Robinson v. Harley-Davidson Motor Co. — Oregon Supreme Court changes its personal jurisdiction test

It’s a law geek’s dream: a personal jurisdiction case that overturns an older “mechanistic” standard with a functional, fact-dependent test.  The final result: who knows where the personal jurisdiction boundary lies!

In Robinson v. Harley-Davidson Motor Co. (S060226) the court  held that operating an interactive website that directs customers to an out of state motorcycle shop did not provide sufficient minimum contacts with Oregon to sue the motorcycle shop in this state.  Interestingly, the opinion of the court of appeals was reversed but the result was affirmed.  Because of intervening US Supreme Court caselaw, and the reliance on the “outer limits of due process” as the basis for personal jurisdiction, the Oregon Supreme Court abandoned the earlier standard of “substantive relevance”:

We too are persuaded that the substantive relevance test is mechanical and rigid. By requiring that at least one of a defendant’s contacts with the forum be relevant to the merits of a plaintiff’s claim, the substantive relevance test focuses exclusively on the “arise out of” aspect of the Supreme Court’s test requiring that an action either “arise out of” or “relate to” the defendant’s contacts with the state. The substantive relevance test creates a bright- line rule for what the Supreme Court has announced as a fact-specific inquiry into the reasonableness of state court jurisdiction.
Oregon also rejected a “but-for” test as “overinclusive” and a “substantial connection” test as unpredictable.  Instead, the Oregon court adopted a “but-for test and an assessment of the foreseeability of litigation to determine the relatedness requirement.”  (Right here, I’ve lost every non-lawyer and most of the lawyers who might chance upon the blog).  In practice it seems to mean that for the Oregon courts to assert personal jurisdiction, a party has to do something in Oregon that results in damage to another, and that activity has to make it foreseeable that you can be sued here.  
In Robinson, the court evaluated the facts and concluded that an interactive website, even if it was the reason that the plaintiff stopped at the otherwise-unconnected Idaho dealership for repairs, did not provide for a foreseeable source of litigation against the dealership in Oregon.  This makes intuitive sense, even if the articulation of the test is so incredibly convoluted, but it doesn’t give out-of-state businesses much guidance on how to stay out of court in Oregon.  At least we know that an interactive website alone isn’t enough.
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Freeman Water Tank – KSR In the News

Sent a letter to the City of Portland, telling them why they shouldn’t be selling a piece of property in SW Portland.  The City sold this property on Craigslist of all places.  No realtors, no newspaper ads, nothing but a single anonymous ad on Craigslist.  That simply cannot be considered a good faith sale “on the open market for the best terms and conditions available.” 

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Happy New Year, same old government antics

It seems to me like a major restructuring of taxation is a “policy” that can be referred to the voters.  But for Metro, the will of the people won’t stand in the way of a prized development goal:

The Multnomah County commissioners on Dec. 19 approved the funding mechanism for paying down about $60 million in bonds issued to help pay for the hotel. Those revenue bonds would be issued by the Metro regional government and paid off using a tax on Portland hotel stays, which is collected and distributed by the county.

This concerted, determined lack of government accountability in bonding has to end (amazingly, Metro has a write-up that links to the opposition)

According to the opponents of the tax plan, “Taxpayer subsidy for OCC Hotel jumps $100 Million in closed-door sessions $8M to $130M with zero public input.”

I have to learn a bit about the proposed tax changes, but the fact that Metro would challenge the ability to put it on the ballot tells you all you need to know about the perceived public support (or lack thereof) for the hotel.

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Cesium 137 coming to the West Coast?

A lot of what’s on Zerohedge is alarmist, or hyped (and the comments are a morass of paranoia and cranks), but if even half of this is accurate, the West Coast is heading for a major surge of radiation from Fukushima

The graphic shown below from Woods Hole Oceanographic Institute compares Chernobyl, nuke testing, and Fukushima. Fukushima’s radiation–coming to a coast near us–is going to pack a wallop.

Here’s one sobering passage:

Above-ground nuclear tests – which caused numerous cancers to the “downwinders” – were covered up by the American, French and other governments for decades. See this, this, this, this, this and this.

But the amount of radiation pumped out by Fukushima dwarfs the amount released by the nuclear tests.

