Isaac Laquedem

The Laquedem Plan to Improve Continuing Legal Education and Honor a Legal Leader

The Oregon State Bar requires active lawyers to take a certain amount of coursework, called "continuing legal education" or "CLE," to renew their licenses.  Members report their education every three years.  New members must take nine hours of courses on practical skills, including at least four hours on Oregon practice and procedure.  After their first reporting period, Oregon lawyers must take 45 hours of accredited CLE every three years, including at least five hours on ethics, one hour on mandatory reporting of child abuse and elder abuse, and one hour on mental health and substance abuse.  In alternate reporting periods, Oregon lawyers must also take at least three hours on programs accredited for "access to justice."  The Bar's rules define "Access to justice" education as activities that are "designed to educate attorneys to identify and eliminate from the legal profession, from the provision of legal services, and from the practice of law barriers to access to justice arising from biases against persons because of age, culture, disability, ethnicity, gender and gender identity or expression, geographic location, national origin, race, religion, sex, sexual orientation, veteran status, immigration status, and socioeconomic status."

Recent news stories have given Isaac the idea that the Oregon State Bar should require providers of CLE to meld practical skills with access to justice, resulting in the Laquedem Plan to Improve Continuing Legal Education and Honor a Legal Leader.  Educators could teach lawyers how to organize luxurious hunting trips, expensive vacations, and cruises on private yachts, and then how to invite judges to be their guests.  Other material would cover how to establish political organizations under Section 527 of the Internal Revenue Code to funnel unreported money to a judge's spouse.  And somewhere in the mix would be how to ship rare wine across state lines to judicial incumbents.

The name of this hybrid CLE credit would honor one of its most ardent practitioners.  I suggest calling it "Access to Justice Thomas."

Shemia Fagan's resignation: the lettuce wins again

The recent scandal that ended the political career of Oregon's soon-to-be-former secretary of state Shemia Fagan and her lucrative consulting contract with a financially struggling leader in the cannabis industry, La Mota, is notable for its celerity. On April 27, Willamette Week published Sophie Peel's story that broke the news that Secretary Fagan was receiving $10,000/month - 55% more than her state salary - from La Mota for providing then-undescribed consulting services.  On April 28 the rest of the Democratic establishment moved quickly to distance themselves from Ms. Fagan, exemplified by Governor Kotek's pithy response to a reporter's question on April 29: "I don't have outside employment.  I only have one job."  On May 2, only five days after the story broke, Ms. Fagan announced her resignation.

Five days is unusually fast for a public official's scandal to go from unveiling to unspooling.  Liz Truss served only 44 days as Britain's prime minister, but she did survive in office for six days after the Daily Star set up a webcam on a head of lettuce to see whether the lettuce or the prime minister would wilt first. [The lettuce won.]

The speed with which Shemia Fagan was expelled from the machine reminds Isaac of the famous scene in A Night At The Opera, in which Otis P. Driftwood (played by Groucho Marx) is welcomed into the offices of the New York Opera, promptly fired, and then kicked down four flights of stairs and thrown out the door.

 

Isaac's 2023 Tax Day reading from A.P. Herbert

Each year at tax time we divert from our support of democratic socialism to think of Sir Alan Patrick Herbert (1890-1971), the British social reformer, member of Parliament from Oxford University (there really was such a post, elected by the alumni), lover of the Thames, playwright, and under the name of A.P. Herbert, a frequent perpetrator of light verse.  Some years, this one included, the tax bite is severe enough to quote from his work.  This month's assortment of impositions is painful not so much because of the amount but by the sheer number of the incoming mosquitos, each looking to take its little bite from the Laquedem thousands under the guise of making work for the post office and the Loyal Accountant.  The outgoing checks and the upcoming ballot measure to add another tax to the menagerie have put me in mind today of this early Herbert verse: 

Well, fancy giving money to the Government!
Might as well have put it down the drain.
Fancy giving money to the Government!
Nobody will see the stuff again.
Well, they've no idea what money's for --
Ten to one they'll start another war.
I've heard a lot of silly things, but, Lor'!
Fancy giving money to the Government!

Our genial support of the social welfare system will return on Tuesday.

Sometimes "20 to 30" is a phrase that describes an age bracket . . .

And sometimes it's a complete sentence.

Happy birthday, Professor Lehrer

Today is the 95th birthday of Tom Lehrer, who rose to fame as a singer and satirical songwriter in 1953, performed and toured for about 15 years, and then returned to academia.  Some of his songs are fossils of their era (we know what became of Hubert, and Wernher von Braun did in fact study Chinese).  Others that he wrote for the events of the 1950s and 1960s are painfully apposite to the fears of the present day, including the one linked here.  Happy birthday, sir!

