Question: Who is Gene Hallman?

Answer: Quite possibly the most dangerous man in Oregon politics!

Now, why do I say something so extreme?  Because Gene Hallman is running for an open seat on the Oregon Supreme Court, the seat of retiring Chief Justice Wallace Carson.

I had the pleasure of attending an academic conference, sponsored by the Oregon Trial Lawyers Association, featuring Gene Hallman as the main speaker.  Joel Shapiro, the Outreach Director of the Oregon Trial Lawyers Association, introduced Hallman as "one of the greatest resources we have in the OTLA."

So what did Hallman talk about?

Punitive damages and choice of law.

For you non-law geeks out there, here is what we are talking about.

Punitive damages are a certain type of monetary damage a defendant must pay when found liable in a civil trial, as punishment for wrong doing, not as a remedy for harm.  For example, if plaintiff is injured by defendant and suffers $100 in actual harm (property damage, doctor bill, etc.), then that plaintiff would ordinarily get $100 from the defendant.  But if there are punitive damages, usually available only under certain circumstances as defined by the legislature, that defendant may pay more money, as a sort of "fine."

Choice of law is often thought of as an obscure academic exercise by lawyers outside of the trial practice circles, but it is of critical importance to trial lawyers themselves.  The idea here is that when more than one state (or country) can claim jurisdiction over a trial, there arises a question as to which state's laws will apply.  For instance, if a driver from California is driving in a company car, and the company is based in Washington, but the car was made in Michigan, and the driver hits a pedestrian in Oregon, while the pedestrian is visiting the United States from Japan, and this pedestrian goes home to Japan thinking he is unharmed, but then must receive medical care from a Japanese doctor when his minor injuries turn out to be more serious than he thought... whose laws apply?  Oregon's?  Japan's?  California's?  Washington's?  Michigan's?  It can be a serious challenge to answer these questions -- but trial lawyers will always try to apply the law that will get the most money for their clients... and themselves...

When you combine punitive damages, which are a part of state law, with choice of law, you can see that a crafty trial lawyer will often try to get the law of a foreign jurisdiction to apply in order to claim larger punitive damages.

But who gets punitive damages?  After all, if a victim who has been wronged is getting a larger settlement in order to punish a serious wrongdoing by the defendant, isn't that a good thing?

Well, the dirty little secret of punitive damages is: plaintiffs usually don't get them!

Punitive damages usually end up in two places: in state coffers, because states impose them as a sort of de facto quasi-criminal punishment for bad behavior (and because states tax the small share that goes to the victim!); and in the pockets of trial lawyers, because trial lawyers work on a contingent-fee basis, which pays them a percentage of the damages awarded, including a share of the punitive damages!

In other words, punitive damages don't really help innocent victims.  In fact, when asked about this today, Hallman himself specifically said, and I quote:

Punitive damages have little to no economic benefit for victims.

Punitive damages don't help victims; they help trial lawyers.  No wonder the Oregon Trial Lawyers Association likes Gene Hallman... and now we have one of the most outspoken advocates for punitive damages seeking a place on our highest court...

Coincidence?

But this is just a part of my claim that Hallman is dangerous.  What about his stand on judicial activism?

Well, in his own words:

The great thing about appellate practice is that it gives you an opportunity to change the law.

His words.  Exact quote.  Said before a crowd of 100 law students and professors.  Appellate practice has given him an opportunity to change the law.  This is coming from a man who wants to serve on our Supreme Court!  And how might he change the law once he dons the black robe?

Let's take a look at a recent case in which Gene Hallman served as an advocate:

In Lawson v. Hoke, 339 Or 253 (2005), the Oregon Supreme Court upheld a statute, ORS 31.715, which bars uninsured motorists from seeking non-economic damages after an accident.  After all, if someone without insurance runs into you, you are out of luck.  But if you run into him, there is no limit to what he can sue you (and your insurance company) for.  By putting a restriction on punitive damages, the legislature has enacted a policy which discourages driving without insurance.

Oh, and did I mention that driving without insurance is illegal?  And that legislatures have in interest in discouraging illegal behavior?  Oh, and did I mention that the majority of people without insurance are illegal aliens, people with suspended licenses, and other criminals, who, because of their status, are unable to obtain insurance?  And that the legislature has an interest in discouraging these criminals from further flouting the law?

