Petition for Writ of Certiorari — Gordon Alexander Clark, Petitioner v. Santander Bank, N.A.
Supreme Court briefAug 30, 2024
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APPENDIX
TABLE OF APPENDICES
APPENDIX A:
Nine (9) denials and dismissals of appeal to
the Supreme Court of Connecticut, Filed April
4, 2023 to June 4, 2024...................................... 1
APPENDIX B:
Three (3) denials of appeal to the Appellate
Court of Connecticut, Filed February 15, 2023;
June 14, 2023; and September 13, 2023
13
APPENDIX C:
Sixteen (16) Orders of the Superior Court of
Connecticut, Filed April 25, 2023 to May 3,
2023 ...................................................................... 17
APPENDIX D:
Decision of the Superior Court of Connecticut,
Filed May 19, 2023
33
APPENDIX E:
The Backstory Behind Judge Richard Posner’s
Retirement
51
APPENDIX F:
Chapter 9: Capture of the Civil Jury from
the book entitled, Captured: The Corporate
Infiltration of American Democracy, by
United States Senator Sheldon White house,
Published 2017.................................................. 57
Appendix A
Order On Motion for Reconsideration En Banc
of Motion for a Writ of Mandamus to Compel
the Constitutional and Inviolate Right to a
Jury Trial
SC230264
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
Notice Issued: 6/4/2024 1:26:33 PM
Notice Content:
Motion Filed: 5/16/2024
Motion Filed By: Gordon Clark
Order Date: 06/04/2024
Order: Denied
By the Court
Notice sent to Counsel of Record
Hon. Claudia A. Baio
Clerk, Superior Court, HHDCV196120472S
l
Appendix A
Order On Motion to Vacate Superior Court of
Connecticut’s Final Judgment Due to Lack of
Subject Matter Jurisdiction and in Personam
Jurisdiction
SC230271
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
Notice Issued: 6/4/2024 1:30:58 PM
Notice Content:
Motion Filed: 5/24/2024
Motion Filed By: Gordon Clark
Order Date: 06/04/2024
Order: Dismissed
By the Court
Notice sent to Counsel of Record
Hon. Claudia A. Baio
Clerk, Superior Court, HHDCV196120472S
2
Appendix A
Order On Motion to Vacate Superior Court of
Connecticut’s Final Judgment Due to Lack of
Standing
SC230272
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
Notice Issued: 6/4/2024 1:32:43 PM
Notice Content:
Motion Filed: 5/24/2024
Motion Filed By: Gordon Clark
Order Date: 06/04/2024
Order: Dismissed
By the Court
Notice sent to Counsel of Record
Hon. Claudia A. Baio
Clerk, Superior Court, HHDCV196120472S
3
Appendix A
Order On Motion to Vacate Superior Court of
Connecticut’s Final Judgment Due to Fraud
Upon the Court, which Vitiates Said Judgment
SC230273
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
Notice Issued: 6/4/2024 1:33:58 PM
Notice Content:
Motion Filed: 5/24/2024
Motion Filed By: Gordon Clark
Order Date: 06/04/2024
Order: Dismissed
By the Court
Notice sent to Counsel of Record
Hon. Claudia A. Baio
Clerk, Superior Court, HHDCV196120472S
4
Appendix A
Order On Motion to Vacate Superior Court of
Connecticut’s Final Judgment Due to Lack of
Due Process of Law
SC230274
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
Notice Issued: 6/4/2024 1:35:08 PM
Notice Content:
Motion Filed: 5/24/2024
Motion Filed By: Gordon Clark
Order Date: 06/04/2024
Order: Dismissed
By the Court
Notice sent to Counsel of Record
Hon. Claudia A. Baio
Clerk, Superior Court, HHDCV196120472S
5
Appendix A
Order On Motion for a Writ of Mandamus to
Compel the Constitutional and Inviolate Right
to a Jury Trial
SC230194
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
Notice Issued: 5/7/2023 1:31:53 PM
Notice Content:
Motion Filed: 2/29/2024
Motion Filed By: Gordon Clark
Order Date: 05/07/2024
Order: Denied
By the Court
Notice sent to Counsel of Record
Hon. Claudia A. Baio
Clerk, Superior Court, HHDCV196120472S
6
Appendix A
Order On Motion for Reconsideration En Banc
of Petition for Certification
SC230195
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
Notice Issued: 5/7/2023 1:31:53 PM
Notice Content:
Motion Filed: 2/29/2024
Motion Filed By: Gordon Clark
Order Date: 05/07/2024
Order: Denied
By the Court
Notice sent to Counsel of Record
Hon. Claudia A. Baio
Clerk, Superior Court, HHDCV196120472S
7
Appendix A
SUPREME COURT
STATE OF CONNECTICUT
SC-230179
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
ORDER ON PETITION FOR
CERTIFICATION TO APPEAL
The defendant Gordon Clark's petition for
certification to appeal from the Appellate Court (AC
46473) is denied.
Gordon Clark, self-represented, in support of the
petition.
Jeffrey M. Knickerbocker, in opposition.
Decided February 20, 2024
By the Court,
/s/ Cory M. Daige
Cory M. Daige
Assistant Clerk - Appellate
Notice Sent: February 20, 2024
Petition Filed: October 3, 2023
8
Appendix A
Clerk, Superior Court, HHD CV19-6120472-S
Hon. Claudia A. Baio
Clerk, Appellate Court
Reporter of Judicial Decisions
Staff Attorneys’ Office
Counsel of Record
9
Appendix A
SUPREME COURT
STATE OF CONNECTICUT
SC-220302
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
ORDER ON PETITION FOR
CERTIFICATION TO APPEAL
The defendant Gordon Clark's petition for
certification to appeal from the Appellate Court (AC
45927) is denied.
Gordon Clark, self-represented, in support of the
petition.
Jeffrey M. Knickerbocker, in opposition.
Decided April 4, 2023
By the Court,
/s/ Rene L. Robertson
Rene L. Robertson
Deputy Chief Clerk
Notice Sent: April 4, 2023
Petition Filed: March 7, 2023
10
Appendix A
Clerk, Superior Court, HHD CV19-6120472-S
Hon. Matthew J. Budzik
Clerk, Appellate Court
Reporter of Judicial Decisions
Staff Attorneys’ Office
Counsel of Record
ll
Appendix A
12
Appendix B
Order On Motion for Reconsideration En Banc
AC46473
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
Notice Issued: 9/13/2023 11:29:44 AM
Notice Content:
Motion Filed: 7/31/2023
Motion Filed By: Gordon Clark
Order Date: 09/13/2023
Order: Denied
By the Court
Daige, Cory M.
Notice sent to Counsel of Record
Hon. Claudia A. Baio
Clerk, Superior Court, HHDCV196120472S
13
Appendix B
Order On Motion to Compel Transcript
AC46473
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
Notice Issued: 6/14/2023 11:26:54 AM
Notice Content:
Motion Filed: 5/30/2023
Motion Filed By: Gordon Clark
Order Date: 06/14/2023
Order: Denied
By the Court
Daige, Cory M.
Notice sent to Counsel of Record
Hon. Claudia A. Baio
Clerk, Superior Court, HHDCV196120472S
14
Appendix B
Order On Motion for Reconsideration En Banc
AC45927
SANTANDER BANK, N.A.
v.
LILLIAN J. CLARK ET AL.
Notice Issued: 2/15/2023 12:12:43 PM
Notice Content:
Motion Filed: 1/17/2023
Motion Filed By: Gordon Clark
Order Date: 02/15/2023
Order: Denied
By the Court
Robertson, Rene L.
Notice sent to Counsel of Record
Hon. Matthew J. Budzik
Clerk, Superior Court, HHDCV196120472S
15
Appendix B
16
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
4/25/2023
ORDER
ORDER REGARDING:
05/24/2022 205.00 MOTION FOR
JUDGMENT IN ACCORDANCE WITH
OPINION OF SUPREME COURT
The foregoing, having been considered by the Court, is
hereby:
ORDER: DENIED
The Motion: submitted by the defendant is
incomprehensible, cites to law that is not relevant to
this proceeding, and it is unclear what relief the
defendant is seeking from this court as any valid relief
that would fall within the jurisdiction of this court. The
motion also appears to be duplicative of other pleadings
filed by the defendant and adjudicated.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
17
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
4/25/2023
ORDER
ORDER REGARDING:
03/15/2023 247.00 MOTION FOR ORDER
OF COMPLIANCE - PB SEC 13-14
(INTERR/PROD - 13-6/13-9)
The foregoing, having been considered by the Court, is
hereby:
ORDER: GRANTED
Compliance ordered on or before May 1, 2023. If the
moving party does not receive compliance by that date,
the moving party may file a Motion for Judgment of
Default referring to this order. Absent proof of
compliance on file before the motion appears on this
short calendar, the motion will be granted by the Court
and judgment will enter.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
18
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
4/25/2023
ORDER
ORDER REGARDING:
06/27/2022 221.00 MOTION FOR ORDER
OF COMPLIANCE - PB SEC 13-14
(INTERR/PROD - 13-6/13-9)
The foregoing, having been considered by the Court, is
hereby:
ORDER: DENIED
Superior Court Results Automated Mailing (SCRAM)
Notice was sent on the underlying motion.
