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    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.

    Tough call.

    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

    Source:Oregon Live

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    Pendleton Lawmakers Try To Keep Blue Mountain Hospital Open

     by Christopher David Gray

    Sept. 18, 2013 — The Oregon Health Authority has laid out the timetable to legislators for the closure of the Blue Mountain Recovery Center, even as Pendleton lawmakers strive to keep Eastern Oregon’s mental hospital open.

    “The train’s already left the station,” Rep. Bob Jenson, R-Pendleton, told The Lund Report. “We got to find the sidetrack somehow.”

    Blue Mountain is set to stop taking patients next month and close for good Dec. 31. The hospital has a long track record, opening in 1948.

    Pamela Martin, the director of the Addictions and Mental Health Division, said half of Blue Mountain’s 60 patients will be ready for discharge, but any civilly committed patients who need further treatment will be transferred to two mothballed 26-bed wings in the new Oregon State Hospital in Salem.

    Those hospital wings are scheduled to open in November, with patients transferred over the following month. They were built the same time as the new hospital but have sat empty for lack of funding in the previous budget.

    After Blue Mountain stops taking patients, new civilly committed patients will be sent to either Salem or the Oregon State Hospital in Portland, but there is already a waiting list to get into state psychiatric hospitals. The Legislature has budgeted money for a new hospital in Junction City, near Eugene, but it won’t open until 2015 at the earliest.

    At Wednesday’s meeting of the full Joint Committee on Ways & Means, lawmakers accepted Martin’s report, but talk stirred of potentially keeping the hospital open and staffed until next spring so it could be turned into a geriatric hospital for the Department of Corrections.

    The prison hospital idea was pitched by Rep. Jennifer Williamson, D-Portland, who said it would be wise to keep the facility in place with its skilled workforce because the Department of Corrections needs to increase hospital capacity with an aging population, driven by mandatory prison sentences.

    Her idea was immediately grasped by Jenson and his Pendleton Senate counterpart, Sen. Bill Hansell, as well as Sen. Jackie Winters, R-Salem:

    “It’s a piece of the puzzle that needs to be worked on to come to fruition,” Winters said.

    If the hospital closes, Jenson and Hansell are concerned that the professional staff, particularly the nurses, would be cut to the wind and leave Eastern Oregon. Recruiting newcomers to move to Pendleton could be difficult with the state suffering a nursing shortage. Jenson reminded his colleagues that even the Oregon State Hospital in Salem has had trouble filling all its positions with qualified applicants. “If we lose the workforce, we’re going to have to restart,” said Hansell, who also learned that most workers would prefer to remain in Pendleton, according to the Service Employees International Union.

    In place of Blue Mountain Hospital, three new residential mental health facilities, each with five beds, are being built in Pendleton. One will serve as an acute crisis unit while the other two will act as transitional residential treatment homes, one for adolescents and the other for adults.

    “Every effort will be made to place people from Eastern Oregon in those two facilities,” Martin told legislators.

    Some Blue Mountain employees will find work in the new units, but with only 15 beds and less intensive care, the new residential treatment units will only employ a fraction of the people if the hospital closes. Others could find work in Salem. And some of the staff has already left voluntarily, requiring the state to hire temporary employees.

    “One of the major barriers is the physical quality of the [Pendleton] hospital,” said Martin, who toured the 65-year-old facility after assuming her leadership position in May. “It’s outlived its natural life span.”

    Martin said that it costs about $1 million a month to operate Blue Mountain, but the two new mothballed units in Salem will cost only $700,000 a month to run, she added, comparing them to empty floors of a hotel.

    If Blue Mountain Hospital were renovated, it would cost an estimated $11 million, and it’s uncertain if the hospital has significant asbestos insulation or lead pipes, which would increase costs exponentially.

    Jenson rebuffed the asbestos concern, noting that most of the facilities have undergone substantial renovations in the past 25 years. “If there’s a lot of asbestos in the building for these patients, maybe we have a good class-action lawsuit waiting for us,” Jenson quipped. Before it was razed, the state had been fined by the federal government previously for asbestos in the old Salem state mental hospital.

    Martin expects to report back to legislators with detailed information about the impacts of the closure on Pendleton, as well as the potential for its reuse as a prison hospital. But that could be too late to delay closure of Blue Mountain Hospital. Lawmakers may not be back in Salem until nearly Thanksgiving, just weeks before the last patients are moved across the Cascades.

    Source: The Lund Report