THINKING THINGS OVER RECEIVERSHIPS - Ventura ...
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J U L Y – T W O T H O U S A N D T W E N T Y O N E
THINKING THINGS
OVER‒RECEIVERSHIPS
by Lindsay Nielson
Page 7
MARC D. ANDERSON PRESIDENT'S MESSAGE 3
LEGAL AID UPDATE 4
HAVE YOU HEARD? 5
HON. VINCENT O’NEILL (RET.) HOW TO REACH A SETTLEMENT OF HISTORIC PROPORTIONS, PART 2 10
EDWARD A. ANDREWS WLVC SPONSORS A MEET AND GREET WITH THE DA AND CHIEF ASSISTANT DA 14
CLASSIFIEDS 15
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HIGHLY SKILLED AND EFFECTIVE MEDIATORS
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Municipal Court Advocates (ABOTA)
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Ventura County Superior/Municipal Pepperdine School of Law (2004)
Commissioner
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JULY 2021 • CITATIONS 3
PRESIDENT’S MESSAGE
by Marc D. Anderson
If you haven’t already heard, I’m thrilled to Angeles Times Book Fair, and our dog, Radio. As the months went on though, I
announce VCBA’s Annual Dinner is back! Cowboy (Kathleen Smith put together began to prefer The Moth. If you haven’t
Dust off your tuxedo, gown or favorite a great basket that included an adoption heard it, The Moth is “dedicated to the art
evening wear and join us at Spanish Hills from the Humane Society in Ojai - thank and craft of storytelling.” Each episode
Country Club in Camarillo on Nov. 13. you Kathi!). One year Judge David Long has three or four people (some you know,
and I got into a bidding war over a box of most you don’t) telling a true, personal
The Annual Dinner is our opportunity to cigars. We finally met at the auction table, story centered on a theme (“Facing the
share a meal and conversation and renew increased the bid, and agreed to split the Dark,” for example). I love a well-told story
acquaintances with our fellow lawyers and cost and the cigars. It was a box of 25 – and I admire a good storyteller. I must’ve
their significant others or plus ones. We Judge Long got thirteen and I got twelve! been a strange sight to passersby with my
take time to honor the recipients of the headphones on, some days laughing out
Ben E. Nordman Public Service Award, Please consider donating an auction loud and some days wiping a tear away.
the James D. Loebl Pro Bono Award, and item. Concert tickets, sports tickets, gift
the Verna R. Kagan Pro Bono Award. certificates, experiences, food, wine, jewelry My Netflix etcetera list is long and
The Annual Dinner committee is excited and weekend getaways are all great items. probably familiar to you. We all enjoyed a
for this year’s dinner and is working hard You can express your creativity and make lot of the same shows: The Morning Show,
planning its logistics and entertainment. a basket that reflects your personality. The Mandalorian, Wandavision, Mare of
I’m excited to co-host this year’s dinner Maybe a bass guitar lesson from Dennis Easttown, The Queen’s Gambit. There were a
with Kathryn Clunen. We look forward to Neil Jones, dinner with Dien Le (who few standouts on my list. The documentary
seeing you there. has a knack for picking great restaurants!), Crip Camp: A Disability Revolution was
aerobatics over Santa Paula with Wendy excellent and introduced me to the amazing
A hallmark of the Annual Dinner is the Lascher (although I’m certain the FAA Judith Heumann. My son, Bodie, and I
silent and live auction. This year’s auction prohibits this!), or a drive down PCH with watched all seven seasons of Star Trek: The
will benefit Ventura County Legal Aid. Eric Reed in his beautiful Austin Healy. Be Next Generation and then all four Next
VCLA was founded by VCBA in 1996 and on the lookout for an accordion themed Generation movies. Snowpiercer combined
incorporated in 2002 as charitable non- item from me. the post-apocalypse with a train that circles
profit. Its mission is to provide equal access the earth so it couldn’t miss with me. And
to justice for income-qualified residents VCBA relies on sponsorships to support the Ted Lasso was just what I needed just when
of Ventura County. It does so under the Annual Dinner and VCBA’s annual budget. I needed it. A masterclass on kindness and
direction of its Board of Directors, its The Sponsorship Committee solicits firms, leadership. The darts scene in episode eight
Managing Attorney, Cesar Libanati, and businesses, and individuals to sponsor the is probably my favorite three-and-a-half
its Staff Attorney, Alfred Vargas. VCLA Annual Dinner and ensures our sponsors minutes of television of 2020. Be curious,
relies on donations and grants to fund its are properly recognized. Jacquelyn not judgmental.