Judge: CLAUDIA A BAIO (439589)
19
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
4/25/2023
ORDER
ORDER REGARDING:
06/28/2022 222.00 OBJECTION RE
DISCOVERY OR DISCLOSURE
The foregoing, having been considered by the Court, is
hereby:
ORDER: SUSTAINED
Superior Court Results Automated Mailing (SCRAM)
Notice was sent on the underlying motion.
Judge: CLAUDIA A BAIO (439589)
20
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/1/2023
ORDER
ORDER REGARDING:
04/17/2023 253.00 OBJECTION
The foregoing, having been considered by the Court, is
hereby:
ORDER: OVERRULED
Superior Court Results Automated Mailing (SCRAM)
Notice was sent on the underlying motion.
Judge: CLAUDIA A BAIO (439589)
21
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/1/2023
ORDER
ORDER REGARDING:
04/17/2023 255.00 MOTION TO STRIKE
The foregoing, having been considered by the Court, is
hereby:
ORDER: DENIED
Superior Court Results Automated Mailing (SCRAM)
Notice was sent on the underlying motion.
Judge: CLAUDIA A BAIO (439589)
22
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/2/2023
ORDER
ORDER REGARDING:
04/17/2023 256.00 MOTION FOR ORDER
The foregoing, having been considered by the Court, is
hereby:
ORDER: DENIED
Per oral record.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
23
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/2/2023
ORDER
ORDER REGARDING:
04/17/2023 257.00 MOTION FOR ORDER
The foregoing, having been considered by the Court, is
hereby:
ORDER: DENIED
Per oral record.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
24
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/2/2023
ORDER
ORDER REGARDING:
04/26/2023 263.00 MOTION TO
REARGUE/RECONSIDER
The foregoing, having been considered by the Court, is
hereby:
ORDER: DENIED
Per oral record.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
25
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/2/2023
ORDER
ORDER REGARDING:
04/28/2023 272.00 MOTION TO STRIKE
The foregoing, having been considered by the Court, is
hereby:
ORDER: GRANTED
Per oral record.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
26
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/2/2023
ORDER
ORDER REGARDING:
05/1/2023 275.00 OBJECTION TO
MOTION
The foregoing, having been considered by the Court, is
hereby:
ORDER: SUSTAINED
Per oral record.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
27
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/2/2023
ORDER
ORDER REGARDING:
05/2/2023 281.00 MOTION FOR ORDER
The foregoing, having been considered by the Court, is
hereby:
ORDER: GRANTED
Per oral record.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
28
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/3/2023
ORDER
ORDER REGARDING:
05/1/2023 276.00 MOTION FOR ORDER
The foregoing, having been considered by the Court, is
hereby:
ORDER: GRANTED
Per oral record.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
29
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/3/2023
ORDER
ORDER REGARDING:
05/3/2023 283.00 MOTION FOR ORDER
The foregoing, having been considered by the Court, is
hereby:
ORDER: DENIED
Per oral record.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
30
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/3/2023
ORDER
ORDER REGARDING:
05/3/2023 284.00 OBJECTION
The foregoing, having been considered by the Court, is
hereby:
ORDER: OVERRULED
Per oral record.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
31
Appendix C
Order 439589
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
5/3/2023
ORDER
ORDER REGARDING:
05/3/2023 285.00 MOTION FOR ORDER
The foregoing, having been considered by the Court, is
hereby:
ORDER: DENIED
Per oral record.
Judicial Notice (JDNO) was sent regarding this order.
Judge: CLAUDIA A BAIO (439589)
32
Appendix D
HHD-CV-19-6120472-S
SANTANDER BANK, N.A.
V.
LILLIAN J. CLARK, ET AL.
SUPERIOR COURT
JUDICIAL
DISTRICT OF
HARTFORD
MAY 19, 2023
MEMORANDUM OF DECISION AFTER TRIAL
The trial was held before the court in this matter in
the virtual courtroom on May 2, 3 and 4, 2023. Both
parties appeared. The plaintiff was represented by
counsel; the defendant, Gordon Clark, represented
himself.
In reaching its conclusions, the court has carefully
and fully considered and weighed all of the evidence
received at the trial; evaluated the credibility of the
witnesses; assessed the weight, if any, to .be given
specific evidence and measured the probative force of
conflicting evidence; reviewed all exhibits, relevant
statutes, and case law; and has drawn such
inferences from the evidence, or facts established by
the evidence, that it deems reasonable and logical,
The court makes the following findings and renders
the following decision.
I.
PROCEDURAL BACKGROUND AND
FACTS
The plaintiff commenced this action by way of a two
count complaint, the first count seeking reformation
of the mortgage to correct the alleged mutual
33
Appendix D
mistake made by the parties by not attaching the
property description to the mortgage and the second
for foreclosure of a mortgage encumbering single real
property located at 70 Elm St., Enfield, Connecticut.
The borrower on the note and mortgagor was Lillian
Clark. Following the commencement of this action,
Lillian passed away. Her husband and executor of
her estate, Gordon Clark, remains a defendant in
this matter and appeared throughout the
proceedings and at the trial. The action was
commenced based upon a claimed default in payment
on the note for the missed payment due for June
2019. Payment was rendered on June 10, 2019 but
was reversed due to insufficient funds in the account
on which the check was written. The evidence
supports that no subsequent payment was made.
There was extensive evidence presented relating to
delinquent taxes and the amount of the taxes on the
property that were delinquent, paid by the plaintiff
in accordance with the option permitted under the
terms of the note, and never reimbursed by the
defendant.
The defendant has asserted 30 special defenses and 2
counterclaims.1 The plaintiff filed a reply to the
special defenses including raising matters in
avoidance and an answer to the counterclaims.
Additional facts found by the court will be set forth
as necessary and relevant to the discussion that
follows.
As noted, the matter proceeded to trial on May 2, 3
and 4, 2023.2
34
Appendix D
II.
DISCUSSION
A.
PLAINTIFF'S COMPLAINT
1.
COUNT ONE: REFORMATION
The court first addresses the first count of the
plaintiffs complaint, the count for reformation. From
the evidence presented, the following facts are found.
On March 21, 2008, Lillian Clark executed, in
connection with a home equity line of credit loan, a
note in the amount of $100,000 payable to the order
of Sovereign Bank with interest from that date in
monthly installments of principal and interest.
On that same date, Lillian Clark executed a deed to
secure the note mortgage to Sovereign Bank (now
Santander Bank)3 for the premises known as 70 Elm
St., Enfield, Connecticut. The mortgage deed was
recorded on the Enfield land records on April 7, 2008
in volume 2392, page 47. The mortgage deed
correctly identified the secured premises by its street
address. However, no property description was
attached to the mortgage deed. All closing documents
which included, in addition to the note and mortgage
deed, the proof of hazard insurance and limited title
affidavit among other documents, correctly identify
the subject property. Exhibits were admitted into
evidence at the time of trial which clearly support
the consistent reference to the 70 Elm St., Enfield,
Connecticut address throughout those closing
documents relating to the note and mortgage. The
documents were all appropriately signed by
defendant Lillian Clark.
35
Appendix D
Included in those closing documents, related to the
Home Equity Line of Credit loan at issue, were
documents confirming express requests by the
borrower, Lillian Clark, that debts encumbering the
property be paid out of the proceeds of this new loan.
The evidence also establishes that this is the only
property that Ms. Clark owned in Enfield
Connecticut.
"A cause of action for reformation of a contract rests
on the equitable theory that the instrument sought
to be reformed does not conform, to the real contract
agreed upon and does not express the intention of the
parties and that it was executed as the result of
mutual mistake or mistake of one party coupled with
actual or constructive fraud, or in equitable conduct
on the part of the other ... Reformation is not granted
for the purpose of alleviating a hard or oppressive
bargain, but rather to restate the intended terms of
an agreement when the writing that memorializes
that agreement-is at variance with the intent of the
parties ... Equity evolved to the doctrine because an
action at law afforded no relief against an
instrument secured by fraud or as a result of mutual
mistake. (Citations omitted; internal quotationmarks omitted.)” Lopinto v. Haynes, 185 Conn. 527,
531 - 32,441 A. 2d 151 (1981). "Reformation is
appropriate in cases of mutual mistake that is where,
in reducing to writing an agreement made or
transaction entered into as intended by the parties
thereto, through mistake, common to both parties,
the written instrument fails to express the real
agreement or transaction ... [Reformation is also
available in equity when the instrument does not
36
Appendix D
express the true intent of the parties owing to
mistake of one party coupled with fraud, actual or
constructive, or inequitable conduct on the part of
the other. (Citations omitted; internal quotation
marks omitted.)" Hartsch v. Metropolitan Property &
Liability Insurance Co., 221 Conn. 185, 190 - 91, 602
A 2d 1007 (1992).
Where the property at issue is identified in the note
and mortgage, and in particular, as here, were all of
the other documents clearly reflect the intent of the
parties-to use the property at issue as collateral for
the loan, the only reasonable explanation for the lack
of the property description being appended is mutual
mistake. Accordingly, reformation is available in
order to ensure that the clear intent of both the
parties is achieved.
