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."

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

And sometimes it's a complete sentence.

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 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.

 

2022 Endorsements II: NO on Measure 113 (truant legislators), YES on Measure 114 (gun regulation)

Like Measure 111 (unfunded guaranteed health care), Measure 113 sounds like a good idea.  We pay legislators to be in Salem and legislate; shouldn't we eject legislators who play hooky from the Capitol? Measure 113 would amend the constitution to disqualify from reelection any legislator who, in a single legislative session, misses 10 or more days when the legislature is meeting without having received permission or an excuse.  The measure does not identify who grants permission or accepts the excuse.

The quirk behind Measure 113 is that the constitutional requirement for a quorum for the Oregon house and senate is not a simple majority (31 representatives, 16 senators) but two-thirds (40 representatives, 20 senators).  A party in the minority that holds at least 21 house seats or 11 senate seats may bring the chamber to a halt by not showing up.

In recent years the republicans have been the ones who haven't shown up; the Democrats last staged a walkout in 2001 to protect redistricting.  No one filed an argument in opposition.  The measure is nevertheless bad policy, both because it does not say who gets to grant permission - the presiding officer? The house or senate by majority vote? The majority or minority leader? - and because it takes from the voters the right to boot their representatives.  I don't favor walkouts, but I have seen legislators walk out not to avoid representing their constituents, but to carry out the wishes of their constituents.  The voters, not the legislature, should decide whether an absent legislator is ill, lazy, or zealous.

Measure 114 is a common-sense gun regulation measure that requires gun buyers to take a gun safety course before acquiring a weapon, prohibits most off-the-books transfers of firearms, and prohibits magazines that can hold more than 10 rounds of ammunition.  Until I see a plausible argument that (1) gun owners need less training than alcohol servers and boat owners, and (2) there is a genuine self-protection reason for Oregonians to be able to kill more than 10 people at a time, I'm willing to add regulations that may reduce exsanguination.  I vote YES on Measure 114.

2022 Endorsements I: NO on Measure 111, YES on Measure 112

Oregon's voters face an odd array of statewide ballot measures.  Here's Isaac's take on two of them.

Measure 111 would add this sentence to the state constitution: "(1) It is the obligation of the state to ensure that every resident of Oregon has access to cost-effective, clinically appropriate and affordable health care as a fundamental right."  The measure would also add a weakish qualifier: "(2) The obligation of the state described in [section 1] must be balanced against the public interest in funding public schools and other essential public services, and any remedy arising from an action brought against the state to enforce the provisions of this section may not interfere with the balance described in this section."   The statement of financial impact states "The financial impact to state and local expenditure and revenue is indeterminate. The measure does not require additional state government revenues or expenditures. The impact of the measure will depend on future legislative action to establish additional health benefits and determine how they will be paid for."  The legislative argument in support of Measure 111 states that the measure "protects state spending in other critical areas by requiring that health care spending be balanced with funding all other services the state provides, like schools and public safety.  This measure also does not increase any taxes, and that is because it does not make any changes to current health programs or policies."  Most of the published arguments in support likewise claim that the measure is a lofty aspirational statement, not a budgetary mandate.

The legislature got this one wrong, both in the drafting and in the argument.  First, the drafting.  Section 1 obligates the state to ensure that Oregonians have access to "cost-effective" and "affordable" health care, which implies that if an Oregonian cannot afford health care, the state is required to pay for the care.  I don't object to national health care as a general policy (Western Europe has got on quite well with national health care) but the wording creates an unfunded mandate with no cap.  The legislative statement in support misreads the measure because the measure does not allow the state to balance health care spending against "funding all other services the state provides," but only against "public schools and other essential public services." 

I read the measure to prohibit Oregon from spending any money on anything other than public schools and "essential public services" until the state has provided affordable and accessible health care to every Oregonian.  But what is an "essential public service"?  Nowhere in Oregon law does the term appear.  The state performs many desirable and frequently laudable functions, such as subsidizing public television and radio (ORS chapter 354), providing loans to veterans (chapter 407), administering wildlife laws and operating wildlife refuges (chapters 496 to 500), and regulating wages and hours (chapters 651 to 653).  None of those functions can fairly be called an "essential public service" similar to education, highway maintenance, and law enforcement, however. 

I see Measure 111 as inviting litigation over what the legislature can and cannot fund, and pitting the beneficiaries of some government programs against the beneficiaries of other government programs.  I recommend voting NO on Measure 111.