mission. VCBA is proud to support VCLA Ruffin, Carla Hartley, Trevor Quirk,
and its important mission. Rick Seigenfeld, Stephanie Johnson and
Brian Israel serve on the Sponsorship
The Auction Committee secures donated Committee. Please consider sponsoring the
items, prepares and packages them, runs Annual Dinner.
the auction, and ensures the highest bidders Marc D. Anderson is
get their items. The Auction Committee’s Again, we look forward to seeing you a lawyer with Hiepler
work begins in June and continues through in November. & Hiepler, APC, in
the dinner. This year’s Auction Committee Oxnard. He represents
has members from both VCBA and VCLA: I can’t believe it’s June. And, I can’t plaintiffs in personal
Sara Peters (VCBA), Kristine Tijam believe I’m half-way through my VCBA injury and wrongful
(VCBA), me (VCBA), Rabiah Rahman presidency. On June 15, California’s death cases.
(VCLA), Libanati (VCLA) and Louis lockdown restrictions were lifted. Life is
Vigorita (VCLA). returning to “normal.” Here are two of my
snapshots from the COVID pandemic and
My wife will confirm that I’m obsessed lockdown.
with silent auctions – sizing up the items
and making my bids then circling the tables I walked in the mornings during the
like a shark and checking on my bids until pandemic, and I listened to quite a few
the auction is closed. We’ve gotten great podcasts during those walks. I mostly kept to
art, a cool box of handmade cards, whale my favorites – Hidden Brain, This American
watching tickets, a kite, tickets to the Los Life, Amicus, and, of course, Accordion Noir
4 CITATIONS • JULY 2021
2021 VCBA LEGAL AID UPDATE
BOARD OF DIRECTORS
OFFICERS
Ventura County Legal Aid, Inc. (VCLA) Ventura County Family Justice Center and
President
Marc D. Anderson thanks VCBA and CITATIONS for assists victimized individuals with issues
updating the legal community on its relating to domestic violence, child abuse,
President-Elect programs and directors. As of 2021, elder abuse, sexual assault and human
Jacquelyn D. Ruffin VCLA has a full fifteen-member Board trafficking. The newest program for Legal
of Directors featuring: President-CEO Eviction Prevention Assistance (LEPA)
Secretary-Treasurer Christopher Beck, Vice-President Kevin aids individuals with advice, information,
Brian C. Israel
G. Staker, Secretary-CFO Louis Vigorita, analysis and referrals related to potential
Past President and Past President Mark Kirwin. Four past evictions.
Kathryn E. Clunen presidents - Joseph L. Strohman, Dien
Le, Laura Bartels and William M. Grewe For information on program assistance
Executive Director - and seven additional attorneys - Erik requests, please visit the VCLA website at
Sandra D. Rubio Feingold, Bradley Marcus, Janet Mertes, vclegalaid.org. The website also has a sign-
Linda K. Ash Kata Kim Jodi L. Prior, Rabiah Rahman, Anthony up section where volunteers may enroll
Rachel Coleman Louis H. Kreuzer Strauss and Vanessa Valdez – comprise the in our volunteer newsletter list. VCLA
Margaret J. Coyle Monica O’Hearn rest of the board. periodically makes community assistance
Vanessa M. Frank Guillermo“Bert” Partida requests on specific issues and generally
Carla L. Hartley Sara Peters
Joshua S. Hopstone Trevor M. Quirk
VCLA has three fully running programs informs the community on volunteer
Brian C. Israel H. Frederick Seigenfeld with the Legal Assistance Clinic set to opportunities. VCLA presently has three
Damon L. Jenkins Kristine A. Tijam return to in-person sessions at the County employees and always welcomes local
Stephanie A. Johnson Lauren R. Wood Law Library in late August, by appointment support to strengthen the entity. If you
only. The Pro Bono Program (PBP) accepts know of any firm or company that would
applicant requests for attorney assistance like to support VCLA, they may do so
CITATIONS EDITORIAL BOARD on a variety of legal issues with family through the website, or by reaching out to
law matters the most common. The Legal support@vclegalaid.org.
