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More court flunky stuff

Who cares if no one reads? I gotta store this crap somewhere. I promise to get less boring after May 4.
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All judges should be like Judge Judy

It’s one of those themes repeated ad nauseum in law school, that in Merry Olde England the equity courts developed and grew in power because of the inflexibility of the precedent-burdened common law courts. And it is said just as often that the two competing courts have now merged into one with both precedential tradition and equitable flexibility in some circumstances.

But I think that in some circumstances -- say, for instance, in garden variety pro se matters such as a restraining order hearing -- the court could again do with some loosening up of its procedures. Here it isn’t bound by precedent but by statute, but the result is the same: the court has to decide narrowly, and can’t go off the farm to help the parties resolve a dispute that may not technically come within the realm of a stalking order, but may be better off resolved by a court right then and there anyway.

Maybe this is not making sense, so I’ll explain the case that has me saying this. Woman A is trying to sell her house, and informally engages neighbors B and C, a married couple, to help her do some sorting, cleaning, light remodeling, etc. For a time A pays B and C daily in cash, but soon can’t afford to. The parties, however, arrive at a written contract in which B and C will continue to work and will be paid in full upon sale of the house. A few weeks later, B and C stop showing up for work and break off contact. Some weeks after that, A recieves a series of threatening phone calls, from C and from strangers, saying things like “pay up or else.� Then, B and C place a large sign in their yard accusing A of being a deadbeat, saying she’d better pay them, and reproducing her unlisted phone number and address. At one point, C storms into her yard, screaming and threatening her. He also often slows down, honks, and gives her menacing looks as he drives by. Frightened, she files for a stalking order against C.

At the trial to make the order permanent, A is unable to meet the statutory standard, as there was but a single incident of unwanted contact, rather than repeated incidents. The judge is forced to grant C’s motion to dismiss, A goes away unsatisfied, and the essential underlying dispute among the parties remains unresolved.

The problem with this result is that neither A, B and C has any legal sophistication. All they know is they want the situation resolved. So, at the hearing, both parties try to argue the underlying contract dispute, and A tries to bring in the invasion of privacy brought about by B and C’s sign. But the judge can’t and won’t hear any of that, because this is a stalking order hearing. It seems that in cases involving legally unsophisticated parties and complex matters, there ought to be some equitable leeway, where a judge can say, “Hey, pull over! This isn’t about Y, this is about X. If we can settle X, maybe Y will go away. So let’s do that.� A lot more problems might end up solved sooner and, perhaps, with less violence and legal strife down the road. Just a thought. And sorry for all the algebra.

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Need I add, Mr. C was a feral nutjob with blazing eyes and a Senor Frog's T-shirt? Or that one day he went wild and ripped all the doors off his house? Of course I do! It's a FLOG exclusive!
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Some gibberish about sentencing guidelines

Monday featured a little departure from the restraining orders & drugs routine. An inmate had moved for an amended sentence for his assault 4 conviction and Judge Barbrady held oral argument on the motion via telephone. The inmate, pro se, raised two issues. First, he claimed that he was a 6-A on the guideline grid but had been sentenced to twice the recommended 6-A sentence of 25-30 months. That argument was probably a wash because, as the DA pointed out, the 60 month sentence was only imposed after the inmate had violated probation. The parties had stipulated a downward departure from 6-A to probation, with the possibility of an upward departure to 9-A if he violated probation. And that’s exactly what happened. The defendant tried to analogize the case to Blakely, but this was unavailing: Blakely dealt with judicial discretion and untried facts, whereas in this defendant’s case, the judge was merely following the parties’ negotiations and all the facts were uncontested.

On his second issue the inmate may have a case. He had been sentenced to 60 months hard time and 36 months probation, but under the Oregon Administrative Rules, no sentence shall exceed 50 months of combined, total time for the crime he pled to. So his sentence apparently exceeded the maximum by 46 months. Unfortunately, the DA was unprepared to litigate that issue and the matter was set over for another day.

Anyway, that was interesting.

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Seriously, it was.

Posted by FLOG at April 11, 2005 10:16 PM