Oregon State Bar Bulletin — DECEMBER 2005

Juggling Act
Rapidly changing judiciary requires
judges to take on more complex roles

By Melody Finnemore

Linn County Circuit Court Judge Dan Murphy is an expert juggler. He manages a daily docket that ranges from civil issues and criminal matters to administrative tasks. He oversees the county’s adult drug court, where he helps offenders build strategies to stay sober. He’s also working to establish a juvenile drug court, despite limited resources to support it.

When he’s not on the bench, Murphy meets with advocates, social service workers, and members of community and civic groups in an effort to foster collaboration both inside and outside the courtroom. In addition, he chairs the state Judicial Department’s Technology Committee, spending a full day each month exploring how to incorporate advancements that will make the system more efficient while ensuring its security.

"It is increasingly challenging to be able to do all of these things effectively and do them well," he says.

Murphy isn’t alone in his juggling act. Many other Oregon judges say the judiciary is much more dynamic and the judges’ role more complex than ever before. Several judges from across the state discussed the greatest changes they see within the judiciary and how those changes impact the way they do their jobs.

Dissolution of district court
Coos County Circuit Court Judge Richard Barron, who has been on the bench for 25 years, sees the merger of district and circuit courts as a plus for the judiciary because it centralizes the system.

"I see it as a positive change from an administrative standpoint. There’s one budget source and a central pool of resources that furthers the effort to solve inequities among personnel. There were big disparities within the counties and that has leveled out," he says, adding that a unified system also makes it easier for employees in an increasingly mobile society to change jobs and relocate.

In addition, Barron says, the merger allowed judges to return to their traditional role as generalists.

"Frankly, more judges may be willing to come to the bench because they won’t be stuck with just one area they won’t enjoy after a while," he says, noting his daily caseload ranges from murders to anti-defamation suits to domestic issues. "Most judges have days where all of these types of things are involved. It’s what keeps the job interesting."

Murphy disagrees that the merger has been beneficial, saying the courts became more generalized at a time when the bar and the law itself is becoming more specialized. "In addition to being amateur psychologists, specialty court experts and agents of change, we also have to know all of the law and listen to all of the cases competently," he says.

Drug courts
Oregon’s methamphetamine epidemic is driving many counties to establish drug courts in which judges serve as part of a team administering intensive, outpatient treatment programs.

Washington County, for one, has witnessed a dramatic increase in meth cases and is struggling to address the problem. It established a drug court last March, Circuit Court Judge Marco Hernandez says.

"We have 20 people in our drug court now and it would be nice to add a lot more. Just the fact that we adopted a drug court and are putting a lot of resources into it shows how important that has become," he says.

Judge Eric Valentine, La Grande’s senior judge until 2003 and now a Plan B1 judge, says the prominence of drug crimes forces judges to play a role they never expected.

"As the person wearing the black robe, we have incredible authority to encourage and support people," he says. "To break any drug habit, particularly a meth habit, is a 24-hour job. You see these people once a week and provide the carrot and the stick for them. Particularly with addiction issues, you can’t have an assembly-line type of justice and just put a stamp on them. They need follow-up and that takes time."

While such programs place greater demand on judges’ already-taxed schedules, Valentine says it’s worth it to see people who have gone through his court and conquered their addictions. "It’s very gratifying to have someone come up and say, ‘Hey, judge, I’ve been clean and sober for three years now.’"

Family law
With domestic cases also on the rise, Oregon’s "Justice 2020: The New Oregon Trail" strategy called for courts to offer family law specialists, mediators and mandatory classes that help parents better care for their children’s emotional needs during a divorce. Valentine, who teaches such a class with his wife, Meg, says the emphasis on protecting children has produced dramatic results.

"There’s a whole spectrum of family law now that tries to ease the emotional conflicts between parents who may be fighting over their kids and provide some other options through mediation," he says.

Even the terminology associated with family law is improving, Valentine adds.

"When I was practicing law in the ’70s and on the bench during the ’80s and ’90s, the non-custodial parent had visitation with the children. Well, what does ‘visitation’ mean? That’s something you have with someone who is in jail or in a mental institution — it’s a terrible word. It implies that you’re lucky to get that time," he says. "They’ve changed it to ‘parenting time,’ which I think is a much more sensitive term and a significant attitudinal change."

Pro se litigants
The increase in family law cases is accompanied by a growing number of pro se litigants. Barron estimates that 40 to 60 percent of the domestic cases he handles involve people representing themselves, many of whom need help navigating the process.

"That is becoming a larger challenge because more people come in and don’t really understand the court. They tend to think they’re just having a conversation," he says, noting many fail to provide witnesses or evidence, offer enough information for judges to make decisions, and are unable to complete necessary paperwork related to their cases.

"Judges are supposed to be in the role of adjudicator and we end up helping people. We should always do that, but we spend quite a bit of time explaining what we do and why we do it so people understand and feel like they got a fair shake," he says.