As nuclear engineer and former nuclear executive Arnie Gundersen notes, the wave of radioactive cesium from Fukushima which is going to hit the West Coast of North America will be 10 times greater than from the nuclear tests (starting at 55:00).

This graphic from Woods Hole in Massachusetts – one of the world’s top ocean science institutions – shows how much more cesium was dumped into the sea off Japan from Fukushima as compared to nuclear testing and Chernobyl:

Wave of Radiation from Fukushima Will Be 10 Times Bigger than All of the Radiation from Nuclear…
Putting Fukushima In Perspective
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Friday Photo (2 days late)

Friday Photo (2 days late)

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Kelly Clark the Artist

After a few days of reflection, my contribution to the public praise of this great man.

A lot has been said about Kelly as a lawyer (he was indeed one of the best of his generation), an abuse advocate (none better), and as a leader and mentor in the recovery community (dedicated to a fault). One thing that hasn’t been discussed as much was his deep love of language. You see, Kelly was an intellectual in the best sense of the word. He had been beaten up enough by life to stay connected to normal people, but his quick and curious mind never stopped looking for a more perfect way to craft words.

For 13 years, I wrote the first draft of most of Kelly Clark’s words as a lawyer. That’s not to say he just had me write something and signed his name to it—to the contrary, he fully engaged in the process, but he used my raw material to mold and sculpt truly persuasive arguments. We got to the point, rather quickly it seems in retrospect, where we knew what the other was thinking and what they meant, what we wanted to say, and how we were going to say it. He called me his “Brain in the Jar”—meaning that I sat in my office cranking out thoughts without all that messy human interface in the way. Putting the human face on things was Kelly’s job.

Kelly told me that in our vocation—and he truly believed the law was a calling—we worked with words the way a sculptor works with clay. One of my tendencies when rushed or disorganized is to retreat into complex, dense writing, yielding large blobs of unwieldy muck. Kelly taught me to see that and correct it, not by telling me to dumb down my writing (advice we both hated), or just “make it shorter” (which is not advice at all), but to hone it. To craft it more like a blacksmith would forge a sword. Remove what’s unnecessary and sharpen what works. He sent me to Colorado last fall for a seminar to do just that, saying that I was at this point an excellent legal writing technician but that I now needed to become an artist. That is how he viewed written legal advocacy, and writing in general. (Steve Hayward posted a great video on Facebook with Kelly reading from a passage on the spiritual decline in the Episcopal Church. One of the things that most impressed Kelly was not the thought itself, which he understood and shared, but the way the author conveyed it.)

But at the same time, Kelly wasn’t above having fun with writing. In one memo in an early Archdiocese case, the defense raised the concept of laches, which requires three elements. Setting aside the fact that laches does not apply to actions at law (a legal technicality that gave us an easy win anyway), all of the three necessary elements couldn’t exist in a properly pleaded child abuse case. So I used the quote on the “importance of counting” from Monty Python and the Holy Grail in a footnote, shalt thou take out the Holy Pin, then shalt thou count to three, no more, no less. Three shall be the number thou shalt count, and the number of the counting shall be three. Four shalt thou not count, neither count thou two, excepting that thou then proceed to three. Five is right out. Once the number three, being the third number, be reached, then lobbest thou thy Holy Hand Grenade of Antioch towards thy foe, who being naughty in My sight, shall snuff it.”  I couldn’t believe he left that in; it made me happy as a little kid. Even better, we got the headline that Kelly always wanted from that motion (even if it didn’t get printed anywhere): “Christ Rules Against Archdiocese.” Tom Christ (pronounced “Krist” though) was the pro tem judge, and he knocked down a number of the Archdiocese’s defenses in that case.

Kelly wasn’t above levity of his own. In fact, the one time Kelly got truly upset with me in my writing was when I changed one of his barbs. We had a case in which a priest had abused a boy in part by grinding on the poor kid through clothing. Gross, terrible, a massive violation; but was it “abuse”? We said “of course it is!”, and Kelly emphasized this point by writing that “… humping is sexual (just ask any dog—it will bite you).” I took out the “it will bite you” in the final draft. Apparently, he thought that was a salient point; he was not happy-fun Kelly that day. But as long as my arguments didn’t leave him “with [his] **** in his hands in front of the judge,” as he would often say, he was pleased .