Now, which side did Hallman take?  Well naturally, he argued in favor of the Court rejecting this law!

Fortunately, Hallman's arguments only managed to convince 3 of our 7 Justices.  Four of them agreed to uphold the duly enacted and constitutional legislation.  By the way, one of those four Justices was the retiring Chief Justice Wallace Carson, whom Hallman would replace.  So, had Gene Hallman been on the Oregon Supreme Court instead of merely advocating before it, this law would have been struck down -- much to the glee of the trial lawyers, who could "earn" more contingency fees from auto accidents...

This is in stark contrast to what Hallman has on his own website:

I will not legislate from the bench.  I will give due deference to the role of the legislative and executive branches.  I will always remember that a judge is not granted the power to substitute personal preferences for decisions belonging to other branches of government.

Compare and contrast:

The great thing about appellate practice is that it gives you an opportunity to change the law.

Sounds like we have a flip-flop here... Can we trust a trial lawyer who, on his website, pledges not to legislate from the bench, and at the same time, before a group of present and future lawyers, boasts about using appellate practice to change the law?

But this is not all of my claim that Gene Hallman is dangerous.  Look at who is supporting him... The Multnomah County Democrats have endorsed Hallman as the best candidate for the Supreme Court.  But take a look at who they didn't endorse.  Remember, our current Governor, Ted Kulongoski, was once a Supreme Court Justice himself.  Ted has been on the liberal side of the political spectrum as a member of the Legislature, as Attorney General, as a Supreme Court Justice, and now as Governor.  But he hasn't been liberal enough for the Multnomah Democrats.  And as such, they have endorsed Peter Sorenson and Jim Hill for Governor.  And Gene Hallman for the Supreme Court.

Ted Kulongoski isn't liberal enough.  Gene Hallman is.

Do we need a Supreme Court Justice who is endorsed for his liberalism?  Isn't our Supreme Court liberal enough already?  After all, this is the Supreme Court that ruled that "live sex acts for cash are the type of constitutionally protected free speech our founders envisioned."  If anything, we need a shift in the other direction!

But who else is supporting Gene Hallman?  Let's take a look.  Here are some names from his website:

Joint Council of Teamsters #37

Oregon AFSCME

Oregon Education Association

United Food & Commercial Workers Local #555

Why are big labor unions getting behind Hallman?  Should we be suspicious?  After all, a judicial position is supposed to be non-partisan.  But, history shows that big labor has traditionally been the best friend of the liberal democrat movement.  Do we want a Supreme Court Justice who is part of the liberal democrat-labor union political machine?

So what about the alternatives to Gene Hallman?  Well, interestingly enough, some students asked about his competition.  One woman, noting that Virginia Linder is also in this race, asked Hallman what he thought of the fact that the Supreme Court is currently comprised of seven men.  His response?

It is terrible.  We should have females on the court.

And yet, he is running against a well-qualified woman... So how does he justify his campaign?  Well... he claims that, as a lawyer from Eastern Oregon, his geographical diversity is more important than diversity of gender.  Interpret that as you will.  But note that another student asked him this follow up question:

It sounds like you support the proposal to split the Supreme Court up into geographical regions, with representation from all parts of Oregon -- is that accurate?

But rather than respond, he used the Ruth Bader Ginsburg dodge of:

Well, since that will be a ballot measure, it probably will come before the Supreme Court, so as a candidate I can't really comment on it... but I can tell you that, in the past, I was against a similar proposal.

So... he was against it, before he was for it, but he can't talk about it... Is it me, or does it sound a little John Kerry like?

And notice the veiled threat: "since that will be a ballot measure, it probably will come before the Supreme Court..." and "I was against a similar proposal..."

Must we fear that, as a Supreme Court Justice, Gene Hallman would actively work to undo the will of the people by rejecting successful ballot measures?

What about that other person running, Jack Roberts?  If you have been reading the blogs, you will notice that one of Hallman's biggest supporters, Jeff Merrick, likes to claim that, because Jack Roberts was not a practicing member of the Bar for several years, he isn't qualified.  Another student asked Hallman about Jack Roberts and his readmission to the Bar.  His response:

I have great respect for Jack Roberts.  His readmission to the Bar is perfectly acceptable and proper.