The evidence demonstrates here that the borrower,
Lillian Clark, executed the note, mortgage deed,
credit application, title affidavit, requests for
discharge of two deaths associated with the property
and hazard insurance proof at the closing associated
with this loan. The evidence clearly supports that the
borrower intended the subject property to secure this
loan; No credible evidence was offered by the
defendant to call these facts into question.
The defendant raises an issue of the use of Lillian
Clark's maiden name, Lillian Byron, claiming that
somehow the use of this name caused confusion.
However, as was demonstrated to the evidence
presented at the trial, the initial deed to the property
37
Appendix D
to the decedent borrower was to Lillian Byron from
Alfred Byron who, based upon the evidence
presented in the repeated reference by the defendant
during the course of his presentation as well, is
Lillian's father who deeded the property to her in
1968. As also reflected through the evidence, Lillian
Byron changed her name to Lillian Clark (see
Exhibit 15) and that was recorded on the land
records.
From the evidence presented, the plaintiff has met
its burden of proof by a fair preponderance of the
evidence on count one of the complaint, the
reformation count, and judgment is entered in favor
of the plaintiff on said count.
Having found in favor of the plaintiff on the
reformation count, the court now turns to count two,
foreclosure on the reformed mortgage.
2. COUNT TWO: FORECLOSURE
The foreclosing party must demonstrate that all
conditions precedent to. foreclosure, as mandated by
the note and mortgage, have been satisfied. See
Bank of America, FSB v. Hanlon, 65 Conn. App. 577,
581, 783 A.2d. 88 (2001), abrogated on other grounds
by McClancy v. Bank of America, N.A., 176 Conn.
App. 408, 413, n. 5, 168 A.3d 658 (2017). To establish
a prima facie case, the mortgagee must prove by a
preponderance of the evidence that: (1) it was the
owner of the note at the time it commenced the
action; and (2) the mortgagors defaulted on their
38
Appendix D
obligations under the note. See HSBC Bank USA,
National Association v. Karlen, 195 Conn. App.
170,176,223 A. 3d 857 (2020); Deutsche Bank
National Trust v. Bliss, 159 Conn. App. 483, 4951
124 A.3d 890, cert, denied, 320 Conn. 903, 127 A.3d
186 (2015); Franklin Credit Management Corp. v
Nicholas, 73 Conn. App. 830, 838, 812 A. 2d 51
(2002), cert, denied 262 Conn. 937, 815 A. 2d 136
(2003). When a holder seeks to enforce a note
through foreclosure, the holder must produce the
note. The note must be sufficiently endorsed so as to
demonstrate that the foreclosing party is a holder,
either by a specific endorsement to that party or by
means of a blank endorsement to bearer." Hudson
City Savings Bank v. Heilman, 196 Conn. App. 836,
852, .231 A.3d 182 (2020) citing Wells Fargo Bank,
N.A. v. Henderson, 175 Conn. App. 474, 483, 167
A.3d 1065 (2017). "[A] holder of a note is presumed to
be the owner of the debt, and unless the presumption
is rebutted, may foreclose the mortgage under § 4917." Equity One, Inc. v. Shivers, 310 Conn. 119, 135,
74 A.3d 1225 (2013) overruled on other grounds by
U.S. Bank National Assn. v. Crawford, 333 Conn.
731, 759, 219 A.3d 744 (2019). "In order to rebut the
presumption, the defendant must prove that
someone else is the owner of the note and debt.
Absent that proof, the plaintiff may rest its standing
to foreclose on its status as the holder of the note."
U.S. Bank, N.A. v. Schaeffer, 160 Conn. App. 138,
150, 125 A.3d 262 (2015).
The court finds that the plaintiff has met its burden
of proof by a fair preponderance of the evidence to
satisfy all of the elements necessary to establish a
39
Appendix D
prima facie case. The evidence establishes that the
plaintiff is the holder of the original note, was the
originating lender under a different name which had
since been changed appropriately, the defendant
mortgagor had defaulted on the note and the
conditions precedent to the foreclosure have been
satisfied by the plaintiff. Having found that the
plaintiff has met its burden of proof, the court now
turns to the defendant's special defenses.
B. DEFENDANT'S SPECIAL DEFENSES
“’Only after [the] initial burden is met, does the court
then determine whether any special defenses alleged
are legally sufficient to defeat a claim of foreclosure.
Bank of New York v Conway [50 Conn Sup. 189], 195
[2006]" FEC Enterprises, LLC. v. Lin Mare, LLC., et
al Superior Court, judicial district of Hartford,
Docket No. CV-15-6060522-S, 2018 WL 1177011
(February 5, 2018, Dubay, J.). "[0]nce the plaintiff
has established its prima facie case; the court will •
render judgment in its favor unless the defendants
have established a valid special defense to the
action." Franklin Credit Management Corp. v.
Nicholas, Superior Court, judicial district of New
London, Docket No. CV-98-0546721S (July 21, 2001,
Hurley, J.), affd, 73 Conn. App. 830, 812 A. 2d 51
(2002), cert, denied, 262 Conn. 937, 815 A. 2d 136
(2003).
"[A] special defense is not an independent action; •
rather, it is an attempt to plead facts that are
consistent with the allegations of the complaint to
40
Appendix D
demonstrate, nonetheless, that the plaintiff has no
cause of action." (Internal quotation marks omitted.)
Valentine v. LaBow, 95 Conn. App. 436, 447 n.10,
897 A.2d 624 (2005), cert, denied, 280 Conn. 933, 909
A.2d 963 (2006). The defendant bears the burden of
proving the allegations in his special defenses by a
fair preponderance of the evidence. Lodovico v.
Mihalcik, Superior Court, judicial district of
Hartford, Docket No. CV-07-5013091-S (August 17,
2010, Rittenband, J.T.R.). Although the defendants
may rely upon more than one special defense, they
need only establish one in order to defeat a finding of
liability. See Union Trust Co. v. Jackson, 42 Conn.
App. 413,417,679 A.2d 421 (1996).
"Historically, defenses to a foreclosure action have
been limited to payment, discharge, release or
satisfaction ... A valid special defense at law to a
foreclosure proceeding must be legally sufficient and
address the making, validity or enforcement of the
mortgage, the note or both ... Where the plaintiffs
conduct is inequitable, a court may withhold
foreclosure on equitable considerations and
principles ; .. [0]ur courts have permitted several
equitable defenses to a foreclosure action. [l]f the
mortgagor is prevented by accident, mistake or
fraud, from fulfilling a condition of the mortgage,
foreclosure cannot be had ... Other equitable defenses
that our Supreme Court has recognized in
foreclosure actions include unconscionability ...
abandonment of security ... and usury." (Citations
omitted; internal quotation marks omitted.) LaSalle
National Bank v. Freshfield Meadows, LLC, 69
Conn. App. 824, 833-834, 798 A.2d 445 (2002); see
41
Appendix D
also tis. National Bank Assn, v Blowers, 332 Conn.
656, 212 A. 3d. 226 (2019); TD Bank, N.A. v. J & M
Holdings, LLC, 143 Conn. App. 340,343, 70 A.3d 156
(2013). “A proper construction of 'enforcement'
includes allegations of harm resulting from a
mortgagee's wrongful post origination conduct in
negotiating loan modifications, when such conduct is
alleged to have materially added to the debt and
substantially prevented the mortgagor from curing
the default." U.S. Bank Nat'l Ass'n v. Blowers, supra,
667.
As set forth above, the defendant has filed a number
of special defenses and two counterclaims.
Specifically, the defendant has raised the following
special defenses in his answer to the plaintiffs
complaint captioned as follows:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
failure to join indispensable party;
admitted/invalid/defective/unenforceable
alleged mortgage;
defendant is valid, secured and enforceable
first lien position;
accord and satisfaction;
consent;
negligence;
contributory negligence;
promissory estoppel; .
equitable estoppel;
laches;
failure to state a claim upon which relief can
be granted;
42
Appendix D
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
financial fraud;
mortgage fraud;
mail fraud;
lack of standing;
lack of subject matter jurisdiction;
payment;
multiple breaches of contract;
multiple breaches of novated (oral) contract;
release;
discharge;
waiver;
sham complaint;
statute of frauds;
statute of limitations;
illegality;
abandonment of alleged security;
unclean hands;
violation of the fair debt collection practices
act;
violation of the Connecticut Unfair Trade
Practices Act.
(Docket entry #196)
The court finds that the defendant has failed to meet
his burden of proof as to any of the special defenses
raised. The defendant's pleading consisting of his
answer, special defenses and counterclaims is
somewhat difficult to navigate. Some of what are
included as special defenses do not set forth a
cognizable special defense. However, as they remain
in the defendants pleading and have not been subject
43
Appendix D
to a motion to strike, the court makes findings as to
all the court notes that there is significant overlap in
the various special defenses.