Measure 112 is much more straightforward.  In 1857 the framers of the Oregon constitution prohibited slavery in the state "otherwise than as a punishment for crime, whereof the party shall have been duly convicted."  The 13th Amendment to the United States constitution, adopted in 1865, used almost the same language: it prohibited slavery nationwide "except as a punishment for crime whereof the party shall have been duly convicted." 

The only argument filed against Measure 112 is from a group of county sheriffs who oppose slavery and involuntary servitude, but believe that the measure, as worded, would force them to end in-prison work programs.  I understand their concern; I believe that they are misreading the measure.

Oregon has not seriously tried to impose slavery as a punishment for crime, and the words that legislators chose in 1857 and 1865 are now outdated.  It's time to remove "slavery" from the constitution.  Isaac has voted YES on Measure 112.

"Exit, pursued by an alligator"? Donald Trump's legal team learns that a sad tale's best for summer

The Trump legal team's response to the Justice Department over Mr. Trump's request that the court appoint a special master to review the documents that the government recovered from Mar-A-Lago, filed today in federal court in Florida, is not up to the usual low standard of the team's legal work.  The hilarity begins on page 1, when Mr. Trump's lawyers call it "extraordinary" that the Justice Department believes that the Justice Department should be "entrusted with the responsibility of evaluating its unjustified pursuit of criminalizing a former President's possession of personal and Presidential records in a secure setting."

On the next page the lawyers do acknowledge that something called the Presidential Records Act exists, one sentence before they step off of the bridge into the moat of alligators:  "Thus, there is no question and, indeed there is broad agreement, that the matters before this Court center around the possession, by a President, of his own Presidential records."  Not content to swim with the alligators, the lawyers then offer themselves as nutriment for the carnivorous:  "Indeed, the warrant intentionally blurs important distinctions in referring to the ability of FBI agents to seize 'Presidential Records' (the PRA never concerns itself with traditional classification labels) while wrongfully suggesting the applicability of the Espionage Act and referring to expectations of recovering classified or highly classified documents."

Where do the alligators come in?  Let's take their missteps one at a time. 

First, it is traditional, and in fact statutory, for the Justice Department to investigate possible federal crimes.

Second, while Mar-A-Lago may be a "secure setting" in the sense that the doors lock and the security cameras work, it is not a secure setting in the way that the SCIF in Congress is a secure setting.  ("SCIF" stands for "Sensitive Compartmented Information Facility."  There's one in the White House and another in Congress.  They tend not to be found at country clubs.)  And Mar-A-Lago has become known for lapses in security: in March 2019, a Chinese "business consultant" managed to enter Mar-A-Lago with a bagful of electronics and get past five Secret Service agents and into the reception area, all while Mr. Trump was still the president and had a robust cadre of Secret Service agents on the property.

Third, the lawyers inexpertly said that the case is about the possession, by an [ex-]President, "of his own Presidential records."  Are they "his own Presidential records"?  In one syntactical sense, they are; that is, they are records about Mr. Trump's four years as president.  In the legal sense, however, they are not "his own Presidential records," for the Presidential Records Act, 44 USC §2201 ff, states that "The United States shall reserve and retain complete ownership, possession, and control of Presidential records."  The Presidential Records Act also states that when a president leaves office, "the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President."  The law is quite clear that the Presidential records of Mr. Trump's term don't belong to him; they belong to the nation, and the Archivist is entitled to hold and preserve those records.

Fourth, they erred badly in suggesting that the affidavit supporting the search warrant improperly referred to the possibility that the FBI might recover classified documents from Mr. Trump's office at Mar-A-Lago - because the FBI did recover classified documents.  

Why do Mr. Trump's lawyers sign their names to such shoddy legal work?  One possibility is that they know their client has no real defense, and they're serving not as his lawyers so much as his public relations agents.  Another possibility is that they themselves don't know how bad their arguments are, but they're the best of the lawyers that are still willing to tie their reputations to Donald Trump.  (Rope, meet millstone.) 

The third possibility is that they themselves are among the alligators, hoping to dine well on Mr. Trump's legal troubles and then to get out before the final crash, rather like the guests at the legendary ogre's feast who ate and drank well, realizing only too late that the ogre would dine on the last remaining guests.

Gutta cavat lapidem, non vi sed saepe cadendo

"Dripping water erodes rock, not by force but by persistence."

January 2021:  The Department of Justice subpoenas cell phone location data from Google to identify who was in the Capitol on January 6.

May 12, 2022:  The January 6 committee issues subpoenas to Rep. Kevin McCarthy and four other House Republicans.

