Steve Duin: A golden opportunity to repair class-action law and rescue Legal Aid
When Kris LaMar worked for Legal Aid’s Family Law Center in 1973, she remembers the painful Monday morning ritual:
“We had to turn the intake phones off by 10 a.m,” says LaMar, who retired in January from the Multnomah County Circuit bench. “It was a spigot. And we had to turn it off.”
And what would that mean, for the rest of that grueling week, for the victims of domestic violence, tenants unfairly evicted from their apartments, or the dirt-poor women clawing their way through a bitter child-custody dispute?
“They just had to fend for themselves,” LaMar says.
“That’s our state. We have never committed as a society to provide legal services to the poor for anything other than criminal cases, which the state and federal constitutions require.”
Never. Forty years later, Legal Aid receives less than $6 million from the state’s General Fund, and serves only 15 percent of the Oregonians who need its counsel for landlord-tenant disputes, fraud cases and family-law beefs.
So, you can not possibly imagine the relief and celebration in legal circles when two legislators — Reps. Jennifer Williamson, D-Portland, and Tobias Read, D-Beaverton — finally came up with a creative solution to this perennial funding problem.
Seriously. You can’t. Unless, of course, you have followed the disheartening arc of Dave Frohnmayer’s legal career.
Williamson and Read took note of the fact that Oregon is one of only two states in the country that returns the unclaimed proceeds in class-action cases to the very parties that ripped everyone off.
Let’s say a jury determines that BP West Coast Products recklessly violated the Unlawful Trade Practices Act at its gas stations — as a Multnomah County jury did in January — and awards a class of 2.9 million consumers $200 each.
If many claimants are impossible to locate because BP destroyed the debit-card receipts, BP (formerly British Petroleum) is allowed to keep the unclaimed portion of the $580-million award.
David Sugerman, class counsel in the case, estimates that unclaimed monies will easily exceed $100 million.
Read and Williamson have, in House Bill 4143, a better idea: allocate those unclaimed class-action awards to the endowment fund for legal-aid services.
“This is a game-changer for Legal Aid,” says Bob Stoll, a retired Portland attorney and one who has neither clients nor financial interest in the legislation.
Not only will Legal Aid be able to reopen and support many of its rural offices, Stoll notes, but companies like British Petroleum and Philip Morris would no longer “keep most of the damages a jury determined belonged to others.”
LaMar — who ended her career providing “shotgun justice” for the folks who couldn’t afford a lawyer — framed the issue rather well:
“Why would anyone possibly be opposed to that?”
Why, because Frohnmayer and Bill Gary are (a) stalwart defenders of the Oregon Constitution, or (b) the very lawyers who are being paid so handsomely by cigarette manufacturers and oil conglomerates.
The Eugene attorneys represent Philip Morris in an ongoing class-action suit, and have been hired by BP to curtail its damages. They have also lobbied passionately against this godsend for Legal Aid.
In a letter to Oregon legislators, Frohnmayer and Gary called the bill “unconstitutional, unfair and fundamentally unworkable.”
And speaking by phone Friday afternoon, Frohnmayer said, “This bill has been seriously misrepresented by people who should know better. The problem with this bill is that Legal Aid is a stalking horse for serious and controversial changes in class-action rules. The additional problem — and I can’t believe no one is talking about this — is that the law was made retroactive, to existing cases.”
Yet it is the Frohnmayer/Gary lobbying effort — rather than what Frohnmayer calls “this hand-grenade of a bill” — that has been met with disappointment and derision by many in the Oregon legal community.
LaMar said she was especially disappointed because Frohnmayer, as Oregon’s attorney general from 1981-1991, “was charged with prosecuting many of the violations of law that class-action plaintiff attorneys pursue. Many of these class-action lawsuits develop because attorneys general can’t take on that kind of case-load.
“I respect Dave Frohnmayer,” LaMar said, then added, “Why has Dave changed so much? That’s kind of painful.”
“The act of advocacy alters one’s opinions,” Portland attorney Greg Kafoury observes. “When you have spent your career defending what large corporations do, much of it marginally criminal or against the public interest, you develop a point of view, and one diametrically opposed to the view that sent you to law school.”
Stoll is even more blunt: “I think Frohnmayer is making a bogus argument. He sold out to Big Tobacco, and now to Big Oil.” Referring to three prominent supporters of the bill, AGs past and present, Stoll added, “You can hardly say that Hardy Myers, Ted Kulongoski and Ellen Rosenblum are radical legal scholars. They are very balanced in their approach.”
“Bob Stoll is not a disinterested party,” Frohnmayer fired back. “He’s a plaintiff’s lawyer who brings class-action suits. And this one is a bum rap.
“This is a compelling set of constitutional considerations, and I’m getting blown off as the captive of special interests. There’s not a word that I said (Thursday) that I would not have said as a state representative, while setting up the Council on Court Procedures; as the attorney general, while prosecuting or defending class-action suits; and as a law professor, looking at constitutional adequacy affecting individual rights.”
At the moment — the Williamson/Reed bill has already passed the House — the opinions that matter most are in the Oregon Senate.
Those legislators have a choice to make, and one they’ve had a great deal more time to consider than the Nike tax break rushed through in 2012’s one-day special session.
They can ask themselves if justice is better served, and funding for Legal Aid finally secured, by adding Oregon to the list of states that insist defendants in class-action suits pay fully for the havoc they unleash.
Or, once again, they can tell the most impoverished Oregonians to fend for themselves.
— Steve Duin