So now let's see if people like Merrick will continue to make their claims that Roberts is not qualified... we'd hate to see them contradict Gene, wouldn't we?

Here is the bottom line:

Oregon has an extremely liberal Supreme Court.  One of the more conservative members is retiring.  There are three people running to fill that seat.  Gene Hallman is the most liberal, the most activist, and the most likely to legislate from the bench.

Gene Hallman, if elected, would be the most dangerous man in Oregon politics.

So when you get that ballot in the weeks to come, take a long, careful look at the three candidates for Position 6 of the Oregon Supreme Court, and reject the most dangerous man in Oregon politics... because a vote for Gene Hallman is a vote to pad the pockets of the trial lawyers!

Comments

[Vonski]

I've been waiting for a couple of hours to hear how the conference went. Sounds like it went about the way I thought it would.

Thanks for letting us all know how it went.

[Ken]

FWIW: the Multnomah County Dems say they didn't endorse Kulongoski because he didn't show up for the endorsement interview, not because of his politics compared to Hill or Sorensen. Too busy, said the governor.

[Phil]

actually, I think they used that as an excuse...

[Max Redline]

I've been meaning to talk with you about sugarcoating your views, Gully... ;-)

[Gullyborg]

I just received this from one of our law professors, on the value of punitive damages for plaintiffs:

"when you take into account that they have to pay income tax on punitive damages plaintiffs may even lose money when they receive punitive damages awards!"

This is an exact quote from her e-mail.

[Jimbo]

You write, punitive damages don't really help innocent victims.

Of course, punitive damages aren't designed to help the victims. They're designed to punish the wrong-doer. That's what "punitive" means.

That's why conservatives consistently argue that punitive damages should go to the state - not the victim and their attorney.

[Gullyborg]

But if they are are true punishment, shouldn't they fall under criminal law, in which case the state must prove guilt beyond reasonable doubt?

You know, that damn pesky 5th Amendment and all...

[Patrick Joubert Conlon]

I've bookmarked you and will in future be looking to you for information about Oregon law and politics.

[Sailor Republica]

The picture is just eerie...

[KXL Kool Aid boy]

Gully, do you want to come on my show on Sunday and talk about this race for the OSC?

[Gullyborg]

Sorry, but this weekend I will be out of town for a family event. But please keep me in mind for the future.

By the way, I dig your handle; I'm glad to see that we can maintain a sense of humor over our differences!

[JustaDog]

Thanks for the heads-up. I really do hope that some knowlegeable conservative will make available these judges and their politial and ideology leanings.

Judges can harm our nation much more than any politician, so they must be choosen wisely. Just look at the many times across the USA that a majority of people have voted to pass an issue only to have even 1 liberal judge over rule the democratic process.

This is how liberal organizations eventually get their way - they know, no matter what the majority want, they can advance their agenda to some liberalist-socialist judge that will be more than happy to alter the law.

[independent thinking law student]

I also was in attendence, and I can testify that Mr Borg here is absolutely correct in his observations about the presentation. One thing Mr Borg didn't mention that I think is relevant:

At one point, Hallman was outright BRAGGING about having won the largest punitive damage award in the history of his county courts. He didn't brag about helping the victim he was representing. He was bragging about the amount of PUNITIVE damages he got.

Truly shocking. This is NOT why I came to law school.

[Rafael]

I know most political rants are more about preaching to the converted than they are about trying to convert. I just wanted to note that, for the most part your arguments are sound and convincing. However, from the stand point of someone who isn't as strictly conservative, the argument the democrats, however liberal a particular group may be, supporting a candidate is a good reason not to diminishes the credibility of the entire argument.

All in all, however, thanks. You've given me something to think about, and a research assignment. ;)

[Gullyborg]

Rafael,

Please note that I am not saying "democrats" support Hallman. I said "the Multnomah County democrats." I am referring only to a small but influential organization, and why their support, in light of their rejection of their own Governor, is significant.