June 22, 2022:   The Department of Justice executes a search warrant at the home of former Acting Assistant Attorney General Jeffrey Clark, taking his computer and cell phone.

June 22, 2022:   The Department of Justice simultaneously seizes the cell phone of Trump lawyer and Big Lie advocate John Eastman.

July 2022:  Trump associate Roger Stone and his wife agree to pay $2.1 million to the IRS to settle their liability for back income taxes.

August 3, 2022:  It transpires that the grand jury investigating the January 6 insurrection issued subpoenas to former White House counsel Patrick Cipollone and Patrick Philbin.

August 8, 2022:  The FBI executes a search warrant on Donald Trump's quarters at Mar-A-Lago.

 

Dinner with Robespierre, and others

You may have heard these two observations of America:

I do not know if the people of the United States would vote for superior men if they ran for office, but there can be no doubt that such men do not run.

            And

The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.

Those are not quotations of today.  They come from the Frenchman Alexis de Tocqueville (1805-1859), who traveled around the United States in the 1830s and compiled his observations into the famous book, “Democracy in America,” published in 1835, which we all were supposed to have read in high school. 

To understand de Tocqueville, consider where he came from.  He was born only 12 years after the Reign of Terror.  The French revolution was not the stuff of history but an event that still echoed.

The French revolutionaries of 1789 liked to think that they were inspired by the American revolution of 1776.  There’s an important difference in what happened after each Revolution.  After a short-lived weak confederation, the 13 states organized a new federal government, and our basic government structure has stayed the same since.

Not so the French.  They went from the revolution of 1789 to the republic and the reign of terror of 1792, had a civil war and a counterrevolution, were displaced by Napoleon in 1799, restored the monarchy in 1814, pushed out Napoleon, got him back, pushed him out again, and got the king back – all in less than 50 years.

One of the classic "what if" questions is "If you could invite anyone in history to a dinner party, who would you ask?"

For one of my historical dinner parties I would invite the people who set de Tocqueville on his way.  The first is the person who brought about the end of the French monarchy, Maximilien Robespierre (1758-1794).

Robespierre was a young lawyer, barely 30 when he led the French Convention to abolish the monarchy and not yet 35 when he persuaded the Convention to execute Louis XVI in January 1793.  He had a vision of the ideal Republic.  He prepared the very liberal constitution of 1793, but never implemented it.  He led the French toward his goal – until they saw that he was ordering the deaths of anyone who stood in his way.  Seeing their own danger, the Convention organized against him.  In July 1794 he left France the same way that King Louis had departed, head first.

Imagine that you could hear de Tocqueville interview Robespierre.  If Robespierre could rewrite history, would he have pushed Louis XVI to the guillotine?  Would he have executed hundreds of his political enemies?   Or would he listen to de Tocqueville’s recounting of American success and understand that he could have brought about the same result for France?

Every case has two sides.  If we dine with Robespierre, we will invite Louis XVI.  You may know him for marrying Marie Antoinette and how they met their end.  There’s much more to his story.

Louis XVI succeeded his father in 1775.  Louis began his reign as a reformer.  He tried to abolish serfdom.  He tried to get rid of the land tax and the labor tax.  He tried to foster religious tolerance.  On the spectrum of French kings he was a liberal and a reformer.  He supported the American revolution, but the resulting national debt combined with bad grain harvests led to the lower and middle classes becoming as unhappy with him as the aristocracy had been.  He made all sides angry.

He could not stave off the French revolution in 1789, he was arrested and deposed in 1792, and he went to the guillotine in January 1793.

We can imagine De Tocqueville, after a glass or two of a fine Bordeaux, encouraging Louis and Robespierre to argue about whether Louis could have avoided the revolution and execution.  Would Louis have gone into exile to save the lives of himself and his family?  Or would he, like a sea captain, “go down with the ship”?

I’d invite a fourth person to join us, one you’ve likely never heard of other than as the namesake of a station on the Paris Metro.  His name is Chretien Guillaume de Lamoignon de Malesherbes (1721-1794).  Why him?

The French Convention included many lawyers.  Malesherbes was one of them.  Malesherbes offered to defend Louis XVI at his trial, knowing that by defending the unpopular king he was risking his own life as a very visible royalist.  He was right - fifteen months after Louis XVI went to the guillotine, Malesherbes died the same way, together with his daughter, his granddaughter, and their husbands.  Did Malesherbes regret dying for his belief in the principle that every accused person is entitled to a defense?

I wouldn't pose the question myself, but I'd encourage Alexis de Tocqueville to ask Malesherbes, as I expect he would; de Tocqueville was his great-grandson.