A number of the special defenses rely upon the claim
that there is no property description appended to the
mortgage and/or the use of the borrower's prior name
of Lillian Byron as opposed to Lillian Clark in some
prior correspondence sent by the lender to the
borrower and which correspondence was not
admitted into evidence. See second, third, eleventh,
thirteenth, fifteenth, sixteenth, twenty-third and
twenty-fourth special defenses and including, in part,
the twelfth special defense. As noted above, this
court has already found in favor of the plaintiff on
the reformation count (count one of the complaints)
and has already found credible the evidence relating
to the name change from Lillian Byron to Lillian
Clark, noting that the two names refer to one and the
same person. The exhibit offered by the plaintiff,
exhibit 15, was admitted into evidence without
objection.4
Several of the special defenses are based upon the
claim that there was an oral agreement made
between the defendant and some representative at a
local branch of Santander Bank that the defendant
could "pay back when you can." See fourth, fifth,
eighth, ninth, nineteenth, twentieth, twenty-first and
twenty-second special defenses. The defendant has
failed to meet the burden of proof as it relates to
these special defenses. Essentially, the defendant
maintains that there was an oral modification of the
44
Appendix D
agreement or a new contract. The law is clear under
our Connecticut Statute of Frauds, General Statutes
§52-550(a) that oral agreements relating to real
estate are not valid. Any such agreement must be in
writing. This includes loan modifications. See e.g.,
Deutsche Bank Trust Company Americas v.
DeGennaro, 149 Conn. App. 784, 788, 89 A. 3d 969
(2014); Union Trust Co. v Jackson, 41 Conn App.
413, 419, supra.5
In the seventeenth special defense, the defendant
maintains that, among other things, the borrower
was current on the property taxes as of May 1, 2022.
This is not consistent with the evidence that was
presented. The evidence was uncontroverted that the
taxes were paid by the bank with no repayment by
the borrower. No evidence to the contrary was
offered at trial.
Additionally, in the first special defense, the
defendant submits that there was a failure to join an
indispensable party, specifically, the estate of Lillian
Clark, following her death which occurred after the
action had already been commenced. However, it is
not the estate that would be the proper party to this
action. If a motion to substitute were filed, it would
have been for the administrator/executor of the
estate. The defendant, Gordon Clark, has been a
defendant in this action from its commencement. By
his own concession throughout his pleadings and
arguments, he is the executor and sole beneficiary of
Lillian Clark's estate. The plaintiff is not required to
file a motion to substitute. The identical issue was
45
Appendix D
addressed by the court in denying the defendant's
motion to dismiss (Docket entry #22) and is
addressed in the court's Memorandum of Decision
issued September 29, 2022, Docket entry #231 and
cases cited therein.
The twelfth special defense, which relates in part to
the claim that there was a lack of a property
description appended to the mortgage, also claims
financial fraud involving the history of Santander
Bank generally and with no evidence offered that
related specifically to any claims of fraud as it relates
to this matter directly. No admissible evidence was
presented by the defendant. Finally, the defendant
claims to have a first lien position with regard to a
$300,000 lien. No evidence whatsoever was offered
by the defendant to support the claim of this lien.
As to the remainder of the special defenses, there
was simply no evidence offered to support the
defenses raised. Consequently, the court finds that
the defendant has failed to meet his burden of proof
as it relates to the special defenses.6
The plaintiff has pleaded matters in avoidance as
follows:
Pursuant to Practice Book § 10-57, Plaintiff pleads
the following matters in avoidance.
1. As to all special defenses, Defendant's breach
of the obligations under the Note and
46
Appendix D
Mortgage are fatal to Defendant's alleged
defenses.
2. Defendant's failure to pay taxes when due and
failure to offer deed in lieu preclude Defendant
from seeking any set-off.
Docket entry #202.
In light of the court's decision as it relates to the
defendant's special defenses, the court need not
address these matters in avoidance. However, the
court does find that the evidence supports the
plaintiffs allegations contained therein.
C. COUNTERCLAIMS
The court now turns to the defendant's
counterclaims. The defendant has asserted two
counterclaims: Count One, captioned Quiet Title and
Count Two, captioned Violations of the Connecticut
Unfair Trade Practices Act. The defendant has failed
to offer evidence to meet the burden of proof as to
each of these two claims.
III.
CONCLUSION
For the foregoing reasons, the court enters judgment
in favor of Santander Bank as the plaintiff on the
two counts of its complaint and for Santander Bank
as the counterclaim defendant on the two
counterclaims.
47
Appendix D
As to Count Two of the complaint, a judgment of
foreclosure by sale shall enter for the plaintiff. The
debt is found to be $139,364:60 as of May 2, 2023
broken down as follows:
Principal Balance: $80,897.23
Interest (through May 2, 2023): $12,610.98
Pre-acceleration Late Charges: $128.31
Tax Advances: $45,051.08
Annual fees: $150.00
NSF fees: $65.00
With a per diem interest rate accruing after that
date of $16.05
The fair market value of the property as of April 17,
2023, is $205,000.00, of which $40,000.00 is
attributable to the site and $165,000.00 is
attributable to the improvements thereon.
Attorney's fees are awarded in the amount of
$27,187.50. Costs are awarded as follows: Appraiser
fees of $630.00 and title search fee of $225.00.
The sale date will be set for August 26, 2023 (Bar
date is July 12, 2023). The clerk will send out a
separate notice relating to the sale.
BY THE COURT
/s/ Claudia A. Baio
CLAUDIA A. BAIO, JUDGE
48
Appendix D
1 The defendant has included subcaptions of special defense in
his counterclaims but has not asserted any additional special
defenses in the subcaptioned portion of the counterclaim.
2 The defendant filed a number of pleadings on the eve of and
during the trial and also claimed for the first time to the short
calendar for the day immediately preceding the trial some
pending motions that had been recently filed prior to trial. The
plaintiff filed several in response. Each of those pleadings was
addressed on the record during the trial. Orders were issued as
to each noting for those addressed on the record, that the order
was issuing per the oral record. See e.g. Defendant's Motion to
Strike Certificate of Closed Pleadings filed 4/17/2023, Docket
entry #255, Order entered 5/1/2023, Docket entry #255.86;
Defendant's Motion for Order of Sanctions filed 4/17/2023,
Docket entry #256, Order entered 5/2/2023, Docket entry
#256.86; Defendant's Motion for Order of Continuance filed
4/17/2023, Docket entry .#257, Order entered 5/2/2023, Docket
entry #257.86; Defendant's Motion to Reargue filed 4/26/2023,
Docket entry #263, Order entered 5/2/2023, Docket entry
#263.86; Plaintiffs Motion to Strike (late filed jury claim) filed
4/28/2023 Docket entry #272, Order entered 5/2/2023, Docket
entry #272.86; Defendant's Notice of Interrogatories and
Notices of Deposition filed 4/28/2023, Docket entry #274, Order
entered 5/2/2023, Docket entry #274.86; Plaintiffs objections to
motions ##255, 256, 257 and 263 filed 5/1/2023, Docket entry
#275, Order entered 5/2/2023, Docket entry #275.86;
Defendant's Notice of 5/1/2023 Appeal filed 5/2/2023, Plaintiffs
5/2/2023 Motion for Order finding no appellate stay as a result
of the appeal filed 5/1/2023, Docket entry #281, Order entered
5/2/2023, Docket entry #281.86; Defendant's Motion for
Emergency Order for Subpoena filed 5/3/2023, Docket entry
#283, Order issued 5/3/2023, Docket entry #283.86; Defendant's
Objection related to exhibits, witness hst and TMC report filed
5/3/2023, Docket entry #284, Order- issued 5/3/2023, Docketentry #284.86; Defendant's Motion for Sanctions filed 5/3/D023,
Docket entry #285, Order issued 5/3/2023, Order #285.86.
3 Sovereign Bank merged into and became known as Santander
Bank, N. A.
49
Appendix D
4 In fact, the defendant included as one of his exhibits to his
answer, special defenses and counterclaim, the exact name
change affidavit offered by the plaintiff as an exhibit. See
Docket entry #196, Exhibit A.
5 It is noteworthy that the defendant raises the issue of the
Connecticut Statute of Frauds in his twenty-fourth special
defense, relying upon the argument that there was no written
property description attached to the mortgage, yet seeks to rely
upon an oral agreement relating to the same debt set forth in
the note and secured by the mortgage.
6 The remaining special defenses that fall under this conclusion
of the court include the first, sixth, seventh, tenth, twelfth
(addressed in part above) fourteenth, eighteenth and twentyfifth through thirtieth special defenses. Also, although the
defendant makes reference to subject matter jurisdiction in the
several of the special defenses including the fifteenth and
sixteenth special defenses, issues raised with regard to that
claim have previously been addressed by this court in ruling on
motions previously filed by the defendant. .See, e.g., Motion to
Dismiss, Docket entry #106, denied by the court, Taylor, J., on
March 3, 2040, Docket entry #106.86; Motion to Strike (Original
motion Docket entry #154) amended motion, Docket entry #175,
denied by the court, Taylor, J., by order dated March 29, 2022,
Docket entry #175.86; Motion to Dismiss (addressing in
personam jurisdiction, Docket entry #226, denied by the court
(Baio, J.) by order dated 9/29/2023, Memorandum of Decision
#231. Further, to the extent they are based upon the claim that
there was no valid property description, that issue already
addressed by this court in determining the plaintiffs claim for
reformation as well as in the discussion within this decision
relating to those relevant special defenses.