Still, over the dozen-plus years together, he taught me that it was far better not to take those cheap shots at the follies of opposing—and also taught me to break that rule in the utmost deserving of circumstances. Taking the high road wasn’t just advice, it was the way he lived. “Don’t get mad, don’t get even, just get ahead.” That was something he told me on more than one occasion, and sage wisdom given my bellicose nature. His advice had the effect of changing the person, not just your actions. His little cryptic red-ink notes—“Let’s talk” (uh-oh, or maybe even nothing), “Awkward” (meaning either rephrase it, or maybe just chuck the whole concept), and “See me” (heart stops, what did I do wrong?)—triggered more introspection and self-correction than a half page of explanations.

At times, we disagreed about how to do something, and we both gave in when the other was right (or particularly animated about an issue). For the last several years, we got to the point where there was little for him to do on my work product, because he had essentially done it all years before. I knew how he wanted arguments to read, and he knew that I would make them work logically and rhetorically as best the law allowed. God willing, I will always carry that little facet of Kelly’s personality in my head, guiding me on the best way to say things. I’ve always needed an editor, and Kelly, you were the best.

Kelly made me better at writing, but like all truly great teachers, he made me a better human being. His compassion, patience, and gentleness shaped me as much as his editorial comments shaped my work. When I told him I wanted to leave the firm last March, his first reaction was, very kindly, “You can’t leave, I need you.” My response was, “It’s OK, I’ll always be around to help. It’s just a phone call away.” But then he went somewhere that words didn’t matter, and where my help, meager as it was, was useless. And when I found out he had died, I wanted to tell him in the words J.R.R. Tolkien in the Two Towers, “Don’t leave me here alone! It’s your Sam calling. Don’t go where I can’t follow!” But he had to go, and he deserves his rest.

It was a blessing to see him off to the Mayo Clinic on December 8, and the news that we wouldn’t seem him coming back has been the saddest moment in my life since my father died in 1997. Kelly was more than a boss, more than a law partner, and even more than a friend. He was an Example. An example of how to live life right, how to work and help others, how to love and cherish your family and friends. Occasionally, after doing some incredibly boneheaded, absent-minded professor-type thing, I would mention to him that perhaps the purpose of my life was to serve as a warning to others. Kelly Clark was just the opposite. His life, his teaching, his mentoring, above all his patience, serve as that shining city on the hill—a phrase he loved from Reagan—to all of us on what it means to live a truly humane life.

Kelly deeply and truly believed in a compassionate and loving God, and I for one have no doubt that this all-loving God of the universe has taken Kelly into His arms. We love you brother, and we miss you. Godspeed to your rest. We will see you again in God’s time.

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My friend, mentor, and brother, Kelly Clark — Requiescat In Pace

I can’t really say much beyond what I wrote earlier to an email to friends:

For 13 years, Kelly and I “shared a brain”: I would know what he wanted to say, and he always knew best how to say it.  Although his abuse work was central to who he was, he cared about and tried to fight for everyone who was being taken advantage of.  From fighting casinos and the lottery because of the impact on gambling addicts, to representing landowners getting shafted by the government, Kelly was always looking for a good cause and good people to dedicate his keen intellect and extremely well-honed instincts.  His thinking was always based on subtlety and understatement, and that thoughtfulness and caring came through to everyone he met.  His calm reaction was the opposite of my quick impatience, and his personality tempered my approach to everything, from litigation to family.

One thing that many folks didn’t see of Kelly was the truly selfless help he gave to people in substance abuse recovery.  He would take a call in the middle of a meeting, take an hour out of the office, whatever needed do get done to give these guys the support they needed right away so that they didn’t backslide.  He would tell me that as a “normie,” (a “normal” person—which is debatable) I couldn’t quite get the urgency of addicts feeling like they are in trouble, and that he needed to help them when they called, or they would quickly be beyond help.  Once, I remember we went to some event on the other side of town, and he was looking around the streets from the car for a friend he knew that had fallen off the wagon a few days before, because that was where the guy used to hang out when he was using.  Even from his sickbed, Kelly continued this ministry to those in recovery.