[AaronB]

I was at this meeting as well. I think you have done a pretty good job of taking everything he said out of context. I realize you'd like to play some part with your blog in motivating the base for the election and everything, but this post was full of cheap rhetoric. Did you even listen in Torts, or just sit there figuring out how Sean Hannity would argue with the professor?

Appellate lawyers argue before courts either to prove a mistake at the trial level or convince the court a law (including the judicially made ones) is incorrect. By your logic Brown v. Board would have been a disgraceful piece of judicial activism. I've lived in Oregon for 7 months now, and I've already figured out that Oregon courts at all levels have no patience for policy arguments. If they overturn a law, it’s generally because it is incompatible with existing superseding law. Originalism is mandated by statute for Oregon. You should be thrilled. You live in Scalia land. Sorry if it isn't everything you dreamed it would be.

Further, are you seriously arguing that all male candidates for this position should step down if they feel that women are under represented in the state's judiciary? I thought conservatives are supposed to be against all that sissy anti-discrimination stuff. I express no opinion on Judge Linder because Mr. Hallman was the first candidate I've learned about so far. In all likelihood she’s very qualified and we would be lucky to have her on the bench. But aren't conservatives supposed to be on a Horatio Alger pull-yourself-up-by-the-bootstraps trip? Mr. Hallman, just like Judge Linder, represents a constituency with little voice on the court. Shouldn't the underdog with the best campaign win fair and square? Maybe you just think small-town folk can’t hack it. You’re anti-Eastern Oregon aren’t you? :)

Plaintiff's attorneys exist to use our crappy torts system to at least try to make injured people whole. In the same breath that Mr. Hallman said victims rarely receive a sizable chunk of their punitives, he said they are mostly helpful in getting the defense to settle. Defendants wouldn't settle for fear of punitives unless they were afraid a jury would find them especially blame-worthy. It’s not like defendants (usually insurance companies and businesses) can’t afford adequate counsel to counter the plaintiff’s arguments. Without punitives, a liable defendant is more likely to find taking gamble with litigation cheaper than paying a plaintiff for their injuries.

For all your ridiculous noise, I’d be curious how long it would take you to go to a plaintiff’s attorney if you got hit by a car and you couldn’t feel your fingers.

[Sailor Republica]

And here come the clowns...

[Independent thinking law student]

Just in the interests of full disclosure, Gene's son is a first year student at U of O law who has been in Eugene for 7 months now...

[Gullyborg]

Independent,

I don't know who Aaron is, but I think Gene's son has a different name (and he said he was in OREGON for 7 months, not just Eugene, so I doubt that is him).

I will, however, address a few points:

Yes, I did pay attention in Torts. And I even asked a Torts professor for clarification before I wrote this, and the professor's response is quoted above.

Yes, Oregon's Supreme Court does reject policy arguments. Well, some of the members do. Consider the case I cited above with the 4-3 split. This is why it is vitally important that we DO NOT elect a Justice who could tip the balance and turn us into a state wholly governed by policy activism in our Supreme Court.

Scalia land? Are you serious? Here? And if fighting Gene Hallman pushes us further towards Scalia land, well, that's a GOOD thing as far as the readers of this blog are concerned.

You talk about punitives like they are some great tool for justice. The reality is they are a tool for blackmail. Why settle if you believe you are RIGHT? Answer: the threat of punitive damages makes it a better gamble to cut your loses, avoid more legal fees, and hand over money -- money that goes into the state coffers and the pockets of opposing counsel. Justice? Not where I come from (and I happen to LOVE rural Oregon and look forward to getting the hell away from the "worker's paradise" of the Willamette Valley).

So, what do I think about tort lawyers? Would I call one if I was hurt in an accident? Of course I would. But does that mean we need one on the Supreme Court? I don't think so. Tort lawyers have their place -- in trial courts, not appellate courts.

Oregon needs common sense Justices who will respect the will of the people and the power of the legislative and executive branches. Gene even says so in his campaign literature. But I don't believe Gene is sincere, not when he says, and again I quote, "The great thing about appellate practice is that it gives you an opportunity to change the law."