 

Wendell Phillips reminds us that history sometimes rhymes

The recent stalemate among the House republicans over their choice of speaker and the current threats of Speaker McCarthy to refuse to raise the ceiling on the national debt so that the nation can pay its bills brought to mind this delightful observation from a while back:

"A few years ago * * * the Republican party dared to refuse the appropriations for support of government - the most daring act ever ventured in a land that holds Bunker Hill and Brandywine.  They dared to persevere some twenty or thirty days.  It seems a trifle; but it is a very significant straw.  Then for weeks when Banks was elected, and a year ago, again, the whole government was checked till the Republicans put their Speaker in the chair."

Does that bring to mind Newt Gingrich shutting down the government, or Lauren Boebert holding up the organization of the House in January?  The author of the quoted words was Wendell Phillips (1811-1884), the famous orator and abolitionist.  They're from a speech that he gave in Boston on February 17, 1861.  The four omitted words represented by the three asterisks give the joke away: they are "while Pierce was President."

The House Democrats should pick a republican for speaker, but not just any republican

About a year ago, a republican political strategist named Sarah Longwell wrote in The Bulwark that the republican party was facing an ‘extinction event’ that resulted from Donald Trump having converted it into the MAGA party. The flailing efforts of the republican House majority to elect a speaker yesterday and so far today also are another sign that the extinction event has descended on the party.

Its schism into the group of the shamed and silent and the smaller and louder Trump-MAGA group brings back memories of the 1854 fracturing of the Whig Party, with some important differences, the largest of which is that the Whig Party fell apart over an irresolvable policy dispute: should slavery expand, continue, or be eliminated?  No common ground among the factions was available, as the policy difference was over a stark yes-or-no question.

By contrast the modern republican party gave up any pretense of policy ambitions years ago under Newt Gingrich’s leadership.  It has no policy; its modest platform for the 2020 election could be described as “policy” only in the way that a fig leaf can be described as “clothing.”  But where can the remaining rational republicans find a home?  On philosophical grounds they can’t join the Democratic Party, and without a billionaire or two as a funding source and a media presence (their henhouse won’t stand without a Fox to advertise it) they can’t start a new national party.  The two-party system needs two strong and responsible parties, and the republican leadership is too frightened of its cohort of crazies to make the effort to return it to reason.  Maybe what saves the system is not right-wing repentance but a variant of the solution played out in the Utah senate race, where the Democrats tried to elect a rational conservative to replace Mike Lee, something like the plain-bellied Sneetches temporarily donning stars.  The Democrats could contribute to bringing the opposition toward reason by picking a few moderate republican representatives and then voting as a bloc for those representatives, one after another, until one of their candidates from across the aisle attracts the votes of 10 sane republicans.  Odd as it would be for the Democrats to vote for a republican for speaker, doing so is their one way to get a speaker of the House who won't have had to make promises to the Boeberts and Gosars of the republican caucus.

A PSU professor calls out the University of Oregon for turning Trumpist on the First Amendment

Maxine Bernstein reports in today's Oregonian that the University of Oregon banned Bruce Gilley, a Portland State University professor, from replying to a UO Twitter account for 60 days because of a comment that Professor Gilley made in reply to that account, which belongs to UO's Division of Equity and Inclusion.  He was one of three Twitter users that the Division's communications manager (now retired) blocked.

Professor Gilley sued.  He argues that UP violated his right to free speech and is asking for nominal damages of $17.91 (because the states ratified the First Amendment in 1791) and an acknowledgment that UO violated his First Amendment right of free speech.  (The university unblocked his account the day after he filed suit.)  A federal court heard argument on Professor Gilley's suit on Friday.

As the saying goes, politics makes strange bedfellows.  UO turned to rising liberal icon Misha Isaak for its defense.  As reported by Ms. Bernstein, Mr. Isaak's defense of UO is mainly that the court should dismiss the suit because persons higher up in the university administration unblocked Professor Gilley when they learned that the Division had shut him out from commenting,  The administration has also reminded the Division of Equity and Inclusion that it cannot block speech based on the user's viewpoint.  I interpret Mr. Isaak's defense of UO as being mainly that because UO blocked his speech for only a short period, and because the UO official who blocked Professor Gilley didn't know about the First Amendment, the University didn't violate his constitutional rights in a big enough way to be worth the court's time.  Mr. Isaak also suggested that Professor Gilley "relished being canceled because it gives him a platform," a strange way to defend an apparent First Amendment violation.  But let's go back a few years to a similar story, still fresh in the minds of constitutional lawyers.

