Does Maine need a business court? Corporations say yes. At a legislative hearing, consumer advocates are missing BY LANCE TAPLEY

Courtroom conflicts concerning business law often are in the form of consumers v. corporations. For example, there are consumers who feel they’ve been screwed by unscrupulous businesses. Or environmentalists take on a polluting company. Or sometimes the state, representing citizens, will be taken to court when a corporation doesn’t get its way with state regulators.

According to House Speaker John Richardson, these kinds of disputes, as well as business-to-business suits, are clogging up Maine’s legal system. He has proposed that state government establish a special business court that he says would unplug the system and serve justice. However, from the composition and the rhetoric of the people who testified to the legislative Judiciary Committee in favor of Richardson’s LD 1518 to create a business court, its foremost purpose is to serve the corporations.

"It’s what businesses need," said its leading promoter, Maine’s Chief Justice Leigh Saufley, in her testimony at the May 10 hearing in Augusta. "It’s what I hear regularly from the business community." Saufley has been talking about creating a business court for several years.

Richardson testified of the need for the court to resolve "matters vital to business growth and development," and a handout from his office detailed the necessity to increase "the capacity of our courts to respond to the needs of business" and support "a vibrant business atmosphere."

Like others on the committee, Joan Nass, a Republican state representative from Acton, liked having "a business-friendly environment" in the courts.

But what about justice for the consumers? Only one person spoke who represented citizens as opposed to corporations and the legal profession, and nobody spoke against the bill. When she was asked after the hearing why there weren’t more consumers at the session, Saufley replied, "I’m not sure that consumers have a voice." But she added emphatically: "This is not a thumb on the scale [of justice] for business."

Yet of the 19 people to be appointed to a committee to write the court’s rules — for the most part to be named by the chief justice, the House speaker, and the Senate president — only two would be "members of the public who represent the interest of consumers," according to LD 1518. Most would be judges, legislators, and lawyers (though a couple of the lawyers are to have consumer-representation experience). The group would be called the Business and Consumer Specialized Civil Docket Advisory Committee and would start up the court by January 1, 2006.

Specifically, the proposal would assign two new judges solely to complex commercial cases. Saufley is also requesting from the Legislature two more regular judges to speed up the court dockets; she emphasized their usefulness in moving along business cases.

She admitted to committee members that she could create a business court by herself, but "It’s a question of resources." Quizzed by the committee, she said the four judges and support staff would cost roughly "just over $1 million a year." When she said this, a low whistle came from someone in the hearing room — state government is in a seemingly perpetual fiscal crisis.

Saufley gave other reasons for the business court’s establishment, but in doing so she brought up subjects that in part contradicted her rationale for the court.

"Why a business court when our focus has been on families and violence?" she asked, speaking of her past expressions of Maine’s judicial priorities. She answered herself by saying it would free up more judges to deal with cases involving families and violence. At the hearing, a representative from the Maine Coalition to End Domestic Violence spoke for the bill on these grounds.

Saufley also said that because Maine’s court system is so crowded and slow-moving, civil cases (non-criminal disputes) had dropped by 40 percent in the state’s Superior Court over the last 10 years — a development that alarmed her.

"We are becoming irrelevant to the citizens who need us," she said. "Businesses are gone from the system. We want them back." Lawyers have been taking cases to the faster docket of the federal courts, taking clients to mediation and arbitration, or simply settling cases without going to court, she said.

In recent years, however, under her leadership, Maine courts have also prioritized mediation and arbitration (or ADR, "alternative dispute resolution," as it’s called in legal circles). So why now argue against ADR? This is what Representative Sean Faircloth, a Bangor Democrat, politely wanted to know. She responded that without state courts deciding Maine cases, "10 years from now we will not have a body of contract law in Maine." Maine judges then would not have Maine precedents to refer to when deciding many cases. But, "It sounds like we have done an about-face," she admitted after the hearing.

How can these seeming contradictions about priorities be resolved? Given the sanctity of the words "economic development" and the clout of the business community, this bill may be the best bet for Saufley to get more money for the court system. Maine has only 49 judges, making the state number 50 nationally in "court resources." At least one committee member theorized along these lines.

"To me the essence of this is four more judges," concluded committee member Faircloth after the hearing.

SPECIAL JUSTICE FOR THE CORPORATIONS?

More than a dozen business courts exist for states and big cities, and they have been slowly growing in number for 15 years. The oldest and most famous is Delaware’s Court of Chancery. Partly because of this court’s attentiveness to business interests, Delaware is where many of the country’s largest companies are incorporated. When several Walt Disney Company major stockholders sued the entertainment giant over CEO Michael Eisner’s management practices, the trial took place some months ago in Delaware — not California, where Disney is headquartered.

The justification most commonly given for business courts is that complicated business issues choke the court system, and they require expertise on the part of the judge. Businesses also want what they call "predictability," which Saufley in an interview defined as a consistent application of the laws.

Under LD 1518’s language, the cases dealt with by Maine’s business court would be, in general, "complex commercial transactions" and, in particular, disputes involving mergers and acquisitions, technology, banks, antitrust matters, nonprofits, state regulation, "environmental claims that involve a business entity," and a few other subjects. Given this list, is it possible the court would become the entity to which corporations appeal if they don’t get what they want from state regulators, such as in environmental matters? Saufley said yes — if the cases are "complex and suited to the criteria of the docket."