50
Appendix E
The Backstory Behind Judge
Richard Posner’s Retirement
Judge Posner had some very specific reasons
for his surprise retirement from the bench.
By DAVID LAT
September 7, 2017 at 1:44 PM
In May, when I had lunch with Judge Richard
Posner and his clerks in Chicago, the esteemed jurist
was in fine form, as enjoyable a conversationalist as
ever.
In July — after he made controversial comments
about aging federal judges, including a call for a
mandatory retirement age of 80 — I asked him
whether he’d apply that rule to himself. He kept his
options open, telling me, “It will depend on how I feel
[when I turn 80], both in terms of physical and
particularly mental health and in terms of interest in
the job.”
So like much of the legal world, I was taken by
surprise when Judge Posner, currently
78, announced his retirement from the Seventh
Circuit. He announced the news right before Labor
Day weekend, and it took effect immediately.
And it’s a total retirement, not the usual move to
senior status (a sort of quasi-retirement for federal
judges), as I learned when we traded emails earlier
this week. I wrote:
51
Appendix E
Hi Dick. Congratulations on your retirement — major
news in the legal world, of course!
I haven’t been able to glean this from what I’ve read
so far (although I haven’t read everything on the
news, having just returned from vacation), but I was
wondering: will you be taking senior status and still
hearing cases, or are you departing from the Seventh
Circuit completely ?
He responded:
Nice to hear from you, David. And I’m not taking
senior status; my departure is total. It has to do
with fact that I don’t think the court is treating
the pro se appellants fairly, and none of the
other judges agrees with me (or rather, they
don’t like the pro se’s and don’t want to do
anything with them, with occasional exceptions
only).
I wasn’t sure if Judge Posner’s comments on pro se
litigants were fair game for public discussion — but
now they are, thanks to this Chicago Daily Law
Bulletin piece:
[Judge Posner] intended to stay on the Chicago-based
7th Circuit until he turned 80... [b]ut “difficulty” with
his colleague... moved up that date.
“I was not getting along with the other judges
because I was (and am) very concerned about
52
Appendix E
how the court treats pro se litigants, who I
believe deserve a better shake,”Posner wrote
About 55 percent to 60 percent of the litigants
who file appeals with the 7th Circuit represent
themselves without lawyers. Very few pro se
litigants are provided the opportunity to argue
their cases in court. The 7th Circuit rules on
most of those cases based on the briefs.
Posner has long been concerned about the
plight of pro se litigants. Back in 2015, for
example, he benchslapped a trial judge for
mistreating a pro se plaintiff.
If you’re interested in learning more about Judge
Posner’s problems with the Seventh Circuit’s
treatment of pro se litigants, stay tuned:
Posner wrote that he has a book coming out soon that
explains his views on the topic — as well as the views
of his former colleagues — “in considerable detail.”
Now that should be a juicy read! Judge Posner
is famously candid, so don’t expect him to go easy on
ex-colleagues he disagrees with.
I followed up with Judge Posner and asked how his
stepping down would advance the cause of pro se
litigants at the Seventh Circuit. Wouldn’t it be
better for him to remain on the court and
53
Appendix E
continue to advocate for their improved
treatment?
Alas, it’s a lost cause, in his view: “I had zero
support from the other judges; I was a voice
crying in the wilderness.”
I also asked Posner whether he felt, in light of his
comments about superannuated federal judges,
whether he himself has been affected negatively by
aging. He replied, in Posnerian fashion, “I think
there should be compulsory retirement for all federal
judges and Justices at age 80; I am as yet a mere
child of 78.5.”
Judge Posner, you will be missed. I don’t know that
I’d want a judiciary full of Richard Posners, but it
sure was great to have one.
David Lat is a lawyer turned writer. He
publishes Original Jurisdiction, a newsletter on
Substack about law and legal affairs, and he writes
for newspapers and magazines, including the New
York Times, Washington Post, and Wall Street
Journal. Prior to launching Original Jurisdiction,
David founded Above the Law, one of the nation's
most widely read legal news websites, and
Underneath Their Robes, a popular blog about
federal judges that he wrote under a pseudonym. He
is also the author of a novel set in the world of the
federal courts, Supreme Ambitions. Before
entering the media world, David worked as a
federal prosecutor in Newark, New Jersey; a
54
Appendix E
litigation associate at Wachtell, Lipton, Rosen
& Katz, in New York; and a law clerk to Judge
Diarmuid F. O’Scannlain of the U.S. Court of
Appeals for the Ninth Circuit. David graduated
from Harvard College and Yale Law School,
where he served as an editor of the Yale Law
Journal.
https://abovethelaw.com/2017/09/the-backstorybehind-judge-richard-posners-retirement/?rf:=l
55
Appendix E
56
Appendix F
CAPTURED
The Corporate Infiltration of
American Democracy
United States Senator Sheldon Whitehouse
CHAPTER 9
Capture of the Civil Jury
UNSHACKLED FROM THE CHAINS of campaign
finance limits, corporate power marauds across our
politics. That power has set its sights on bending a
wide range of policies to its advantage, everything
from corporate taxes to safety regulation. It has also
set its sights on a target that is one of the
fundamental constitutional pillars of our
government: the civil jury.
The civil jury has a unique role in our
uniquely American constitutional system. In the
United States, a civil jury determines the facts and
decides fault in non-criminal trials, ranging from
property disputes between neighbors to multimilliondollar class-action lawsuits against corporate
behemoths. The Founders deliberately built this
institution into the system of government established
by our Constitution and Bill of Rights. Alexis de
Tocqueville, in his Democracy in America, observed
that the jury should be understood as a "political
institution" and "one form of the sovereignty of the
people." It gives ordinary citizens direct exercise of
an American constitutional power. It is the element
in our constitutional system most dedicated to
57
Appendix F
protecting ordinary citizens from the wealthy and
powerful. Corporate political machinery, by seeking
to undermine the civil jury and change the very
structure of our system of government, shows the
extent of its ambitions.
You may think of the civil jury as an
annoyance. You may think of jury duty, and what a
bother a jury summons can be. But consider why the
Founders prized the institution of the civil jury so
highly and defended it so fiercely.
The earliest tendrils of the jury system
appeared in England way back in the twelfth
century. By the fifteenth century, civil juries had
blossomed into their modern form: independent
persons who gathered together and heard witness
testimony presented by opposing counsel, and then
had the power of decision. It was an original form of
"power to the people" and local decision making.
When the earliest colonial settlers came from
England to this land, they transplanted juries here:
by 1624, juries were established in Virginia; by 1628,
in Massachusetts; by 1677, in New Jersey; and by
1682, in Pennsylvania.
Civil juries provided a treasured means of selfgovernance to colonial Americans as they chafed
under British rule. Efforts by the British government
to interfere with American juries helped foment the
American Revolution. We know those early American
forefathers cared about this, because they said so. In
the Declaration of Independence itself, when the
58
Appendix F
Founders protested Britain's "history of repeated
injuries and usurpations, all having in direct object
the establishment of an absolute Tyranny over these
States," they singled out that Britain had been
"depriving us in many cases, of the benefits of Trial
by Jury."
When our original Constitution was silent on
the civil jury, Americans sounded the alarm and the
Seventh Amendment, putting the civil jury right into
the Constitution, was promptly sent to the states in
the Bill of Rights. Alexander Hamilton described the
importance of juries in Federalist No. 83: "The
friends and adversaries of the plan of the convention,
if they agree in nothing else, concur at least in the
value they set upon the trial by jury; or if there is
any difference between them it consists in this: the
former regard it as a valuable safeguard to liberty;
the latter represent it as the very palladium of free
government." "Representative government and trial
by jury are the heart and lungs of liberty," wrote
John Adams. The jury was a big deal to the Founding
generation.
Sir William Blackstone was the best-known
jurist in England and America at the time of the
Revolution and the author of Commentaries on the
Laws of England, probably the most widely available
legal text in the colonies (still often cited today by
American courts). Blackstone gave the two major
arguments for trial by jury in one sentence: trial by
jury, he said, "preserves in the hands of the people
that share which they ought to have in the
59
Appendix F
administration of public justice, and prevents the
encroachments of the more powerful and wealthy
citizens."
Let's start with the first argument. Colonial
Americans understood the civil jury to be a means of
directing power to the people and recognized Sir
William Blackstone's 1768 warning that "every new
tribunal erected, for the decision of facts, without the
intervention of a jury ... is a step towards
establishing aristocracy, the most oppressive of
absolute governments." The Founders intended the
civil jury to serve as an institutional check by giving
ordinary American people direct control over one
vital element of government - giving them, in
Blackstone's words, "that share which they ought to
have" in the administration of justice. The civil jury
serves the constitutional purpose of dividing and
disaggregating governmental power. And it does so
in an immediate way, putting the people themselves
as the decision makers.
