Sunday, November 25, 2007

The Grinch Who Stole Thanksgiving

Occasionally, I am ashamed to be a lawyer. I hear about something one of my colleagues in the profession did and simply hang my head in shame for all of us.

It would seem that one of the largest financial companies in the nation is tightening up its credit. That means that more of their marginal clients are subject to collection actions. Collections are a necessary part of business and I have no problem with companies trying to get the money due them. I do collections myself occasionally.

But, there should be limits. For example, in Oklahoma you can only get 25% of a person’s paycheck on a garnishment. You can however, get everything in a checking or savings account. So, some enterprising lawyers for large finance companies are now waiting until a family deposits their paycheck for the period before seizing the checking account. That means that the lawyers get a good sized lump sum before they have to start collecting the balance a bit a time through forced payroll deduction. And, while I don’t know this, I would suspect that nearly all of that first seizure goes to pay attorneys fees.

The problem is that this is the kind of an event that can send a financially troubled family over the edge. If they have to go for a whole pay period with no income, they can’t pay their rent or mortgage payment, their car payments, their utilities or even buy groceries or medicine. They are literally broke and may have to go to payday lender or pawnshop just to feed their kids. And, that starts a new round of even higher percentage predatory lending.

As bad as this practice is, its’ impact is worst during the holidays. I got a call last week from a desperate woman whose checking account had been seized in this manner. There was simply no money in the house for anything, not even to feed her family. The same lender with the judgment from her personal credit also holds the mortgage on her home. So, that means that about Christmas she can expect a foreclosure notice.

I don’t believe that I could seize a family’s entire livelihood, especially a couple of days before Thanksgiving or Christmas. It’s just not in me. I would wait a few days or weeks and then simply file the paperwork and let the timing fall wherever it came out. I would never purposely wait for a paycheck to be deposited so that I could seize a higher percentage than the garnishment statute allows.

But, there is always an attorney out there who will. I once had an attorney seize a goodly portion of a family’s paycheck by garnishment. The family was already so poor that the only way they were eating was by food stamps and a church food pantry. The garnishment amount was all attorney’s fees. A member of their church agreed to loan them the money to get the garnishment lifted. As the check was being exchanged, the lawyer bragged that the money would be used for her and children to vacation in Florida. With representatives like these, it’s no wonder so many people hate lawyers.

The Pious and the Poor ...

It is strange how some lines of meditation come together from a chain of unrelated events. A few evenings ago, I was standing around at the inevitable cocktail hour talking with a high powered hired gun from one of Oklahoma’s most politically powerful firms. He observed, correctly I might add, that many “lower class” clients knew how to push all of an “upper middle class professionals” “buttons” to get what they want, often to the detriment of their attorney.

I did not respond, but internally, I had to agree with his logic if not his use of class distinctions. Potential clients from any social class will manipulate anyone and everyone, including their lawyers if they will let them, to get the representation they feel is necessary for their well being … particularly if a jail cell or financial ruin is a possibility. The wealthy use their money, power and connections. The poor just use what they have, their plight itself and the attorney’s sense of noblesse oblige, in a kind of class reversing jujitsu.

I walked away from the conversation troubled. There is a difference between the professional class and everyone else. Many professionals come from generations of wealth and power and the difference there is truly social and cultural. These individuals start with a leg up in life and never know the struggles of those below them on the social scale. But, other professionals, like myself, are first generation and come from truly humble backgrounds. In that case, it is the effort that it took to become a doctor, lawyer or professor etc. that sets them apart. You cannot give what it takes to earn a professional degree, become accredited and enter a profession without being changed in many ways and it would be totally unrealistic to assume that the experience does not set you apart from your peers.

Within the next day or two, I scanned an article re-printed by one of the Christian Civil Rights organizations I work with. The article observed that evangelicals were becoming socially stratified, with more and more of the professionals and high achievers in their ranks congregating in para-church settings, etc. that were more comfortable for people of their social station. Having some experience with organizations of that type, I had to agree again, but was again shocked by the overt recognition of class distinctions. We’re not really supposed to mention class distinctions in polite society, especially polite evangelical society.

When people ask me what type of law I practice, I frequently reply “schizophrenic,” referring to the unusual mixture of business representation and civil rights work that I handle. But internally, it is a private joke to myself, referring to the class straddling mental split that is necessary to represent the poor and remain at least minimally active in the society of my profession. The poor and the professional class live in two entirely different worlds. Recently, I buried a pauper in the morning and went to the Petroleum Club that evening. The irony was exquisite.

I have been tempted to quit representing the poor. I usually can’t do anything for them anyway and I have seen too many over the years that would sue me just as quickly as the person they are asking me to sue if they saw a buck in it for themselves. And, I have been tempted of late to simply quit having anything at all to do with my evangelical brethren. Frequently, their behavior simply disgusts me. I have seriously considered contracting myself out to some big firm as a research or discovery specialist where I would never be seen by another living soul, draw a reasonable fee that nobody argues about and just let somebody else deal with the Pious and the Poor.