Co-Managing Editor Assistance Program (LAP) works out of the
Cari Ann Potts
Co-Managing Editor
Wendy C. Lascher
Publisher
Mediation
Sandra D. Rubio
Creative
J.P. McWaters
Ted Andrews Sara Peters Where common sense
Alice Arnold Rabiah A. Rahman
Rachel Coleman Mari K. Rockenstein and the law intersect.
Karen B. Darnall Lauren E. Sims
Panda L. Kroll Kathleen J. Smith
Carol Mack Al Vargas
Michael McQueen Richard Walton Business / Contract Personal Injury
Employment Oil & Gas
CITATIONS is published monthly by the
Real Property Other
Ventura County Bar Association. The articles
in CITATIONS are the views of the authors,
and should not be construed as legal advice. Gisele Goetz, Esq., Mediator
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JULY 2021 • CITATIONS 5
HAVE YOU HEARD?
Fourteen-year-old Sadie The judges of the Jacqueline Martinez
Engelhardt, daughter Ventura Superior Court has joined The Green
of Ferguson Case Orr have selected Brenda Law Group, LLP as
Paterson associate Max L. McCormick as the an associate. Martinez
Engelhardt, has broken court’s new Executive earned her law
the world record for her Officer. She replaces degree in 2020 from
age group. The record Michael D. Planet, Pepperdine Caruso
had been set in 1973. retired May 31. The School of Law, where
Sadie shaved four seconds from her time in court executive officer is responsible she was a Dean’s Excellence Scholarship
a race a week earlier, finishing the Girls 1 for overseeing the management and Recipient and member of the National
Miler Run Championship in 4:40.16. administration of the court’s nonjudicial Association of Administrative Law Judiciary
operations, including budget, contracts, Journal. Martinez’s practice will focus on
Natalie N. Mutz human resources, jury management, complex construction and business law
has joined Bamieh technology, records management, facilities, matters.
& De Smeth’s civil and liaison with other government
litigation department. agencies. The court executive officer is Claudia Silverman,
For over ten years, also the Clerk of the Court and Jury family law practitioner
Mutz has counseled Commissioner. Most recently, McCormick and a member of
businesses, individuals, was the Ventura Superior Court’s General the CITATIONS
and homeowners Counsel, providing legal counsel to the editorial board, has
associations through planning and dispute court in administrative matters and the just announced her
resolution. She has worked with plaintiffs Deputy Executive Officer responsible for retirement. Her
and defendants, at the trial court level the personnel and daily operations in the fun and intelligent
and on appeal. She is proficient in both Civil, Small Claims & Appeals Clerk’s contributions to our meetings and the legal
elementary Japanese and Spanish. Natalie Office; Family Law Clerk’s Office; Family community will be missed, but we’re sure
lives in Goleta with her husband, two sons Court Services; Legal Research; Family Law she’ll enjoy her time away from the office.
and their cat Lindy. Learn more about Facilitator and Civil Self-Help units.
Mutz at www.bamiehdesmeth.com.
Welcome Susana Cruz!
Quirk Law Firm is pleased to announce Susana Cruz joined
the firm as an associate attorney.
Susana was born and raised in Santa Barbara. She is fluent
in Spanish. She has a 12 year old daughter who loves to
dance flamenco. She loves to hike, spend time with her
family and travel outside the U.S.A. She has experience in
worker’s compensation law, family law, criminal defense
and personal injury law.
Susana will focus on personal injury litigation.
