Oregon BENCHMARKS THE U.S. DISTRICT COURT OF OREGON HISTORICAL SOCIETY NEWSLETTER

Upcoming Famous Case: United States v. Gozales Oregon’s Latest Supreme Court Decision By John Stephens

n May 11 at 4:00 in the Mark O. Hatfield Fed- tending physician or the consulting physician believes Oeral Courthouse, the U.S. District Court Soci- a patient may be suffering from a psychiatric or psy- ety will hold its next presentation in its Famous Cases chological disorder or depression causing impaired series on the Oregon Death With Dignity Act case, judgment, then the physician must refer the patient United States v. Gonzales, 126 S.Ct. 904 (2006). for counseling. No medication can be prescribed The speakers will be U.S. District Judge Robert E. until the person performing the counseling deter- Jones; Portland lawyer, Eli Stutsman; Oregon Assis- mines that the patient is not suffering from a psy- tant Attorneys General Stephen Bushong and Rob- chiatric or psychological disorder or depression ert Atkinson; and Deputy Assistant U.S. Attorney causing impaired judgment. General Gregory Katsas. This article provides back- The attending physician may dispense the medi- ground information for that presentation. cations directly, provided, among other things, the In 1994, a measure to enact the Oregon Death attending physician has a current Drug Enforcement with Dignity Act (ODWDA) was placed on the No- Administration certificate and complies with any ap- vember general election ballot by citizens’ initiative. plicable administrative rule. Despite opposition from so-called opinion leaders, The ODWDA does not authorize a physician or including elected leaders from both parties, religious any other person to end a patient’s life by lethal in- organizations, medical organizations, and newspa- jection, mercy killing, or active euthanasia. (Al- per editorial boards, the measure passed 51% to though ODWDA provides that actions taken in 49%. ODWDA was codified as ORS 127.800 to accordance with the Act, do not constitute suicide 127.897. or assisted suicide under the law, the Oregon De- partment of Human Services and the courts quite Oregon Death With Dignity Act consistently refer to the actions as “physician-as- The Act provides that a qualified patient may re- sisted suicide.”) Among other procedures, ODWDA quest and an attending physician may write prescrip- requires that upon dispensing medication, a health tions for medication to enable the patient to end his care provider must file a copy of the dispensing or her life “in a humane and dignified manner.” To record with the Oregon Department of Human Ser- qualify, a patient must be an adult (18 years of age Continue on page 4 or older), a resident of Oregon, capable of making and communicating health care decisions, and di- agnosed with a terminal disease that has been medi- cally confirmed and will, within reasonable medical judgment, produce death within six months. Both the attending physician and a consulting physician must have determined that the patient is suffering from a terminal disease. The patient must make two oral requests and one written request. A prescrip- tion cannot be written until 15 days have passed from the initial oral request and 48 hours have passed from the written request. The attending phy- sician has a number of other responsibilities includ- Oregon Assistant Attorneys General Robert Atkinson (left) ing counseling the patient and verifying that the and Stephen Bushong will be two of the speakers on Oregon patient is making an informed decision. If the at- Death with Dignity Act.

