSRC, PO Box 2063, Newport, OR 97365. The mission of the JSRC is IDEAS: to improve, defend, educate, advocate and support the American jury system. This author is the executive director, and in that capacity provides free, public presentations on Oregon jury service to schools, civic and professional groups.

Readers may be interested to know that a declaratory judgment action has been filed over public and litigant access to state jury lists, and challenging the alleged exclusivity of ORS 10.215 and 10.275. The action was filed pursuant to ORS ch. 192 and additionally relies on various state and federal constitutional provisions. See Jury Service Resource Center, David Shannon, and Robert Paul Langley, Jr., v. Wallace Carson, Jr., et al, Marion Co. Cir. Ct. Case No. O3C11907. Attorneys Rose Jade and Karen Steele are counsel for plaintiffs. David Shannon is a law student at one of our fine universities, and Langley is facing his third capital penalty trial on remand dating from a 1989 conviction (see State v. Langley, 331 Or 430 (2000)), Hopefully, once public access to jury records is clarified (or restored, depending on one’s current analysis of the law), independent jury audits can again be performed by academics and researchers in cooperation with, or under the supervision of, the courts. This should help reduce the need for repetitive expenditures by trial counsel related to specific criminal or civil cases. Note that similar issues of public access to court 'administrative' documents are being hotly litigated across the country. See e.g., U.S. v. Connolly, 206 F. Supp 2d 187 (D. Mass. 2002), petition for writ of mandamus denied, In Re Boston Herald, Inc. v. Connolly, Jr., 2003 U.S. App. Lexis 3479 (1st Cir. 2003).

Although I agree with Mr. French that media coverage of jury trials and verdicts can be distasteful at times, courts routinely provide jurors with satisfactory tools to avoid the bar and the media. To my knowledge, our membership and the local media seem quite respectful of court rules and orders. The fact remains, however, that many jurors are quite willing to speak to the media post-verdict, as is their right. See e.g., Steve Card, Longo trial has lasting impact on jurors, Newport News-Times, April 23, 2003 pg A1; Robin Franzen, Grisly, graphic evidence can haunt jurors, The Oregonian, April 27, 2003. As those articles reflect, jurors may desire and need to use the media as their vehicle to de-brief and communicate to the public about the intense trauma they as jurors experienced during a trial. In facilitating that communication, the media can be both respectful and enlightening.

Rose Jade

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