877 S. Victoria Ave., Suite 111, Ventura, CA 93003 | 805-650-7778
6 CITATIONS • JULY 2021
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CITATIONS
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EMPLOYMENT LAW
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Vanessa Frank 641-9300
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JULY 2021 • CITATIONS 7
THINKING THINGS OVER–RECEIVERSHIPS
by Lindsay Nielson
What do you know about being a receiver? The court may appoint a receiver sua sponte of getting a casting couch in my office), a
Most of us know there are two kinds of or either party may seek to have a receiver grocery store, a motel, a dog breeding facility,
receivers: a “wide receiver” (anyone who appointed by a noticed motion. The receiver a medical billing company, a manufacturing
watches Sunday football knows that. They must post a bond. company and a fertilizer company. I have
usually have tight ends…) and a “court sold a pharma company for $38 million in a
appointed receiver.” Although the first kind Litigants generally lose their veto powers divorce. I even had to divide a valuable wine
may be more fun, this article deals with the when a receiver steps in. Another awesome collection between the unhappy couple.
court-appointed kind of receiver. power is that where it is necessary to raise That was easy when there were even numbers
money to preserve, protect, or administer of a vintage wine, but when there was an odd
Does anyone remember the law school course the receivership estate, the court may permit number of bottles, I offered to drink the odd
called “Remedies”? That seemingly-esoteric the receiver to issue a Receiver’s Certificate bottle to keep everything on the equal. (That
course discussed some of the tools courts have of Indebtedness. This security instrument was rejected by the court). When that phone
at their disposal. Usually it took maybe an has priority over any other secured loan rings, you never know what will be asked
hour of the professor’s time to gloss over this against the subject property. Forget about of you. I have done over 500 receiverships
major tool in a judge’s bag of tricks. When the the fact that California is a race-notice state in my 45 years of practicing law. It simply
court runs into an obstreperous litigant who that allows priority of recorded security is terrific job, but it can also be maddening
simply refuses to comply with its orders, the instruments to prevail. First in time, first in at times.
judge can call upon a receiver to make certain priority...except for a receiver’s lien, which
that the orders will be carried out. Often it jumps to the head of the line. There are little to no statutory requirements
means the receiver must sell a property. This for being a receiver. Just good business
is frequently true in divorces. One spouse A receiver’s job never gets boring. You are judgment, the ability to make decisions and,
likes living in the house that the court has slandered, yelled at, sued and all kinds of in my particular case, it helps to be more
determined needs to be sold. The court can anger is bestowed on you. But your client is than just a pretty face.
always divide money, but a tangible house is a the judge who has your back (assuming you
bit more difficult to cut in half. do your job properly). In my long history Lindsay Nielson is a Ventura attorney who
as a receiver I have run and/or sold a movie is frequently appointed as a receiver.
Receivers are given immense responsibility distribution business (my wife nixed my idea
and authority under Code of Civil
Procedure section 564. Essentially, the
court can appoint a neutral who acts for
the benefit of all parties. The receiver is BONGIOVI MEDIATION
the agent of the court, not of the plaintiff
or the defendant. The receiver may take Mediating Solutions since 1998
control of, manage and liquidate the assets
which are the subject of litigation. Despite Mediator • Arbitrator • Discovery Referee
broad authority, though, the receiver may
not enter into contracts without the court’s
specific authority. The initial court order
must be as specific as possible to set forth the “There is no better
anticipated duties the court wants to occur.
If the initiating order is not specific enough, ambassador for the
the receiver needs to seek clarity.
Receiverships are an extraordinary remedy. value of mediation than
They are only used when the parties (or their
lawyers) are willfully disobeying the court’s Henry Bongiovi.”
orders, or if it is apparent that nothing will
happen to move the case forward without a
neutral being involved, such as where there
is an impasse on a board of directors, or HENRY J. BONGIOVI
the management of a company is harming
a company, or a creditor needs to take AV Preeminent Rating Conducting Mediations
control in order to collect a judgment. (5 out of 5) throughout California
The governmental agency such as the City
AVVO Rated ‘Superb’ 805.564.2115
or County can also have the court appoint
a receiver to enforce building codes and (10 out of 10) www.henrybongiovi.com
remedy Health and Safety Code violations.
8 CITATIONS • JULY 2021
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10 CITATIONS • JULY 2021
HOW TO REACH A SETTLEMENT OF HISTORIC PROPORTIONS, PART 2
by Hon. Vincent O’Neill (Ret.)
