EXCLUSIVE INTERVIEWS—

Gov. Baldacci talks about his one-stop-shop Veterans healthcare centers

1st district Congressional Candidate Pingree - experience makes a difference

Maine’s House Majority Leader Hannah Pingree talks candidly about the Legislature

MAINE INITIATIVES—

North Star Alliance helping Maine Built Boats create sustainable jobs

Maine’s Quality of Place - the state’s key resource- a new report shows the way forward 

MAINE  COMMUNITY NEWS—

Northern Irish Delegation visits to study ME’s creative economy

HEALTHCARE NEWS—

Dirigo Choice is now sustainable, for just 5 cents per beer

Gov. Baldacci talks about his one-stop-shop Veterans healthcare centers

Universal Health Care is Congressman Allen's plan

MAINE AS 'ONE COMMUNITY' NEWS—

Gov. Conference on energy efficiency announces new loans

ME's correctional system is undergoing consolidation- saving property taxes

MAINE'S INNOVATIVE ECONOMY—

Ethanol instead of gas- takes major step forward,

New lobster business helping sustain the industry

Pine Tree Zones bringing jobs to Maine

Wind power

Broadband news

MAINE ECONOMIC NEWS—

JOBS – Maine’s working hard creating high paying jobs

Railroads make a come back - Gov. Baldacci talks about the economic opportunities refurbished railroad lines will bring

Bridge repair & replacement will create thousands of jobs across Maine

Barclays Bank & other call centers are bringing jobs to Maine

MAINE VOICES—

Eric Mehert on the loss of our basic democratic rights                

ELECTION  YEAR NEWS— 

Sam Spencer on superdelegates

Please comment on any article, refer to which article in your email, and it will be posted on that article's page.    email: duhoux2@tds.net

Statistical information in this publication is obtained from state agencies and government offices.

All photographs, articles, and layout are by Ramona du Houx unless otherwise indicated.

Not authorized by any candidate, candidate’s committee, or the Maine Democratic Party

My dad has always had a saying for every occasion. There was "That which does not kill you only serves to make you stronger," when I complained about hanging cedar shingles in the wind and snow. When my dad ran out of sayings, he would fall back on my grandfather’s favorite, "It’s a great life if you don’t weaken," which served as a catchall for any situation. I’m still not sure what that one means.

But the one that I want to talk about today is the one about the frog. Whenever my dad was concerned that we kids were becoming complacent about what he believed was a bad situation he would say, "You know, you put a frog in boiling water, he’ll jump out. Put a frog in a pot of water and slowly turn up the heat and he’ll stay right there even when it boils." When we heard that, we all knew that whatever we were doing, we needed to stop and think about whether we were getting complacent.

As a nation, we have become complacent about the very rights which established our national identity. We are justified in taking great pride in the liberties and freedoms guaranteed by our Bill of Rights. Yet our rights are being lost. They are not being lost to some foreign terrorist or invaders, but rather to the interests within this nation, which are slowly turning up the heat and boiling away our democracy.

Our right to a jury trial is slowly being boiled away by large corporate interests who use a judge-made rule to deprive us of a constitutionally guaranteed right.

There is a great memorial to the Constitution in Philadelphia. You can walk through and see exhibits on different elements that impacted the Founders in framing our government. They even have a cutaway of a court room. On the wall, by the jury box, is the following quote by Alexis de Tocqueville. He said:

"The jury, which is the most energetic means of making the people rule, is also the most efficacious way of teaching them how to rule well."

What he meant is that the jury is a cornerstone of our social contract. Our laws do not come down from God. They are made by legislators who try to define the parameters of the social contract. The jury gives the law texture and context within our society. They use the law to give us justice.

The right to a jury trial was considered so fundamental to the Founders that the debate over the Seventh Amendment was not whether there was such a right. Rather, the debate was whether the right was so obvious that there was no need to include it within the Bill of Rights. Many people in favor of a strong central government, Hamilton amongst them, argued that there was no need to include the right to a jury as an enumerated right because it was clearly established. Fortunately, the individuals who sought to preserve individual rights won out, and the Seventh Amendment was added to the Bill of Rights guaranteeing:

"In suits at common law [civil suits], where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of common law."

That seems like a pretty clearcut statement. If the value of your case is over $20, then you have a right to a jury.

For close to a hundred years the right was never challenged. But that changed in the late 1880s. It was during that time that the English courts adopted a Rule of Summary Judgment. The rule as originally adopted only allowed the court to enter judgment upon the defendant’s admission of facts. There was no analysis of the evidence, and the court was not entitled to make any inferences.