On the second argument, in a Constitution
largely devoted to protecting the individual against
the power of the state, the civil jury is unique in that
it is also designed to protect the individual against
the power of other individuals. Wealth, power, and
connections can give unfair advantage. Wealth,
power, and connections can also influence officials in
the performance of their duty. The remedy for this
was to let an independent group of randomly selected
members of the community decide whether someone
was being treated unfairly, or in vio-lation of law.
60
Appendix F
Because each jury is new - "a rotating cast of
laypeople," as law professor Nathan Chapman puts it
- it is hard to put in an institutional fix. To amplify
this protection, we have made it a crime even to try:
it's a criminal act to "tamper" with a jury. Contact by
an interested party with a juror, unless approved by
the judge in charge of the case, is forbidden. Thus
does the jury prevent the "encroachments of the more
powerful and wealthy citizens" who can wield
influence so effectively in other arenas. In the jury,
our Founders set ordinary people as our
Constitution's watchman against encroachments by
the powerful and wealthy.
Corporations now have become the most
powerful and wealthy entities in our society, and it is
often corporations whose encroachments a jury will
thwart. Thus, the civil jury has become the target of
sustained corporate attack. The immediate corporate
wish is to reduce liability exposure. But that's only
part of it. As law professor David Marcus notes,
"When juries decide cases, elites lose their
stranglehold on legal power" - and big corporations
don't much care for institutions where an ordinary
American citizen can have an equal voice and equal
standing.
Big, wealthy, powerful corporations are
accustomed to the benefit of enormous special
influence, whether acquired through campaign
contributions, traditional lobbying, regulatory
capture, or the big political spending unleashed by
Citizens United. They bring this influence to bear on
61
Appendix F
executive officials. They bring this influence to bear
on administrative agencies. They bring it to bear on
elected legislatures. They even bring it to bear on
judges.
But big corporations lose the advantage of all
that special influence in front of a jury. Tampering
with executive, legislative, and administrative
agencies is a licensed activity of special interests
under our lobbying and campaign finance laws.
Tampering with a jury is a crime.
The civil jury can be a potent political
institution. It fosters civic engagement. It educates
citizens about the workings of their government. It
knits together people from all walks of life. It
devolves power down to the people. It offers a final
check on abuse when other institutions of
government are compromised by influence. But the
jury trial is now close to vanishing.
When the federal Civil Rules of Procedure
were adopted in 1938, about 20 percent of federal
cases were resolved by either a jury or a bench trial.
Now, less than 2 percent of federal civil cases reach a
jury or a bench trial. Most litigants do not have a
reasonable prospect of presenting their claims to a
jury of their peers. The chief judge of my home state's
federal court recently told me he had not seen a civil
jury trial in his courtroom for three years.
Some reasons for this trend are practical. The
economics of modern legal practice press litigants
62
Appendix F
into early settlement. Judges add to this pressure
their desire to manage and expedite their dockets.
Jury trials are work; signing off on a settlement is
easy. The growing practice of judges tolerating
"paper blizzard" defense strategies rewards
defendants who can bankroll aggressive and
imaginative defense pretrial strategies until the
plaintiff simply collapses from lack of resources
before getting near a jury.
One example of this blizzard defense practice
occurred in a case I brought as attorney general,
where the industry defendants gave us a witness list
of a hundred names. That required us to go all
around the country to take these witnesses' pretrial
depositions. Knowing what the other side's witnesses
will say is an essential part of trial preparation, so
we had no choice. At trial, the defendants called
exactly zero of these witnesses. The witness list was
a sham, a wild-goose chase thrown into the works of
that case to waste our time and money. They got
away with it.
Other changes diminishing the jury's role
came via the Federal Rules of Civil Procedure. It
starts with getting through the courthouse door.
Corporations want this to be more difficult, and the
Supreme Court as it has defined these rules has
helped their cause. The Supreme Court has made it
far easier for corporate defendants to dismiss cases
and has helped them limit plaintiffs from gathering
facts through "discovery" and from presenting their
case to the jury. Recent amendments and
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interpretations governing how civil trials work —
pleading standards, motions to dismiss, class-action
standards, summary judgment, and case
management procedures — have also narrowed the
gateway to a jury trial. All of these changes are to
the benefit of those with money and power who tend
to be defendants in civil trials, namely, corporations.
Let's say a consumer believes she was harmed
by a chemical and sues the corporation that made the
chemical. Before a string of corporate-friendly
Supreme Court decisions over the past few decades,
the consumer could file a complaint in court and
would likely have the opportunity to review any
evidence necessary to make her case (that's called
"discovery") and then present this case to a jury.
After the Supreme Court tilted the playing field in
favor of civil defendants - often corporations - it is
more likely that the consumer's case would be
thrown out before her attorneys ever had a chance to
review documents and depose witnesses. If she did
make it to that point, her case would be more easily
thrown out by a judge for being insufficiently
persuasive before it ever reaches a jury of her peers.
As Justice Stevens reminded us in his dissent in one
of these decisions, the rules of federal civil procedure
were intended "not to keep litigants out of court but
rather to keep them in." More and more, the trend in
judicial interpretation of those rules is to keep
litigants out.
Class actions are a key tool for citizens to join
together to sue a corporation. Small-denomination,
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large-scale frauds are the stuff of class actions. A
company cheats a hundred thousand people out of a
hundred dollars each, and it makes a bundle. But it's
not worth it for the victims to bring hundred-dollar
lawsuits one by one. Hence the class action, which
provides a path to a group remedy for such frauds.
The Roberts Court has made it far more difficult for
individual citizens who had been injured in these
low-dollar, large-scale frauds to join together, bring
their case before a jury, and hold corporate
wrongdoers accountable.
Even where a case does get filed and begins to
proceed toward a trial before a jury, a summary
judgment can stop it in its tracks. In the 1980s, the
Rehnquist Court issued a game-changing trio of
decisions known in legal circles as the "Celotex
trilogy." Traditionally, defendants had to meet a high
bar to get the case thrown out at this stage, but the
Celotex trilogy shifted that burden toward the
plaintiff, making it much more likely that a case
would get thrown out by a judge far before reaching a
jury.
Courts took notice. Federal courts have cited
this trilogy in astounding numbers: Anderson has
been cited more than 204,000 times, Celotex more
than 190,000 times, and Matsushita more than
98,000 times. Vast numbers of plaintiffs were left
unable to reach a jury of their peers.
Another trend undercutting the civil jury is
the addition by big corporations of arbitration
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clauses into consumer contracts. We consumers
never bother to read the fine print, but in the
contract you signed for your cellphone, for your credit
card, for your bank account, and for many other
services, you likely gave away your right to a jury
trial. Parallel to this trend has been a series of
Supreme Court decisions through which the five
conservative justices approved these contracts, again
and again allowing consumer claims to be forced out
of the civil courts and into arbitration.
Dissenting in the most recent of these anti
consumer Supreme Court cases, Justice Ruth Bader
Ginsburg noted: "These decisions have predictably
resulted in the deprivation of consumers' rights to
seek redress for losses, and, turning the coin, they
have insulated powerful economic interests from
liability for violations of consumer-protection laws."
She cited a recent series of New York Times articles
exposing the severity of this problem and the
intensity of the corporate effort to keep cases out of
the civil court system. As Jessica Silver-Greenberg
and Robert Gebeloff reported in the Times, "By
inserting individual arbitration clauses into a
soaring number of consumer and employment
contracts, companies [have] devised a way to
circumvent the courts and bar people from joining
together in class-action lawsuits, realistically the
only tool citizens have to fight illegal or deceitful
business practices."
There are two big problems with these forced
arbitration provisions. First, giving up your jury
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right is not a fairly bargained choice. Credit cards
and cellphones are necessities in our economy, and
the contracts for those services are what lawyers
would call "contracts of adhesion," contracts in which
the weaker party has no real choice - take it or leave
it. Second, the arbitration process lends itself to bias:
it's always one-sided, big corporation against
individual, and the corporation is usually a repeat
player in arbitrated disputes, while each individual
is usually new to the process, a one-timer. The
arbitrators — very often corporate lawyers — will not
want to displease the corporation, lest they not be
selected for more arbitrations. So a bias emerges.
State attorneys general came together and shut
down the consumer arbitration work of one firm the National Arbitration Forum - because it had
become such a racket of pro-corporate bias. Before
the attorneys general shuttered its practice, the firm
had managed more than 214,000 consumer debtcollection claims in 2006 alone.
The corporate lust for arbitration even reaches
into our international trade policy. Big corporations
and industries have secured "investor-state dispute
settlement" (ISDS) provisions in trade deals like
NAFTA. These provisions give corporations the
ability to sue nations not in court but rather before
panels of arbitrators who are mostly corporate
lawyers. Multinational corporations use these
clauses to fight health, environmental, and safety
standards established by sovereign nations that
could hurt the corporate bottom line. Big nations
such as the United States and Canada and Australia
have all been sued. Little nations such as tiny Togo,
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a sliver of a nation on the West African coast, have
been threatened — in the case of Togo by the tobacco
industry, whose revenues are more than six times
Togo's entire gross domestic product.