The first installment of this article discussed William Miller has noted: “Of the six of “free inhabitants” in each state. The
how James Madison’s preparations for the greatest founders only one [Madison] was a national Congress would have the power
“great mediation” of 1787 suggests lessons full-time, articulate, continually influential to legislate and to nullify state laws that
for contemporary settlement conferences. participant in the convention….” were inconsistent with the new federal
It covered the first three principles drawn constitution.
from the actions of Madison and his allies: As the first order of business on May 25,
Show up, Prepare and Formulate a Strategy. Washington was nominated to preside by The Plan further provided that both the
Pennsylvania delegate Robert Morris and new “national executive” (consisting of one
As previously noted, Madison and his was unanimously elected. Madison joined or more persons) and the judges of a new
Virginia and Pennsylvania colleagues Washington at the front of the room facing national court system would be chosen
formulated the “Virginia Plan,” which the delegates, a vantage point which allowed by the two houses of Congress acting in
they intended to present at the outset him to keep the most complete notes of the concert. With the concurrence of judges
of the convention in order to steer the proceedings. Those notes would not be selected to sit on a “council of revision,”
debates toward a much-strengthened published for half a century, after the death the chief executive would have the power
federal government and away from simply of the last surviving delegate, Madison to veto enactments of both the new
amending the Articles of Confederation. himself. federal Congress and the state legislatures.
In this second and final installment, I Special assemblies to consider ratifying the
will outline the Madison/Virginia Plan, In short order the Convention adopted a Constitution would be chosen directly by
focusing, as did Madison, on the creation set of rules, including complete secrecy, the voters in each state.
of the United States Congress. What unlimited reconsideration of any issue,
follows is a discussion of the modifications and one vote per state. There were also It is readily apparent that Madison’s Virginia
worked out by the delegates, and how that provisions designed to foster decorum Plan, much like the views of some clients at
process embodied three additional lessons and collegiality. (Beeman, Plain, Honest the start of a lawsuit, was long on extreme
applicable to mediating a legal dispute. Men, pp. 80-82.) Historian Beeman notes (nationalist) positions and short on detail.
a prevailing view among the delegates that Because it proposed that all power flow
Lesson 4: Be Willing to Compromise unanimity or something close to it would from Congress, it lacked the checks and
be needed for the Convention to produce balances eventually enacted. Yet the plan
A quorum of seven states totaling 29 an acceptable finished product. had the virtue of addressing the weaknesses
delegates, just over half of the 55 who of the existing system and grounding the
would eventually participate, allowed the The Virginia Plan, introduced in a May new structure on the democratic principle
Convention to open on Friday, May 25, 29 speech by Virginia Governor Edmund of popular election, at least as to the lower
1787. Rhode Island did not participate in Randolph, was made up of fifteen house of Congress. For the first time a
the Convention, while New Hampshire, resolutions, the first of which simply national government and its Constitution
New Jersey, Maryland and Georgia arrived provided that the Articles of Confederation would be supreme. Madison and his allies
late. Because no more than eleven states be “corrected and enlarged.” What would soon be forced to compromise on
were present at any one time, a number followed however, was a set of radical many issues.
of close issues were decided by a majority departures from the status quo, such as
of only five or six of the state delegations a bicameral legislature, a chief executive The delegates designated themselves a
present, and the slave-holding states tended and a court system, none of which existed “committee of the whole” to consider the
to be overrepresented. at the national level under the Articles of Virginia Plan, beginning on May 30 with
Confederation. The Plan repeatedly used 41 delegates present. (Stewart, The Summer
Thomas Jefferson and John Adams were the word “national” in place of “federal.” of 1787, pp. 53-54.) The tone was set early
not among the delegates, since they were when Pennsylvania delegate Gouverneur
serving their fledgling country in Europe. The Virginia Plan proposed popular Morris’s motion to establish a “national
Alexander Hamilton was a delegate election of the lower house of Congress, government…consisting of a supreme
but absented himself for much of the which would then choose the members Legislative, Executive, and Judiciary” was
summer, in part because his own New of the upper house from nominations passed by a vote of six of the eight states
York delegation had no quorum for a submitted by state legislatures. Unlike present. From there, however, the serious
substantial period. George Washington, the existing “one-state, one-vote” rule debates began as the Philadelphia weather
as chair, remained virtually silent during in the Confederation Congress and the heated up. Many issues were referred to a
the formal proceedings. The aging Ben Convention itself, representation and variety of committees before the Convention
Franklin was a delegate, but contributed voting in both houses of the new Congress completed its work on Sept. 17.
