Does Maine need a business court? (continued)

Others testifying in favor included representatives of the Maine Merchants Association, the National Federation of Independent Businesses, the New England Legal Foundation, and the Maine Bar Association. The Maine State Chamber of Commerce is in favor, Saufley said. Nationally, the legal establishment supports business courts, including the American Bar Association.

Although the court’s proponents weren’t challenged at the hearing, they voiced some defensiveness over the notion of setting aside judges for the benefit of businesses.

"Would it be an elitist court for business only?" asked, rhetorically, Harrison Richardson. "Not at all." One of Maine’s most prominent lawyers, a former legislator, and a 1970s’ gubernatorial primary candidate, Richardson, as a liberal Republican, is one of the last of a dying breed. To the committee, he emphasized that nothing in the bill would reduce the importance of juries, and he referred to himself as a certifiable "tree hugger," suggesting he did not expect to see environmental interests compromised by the business court.

But some observers of specialized courts see them as having the possibility of putting justice into the hands of special interests.

"Business courts tend to be staffed by people who are relatively expert in business matters . . . It means judges are unlikely to be people extremely hostile to business interests," said Stephen Calkins, former general counsel of the Federal Trade Commission and a law professor at Wayne State University in Detroit.

Critics, he said, see business courts as "less attuned to the concerns of ordinary people, less likely to be moved by the distress of the consumer . . . less populist."

The well known Delaware chancery court, its critics believe, "tries to make sure that the law is appreciative of management interests," he said.

Calkins also said he didn’t think there was anything wrong or unusual with commercial cases going to federal court, and he said the slowness of state courts was only one factor when the plaintiff chooses where to bring a suit.

"All sorts of people prefer federal courts," he said. "It’s a more elegant place to try a case. The judges are higher paid and more sophisticated . . . The facilities are better . . . It’s a more upscale kind of justice."

Another incentive for corporations to go to the federal level is that "federal courts now substantially have Republican judges," he said.

Calkins questioned whether state legal precedents would suffer when contract cases were heard mostly in federal court, since federal judges are required to interpret state law in deciding such cases — "It’s not as if Maine contract law decisions are not being made."

On this point, a Maine School of Law professor, Cabanne Howard, a former deputy state attorney general, agreed: "Contract law is state law. Federal court has to defer to state law on contracts."

In an interview, Saufley conceded that "some case law is being built in federal court," but not when alternative dispute resolution is being used, she said, or when parties settle and don’t go to court.

Howard seemed puzzled by the need for a business court. An expert on foreign legal systems, he noted that specialized courts are more common in European legal systems than in this country.

"I’m not quite sure how the current courts are failing the business community," he said, except he agreed with Chief Justice Saufley that the state court system needs more judges.

In the end, if anything stops this court from becoming a reality, it probably will be the financing of more judges.

"The matter is the funding of it," said Barry Hobbins, the Judiciary Committee’s Senate committee chair and a Democrat, after the hearing.

Although Speaker Richardson testified that Governor John Baldacci supports the idea of a business court, the governor, dashing proponents’ hopes, did not provide funding in his recent "supplemental" appropriations budget.

On May 16, the Judiciary Committee voted unanimously to send the business court bill to the full Legislature with an "ought to pass" recommendation. But this is only its first step. The next is at the Appropriations Committee, which will determine if there are funds for the four judges and their support personnel, and that decision probably won’t be made until the legislative session’s final days.

At that time, the demands will be great on an extra $1 million, although Speaker Richardson has far more clout than the average legislator.

UPDATE ON POLITICAL LINGUISTICS

The word "corporation" does not appear in the bill discussed above that would establish a business court, although LD 1518 is heavily supported by corporate lobbyists and corporate lawyers. A political poll’s results seen by this reporter shows that the word "corporations" has a negative ring to it with the public. The more neutral "businesses" is used throughout LD 1518. In one section of the bill, though, the popular word "entrepreneurs" is used as a euphemism for corporations or businesses, even though the word literally refers to a restricted set of businesses or businesspeople, those who undertake the risk to start up a business — almost always, individuals.

Another recent classic example of political linguistic "framing" appeared in Maine Democratic Party chair Pat Colwell’s press release denouncing efforts by Republicans to collect the 50,000 signatures necessary to force a popular vote on the Democratic-controlled Legislature’s passage of a bill allowing the state to borrow $450 million. The borrowing would cover the gap between taxes and expenditures for the next biennium, and most Republicans would prefer cuts to state services. Like its sisters the initiative and the referendum, this process of blocking a law has been enshrined in the state constitution for almost a century as the "people’s veto," the name by which similar Progressive Era reforms are known in other states.

But in his remarks, Colwell repeatedly called it the "politician’s veto," as in "GOP leaders voiced enthusiasm for a politician’s veto." It is hard to think of a government procedure more populist, however, than one involving 50,000 registered voters signing a petition to require a decision at the ballot box — by, probably, hundreds of thousands more.

Here is a good rule in analyzing political discourse: The opposite is usually true. For example, politicians tend to disguise their political weakness by loudly claiming to be the opposite of what they really are — as in the politician who, while savagely cutting social services, consistently refers to himself as "compassionate." Or when a politician, afraid of what a popular vote might bring, denounces a petition for such a vote as a "politician’s" move.

Lance Tapley can be reached at ltapley@prexar.com