Oregon State Bar Bulletin — JUNE 2006


Kudos for Marlyce
I did not comment at the ceremony at the OSB Center honoring Marlyce Gholston on April 21, but maybe this will reach more people anyway.

I was admitted in 1953, and my husband had a heart attack during finals at law school in about 1957, followed by a brain hemorrhage. In those days the bar exam was given once a year in July at the state capitol with typists in one legislative room and hand-writers in the other. Emory Crofoot could not physically do either.

Marlyce arranged for him to have a typist (not legally trained in any way) to type his verbal answers to her. I believe this was the first handicapped applicant to pass the bar.

We were forever grateful.

Betty I. Crofoot

Are We There Yet?
"We’re not there yet," intones Edwin Peterson concerning the Bulletin readership’s capacity to be "truly color-blind" ("Letters," May 2006). Given that he objects, in a photographic representation of restrictive changes in bankruptcy practice, to the role of Generic Lawyer being played by a black man, I fear Peterson must know something I don’t, namely that we shouldn’t hope to be arriving "there" any time soon. Doubtless an Elimination of Bias CLE will correct my simplistic assumption that we should be seeing "lawyer" instead of "black lawyer" absent a meaningful reason to do otherwise.

Pete Smith
Grants Pass

De Novo Standards
In their recent Bulletin article on de novo review of the facts in the Oregon appellate courts ("A Statutory Antique," May 2006), Maury Holland and Robert L. Sokol focus on only one aspect of a broader issue. It may well be that the time has come to reconsider the standards of review that the Oregon courts use in deciding appeals and administrative reviews, but doing so requires more than attacking one of those standards. In this letter I can only suggest some of the relevant considerations.

Contrary to Holland and Sokol, de novo review is not the only "statutory antique" in this area. The standard of review in legal actions, whether tried to a jury or to the court, is whether there is any evidence to support the judgment. That standard requires the appellate court to uphold verdicts and findings that may have only the flimsiest support. So far as jury verdicts are concerned the Oregon Constitution requires that standard in order to protect the integrity of the jury system. That is a political (in the broad sense) rather than legal purpose, and I do not question it. However, another statutory antique, currently embodied in ORCP 62 F, extends the evidence standard to legal actions tried to the court, even though that use does nothing to protect the jury system. Indeed, there may be less reason for using the any evidence standard in court trials than there is for using the de novo standard.

Holland and Sokol attack the de novo standard without suggesting what should replace it. Besides the any evidence standard, there are at least two other available standards for reviewing facts: the substantial evidence standard that most courts use for administrative review of executive actions and the clearly erroneous standard that the federal courts use for all court trials. Each of those standards gives the appellate court more authority than does the any evidence standard; the court’s authority under the clearly erroneous standard can be quite broad. Before abolishing de novo review we should consider the strengths and weaknesses of the alternatives.

Finally, there are benefits to de novo review that Holland and Sokol do not appear to recognize. De novo review appears to bring a consistency of result to family law, juvenile law (including termination of parental rights) and mental commitment cases that a weaker standard would not provide. That may be why family lawyers so vehemently oppose abolishing it. In equitable actions generally de novo review makes it possible to decide the entire case rather than specific legal issues. Although that can require more judicial resources — which are always in scarce supply — it can also lead to a better result.

The relevant issue, in short, is not whether de novo review is an antiquated curiosity that we should abolish. Rather, it is determining the best way to review the facts in an appeal from a court trial.

Robert D. Bulkley

Paging John Marshall
To Barry Adamson’s erudite discussion (Letters, May 2006), I reply: It is what it is. See Marbury vs. Madison.

Peter A. Schwabe
Gualala, Calif.

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