Wednesday, January 9, 2008

Cry me a river

Do you remember Richard McLean, the retired judge and former Boulder, Colorado mayor, and his wife Edith Stevens, an attorney and political operative, who used their knowledge of the obscure (to anybody who isn't an attorney) doctrine of "adverse possession" to legally steal one-third of their neighbors' parcel of land? They've been ostracized and vilified in their town for their actions, as has Judge James C. Klein, who issued the ruling in the case.

But they still have supporters.

Boulder County Bar Association president Sonny Flowers wrote a column for the Boulder County Bar Newsletter in which he described opponents of the land-grab as "dumb, short-sighted, lacking in perspective or just plain wrong." Having issued his critique of the vast number of people outraged by an incident of a well-connected couple helping themselves to somebody else's property simply by trespassing on it and then filing a claim, Flowers concedes:

I can't cause anyone to change his or her mind. Not about this. Too many minds are made up. Perhaps they are made up because they are afraid personally for their property rights. Maybe those minds are made up because the first time they heard about the case, viscerally, they reacted by thinking, "That shouldn't happen!"

Count me among the people who are outraged and unlikely to change their minds.

Flowers is upset that people unfamiliar with the details of the law "would hide behind their alleged ignorance of a law that goes back more than 600 years." The outcome was by the book, he says, so people should accept it and be grateful "that our judges are excellent and our judicial system is the best."

The Boulder Daily Camera has the full story here with a link to the full column in PDF format.

I've written about this sort of reaction before -- about the (inevitably) legal professionals who are so enamored of the system within which they work that they think any outcome reached through legal formalities is acceptable, no matter how thoroughly it shocks the consciences of the people the law is supposed to serve. As I said then:

A legal system can not be constituted as an eternal game of "gotcha" played by those with mastery of the law upon those lacking such knowledge. No matter how comfortable lawyers, judges and their friends are with the existing state of affairs, there's nothing inevitable about the survival of the current legal system if it comes to be seen as producing outcomes that offend the consciences of most people, and if the law is perceived as a weapon with which the well-connected can prey upon the unprepared.

Like too many lawyers, Flowers is overly impressed by the mechanism of the law, forgetting that the law is a tool that is useful only so long as it reaches outcomes that are widely acceptable.

The people up in arms over the seizure of the Kirlin family's land aren't "dumb, short-sighted, lacking in perspective or just plain wrong." They're pissed off that the law could reach an outcome that they find profoundly unjust. Castigating the public for failing to appreciate the beauty of his pet legal system shows that Flowers really doesn't understand that there's nothing sacred about that system; it can be swept aside if it consistently produces results that people find unjust and unacceptable.



Blogger RayQ said...

Just who is "dumb,short sighted, lacking perspective or just plain wrong".

Note the contradictions in "Sunny's" musing. On the one hand, he confesses he "knows virtually nothing" about AP. Then he goes on to say that the basis for all the accusations "is the fact that some would hide behind their alleged ignorance of a law that goes back more than 600 years." After "wanting" to tell critics they are "dumb, etc.", He "wanted to explain the law of AP, its basis, etc."
Finally he concludes that he lead by doing nothing.
Muse on , Sunny one.

January 9, 2008 1:59 PM  
Blogger Noah said...

Anybody who actually read Mr. Flowers's piece would understand just how out of context the editorial to which you link took what he said. His first reaction to the attacks on the judges, when he was mad, was to tell the attackers (i.e., to tell them in anger) that they are dumb. But he goes on to say that he realizes this is not constructive and proceeds to explain why a landowner has an obligation (to himself) to know the law. True, he "knows virtually nothing," and still he is able to understand the basic concepts of AP. That's the point right? You can know "virtually nothing" and still have enough agency to protect yourself and your property. It's too bad these property owners (no home, so not homeowners) chose to know "nothing," instead of "virtually nothing." And it's too bad that the other homeowners decided to take advantage of that willful ignorance. But it doesn't make the result unjust. And Mr. Flowers's comments that those who are so critical of the judge here are the same people who rail against "activist judges" in other situations is spot on. Good for Flowers.

January 14, 2008 3:52 PM  
Blogger RayQ said...

How can someone that knows "virtually nothing about AP" teach all of us about AP. Rather presumptuous. Your assumption that I did not read his piece is just that (an assumption). I took my conclusions off of the piece written by Sunny (Sonny Flowers). I am not impressed by Sonny Flowers. Sonny was standing in front of the mirror when he made his "dumb,short sighted, lacking perspective or just plain wrong" statement. It is unjust to do what M/S did. Sunny should continue to lead by doing nothing.

January 15, 2008 7:28 AM  

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