[sarah]

I am not sure I quite understand why you are getting so worked up about his comment that he enjoys appelate practice becasue you get to change the law. That's one of the reason most people enjoy appellate practice-though there are certainly a number of others-the fact that your work has a greater impact on the law.

And if I say I like football because the guys wear spandex, it doesn't mean I can't love luge because the guys go fast.

[Sailor Republica]

If you were looking for fast guys, why didn't you come looking for me?

(ZING!)

[Andrew Hallman]

Dear conservative folk,

I happen to be Gene Hallman's son and I did not post any comments, nor did I speak with anyone about what they should or should not post. Obviously, I do read these blogs, but I don't comment because it may be taken as a reflection of what my dad would say.

I will say that my new pick-up line is, “My dad is the most dangerous man in Oregon Politics.” I’ll let you know how well it works.

Take care,
Andrew Hallman

[Eye Roller]

Aaron, thanks for the voice of reason. I second everything in your comment. Gully, was it you that asked Hallman whether punitive damages are still a good bargaining tool for settlement considering that the money doesn't go to the plaintiff? I’m assuming that was a pointed question rather than a genuine one; otherwise I’m amazed that you made it through the LSAT.

Why is it bad policy to allow the state to subsidize its programs with punitives? The point of them, as stated previously, is to punish the wrongdoer rather than compensate the plaintiff. By its very nature the plaintiff is not entitled to the punitive damage award. Why not give it to a school?

Also, I believe that the Oregon rule is that attorney’s fees come out of punitives. Thus, while punitives don’t go to the plaintiff, they do free up the compensatory damages to do what they’re supposed to do: actually compensate the plaintiff.

Regarding Hallman, are you saying that he should have recommended that the jury go easy on punitive damages in the case that gave the big award? Why in the world would he do that? As counsel for the plaintiff (and not a “plaintiff’s lawyer”), he is entitled to be proud of that award. It means he argued his case well.

You also suggest that common law should never evolve. Wonderful.

I hope your ad revenue on this blog is high enough to live off of; it would be tragic if you were out in the community actually practicing law.

[Phil Barnhart]

Dear Militia Members,

I must take exception.

I insist that you recognize my father, (State Rep. Dist. 11) as the "most dangerous man in Oregon Politics" or at least "co-equal most dangerous man in Oregon politics." After all, he's already elected, running un-opposed, wears Birkenstocks and drives a Prius. Gene Hallman wears cowboy boots for crying out loud!

While I do not need a new pick-up line, I do insist that I be able to make the claim that my father is the "most dangerous man in Oregon politics"... at least in bars.

All the best,
Phil Barnhart

[Sailor Republica]

Phil Jr.,

That just makes him a Birkenstock-wearing, Prius-driving, elected moron.

Nothing dangerous about that...

[Gullyborg]

For the record, I didn't ask Hallman anything about punitive damages. I asked him if he thought we could have better spent our time at the seminar on conflicts of law (and he said yes).

[Gullyborg]

Andrew,

While that is a good pick up line, a better pick up line would be: "Hey baby, I'm a commenter on Resistance is futile!"

[Andrew Hallman]

Mr. Borg,

I'll save that line for Boomershoot 2006. Also, the most dangerous man in Oregon politics line is not what I had hoped for. For example:

Andrew: So, baby, Gullyborg called my dad the most dangerous man in Oregon politics.

Hot Liberal Chick at Rennies: Ohhhh, I love dangerous liberal men! Is he running for governor? Senate?

Andrew: No baby, Oregon Supreme Court. Don’t tell anyone, but he is secretly planning to use choice of law doctrine and punitive damage awards to wreak liberal havoc on the state!

Hot Liberal Chick at Rennies: That’s lamer than the line Barnhart gave me about his dad wearing Birkenstocks and driving a Prius.

Andrew: Did I mention that I’m a 1L?

Hot Liberal Chick at Rennies: Good, then you know all about restraining orders.

As you can see, I took more shots than Harry Whittington. Gully, next time you write something about my dad, please spice it up a little. Lord knows I need the material.

Respectfully yours,
Andrew Hallman

P.S. Can you perhaps comment on how Jason Atkinson looks like Don Knotts?

[Gullyborg]

The problem is that you are wasting your time hitting on liberal chicks at Rennies, when everyone knows that conservatives have more fun...