The thought behind the rule was that an injustice was being done by forcing litigants to wait for a full trial to get judgment on a case where the facts were not in dispute. The rule was specifically designed with the idea of giving relief to plaintiffs who often had to wait years to get a judgment on what was, in essence, and open and shut case. It was primarily used in cases involving a promissory note, where the defendant had failed to pay. There was no dispute that the money was owed, nor that the defendant had failed to pay as promised. In those cases the court did not have to wait for a full trial to enter judgment, it could grant a "summary judgment" based on the admissions of the defendant.

In 1938, the United States Federal Courts codified the rule and made it part of the Federal Rules of Civil Procedure.

At first, it worked fairly well. Courts were extraordinarily reluctant to use the rule to deprive a litigant of their right to a jury trial. They held that if there were "a material issue of fact" then summary judgment was inappropriate. In a New Orleans courthouse there was a sign, "No Spitting, No Swearing, No Summary Judgments." While perhaps not as emphatically stated, that sentiment pervaded in most courthouses throughout the United States.

But that all changed with Rehnquist.

In a trilogy of cases in 1986, the Rehnquist Court announced that the Supreme Court was changing the law. It established a new standard for summary judgment. The Supreme Court held:

"Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly, it was held that if there was a scintilla of evidence in support of a case, the judge was bound to leave it to the jury ..."

In one fell swoop, the Rehnquist Court changed over 200 years of American and English Common Law jurisprudence and destroyed the foundation of the bulwark of our liberties.

That decision was contrary to everything we have understood about the Law. The preeminent legal theorist, William Blackstone wrote in his Commentaries in 1768:

"[The Jury Trial] was so highly esteemed and valued by the people, that no conquest, no change of government could ever prevail to abolish it. In the Magna Carta it is more than once insisted on as the principal bulwark of our liberties ..."

The trial, the opportunity to confront witnesses, to question credibility, to draw inferences, and to argue from those inferences, is essential to the Rule of Law which underlies our system of government. Without it, there is no justice. Yet that is the impact of the Summary Judgment Rule. It deprives a litigant of a jury trial.

That reality is starkly illustrated in the findings of Marc Galantier in the Stanford Law Review.

"In the fiscal year ending two months before the Federal Rules of Civil Procedure took effect in 1938, 19.9 percent of cases terminated by trial. In 1952, the trial for all civil cases was 12.1 percent. In 2003, only 1.7 percent of civil terminations occurred during or after trial."

The decline in the number of trials and increased use of summary judgment poses a grave danger to the social contract upon which this nation is constructed.

Our social contract is founded upon the belief that justice is equal for all. Current summary judgment practice is more akin to the Norman practice of "Trial by Battle" than it is to equal justice. Though the Norman Trials were supposedly steeped in the religious belief that God would guide the hand of the "just" combatant, the harsh and brutal truth was the trials were no more than a resort to the old maxim of "might makes right."

While today’s summary judgment does not require tests of physical strength, it does require tests of economic strength. The fact of the matter is that current summary judgment practice is expensive. Rather than both parties showing up at the courthouse and putting on their case, current summary judgment practice requires that parties submit written affidavits and depositions in support of their position, write extensive briefs and statements of material fact. All of which comes at significant cost. It does not take a rocket scientist to figure out that higher costs favor those who have money. That means that the summary judgment rules favor large corporations over smaller businesses and individuals. Professors Issachroff and Lowenstein in their Yale Law Review article analyzed the impact of the costs of summary judgment and concluded:

"perhaps the most striking and unambiguous impact of [summary judgment] is a transfer of wealth from plaintiffs to defendants."

Their analysis was based on the costs and rewards of summary judgment. They concluded that summary judgment was essentially "cost free" for defendants.

Whenever cost figures into a determination of justice there is inequity. Many plaintiffs simply cannot afford the costs of discovery, and more attorneys are unwilling to bear those costs, given summary judgment standards. What that means is that litigants are left with no access to justice.

Equally as problematic as the impact of economic might on trials is the perversion of justice which is fostered by a rule where witnesses do not appear before the court and are not subject to cross-examination. The problem is manifold. Witness testimony through affidavit is the most problematic. The affidavit is drawn by counsel and only proffers facts which are favorable to the moving party. Worse, there is almost no reason for a defendant’s witness to be truthful. If the defendant prevails at summary judgment, different from a plaintiff who then must face trial, the defendant’s witness never has to face a cross-examination of his or her statements. It is doubtful that anyone can name the last time a witness was prosecuted for perjury on an affidavit submitted in support of a motion for summary judgment. Given the fact that there is only 1.7 percent chance of going to trial, the simple risk/reward analysis almost compels the defendant’s witnesses to lie in their affidavits.

In a nation where we increasingly see the impact of money upon the political process, we cannot allow money to impact the judicial process. We cannot allow those with money to receive favorable rules which are inapposite to our constitutional rights. If we do, we travel down the path where justice is the province of the wealthy. That is antithetical to the beliefs which are at the heart of our Constitution and Bill of Rights.