relatively modestly beyond his substantial would be proportional based either on
prestige and calming influence, as well as each state’s financial contributions to Representation in Congress, including
a few memorable short speeches. Historian the national government or the number the proposed departure from the oneJULY 2021 • CITATIONS 11
vote per state status quo, how enslaved congressional acts, subject to Congress’s Convention. Yet he later became a leading
persons would be counted, and even the power to override. figure in support of the compromises that
size of congressional districts, would pit became the Constitution, by authoring
the larger states (Virginia, Pennsylvania Madison’s Virginia Plan is still considered many of the Federalist Papers and debating
and Massachusetts) against the smaller and the primary Constitutional blueprint, Patrick Henry and others in the hotly
would occupy many weeks of the debates. however, given the supremacy of the new contested (and very public) Virginia ratifying
national government and the adoption of convention. Joseph Ellis explains that
The first tentative compromise which a bicameral legislature, the lower house Madison overcame his disappointments,
deviated from the Virginia Plan was of which embodies the Plan’s proposal for in part, when he realized that the strength
reached in the committee of the whole on proportional representation. The so-called of antifederalist sentiment might have
June 7 and 8, when popular election of “Great Compromise” (aka Connecticut or prevented ratification had the Virginia Plan
the future House of Representatives was Federal Compromise) established equal been enacted without compromise. On
coupled with selection of Senators by the state representation in the upper house June 25, 1788, the Virginia convention
state legislatures. This led to an explosive with Senators selected by state legislatures voted in favor of the Constitution by a vote
dispute about each state’s voting strength (until the ratification of the Seventeenth of 89-79. The delegates were unaware that
within Congress, which came to a head Amendment in 1913 provided for popular New Hampshire had become the decisive
as the convention work-week ended on election of Senators). This provision was, ninth state to ratify four days earlier.
Saturday, June 9. of course, quite contrary to Madison’s
view that both houses of Congress should As happened with Madison, the perspective
Over the shortened weekend Pennsylvania be proportional. Madison was also of counsel or a client may change during
delegate James Wilson succeeded in disappointed when his proposals for federal and after the course of negotiations. What
obtaining three small-state votes for vetoes of state legislation were rejected. seemed important before those negotiations
proportional representation. He did may well be less so once the value of a global
so by making counterintuitive use of a In fact, historian Stewart quotes a scholarly resolution becomes clear.
1783 proposal, never ratified, to count study that concluded Madison was
enslaved persons as three-fifths of a on the “losing” side as to 40 of the 71
person for purposes of the states’ financial specific proposals which he favored at the continued on page 12
contributions to the Confederation
Congress. For the purpose of financial
contributions, the states with large enslaved
populations favored undercounting
enslaved persons. Four years later at the
Constitutional Convention those states
were willing to settle for the three-fifths
provision, knowing it would give the pro-
slavery states a long-term advantage in
Congress, not to mention the yet to be
formulated electoral college system for
presidential elections.
The notorious three-fifths compromise
allowed the “committee of the whole” to
move on to other issues, but it and other
provisions dealing with slavery would be
extensively debated later in the Convention.
They will be discussed in more detail below.
As we know, the Convention would reject
the Virginia Plan’s proposal that the chief
executive be selected by the Congress, in
favor of a more independent President
chosen indirectly by the People through
the electoral college. The President, in
turn, would select judges for life terms,
but only upon approval by the Senate.
The Convention would do away with the
President’s power to veto state legislation,
while preserving the power to veto12 CITATIONS • JULY 2021
Lesson 5: Do Not Infect a Settlement generation are doomed to pay the penalties delegates. Many, if not most, shared the view
with the Seeds of a Future Disagreement of the compromises made by the first.” Franklin expressed in his final remarks, that
there were “several parts of this Constitution
An effective settlement resolves all pending Despite many challenges to the three- which I do not at present approve.” Franklin
and foreseeable disputes between the fifths provision over the course of the added, “I agree to this Constitution with all
parties, thereby minimizing the chance Convention summer, it remained in the its faults, if they are such, because I think
for further litigation or acrimony. The Constitution as adopted. The immorality a general government necessary for us…. I
Constitutional framers not only failed to of slavery was simply not on the agenda. doubt too whether any other Convention
address slavery effectively, they also agreed However, the framers studiously avoided we can obtain may be able to make a better
on compromises that would exacerbate the using the word “slave” and its derivatives in Constitution.” He urged the delegates to
problem. the Constitutional text. This at least allowed sign the document and support ratification
later generations to argue the framers had in their home states.