In 2017 President Trump blocked Twitter users with whom he disagreed from replying to tweets on his personal account.  Several of the blocked users sued, backed by the Knight First Amendment Institute at Columbia University.  They argued that the president conducted official business on his Twitter account and that it was effectively a government-sponsored platform from which he could not bar users based on the content of their comments.  Those plaintiffs attracted support from an institute at Georgetown University which filed a brief on behalf of an all-star cast of professors of constitutional law, including Erwin Chemerinsky, Geoffrey Stone, and Laurence Tribe. 

In 2019 the federal court for the Second Circuit ruled unanimously in favor of the Twitter users and against President Trump, and minced no words:  "Accordingly, we hold that the President violated the First Amendment when he used [Twitter's] blocking function to exclude the Individual Plaintiffs because of their protected free speech." Knight First Amendment Institute v. Trump, 928 F3d 226 (2019).  You can read the entire opinion here.

It's embarrassing for a public university with a law school to be caught out taking a page from Donald Trump's playbook and suppressing protected free speech because it doesn't like the speaker's message.  It's more embarrassing, or should be, when the part of the university doing the suppressing is the division that's devoted to providing room for all voices to be heard.  At the very least, the president of the university should take a few minutes to write a note of apology and acknowledge to Professor Gilley and the court that its Division of Equity and Inclusion messed up bigly.

An ode to Alex Jones's recent court losses

It was a solemn rite as e’er
Was seen by mortal man.
The celebrants, the people there,
Were all Republican.

Ed Rollins bent his grizzled head,
And Ari Fleischer too,
And one⁠—’twas Tucker, someone said,
Though no one clearly knew.

I saw the priest, white-robed and tall
Of strictly right-wing views
He was the pious man men call
To cast blessings on Fox News.

Ah, ’twas a high and holy rite
As anyone could swear.
“What does it mean?” I asked a wight
Who knelt apart in prayer.

“A mass for the repose,” he said,
“Of Alex Jones's ⁠—“What,
Is Alex Jones now dead?
’Tis sad, ’tis sad, God wot!”

“A mass”⁠—repeated he, and rose
To go and kneel among
The worshipers⁠—“for the repose
Of Alex Jones's tongue.”

-- Ambrose Bierce, brought up to date

Endorsements V - that famous ballot measure to rejigger the Portland City Council

Back in a bygone era of tech, someone had the bright idea to combine a television with a video cassette recorder, figuring that viewers would want to both record shows directly from their television, and play back videotapes through their television.  The idea was sound; the execution was not.  The manufacturers combined not-very-good screens with not-very-good VCRs.  They ended up with not-very-good appliances. 

Portland's measure 26-228, proposed by the Portland Charter Commission that was appointed for this purpose, would increase the city council from 5 to 12 and divide the city into districts, with three councilors elected from each district.  Under the proposal the mayor would have the right to introduce ordinances and break tie votes, but would not be a member of the city council.  The mayor's primary function would be to supervise the City Administrator, a new position.

Measure 26-228 would also change how the city counts votes.  The mayor and city auditor would be elected by ranked-choice voting, a system used in some other American cities that allows a candidate in a crowded race who is no one's first choice but everyone's second or third choice a shot at being elected.  The city councilors, however, would be chosen by a sort of hybrid method (think TV plus VCR here) in which voters would rank their candidates by preference, as with ranked-choice voting.  The difference comes in how the ballots are counted.  Let us suppose that 90,000 ballots are marked in a particular council district, with three persons to be elected.  The three persons would each need 30,000 votes to be elected.  Now imagine that the race has attracted seven candidates (call them A through G, like notes on a scale).  If 42,000 people mark A as their first choice, then A will keep 30,000 of those votes and be elected.  The other 12,000 votes of A will be reallocated to the second choices of those voters.  After the excess A ballots are allocated, the lowest of the remaining 6 candidates, let's say it's candidate G, will be eliminated, and G's votes will be reallocated to the voter's second choice, if the second choice is not A, who has already been elected, or  G because it's a transferred vote of someone who ranked A first and G second.  I think those ballots get reallocated to the voters' third choices.

Then the process starts anew with the candidates B, C, D, E, and F.  If one of them now (let's say it's B) has more than 30,000 votes then B is elected and the excess votes of B are now allocated among C, D, E, and F, who may have been ranked second, third, or fourth on those ballots.  The lowest finisher, let's say it's now F, is eliminated, and F's votes are allocated among C, D, and E.  The process may continue for one or two more rounds, depending on how the votes are cast. 