But then, I am reminded of Jesus. Of all of the attributes of Jesus, it is His Condescension that amazes me most. I simply cannot comprehend the kind of love that would lead God Incarnate to leave His throne and lead the life of a human being. While I cannot truly understand the Condescension of Christ, I can certainly understand its object lesson. Jesus received all social classes but spent most of his time with the poor. He deserved to be received like royalty but chose to break bread with fishermen and tax collectors. He performed miracles for the multitudes, feeding them loaves and fishes, all the while knowing that in the end they would crucify Him. If the Son of God could do that for me, and I am one of that disgusting crowd to Him, who am I to refuse to help them when I can?

Sunday, November 18, 2007


The following is taken from and can be found online here.
Please note that the Missouri system described here is very similar to the system used in Oklahoma and there is now considerable discussion within judicial and bar circles to modify the Oklahoma system to allow even less public input into the process.


Where do judges come from?

By Paul Jacob
Sunday, November 18, 2007

Patricia Breckenridge was sworn in this past week as Missouri’s newest supreme court justice. It was a pleasant event, even a bit ho-hum, considering it culminated months of bitter disagreement over the method of choosing state court judges under a system known as the Missouri Plan.

No one questions Mrs. Breckenridge’s qualifications. She has been serving as an appellate court justice for the last 17 years and sat at a lower perch for nine years before that. It’s the process by which she found herself on the state’s supreme court that is at issue.

Breckenridge was appointed by Governor Matt Blunt. Well, that’s not entirely accurate. The governor chose Breckenridge from a list of three judges chosen by the state’s Appellate Judicial Commission. He is required to pick one of the three — or instead, to have this powerful commission do the picking for him.

You see, as I wrote in August, the commission handed the governor three nominees, all unacceptable to him. He wanted non-activist, conservative judges.

Conservatives urged Governor Blunt to fight the commission, but the governor eventually caved. He nominated Breckenridge from the commission’s menu, tepidly stating that he would “accept Judge Breckenridge’s statement that she will not seek to legislate from the bench.”

So, just who makes up the Appellate Judicial Commission? How are they chosen?

Good questions. The commission is made up of three members elected by the Missouri Bar Association and three members selected by the governor — each serving six-year terms. The seventh member? The sitting chief justice of the Missouri Supreme Court.

Is it a good idea to have our most powerful judges determined largely by a private organization? Shouldn’t we at least alternate the private group doing the choosing? One year it could be the state bar, another year Wal-Mart stockholders in the state, another year the Rolla Bowling League. In leap years, a statewide group of local bar owners might do the selecting.

And why have the governor appoint people to a commission which appoints people for the governor to appoint? A tad circuitous, no? And why have someone on the current court deciding who sits on the future court?

You can see what this seems like: an insider game, a stacked deck.

How to reform? By what process can we acquire justice, that is, justices in sympathy with the people, respectful of the law, and independent of the other political branches of government, as well as any special interest?

Start with principles, and go from there.

First, let the voters into the process. Elect the Appellate Judicial Commission in Missouri. And, of course, elect similar commissions in others states. That would end domination of the judicial selection process by the state’s Bar Association, or any private interest group.

The bar would fight this, of course. The assumption (common amongst supporters of the Missouri Plan) that the Bar Association is a public service group with a disinterested agenda, unaffected by biases, and exempt from corrupting influences, is hard to maintain with a straight face. Lawyers present a faction. They have an interest in keeping the law complicated, and expanding state involvement so to require suit and countersuit and consultation and a hundred other ways to put numbers into a billable hours column. It is far more reasonable to argue that the Bar is the last group one wants in charge of a judicial selection process, rather than the primary group. It is a guild, and its interests can be as antagonistic to the public interest as any group’s can possibly be.

Second, why not take résumés from anyone who wants to apply for the position? That seems not only modernly egalitarian, but also smart. We might find a really good person who would otherwise be overlooked by the legal and political insiders.

Third, judges should be chosen from geographic districts, not statewide. Smaller districts allow a closer connection between the people and the judge working on their behalf. With districts, when people have had enough of any certain judge, they can more easily campaign to defeat that judge at a future retention vote.

Fourth, more checks, even political checks, are better than fewer. Why? Well, we don’t want the nominee to be “politicized.” So, if the governor nominates, the legislature or just the Senate should then approve or reject that nominee.

Fifth, the entire process — including all resumes submitted and all deliberations by any commissions or legislative committees — must be open and transparent.

So a better system might look like this: The public elects a seven member commission from as many regions in the state, each commissioner serving a four-year term. When a vacancy occurs in the state appellate courts, this commission would take resumes for a period of time. Those resumes would be discussed both by the public and the commission. The commission would nominate three people for the governor to choose from. The governor’s choice would then require approval from the legislative branch. Then, once confirmed, the justices would face the voters in a retention election.