Changing role of judges
Marion County Circuit Court Judge Paul Lipscomb says courts today are much more service-oriented, noting that judges are more focused on helping people on two sides of an issue find a resolution themselves rather than handing down a ruling from the bench.

"It’s just a totally different approach than ever before," he says. "It used to be you showed up and felt lucky if the judge had time to even see you."

Judges today wear more hats than did their predecessors, a result of the broad range of issues they address, from drug and alcohol abuse to child protection to domestic cases, says Karla Knieps, Klamath County Senior Circuit Court Judge.

"A judge has to be able to research all of those issues and help resolve them as best they can. Sometimes you feel like you’re a social worker as well," Knieps says.

Murphy agreed, saying judges often do a balancing act while encouraging defendants to make changes.

"We have to be careful that we don’t try to be therapists or psychologists because we don’t have that training. It’s a very fine line," he says. "We’re just reinforcing what the treatment professionals have already told them in order to support and encourage them."

Valentine says the increased awareness of domestic issues has led to larger caseloads and requires a more immediate response, taking precedence even when a judge is involved in other work.

"Children are like milk in a supermarket — they have a shelf life and if you leave them in limbo too long it will affect them negatively, so there’s much more emphasis on moving those cases along swiftly. There’s certainly a lot more juggling that docket schedulers have to do," he says.

In addition, judges today must deal with more complex cases, says Multnomah County Circuit Court Senior Judge Kristena LaMar, citing class action lawsuits, product liability issues and capital murder cases as examples.

"The penalties and complications of the law mean there are mores cases that are emotional and the length of time it takes to hear a case is longer," she says.

Murphy adds that judges today are expected to have a much more collaborative approach with advocacy organizations, social service agencies and community and civic groups.

"Twenty-five years ago, judges were very insular — they were in their chambers reviewing cases and signing documents or on the bench and that was it, other than the occasional meeting," he says. "It’s a major change, and it’s a challenge because judges are supposed to be impartial, and meetings with various agencies or organizations may threaten that image of impartiality."

Knieps says that interaction is crucial in order to educate the public on everything from pro se procedures to the need for more resources to what goes on in the courtroom. "I think judges are going to have to take a more active role in the community," she says.

Lack of financial resources
Though judges and their courts are being asked to do more, the limited resources and manpower available present a challenge that is becoming increasingly difficult.

Murphy says Linn County currently has an adult drug court and plans to establish a juvenile court despite a lack of grant funding. "We’ve had to do that by sort of rearranging the dominoes that are already on the table, but we can only do that for so long," he says.

Lincoln County Circuit Court Judge Robert Huckleberry, who joined the bench in 1982, says his county also would like to initiate a drug court, but there aren’t enough hours in the day or people to run it.

"I worked until 9:30 last night after getting here around eight in the morning. Am I supposed to do drug court after that?" he says. "Some courts have people to handle that and some counties have luxuries we don’t. You kind of get worn out after awhile. You can only take so much from the well."

Knieps says she is concerned about the minimal amount of legal aid available, noting that Klamath Falls has none to offer.

"It makes it extremely difficult for people in this area to respond to legal issues because they don’t have access to resources and advocates. There’s no substitute to having a live advocate stand up and argue for you in court," she says.

Additional resources could help provide judges with studies to determine the sentencing techniques and rehabilitation programs that are most effective in combating recidivism, Knieps adds.

"One of the problems I see on the bench is that we’re sending sex offenders away, but when we ask what kind of treatment they are getting, they aren’t getting any because there are no studies on what works. We’re warehousing these folks and 20 or 30 years down the road they go back into the community and often re-offend," she says. "We have an obligation to protect the community, and we need to think beyond just building more jails."

LaMar says the meth epidemic continues to drain resources that could be used to provide treatment and education for youth.

"The kids in juvenile court are so handicapped from exposure to chemicals and drug-addicted parents. None of those are curable, and you can throw all the social services you want at the families, but the kids are still going to be damaged," she says. "The problems are getting bigger than the money we have to cure them, and the resources just aren’t there to meet them."

Recruitment and retention of judges
The lack of resources for Oregon’s judiciary also is hampering its ability to recruit and retain judges, many say.

"I’m very curious and a little concerned about which part of the bar will provide us our judges in the coming years," says Oregon Supreme Court Justice Michael Gillette.

"The lawyers who practice for the government or come from organizations like Legal Aid are more accustomed to the compensation judges receive. People coming from private practice would have to take a pretty substantial pay cut," he says. "The lack of private practice experience is worrisome, not because institutional lawyers are second rate. I want to see lawyers from every practice area on the bench because we need that variety of experience and cross-pollination of ideas."

Oregon Supreme Court Chief Justice Wallace P. Carson says many judges pursue the profession because they are drawn to public service, but compensation issues may overshadow that desire to serve. "We’re starting to see some of our more experienced judges float back into private practice and as mediators and arbitrators, so not only is there a potential recruiting problem but a retention issue as well," Carson says.