A recent BuzzFeed investigation, "The Court
That Rules the World," released August 28, 2016,
looked at "the secret operations of these [ISDS]
tribunals, and the ways that business has co-opted
them to bring sovereign nations to heel." "ISDS has
morphed ... into a powerful tool that corporations
brandish ever more frequently, often against broad
public policies that they claim crimp profits." The
investigation noted "the potential use of ISDS by
corporations to roll back public-interest laws, such as
those banning the use of hazardous chemicals or
raising the minimum wage," and as a "shield for the
criminal and the corrupt." There is no similar
tribunal in which environmental groups or labor
unions can sue when things go the other way. The
revolving door spins freely, as lawyers who negotiate
the ISDS measures in treaties on behalf of the U.S.
Trade Representative then go and practice law as
ISDS litigators. One is the head of his firm's ISDS
practice. Why would you cut back on the
opportunities for your future corporate clients, who
will pay you to bring the ISDS cases whose way you
paved while in government?
The gradual suffocation of the American civil jury is
neither random nor coincidental. Supreme Court
justice Abe Fortas once noted, "Procedure is the bone
structure of a democratic society." Corporations know
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this. They know that procedure is power. And
undermining the civil jury is a power grab.
Blackstone warned that the civil jury would be a
thorn in the side of the wealthy and powerful, and an
annoyance to those who are used to special
treatment. And it's true. There, in front of the civil
jury, the wealthy and powerful have to stand
annoyingly equal before the law. Their assiduously
acquired influence breaks, against the hard, square
corners of the jury box. As a body that "prevents the
encroachments of the more powerful and wealthy,"
the civil jury inevitably provokes their enmity.
It should be no surprise, then, that
corporations spread a mythology of greedy trial
lawyers, runaway juries, abusive discovery, and
preposterous verdicts, and push for "tort reform" to
further insulate corporations from lawsuits for
wrongdoing. It should be no surprise that
corporations seek the appointment of "businessfriendly" judges. And it should thus be no surprise
that an already business-friendly Congress and those
business-friendly judges steadily whittle away at this
vital and historic American institution, the civil jury.
The cost of this institution vanishing is high.
Again, you may think this is fine; what the hell, no
more jury duty. But remember what we Americans
lose if an institution such as this goes away. Juries
are a check on political might — they disband after
making their decision in a case, and consequently are
hard to subject to political pressure. Juries are
designed to be indifferent to wealth and power - they
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are made up of random people with nothing to gain
from their decision. Juries are the last hope of lost
causes when other elements of government,
compromised by influence, become bulwarks of wellkept indifference. Juries can blow the status quo to
smithereens if they don't think it's fair. They don't
care if some fat ox gets gored; their job is to do justice
in the one case before them. Period. That quality is
not only important in the particular case the jury is
deciding; it also sends a powerful message through
the whole rest of the political system.
Think about it from the big special interest's
point of view. If the special interest can put the fix in
everywhere in government, that offers a big prize,
and that prize encourages putting in the fix. But if
that prize of control can't be seized because the jury
stands out there as a lonely sentinel of resistance,
immune to that pressure, then the whole exercise of
putting the fix in elsewhere in government becomes
less alluring. If a jury can blow up the specialinterest fix in government, that dials back the special
interests' incentive to fix those other elements of
government that yield more readily to power and
wealth. It doesn't cure it, but it dials it back.
When we reflect on America and the jury, we
should think about the word "corruption." The
Founding Fathers thought about it a lot. Noted
historian (and fellow Rhode Islander) Gordon Wood
has written that, according to the republican ideals
of the Founders, corruption was "a technical term of
political science" of the Founding era. Americans
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then saw as corruption things such as "monarchical
instruments of personal influence and patronage"
and "attempts by great men and their power-hungry
minions to promote their private interests at the
expense of the public good." Corruption had a broad
political meaning to the Founders. "Any loss of
independence and virtue was corruption." Corruption
was the opposite of virtue, because it yielded to
selfishness; it was the opposite of egalitarianism,
because it allowed undue influence by some over
others; and it was the opposite of independence,
because it made government dependent on influence.
Political dependency, writes Lawrence Lessig in
Republic, Lost, was seen by the Framers as
"dependence corruption."
Hamilton, writing in the Federalist Papers,
discussed the "business of corruption," worried about
influences "corrupting the body of the people," and
warned of "instruments of foreign corruption." In
their writings, the term "corruption" makes sense
only if it is read as meaning far more than the simple
transaction of a specific bribe. Corruption was a state
of political disease; the antithesis of "corruption" was
not just an absence of bribery but a "free and
independent nation." "By corruption," historian
Zephyr Teachout has observed, "the early
generations meant excessive private interests
influencing the exercise of public power."
This generous meaning has collapsed in our
era. The Supreme Court has in recent decades
narrowed the meaning of the term down to where
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"corruption" means only a specific trade of a specific
gift or benefit for a specific official favor or service.
Now it means only what the Court calls "quid pro
quo" corruption: tit for tat, precisely. The rest of the
work of influence, the Court pretends, is free speech.
It just happens to be the kind of free speech that can
be practiced only by the big influencers, who in our
day and age tend to be the big politically active
corporations, their front groups, and their billionaire
owners. And the collapse just happens to be led by
the corporatists on the Court.
This is new. Legal historian Bill Novak talks
about how the classical tradition running from
Aristotle through Montesquieu, the sage of the
Founders, had a "preoccupation" with corruption,
meaning "the private capture of the public sphere."
He reminds us of Socrates's definition of corruption:
when "the guardians of the laws and of the
government are only seemingly and not real
guardians." Teachout, in her book Corruption in
America, writes of how any secret influence was
viewed as virtually per se corruption, and how courts
once read lobbying contracts with a sharp eye to the
health of the public sphere. "Courts routinely held
that it was not necessary to find that the parties
agreed to some 'corrupt' or 'secret' action. Instead,
the question was whether the 'contract tends directly
to those results.' A contract was problematic when,"'
to quote a decision in a Supreme Court case from
1869, it "'furnishes a temptation to the plaintiff, to
resort to corrupt means or improper devices, to
influence legislative action.'"
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Justice William 0. Douglas expressed a similar
view, placing corruption squarely in the context of
the health of the public sphere, indeed describing it
as a form of "pollution" of politics: "Free and honest
elections are the very foundation of our republican
form of government. ... The fact that a particular
form of pollution has only an indirect effect on the
final election is immaterial. ... [T]he Constitution
should be read as to give Congress an expansive
implied power to place beyond the pale acts which, in
their direct or indirect effects, impair the integrity of
Congressional elections. For when corruption enters,
the election is no longer free, the choice of the people
is affected."
The current Court's dramatic narrowing of the
definition of "corruption" has had a number of effects.
The Court has stripped Congress of its power to
protect elections by narrowing the definition of what
it could protect against. That in turn unleashed
forces of secret influence to operate with greater
impunity. It also stripped prosecutors of their ability
to bring corruption before a jury, absent an obvious
quid pro quo bribe. Ultimately, the new, narrow
definition elevated the private interest of influencers
above the public interest in a healthy public sphere.
There is an eternal contest in government,
between big, motivated private influencers who want
a government that will yield its prizes readily to
their influence and, on the other side, the public who
want a government that will not yield so readily;
between the players and those who just don't want to
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be played. This is not a new thought. Centuries ago,
Niccolo Machiavelli spoke of "two distinct parties" in
a governed society: one, "the nobles [who] wish to
rule and oppress the people," and two, "the people
[who] do not wish to be ruled nor oppressed by the
nobles." The people's object is the more "righteous,"
he said, for they "only desire not to be oppressed."
More recently, and in our land, President Andrew
Jackson's veto message regarding the rechartering of
the Bank of the United States distinguished between
"the rich and powerful [who] too often bend the acts
of government to their selfish purposes" and "the
humble members of society — the farmers, mechanics
and laborers - who have neither the time nor the
means of securing like favors to themselves." In our
times, we see the contest less colored by class or
occupation. The contest is simple: between those who
want to influence, and therefore want a government
that will be amenable to influence, and those who
just want to go about their own lives, and would like
a government that resists influence on its own so
they don't have to defend themselves constantly
against the influencers.
In this contest, the big influencers don't need
help. They are fully motivated by greed and reward.
Instead, they need restraining. The public interest in
a government free of their improper influence has no
similarly motivated champion - the public has
"neither the time nor the means" for that. The public
interest doesn't need restraint, it needs protecting.
By narrowing the restraint on improper influence
down to its most precise, rash, and solitary
transaction — a direct "quid pro quo" bribe - the
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Supreme Court took the side of the influencers. They
opened up to the power of influencers space in the
political sphere that was once occupied by that
concept of a "free and independent nation." Indeed,
the Court is so blind to this distinction that in a
campaign finance decision it spoke of the importance
of "unreserved communication" between a politician
and his "constituents" - by which they meant not the
actual constituents in the politician's district, but his
donors. As a failure to appreciate the difference
between the influencer class and regular citizens,
that's hard to top.
The narrow quid pro quo standard gives a
particular boon to those big influencers who are a
constant presence in government. Those frequent
fliers can now create "dependence corruption" within
government to advance their interests, so long as
they avoid tying any particular favor at any
particular time to any particular vote. Frequent
fliers have to be very stupid if they can't structure
their work of influence around the quid pro quo
restriction.