More voter control. A more open process. More checks and balances. Less control by the legal community.

Missourians — and all Americans — need their judges selected in such a way as to avoid the undue influence of factions as well as politicians.

Paul Jacob is a Senior Advisor at The Sam Adams Alliance, a member group. His daily Common Sense commentary appears on the Web, via e-mail, and on radio stations across America.

Copyright © 2006 Salem Web Network. All Rights Reserved.

Sunday, November 11, 2007

The Practical Effect of HB 1804

You seldom get a chance to actually see a law working but I have in the past few days and it was refreshing.

The Monday after HB 1804 went into effect I had to go downtown. As I was driving the so-called streets that lead to my office, I noticed something strange ... very strange ... I saw a crew of mixed white and black construction workers on the streets of downtown Tulsa. There was even a pert little lady in a hardhat moving around with the crew. Shocked, I drove around the block and noticed that, while there still plenty of Hispanics working on the streets, there were now people of other races as well. What a concept, racial diversity in the workplace.

After leaving downtown, I headed for my favorite lunchtime fast food restaurant. I had placed my order and sat down with my coke before I noticed that there were a couple of white teen-aged boys waiting tables and bussing dishes, jobs that always been done by Hispanics before. They were working hard and doing a good job as far as I could see. So much for the excuse that Hispanics were taking jobs that Americans wouldn't do.

I am from a blue collar family. I made my first quarter picking cotton alongside my mother in a field where Mexicans, blacks and poor whites all congregated for a days work. I worked my way through high school on a huge poultry farm, doing work almost exclusively done now by Hispanics. After graduating, I worked my way through a couple of years of college in a steel factory alongside my father.

It was all hard work but it certainly made me appreciate the day that I could get up in the morning and put on a fresh shirt and tie to go to work. It also gave me a soft spot for blue collar workers. In my mind, I call them all "Bubba." Bubba is an interesting character. He will work hard for you but he will not be mistreated. He is an American. If you get in Bubba's face he will clean your clock. If you short him on his paycheck, he will at minimum turn you in to the Labor Department and you should probably be happy if that's all he does. If he gets hurt on the job, he knows all about Workmen's Comp, so he goes to the hospital and expects his employer's policy to pay the bills. And, Bubba expects to support his family in a typical American lifestyle. That means he expects a living wage in the American economy and reasonable benefits. And, if you seriously violate his rights, he will sue you, because he is an American and knows that he has rights.

All of the above are reasons that illegal aliens, particularly Hispanic illegal aliens, have become the crack cocaine of American employers. You don't have to treat them as well as you do Bubba. And that is a shame.

Friday, November 02, 2007

A Shot At America

A couple of years ago, at a friend’s request, I broke my own in-house rule and got involved in an immigration case. My friend told me this was a special case and it was indeed.

My client was a person of color. She was a product of a British colonial public school system. She spoke perfect, British accented English and had wonderful manners. If I remember correctly she also spoke French as well as her native tongue. She was bright, engaging and very eager to become an American citizen. If her visa would have allowed her to work she would have. But it did not and she would not disobey the law by working for cash in the underground economy.

Mistakes had been made in her application process and her request for political asylum in the U.S. was denied even though there was no guarantee that she not would be arrested as soon as she stepped off the plane in her home country for the dual crimes of being born into an upper class family and western educated. Some of her family members had been declared subversive influences because they were intellectuals.

This girl deserved a shot at America. It was denied her. It is sad to say that the American immigration system is racist but it is. There are people like her all over the world …. bright, educated, skilled and eager to become real American citizens. They are being denied their shot at America because they obey our laws.

In the meanwhile, our national immigration policy continues to show a defacto preference for uneducated, cheap, illegal labor that has no intention of ever becoming part of the American economy other than by buying a big American pickup truck and money orders to send home to their relatives. And in the process, this same policy continues to deny deserving Africans, Indians and Asians of the world their chance at the American Dream.

Thursday, November 01, 2007

The HB 1804 Injunction

Late yesterday afternoon, Judge James Payne denied a petition for a preliminary injunction that would have prevented HB 1804 from going into effect at midnight. The reaction from the Latino community was quick and bitter. The lead attorney called out the chief law enforcement officers of the City of Tulsa and Tulsa County, threatening that if they enforce the law of the land they will face career ending charges of “racism.”

Payne’s ruling was dead on the money. The Latino attorneys had again come into an American court and tried to substitute rhetoric for facts. Payne’s two page opinion finds that the petitioners argued exclusively on the probability of success of their lawsuit and presented no evidence of immediate, irreparable harm which would allow an injunction.

This ruling does not mean that the challenge to HB 1804 is over. Far from it. All that it does mean is that the lawsuit will go forward with HB 1804 in effect. The real issue now in the short term is whether or not city and state law enforcement agencies will enforce HB 1804 or cave to the Latino attorneys threats.