Alternative dispute resolution
Among the more positive changes occurring within Oregon’s judicial system is the growing use of mediation, arbitration and other types of appropriate dispute resolution, according to Judge Richard Barber, who retired from the Marion County Circuit Court in 2003 and now serves as a Plan B judge.

"When I first became a judge in the 1970s, the court heard primarily civil cases and very few criminal cases. With arbitration taking care of cases under $50,000, it really turned that around," he says.

Carson sees the pros and cons of alternative dispute resolution. "There’s a tendency in contractual matters to cut off the jury trial, which I think is unfortunate. But if used effectively, generally I think it has worked out well," he says.

LaMar, a 24-year member of Oregon’s judiciary, is considered a leader in alternative dispute resolution and says its success is gratifying.

"It’s led to a more consensus-building attitude on both the state and federal levels, and mediation and facilitated negotiation are now the norm," she says, adding that the growing number of private mediators helps immensely. "The development of mediation in the private field not only takes the load off me but it also gives people a lot of different personalities and styles to choose from."

However, a circuit court rule requiring people to seek mediation within 270 days of filing a complaint or petition has its drawbacks because it can prompt opposing parties to schedule negotiations before they are ready, LaMar says.

"It seems to me that while we have a responsibility to set time limits and force the issue of a resolution, we need to continue to promote flexibility so the unique characteristics of a controversy can play themselves out," she says.

Technology
From remote appearances to the prospect of paperless courts, technology is another major factor in the judiciary’s evolution. Huckleberry is one of its forefathers in Oregon. After riding in an elevator with a corrections officer and a handcuffed inmate on the way to court one day, he initiated the court’s use of closed-circuit television. Lincoln County was the first in the state to utilize the technology, which eliminates the need to transport inmates and today is a common feature in courtrooms across the state.

"There are safety concerns and a lot of money involved in moving people around that are addressed by using technology to hold these hearings," he says. "I expect to see larger law firms buy this equipment because the cost has gone down. Lawyers could make appearances on TV rather than having to run down to the courthouse and struggle to find a parking place."

Gillette hopes regional teleconferencing centers will become the norm, allowing people who live outside metro areas to testify without traveling.

"People shouldn’t have to drive diagonally across the state to make an appearance that may only take a half hour. That’s the sort of thing technology ought to make easier, and I’m expecting it will," he says.

Technology also may help reduce the vulnerability of courts’ information systems, which became apparent during the recent Gulf Coast hurricanes, Gillette adds.

"I’m extremely grateful that we have so much of our information stored electronically after seeing all the paper lost in New Orleans. There’s a lesson there for us in terms of taking care of things we can’t live without," he says.

Murphy says he and other members of the Technology Committee are addressing how to carry the judiciary’s technological evolution forward amid the realities of the profession.

"I think we’re hearing there are ways we can do our work more efficiently through technology, but there’s a clash between the speed of the court system, which is traditionally slow, and the speed of technology, which is very rapid," he says. "What courts do is going to change dramatically over the next 10 to 20 years because of technology."

Murphy fully expects to see a paperless court within the next 10 to 15 years, as well as improved public access to electronically-filed documents. Security will become a greater issue as such advancements occur, though.

"The challenge is how to allow people who have the right to see confidential information but not make that information available to the general public," he says, adding the ability to protect the system during disasters also must be addressed.

Women in the law
LaMar says she was one of 16 women in a class of 400 when she graduated from Lewis & Clark College’s Northwestern School of Law in 1973. At the time, just two of Multnomah County’s 22 judges were female, and they were family court judges. "You could do family law or probate if you were a woman trial attorney, but there were no female civil or criminal litigators."

More than 10 years later, not much had changed. Lipscomb says that when he took the bench in 1986, the judiciary was still "old school."

"It definitely was a good ol’ boys network and the judges on the bench pretty much reflected that," he says.

Today, more than 50 percent of the students at the Northwestern School of Law are women. "Women showed they could handle it in the courtroom, much to everyone’s amazement, and that experience in the courtroom led to jobs on the bench," LaMar says.

The nomination of Harriet Miers to the U.S. Supreme Court, which withered amid a blistering attack on her qualifications, shows that the profession — particularly among its female ranks — is focused more on credentials than gender.

"There isn’t a reserved, ‘Sandra Day O’Connor spot’ on the court just because she was the first woman justice," she says. "We do feel more able to focus on the qualifications of a candidate and not just their gender."

The last word
While there are plenty of opinions about how Oregon’s judiciary has changed and the challenges ahead, Lipscomb and several of his colleagues say they feel fortunate to serve as members of the bench.

"It’s very rewarding to be engaged in public service at this high level and to struggle with some of the most interesting and difficult problems of our society," Lipscomb says. "I love coming to work every day."

ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin.

Endnote
1. A "Plan B" judge receives an enhanced retirement benefit in exchange for serving as a pro tem judge for 35 days a year for 5 years or a total of 175 days. ORS 238.535.

© 2005 Melody Finnemore


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