Kelly taught me more than I can say, and made me not just a better lawyer, but a better man.  Leaving his firm back in May, I told him that I would always be around to help, even if my office was somewhere else, whenever he got back from caring for his wife in her final months.  His loss now has just left me stunned, and even seeing him off to the Mayo a little over a week ago, you’d never guess he would be leaving us so soon.  Tears don’t come easily, but there are more than a few for KC right now.

Words cannot express the gratitude I feel for Kelly being in my life, and the real hole in my heart now that he is gone.  The world is indeed a smaller place without him in it.  I take comfort from his rock-solid faith in God, even though he had seen some of the worst of life.  We will see our dear brother again over the river.


Update:  I had incorrectly put “Pacem” above.  Kelly, who learned classical Latin several years back (since he wasn’t doing much else besides running a major law office and taking on the Catholic Church), would want me to use proper Latin.

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Friday Photo

Friday Photo

Upper Tumalo Falls, outside of Bend

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Private vs. Public Socialism

David Simon, a professional writer whom I do not know, laments the inability of capitalism to appreciate the mediating quality of socialism.  I’ve never been a “market red in tooth and claw” type of person, so I think I understand where he’s coming from in saying, “There are other metrics besides that quarterly profit report.” 

Too true.  But the answer to this moral wasteland, to Mr. Simon, appears to be New Deal, state-sponsored socialism.  As proof of point, he uses a large firm’s ability to get group insurance rates.  This is where polemic gets wrapped around a pole.

We can’t even get healthcare for our citizens on a basic level. And the argument comes down to: “Goddamn this socialist president. Does he think I’m going to pay to keep other people healthy? It’s socialism, m*********r.”


What do you think group health insurance is? You know you ask these guys, “Do you have group health insurance where you …?” “Oh yeah, I get …” you know, “my law firm …” So when you get sick you’re able to afford the treatment.


The treatment comes because you have enough people in your law firm so you’re able to get health insurance enough for them to stay healthy. So the actuarial tables work and all of you, when you do get sick, are able to have the resources there to get better because you’re relying on the idea of the group. Yeah. And they nod their heads, and you go “Brother, that’s socialism. You know it is.”

Except it’s not.   “Private socialism” is known alternatively as “cooperation,” “civil society,” and occasionally “charity.”  Government-run socialism is better known as “Treblinka,” the “Holodomor,” and the “Great Leap Forward.” 

The notion of a medieval associational society is a wonderful dream, provided we have modern technology and a transcendent, unified culture through which we all desire the same basic ends.  An atomized, Balkanized society doesn’t allow that.  Taking resources from some at the point of a gun in an atomized society is in no meaningful way like a voluntary association of individuals who pool resources.  Old Roman funerary societies would not have worked if co-opted by the State, everyone would just end up cremated after a day and with some drab bureaucratic obituary.  Shared immiseration is the result of state run “sharing” (which is the obvious result of pass-through payments under rent seeking human nature), as opposed to shared bounty going forward under private associations. 

No gun barrel can extract more than a generous spirit.

So while one should be sympathetic to the notion concerns over “income inequality” (as opposed to the true enemy, a stagnant economy due to uncertainty), and alert to the increased callousness of moneyed interests, imposing “cooperation” through the clumsy apparatus of the state is foolhardy in hope, and dangerous in practice.

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The Troubling Priorities of Cardinal Mahony

A friend emailed this link to me and advised “don’t read it unless you’re prepared to get very angry.”


He seemed almost temperamentally unable to see a problem and not do something. When a cathedral fire alarm stopped working, Mahony found a screwdriver and rewired it. When the clock was blinking the wrong time in an aide’s car, he quickly reset it.

Apparently that drive did not extend to cleaning out the child molesters in the Church.

Even after Fr. Tom Doyle’s excellent guide to dealing with the problem, and his lawyer’s advice to “Be sure that someone has reported the matter to the authorities,” Mahony still refused to deal with problem priests in any way other than shuffling them around (so more kids could get hurt).

There’s really so much there, including the great story of how the Times shamed the Church into tracking down a molester that it had helped get away.

“They lied as bad as any thug or ex-con I’ve ever come across on the street,” [Det.] Lyon recalled in an interview. “They were more interested in saving the reputation of the church than helping us find these young victims.”

Read the whole thing.

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