The one-time actor coming to Washington
seeking to influence a single vote has no such
advantage. As a prosecutor who has led political
corruption investigations, I know how often it's the
stupid, sad-sack defendant who gets clobbered, not
the big interests that have learned how to work the
system. In the grand scheme of things, these sad
sacks are defendants with minuscule political might
compared to the big forces exerting their will day to
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day over government. The public is still humored
with the odd corruption prosecution, but the really
powerful and constant interests operate undisturbed.
The definition of "corruption" had historically
in America been a jury question, and against this
background, one can see why. The jury, as the
Constitution's watchman against "encroachments of
the more powerful and wealthy citizens," is well
suited to bring its popular common sense to the
definition of corruption. It is the "more powerful and
wealthy" who are most likely to be the big
influencers, the corrupters. So placing the jury as our
public sentinel over corruption sends a powerful
signal to the political class. When juries are deciding
what sort of influence is honest and acceptable
versus what sort of influence is excessive and against
the public good, that call is in the hands of regular
people. Juries are the arbitrators least likely to be
either in the pocket of industry or subject to the
worldview of the political class. And that's a good
thing, sending a shiver of caution into the influencer
class.
The Supreme Court has narrowed the field of
vision of civil juries when they do hear cases
involving corruption. Back when horses were the
common mode of transport, leather pads called
"blinkers" were often attached to the bridles beside
the horses' eyes, to narrow their field of view to only
what was right in front of them. By narrowing the
legal definition of corruption to an explicit quid pro
quo transaction, the Supreme Court narrowed the
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role of the jury. If the jury is our constitutional
watchman, the Court has in effect blinkered the
watchman.
The Court considered one case in which a
trade association made a series of gifts to a
lawmaker — expensive luggage, tickets to sporting
events, and more - during a time when the
lawmaker had direct influence over two matters
affecting the association. In an opinion by Justice
Scalia, the Court held that these gifts were not
illegal, even if they were intended to "buy favor or
generalized goodwill" and the official was "in a
position to act favorably to the giver's interests." It's
not at all clear that a jury of ordinary people would
agree. A jury might well think that buying ongoing
influence with a lawmaker through many gifts is just
as pernicious as giving one big gift in exchange for
one big favor. If the Court hadn't ruled as it did, the
influencer class might have to worry a bit about what
a group of regular people sitting on a jury might
think about a trade association, corporation, or
wealthy individual buying the "favor or generalized
goodwill" of a politician, and the result might be a
good thing for America.
But a jury will no longer make that decision.
This decision was made instead by five conservative
justices, who seemed much in thrall to business
interests, whose lives are remote from the daily cares
and struggles of Americans, and who are profoundly
ignorant of politics. Their decision has damaged the
health of the public sphere in its enduring battle
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with private influence. I don't think America is a
better place because a group of justices gave the
influencer class the ability to "buy favor or
generalized goodwill" with gifts of expensive luggage
and tickets to sporting events,
The Supreme Court did not just narrow
corruption to direct quid pro quo exchanges, they
also have narrowed what official acts they will deem
bribe-worthy. Recently, the Supreme Court
unanimously overturned a jury's conviction of
Virginia's former governor, Bob McDonnell, who with
his family accepted an array of gifts and loans,
including a Rolex watch, vacations, and a big
payment for his daughter's wedding, from a
Richmond businessman. In one instance, the Court
reported, the businessman "took Mrs. McDonnell on
a shopping trip and bought her $20,000 worth of
designer clothing." The Washington Post, long a
witness to corruption in Washington, D.C., recently
described McDonnell's case as "as hackneyed as any
in America's lurid history of political graft" and his
actions as "what any layman would recognize as
bribery."
Beyond the quid pro quo distinction, the
Court's McDonnell decision held that certain official
acts didn't even count as "quids" or "quos." The
businessman had wanted Virginia's state
universities to perform tests on a company product.
Because the governor did not formally direct such
tests, the court held it was not an "official act" for the
governor to help the businessman in other ways that
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signaled gubernatorial favor, such as summoning
university executives and researchers for meetings
about the product. "In sum," Justice Roberts wrote,
"an 'official act' is a decision or action on a 'question,
matter, cause, suit, proceeding or controversy.' ...
Setting up a meeting, talking to another official, or
organizing an event (or agreeing to do so) - without
more — does not fit that definition of 'official act.'"
The Washington Post described the ruling in plainer
terms: "the court's crabbed definition of official
corruption ... provides comfort for future
sticky-fingered politicians, who will find it easier to
line their pockets while leading supplicants and
suitors by the nose." As put by Democracy 21
president Fred Wertheimer, the decision "belies
reality. If you show the facts in the case to any
citizen, the citizen will conclude that the public
official has sold his office for personal, financial
gain."
I'm with Wertheimer. In my experience
working for a governor (who did not accept Rolexes
or shopping sprees), those signals of gubernatorial
favor indeed make a difference. Decision makers in
state agencies want pictures with the governor, they
want face time with the governor, and for sure they
want goodwill with the governor at budget time.
When the governor's office calls or sets up the
meeting, it has impact. When the governor puts
people face-to-face and asks them to work something
out, it has impact. The idea that you're not selling
your services when you're a governor who takes a
Rolex for setting up such meetings is just false. It is
indeed an "act," the act of showing gubernatorial
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Appendix F
favor in an arena where gubernatorial favor can be
expected to have an impact. Obviously the problem
isn't setting up the meeting or exerting the influence,
because that's what governors do. It's accepting the
damned Rolex and the damned shopping spree. Just
accepting the damned Rolex looks reasonably enough
like private influence-buying at work, done to
acquire and reward the governor's official influence,
that a jury ought to be allowed to make the call.
Letting the big influencers and those politicians who
accept their gifts run right to the chalk line, indeed
to a line that looks morally out of bounds to many, is
a significant (and in my view wrong) decision about
the basic standards of our democracy.
Clearly, the public's trust in a political system
where governors can receive Rolexes for setting up
meetings, conduct that even the Court said was
"tawdry" and "distasteful," was not a priority in this
decision. In the age-old political contest between big
influencers, who want a system to maneuver in that
is amenable to their influence, and the general
public, who just want to be left alone in a system
they can trust to resist such tawdry influence, yet
another blow was struck for the big influencers. As
Fred Wertheimer said, "The court forgot about the
public." And the jury's authority to draw those lines
on behalf of the public was further chopped away.
While the Founders did not foresee the vast
wealth, power, and influence of the modern mega
corporation and its armada of influencers, they did
foresee dangerous concentrations of wealth, power,
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and influence. I believe they also foresaw that
virtually every element of government could be
subject to influence, and even foresaw the possibility
that all the great powers of government - the
presidency, the Senate, and the House of
Representatives — could together fall under the sway
of a very powerful influence. I am confident that this
grim prospect was part of their reason for protecting
the jury, that last sentinel, in the Bill of Rights.
If you think this talk about influence is just a
lot of political science hooey and doesn't matter in
your real life, think about what is happening in
Congress. Look first at whose priorities get attention.
The things that matter a lot to regular people are
pretty clear: student loans and the massive debt that
results; getting something done on climate change
before it's too late; cleaning up our nasty campaign
finance system; stopping jobs going offshore and
offshore tax-dodging schemes; fixing a still-broken
health care system; getting a handle on the debt; and
having a fair tax system where taxes are not just "for
the little people." But these things don't matter much
to most big corporations — certainly not as their
lobbying presence is felt in Congress — and as a
result, none of those things is getting done. It's not a
coincidence. The big corporate stuff, like defense
spending and extending corporate tax benefits,
somehow gets done every year. And in any direct
conflict between corporate and public interests, in
Congress the advantage is almost always with
corporations. For instance, almost every measure
passed or ventured by Republicans on the House or
Senate floor recently on clean air, clean water, and
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climate change was an effort to roll back public
protections. The House has taken more than a
hundred runs at the EPA - this in a country where
the public water in Flint, Michigan, was unsafe to
drink.
In a nutshell: when you shrink the definition
of corruption and take it away from the jury, you
degrade the health of the public sphere and you
empower the big, constant corporate influencers.
Power shifts to the influencers and away from the
public, and the agenda and possibilities in Congress
shift accordingly. People then lose confidence in the
health of the public sphere and become disaffected,
and suspicious, and the great enterprise of American
democracy suffers and falters. The only happy
customers are the influencers, and we end where we
began this chapter - with the "great men and their
power-hungry minions who promote their private
interests at the expense of the public good." The jury
is a small and often overlooked institution, but
damaging it — blinkering the watchman — has big
consequences.
Of course, juries can be bothersome to some,
and can sometimes be inconvenient. They do take
effort. They require care and feeding, both
figuratively and literally. But the jury is an
institution that makes popular sovereignty real; an
institution that checks the encroachments of the
wealthy and powerful; an institution that will listen
when the ears of the other branches of government
are deaf to you; and an institution that brings
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ordinary Americans together to make important
decisions in their community. The jury is a little
institution with a big, big role.
83
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.