Ellis has said the greatest failure of the not intended to endorse perpetual slavery,
founding generation was not ending and had intended to limit it to the states All but three of the delegates did sign, and
slavery or at least putting it on the road to where it already existed. Historian Don the delegations voted unanimously against
extinction. In historian Stewart’s words, Fehrenbacher has suggested the Convention a last-minute call for a provision requiring
“Slavery was the original sin in which the delegates “were half-consciously trying to a second general convention to consider
nation was conceived.” frame two Constitutions, one for their own amendments to be proposed by the states
time and one for the ages….” during the ratification process. Of course,
Stewart further notes: the Convention had already included a
In the face of southern state threats to refuse framework by which the Constitution
At its core, the disagreement turned to ratify a document containing significant could be amended, which has occurred 27
on whether black slaves were human limits on slavery itself, the delegates times in the last two centuries.
beings or property. In all its perversity, wrangled over whether importation of
the three-fifths ratio captured their enslaved persons should continue. The Similarly, although a legal settlement can
identity as both, though they had no Committee of Detail, chaired by the forceful theoretically be renegotiated if the parties
voting rights and played no role in John Rutledge of South Carolina, proposed wish, it is crucial that clients and counsel
the nation’s political life. a complete ban on limiting the slave trade, understand the finality of a perfected
which Madison and many others opposed. settlement agreement. Once reduced
The white founders obviously understood
Thereafter, a bargain was struck between to writing or accepted in open court,
the contradiction between the new nation’s
the southernmost slave states and some a settlement becomes a new contract,
ideals and the existence of slavery. Several
northern states with interests in shipping enforceable by motion in the existing case
said exactly that during the Convention
and exportation of goods. That bargain or by a new lawsuit. Its provisions should
debates. A few delegates, including
deleted a requirement that navigation acts be carefully considered and meticulously
Franklin, belonged to abolition societies.
require a two-thirds vote in Congress. In documented, as if historic consequences
A few more had freed their own slaves,
return, the importation of enslaved persons were at stake.
as Washington would do in his will. As a
could not be banned before 1808, newly
delegate to the Confederation Congress Bibliography
enslaved persons could be only modestly
in 1784, Jefferson’s proposal that slavery
taxed at $10 each, and a provision, odious
should end in the western territories no The author relied on the following works:
to future generations, requiring the return
later than 1800 was defeated by a single
of fugitive enslaved persons was retained.
vote. Several northern states had enacted Beeman, Plain, Honest Men
statutes banning or limiting the existence In part due to later compromises between Cheney, James Madison: A Life Reconsidered
of slavery. north and south, it would take several Ellis, American Creation
generations for the 1787 compromises Ellis, The Quartet
On Aug. 7, as the delegates debated the draft Holton, Unruly Americans and the Origins
to end tragically in the Civil War, but the
language of the Constitution as proposed of the Constitution
lesson remains. A good settlement should
by their “Committee of Detail,” Morris of Miller, The Business of May Next
not only resolve the dispute at hand, but, as
Pennsylvania made the first pro-abolition Morris, Witnesses at the Creation
far as humanly possible, foreclose related,
political address in the nation’s history, Stewart, The Summer of 1787
foreseeable disputes between the parties.
calling slavery “the curse of heaven on the
states where it prevailed.” He correctly noted Lesson 6: What is Done is Done Recently retired Judge
the three-fifths compromise would result Vincent O’Neill is now
in the slave states being over-represented There is an additional similarity between a neutral affiliated with
in Congress, and would provide incentive the events of 1787 and a legal settlement. Alternative Resolution
for continuing to bring kidnapped Africans Although the proposed Constitution was Centers (ARC). He can
overseas. At the outbreak of the Civil War, a carefully phrased by Morris’s final draft as be reached at voneill@
grandson of John Adams wrote in his diary, an agreement between the states, it was arc4adr.com.
“We the children of the third and fourth signed by all but three of the individualJULY 2021 • CITATIONS 13
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