The Good Old Boys Club (Supreme Court)

The Oregon Supreme Court has become a good old boys club dominated by trial lawyers, organized labor and career public employees. As a result the court has routinely recast the law to favor those interests. It has invalidated initiatives adopted by overwhelming majorities of the voters and struck provisions of law adopted by the legislature.

Some of the more outrageous rulings of the court have resulted in:

· Invalidating term limits for public officials
· Invalidating the original land use reform initiative – Measure 7
· Invalidating the original crime victims initiatives
· Invalidating attempts to reform the Public Employees Retirement System
· Invalidating tort reforms
· Invalidating laws prohibiting live sex acts at strip clubs.

The current makeup of the court is three trial/labor lawyers, (William Riggs, Paul DeMuniz and Robert Durham); two career public employees (Michael Gillette and Rives Kistler; and one former public employee (Tom Balmer). The old boys’ club used to include Gov. Ted Kulongoski who previously served on the Supreme Court. Not surprisingly, two of the members of the court have close ties to Kulongoski – Tom Balmer was a deputy attorney general under Kulongoski and Robert Durham was Kulongoski’s law partner when he practiced in Eugene.

In the normal course of things when a member of the Supreme Court considers retirement, he resigns before the conclusion of his term and thus gives the sitting governor the opportunity to appoint his successor. The successor then gets to run for election with the designation of incumbent after his name. Note for instance that Justice William Riggs announced this past Thursday that he would resign before the end of his term, thus permitting Kulongoski the right to appoint yet another trial lawyer or career public employee to the court. The Democrats have controlled the governor’s office for the last twenty years and thus the court has largely been appointed by Democrat governors. Also not surprising, the trial lawyers and organized labor (including the public employees unions) are the two most critical elements of the Democrat party.

But this time there is an exception to the rule. Chief Justice Wally Carson has announced his intention to retire AND serve out his term. That means for the first time in many years, there is an open seat on the Oregon Supreme Court. No one will carry the designation of incumbent.

There are three candidates for the seat: the trial lawyer’s candidate, Gene Hallman; career public employee Virginia Linder, and former Labor Commissioner Jack Roberts.

The Supreme Court races usually don’t draw much attention. Most voters simply are uninterested and the candidate carrying the “Incumbent” designation usually wins by inertia.

But let me explain why this race is important by referring to a single case. In Lawson v. Hoke, 339 Or. 253 (2005) a divided court (4-3) upheld legislation that prohibits uninsured motorists from recovering non-economic damages in automobile accidents. The three trial/labor lawyers voted to invalidate the law, while the other three incumbents plus retiring Chief Justice Carson, voted to uphold the law and the limitations. Carson is leaving and here’s the rub.

Gene Hallman filed an amicus brief on behalf of the trial lawyers arguing for the invalidation of the law. Now Hallman is running for the court as the trial lawyers’ candidate. If he is successful, the trial/labor lawyers will control the court and decisions such as Lawson will be subject to being overturned in subsequent litigation. Attempts by the legislature to invoke tort reform are likely to meet the same fate.

What the court lacks, particularly with the retirement of Chief Justice Carson is balance. Given the history of the Oregon Supreme Court over the last twenty years, it is well past time to pull back from the domination of trial lawyers and career public employees. Given the history of the Oregon Supreme Court it is well past time that the people who voted for initiatives that were overturned, legislators who voted for laws that were overturned, and crime victims whose rights were overturned are given a voice on the court.

While there may be many who can fill this role, in this particular election only one has stepped forward. Jack Roberts is not a trial lawyer and he is not a career public employee. Maybe it’s time to take back the Oregon Supreme Court.