One problem with devising a vote-counting method for a race with more than two candidates is that in 1951 Kenneth Arrow proved that it is impossible to design a vote-counting system that is assured to yield a winner and that satisfies five basic requirements of fairness: first, that it not produce a cyclical result in which the voters prefer A to B, B to C, C to D, and D to A; second, that the result does not always match the preferences of any particular individual (i.e., no dictatorship); third, that it can handle any possible combination of voting alternatives (e.g., people who vote for fewer than the maximum number of candidates, or who have odd orders of preference); fourth, that it respect head-to-head alternatives (e.g., if more than half of the voters rank A above B, then A will finish the count ahead of B); and fifth, that the system respects unanimous individual preferences (e.g., if everyone ranks A above B, then under no circumstances can B win and A lose).   One person of the many who submitted public comments, James Kahan, mentioned Arrow's Impossibility Theorem.  I don't know if the Charter Commission discussed it, and ranked-choice voting survived for the mayor's and auditor's seats but not for the city council.

What did survive for the city council is a kludge - a collection of ill-fit parts without a coherent design.  The Charter Commission had a good idea when it proposed to remove the "commissioner" part of the city council's duties and to make them simply councilors to establish policy that the mayor, through the city administrator, would then implement.  I'll agree that we are ready to elect councilors from districts to ensure that each part of the city is known to someone on the council, which is rarely the case.  (The Laquedem memory goes back to a time when four of the five councilors lived in Irvington or Alameda.)  I'm not persuaded that the council has any systemic problem that we can solve by tripling its size and converting the governing body from a council to a jury-sized debating forum.  I recommend a NO vote on Measure 26-228.  I look forward to the proposal that Commissioner Mapps intends to bring forth in the spring.

 

Endorsements IV - A Clackamas County race and the Portland City Council

Isaac briefly diverts from the Rose City to look southward to Clackamas County and its most important race on the 2022 ballot, which is neither of the races for the county commission, but the campaign for county clerk, in which Catherine McMullen, a Multnomah County elections administrator, is challenging longtime incumbent Sherry Hall.  The most visible function of the county clerk is to supervise the county's elections.  Ms. Hall has racked up an impressive number of unforced election errors since she was first elected in 2002, amassing enough mistakes and bad conduct to fill a Willamette Week article in 2012.  In the ten years since then she's continued to fumble county elections, which WW helpfully compiled into another article this summer.  Voters in Clackamas County should give the office an upgrade that's long overdue, and replace Ms. Hall with Catherine McMullen.

One position on the Portland City Council is on next week's ballot.  Incumbent Jo Ann Hardesty and businessman Rene Gonzalez are in a runoff for a council seat.  Mr. Gonzalez has made street crime and homelessness centers of his campaign.  Commissioner Hardesty responds that she led the push to improve Portland Street Response, a non-police response to persons having crises of mental health, and has supported funding increases for permanent housing.  Underlying their debate is the City's interpretation of a Ninth Circuit case from 2018, Martin v, City of Boise, which some believe bars Portland from prohibiting the homeless from camping outdoors.

Before I turn to the Martin case, let's start with some data.  Since at least 2009 Multnomah County has conducted biennial censuses of homeless persons, though the census scheduled for 2021 was postponed to January 2022.  Homeless persons are counted in three categories: the unsheltered (people living outdoors, in tents, and in cars), people in shelters, and people in transitional housing.  From 2009 to 2019 the number of homeless persons counted in Multnomah County was fairly constant, ranging from 3801 in 2015 to 4655 in 2011.  The unsheltered population was also fairly constant, ranging between 1,591 in 2009 and 2,037 in 2019, with a typical number being about 1,800.

Something changed between 2019 and 2022, because the 2022 census found 5,228 homeless people in Multnomah County (up 30% from 2019), of whom 3,057 were unsheltered, living in tents or cars - up an astonishing 50% from 2019 and unique in the tri-county area.  (Over the same three-year period Clackamas County's count of the unsheltered fell from 371 to 327, a 9% drop, and Washington County's count of the unsheltered went from 232 to 227, essentially flat.) 

What has changed since 2019?  Isaac suggests these four factors, one of which is unique to Portland and another to Multnomah County.  The first is that in 2020 Oregon voters approved Measure 110, which decriminalized possession of many ordinary street drugs for personal use.  Measure 110 was billed as replacing drug policing with drug treatment.  The drug policing has stopped; the drug treatment has not started.  (Read what OPB said about Measure 110 last year.)  Consequently demand for street drugs has increased, and with it the customers' search for funds with which to buy drugs.  Glass repair shops and street-level retailers have become the involuntary funders.