[Harvey]

I think you meant to say conservatives have more "guns." It's an easy word to misspell.

[Harvey]

Emoticon concatenation to previous post: ;)

[Ryan Casey]

As a former conservative (yes, I was Ollie North's high-school coordinator in his doomed '94 Senate Run)...I can honestly say...Conservatives do NOT have more fun. At anything. Ever.

Trust me - I was there. An angry, pasty virgin who blamed the government for my own inadequacies. Thank god for mushrooms...

[Ryan Casey]

One more thing - if "Rennie's" is your prototype of alternative, liberal behavior - you really should get out more.

[No one will read this]

I write this comment knowing that it is on the bottom of a very long page and no one is going to read it. However, I can't sleep so I might as well type out my frustrations. There are two main points I want to make.

First, Gully you missed the point of punitive damages. As Mr. Hallman stated, punitive damages are RARELY awarded. They are a tool, a device used to pry money from the cold, clenched hands of an insurance company. When insurance companies become worried about a bigger potential loss, they become more willing to settle. This gets $$$ into the hand of an injured plaintiff. The whole process is called advocacy. The fact that punitive damages encourage settlement should be welcome news to you and yours. Settlement is efficient and cuts down on those pesky personal injury/toxic tort cases that keep clogging our courts (oh wait, its contract disputes that put the biggest strain on the legal system). That this money doesn't go to a plaintiff is proper, it is not being used as a reward, but as punishment, like a fine (and like a fine/violation there is no need to prove guilt beyond a reasonable doubt, go argue yourself a traffic ticket if you don't believe me).

My second point is just how outrageous it is that you concentrate on Mr. Hallman's statement about appellate advocacy being an opportunity to change the law. He was talking about life as an advocate, not a judge. The two are not the same and listing that quote without making the differentiation is intellectually dishonest. Besides, I'd take a closer look at which end of the political spectrum is more activist these days. A fair, and possibly balanced, examination will undoubtedly show that the right has been more activist of late.

[Gullyborg]

I did read this, and while I disagree with you, I commend you for making your points in a clear and cogent manner.

The problem with defining a conservative judge as "activist" is this:

If we have long established law A, and a liberal activist overrules A and instates B, is a conservative judge who overrules B and restores A being an "activist"? On the one hand, he is changing law. On the other hand, he is correcting the error of one who previously erroneously changed law.

Activist, or originalist?

[Harvey]

So, to what extent do you agree that common law needs to evolve at a pace somewhat comparable to social norms? I understand your originalist stance in a purely Constitutional context, but it seems me that the farther you get away from the Con, the more your originalism argument falls apart. Unless, of course, you think judges of the previous centuries are inherently wiser than the judges of this century.

It seems to me that there have been many points throughout American history when certain laws were overturned because they had outlived their usefulness and become obsolete. I just can't agree that older common law is inherently superior to what will be future common law. Do you disagree?

[Gullyborg]

I simply believe that, as the Constitution provides, the legislative power of the government is vested in Congress.

When court decisions create or change policy, that defeats the very foundation of our society, a principle that elected representatives will write the law.

When a member of Congress votes for an egregious law, he can be voted out. But when a Justice creates a law, he is there forever.

I am, of course, speaking more about federal courts, where justices reign forever. But the same applies to an extent to Oregon courts, as judges have long terms and, because of the nature of judicial elections, tend to remain safe in office even with strong challengers.

And considering that almost every judge in Oregon was appointed, not elected to an open seat, the people really are detached from the judicial system.

I want laws and policies enacted by representatives who are NOT detached from the people.

[Harvey]

To what extent to you agree with judicial review of legislation?

[If you don't feel like having this discussion, just don't respond. I won't take it personally.]

[Gullyborg]

Judges should review only to the extent that a law is in clear violation of the state and federal constitutions (using original intent analysis), or to resolve questions of ambiguity (with the idea that such a ruling would be a temporary solution, with a good legislature amending the law as necessary after the ruling).

Anything beyond that is activism.

And if I don't respond in the future, it's not that I am not interested -- it's that this post is getting pushed further and further down, so it is less and less likely that anyone (including me) will see additional comments.