Second is that even as Portland worked to get people off the street and into shelter, Multnomah County happily handed out tents and tarps to enable homeless persons to continue to live outside.  Last year Multnomah County distributed 6,550 tents to the homeless in the county, meaning mainly to people living on Portland streets and in Portland parks, which is somewhere between two and three tents for each unsheltered person in the county.

Third is that Portland took Martin v. City of Boise as barring the city from removing tents and prohibiting public camping unless the city could provide shelter to every unsheltered person in the city.  On this point I believe the city erred.  This short piece in the Harvard Law Review explains the ins and outs of the Martin decision in detail.  My take is that the decision prohibits cities from prosecuting the homeless for sleeping in public at night if shelter beds are available.  If not enough shelter beds are available on a particular night to accommodate all unsheltered persons in the city, then the city may not criminalize those who sleep without shelter.  It may, however, restrict sleeping and camping to designated areas; it may prohibit camping in other areas; it may continue to prosecute the unsheltered who take and dismantle cars.

That brings me to the fourth factor, and back to the city's election.  The fourth factor is that the city council and the Multnomah County district attorney have sent a clear message to the Police Bureau to stop enforcing minor laws, in particular property crimes.  Commissioner Hardesty led that message, both by securing a $15 million cut in the police budget and in pushing to cut another $18 million and 42 vacant police positions, a move that failed in 2020 and is one of the causes of downtown Portland's pandemic of broken windows.

The happy day when county prosecutors will revise their priorities must await the election of 2024.  Portland voters can take one small step toward refreshing the city by giving Rene Gonzalez the chance to argue his policies as a city councilor.

 

Endorsements III: The race for Governor

Christine Drazan and Tina Kotek, the two major-party candidates for Oregon's governorship, conflict over the role that unaffiliated candidate Betsy Johnson, a former Democrat, will play in next week's election.  Ms. Drazan asserts that Ms. Johnson is a spoiler who will siphon republican votes away and give Ms. Kotek the win.  Ms. Kotek's campaign equally vociferously claims that Ms. Johnson will siphon Democratic votes away and give Ms. Drazan the victory. 

They can't both be right.  Some recent polls suggest that Ms. Drazan is more successful at holding on to republicans than Ms. Kotek has been in drawing support from Democrats, which strongly implies that Ms. Johnson's views are closer to the Democratic center than to the republican center, and less strongly implies that Ms. Kotek is farther from the Democratic center than Ms. Drazan is from the republican center. 

All three candidates agree, however, that the administration of Governor Kate Brown has been a failure.  It's not surprising that Mss. Drazan and Johnson would campaign against Governor Brown; what's changed in the last three weeks is that Tina Kotek is also campaigning against Governor Brown.  The Brown administration's failures and missteps may be the only subjects on which the three candidates agree, and polls show her to be the nation's most disliked governor.

The voters that really matter in Oregon's statewide races, however, are the non-affiliated voters.  (They used to be called "independents" before an enterprising would-be politician grabbed the name "Independent" for a minor political party.)  About a third of Oregon's voters are non-affiliated and another third are Democrats.  About a quarter are republicans.    The non-affiliated voters slightly outnumber the Democrats. 

All three candidates are qualified by legislative experience to serve as governor.  Except for their shared dislike of Governor Brown and their professed willingness to allocate state resources to ameliorate the crisis of the homeless camps and their attendant crime and filth, Mss. Drazan and Kotek share no ideological ground.  Ms. Johnson is somewhere in between them.  She does state, however, that she is willing to try to solve Oregon's problems without resorting to party lines, and as an independent governor she would have to try.

Despite Christine Drazan being in the reasonable wing of her party - unlike some of her legislative caucus she is not an election denier - I can't persuade myself to vote for a republican for governor until the party as a whole regains its moral bearings.  Neither can I bring myself to vote for Tina Kotek, who is running against an administration that she spent the last several years supporting.  This year I am voting for Betsy Johnson, whom I believe to be the best of the candidates to lead Oregon through its current mess. 

By voting for Betsy Johnson do I increase the chance that Christine Drazan is elected?  Perhaps.  I'm willing to take that risk both because I believe that the Oregon Democratic party should return to the days when it earned support instead of demanding it, and because I believe that Ms. Kotek would take my vote for her, tiny though it be in the overall total, as an enthusiastic endorsement instead of a reluctant concession.