SPRING 2006 torney Kristine Olson. The U.S. Dis- President’s Message trict Court Historical Society wishes to thank Ms. Olson and Mr. Rives for agreeing to let their stories be a part I never imagined, when I attended the Sohappy Famous Cases pre- of our collection and Mr. Long and Mr. sentation in 2001, that a few years later I would be President of Perry for their volunteer efforts to the Society. Like many who have attended the series, I was fasci- record Oregon’s legal history. nated by the behind-the-scenes perspective offered by the attor- neys and judges involved in a historical event. I enjoyed hearing We Need Volunteers how Judge Belloni called Judge Panner, then an attorney repre- Volunteers make this oral history senting the tribes, back from a camping trip on a Sunday (along project possible. We need volunteers with other litigants) and instructing the parties to resolve a state willing to go through training and will- court injunction before Monday. ing to conduct oral histories. In the We have been taping the series since 2002 and receiving CLE past, volunteers have made it possible credit for those presentations. We are now able to offer 7 different programs to collect the histories of many figures for sale, listed in the insert in your newsletter. in Oregon legal history. The list is ex- I am happy to welcome our new officers: Kerry Shepherd, vice president/ tensive and includes people such as president-elect; Karen Saul, treasurer; and John Kreutzer, corporate/execu- Rupert Bullivant, Jack Collins, Tho- tive secretary. I am lucky to have them working with me as officers. mas Cooney, Velma Jeremiah, Sidney I want to welcome our new board members: Michelle Barton, Amity Lezak, and Noreen Kelly Saltveit Clausen, Jack Collins, Kari Furnanz, Matthew Kalmanson, Susan Marmaduke McGraw, to name a few. and Greg Miner. I want to thank them in advance for the contributions they Many of these interviews are not will be making in those areas. transcribed. In order to make them I have to extend a heartfelt thank you to Judge Owen Panner and his many more accessible, we need sponsors for years of service and friendship to the District Court Historical Society. As the transcribing project. If you or your one of our organization’s founding fathers, he has helped to steer the organi- firm is interested in volunteering to zation and helped corral many of our stalwart members. As he moves south transcribe an oral history, to collect an to take up his duties as Medford’s first Article III judge, we will miss his interview, or in making transcription physical presence, but he will always have a place at our meetings. I hope possible through a donation, please Medford is ready for things to change! Fortunately, Judge Panner recruited contact Stephen Brischetto, slb@ Judge Anna Brown several years ago to join the Society. Judge Brown has brischettolaw.com or Donna Sinclair, agreed to step into the role of adviser and supporter for the group. [email protected]. Thanks to Benchmarks chair Heather Van Meter, the society web page has The following firms or individuals debuted. Please log onto www.usdchs.org. The web site should make past have donated transcribing time Benchmarks and orals histories more accessible. Bullivant Houser Bailey transcribing –Jenifer Johnston, President Rupert Bullivant (ca. 4 hours); Cooney & Crew transcribing Thomas Cooney (ca. 5 hours); University of Oregon (Dave Frohnmayer) transcribing Otto The USDCHS Oral History Program Frohnmayer (ca. 4 hours); Jolles & By Steve Brischetto and Donna Sinclair Bernstein transcribing Bernard Jolles (ca. 8 hours); Newcomb, Sabin, Since 1984, the District Court Historical Society of Oregon’s Oral History Landsverk transcribing Sidney Lezak Program has collected biographical interviews of judges, lawyers and lay per- (ca. 8 hours); Scarborough McNeese sons who play a significant role in Oregon legal history. These oral histories are O’Brien & Kilkenny transcribing Gen- preserved by the Oregon Historical Society library archives and are available to eral Chester McCarty (ca. 6 hours); both the public and researchers. At present, the Oral History collection includes David Rhoten transcribing George approximately 120 interviews. Some oral histories have been collected by pro- Rhoten (ca. 2 hours); Schwabe fessional interviewers, but many were collected by volunteers. All of the inter- Williamson Wyatt transcribing views are preserved on tape recordings and many include written transcripts. Wendell Wyatt (ca. 6 hours); Dunn The U.S. District Court Historical Society is currently working to transcribe all Carney Allen Higgins & Tongue LLP of the oral histories in the collection. Most recently, we have begun adding a transcribing Hattie Kremen (ca. 4 video interview with judges as a part of the collection. hours); Markowitz Herbold transcrib- The Oral History Program has added two important histories to our collec- ing Norm Sepenuk (ca. 9 hours); tion of the histories of individuals who have had a significant impact upon the David R. Williams (ca. 2 hours) law in Oregon. Stoel Rives is also sponsoring the William Long recently recorded the oral history of George Rives of the Stoel collection of three professionally col- Rives law firm. Ken Perry completed oral history interviews of former U.S. At- Continue on page 9 2 Glancing Backward, Striding Forward: Case Management/Electronic Case Filing (CM/ECF) By Camile S. Hickman, Director of Operational Services hen I began working for the to electronically file their documents ity to download and print documents WClerk’s Office in 1971, attor- with the court. Analogous to the move directly from the court database, and neys (not the messenger service) from manual typewriters to personal concurrent access to case files by mul- brought their documents to the Clerk’s desktop computers, snail mail to e- tiple parties. Office for filing. The clerk at the mail and telephones to fax machines, The Clerk’s Office is ready to assist counter hand stamped the date filed it will be necessary for attorneys to attorneys and their staff in learning on the front page. Case file dockets have internet access and e-mail. Adobe how to navigate in the CM/ECF envi- were maintained on heavy card stock Writer software is necessary to con- ronment. In addition to the on-line in a rolling tray that sat beside the vert word processing documents to User Manual and Tutorial located on manual typewriter. As documents were PDF format and attorneys will need the court’s CM/ECF Project Page, filed, the docket sheet was pulled and access to scanning equipment. Benefits training classes will be offered during the filing date and style of the docu- to electronically filing documents in- the months of April, May and June. ment entered. An index card for each clude 24-hour Internet access to elec- Dates, locations and registration infor- party in a case was created on 1.5" by tronically filed documents, automatic mation may be found by visiting the 2.5" cards; yellow for plaintiffs, blue e-mail notice of case activity, the abil- court’s site at www.ord.uscourts.gov. for defendants and pink cards for criminal defendants. Over the years, automation began to gain a hold on Judge Panner Moves to Medford the judiciary; moving from a manual By Nancy Moriarty docketing system, to WANG, to Courtran, to ICMS and presently to ffective May 1, 2006, Judge Owen Panner CM/ECF. Ehas moved his chambers to the James A. Red- Until the advent of CM/ECF, each den U.S. Courthouse in Medford, becoming the of these docketing systems were de- first Article III Judge permanently working in signed for use by court staff only. Medford. When CM/ECF was first delivered to The Court has frequently discussed the need pilot courts in November 1998, it was for an Article III Judge in Medford. Magistrate envisioned solely as an application Judge John Cooney has been headquartered in which would enable attorneys to file Medford for a number of years, but cannot try their documents electronically over the criminal cases or non-consent civil cases. The case internet. After a few courts had a load in Medford has grown substantially — there chance to work with the software, it are now over 100 criminal cases pending. Judge Owen and Nancy became evident that the primary func- Judge Panner’s wife, Nancy, got the ball roll- Panner tion of the application should enable ing. When visiting her brother and his wife in the court to manage its case load. At- Jacksonville, she noticed that the neighboring 25 acres were for sale. The torney participation became a second- family connection, the opportunity to buy an adjacent property, and the need ary goal. The U.S. District Court for for an Article III Judge in Medford convinced Judge Panner to volunteer to Oregon was one of four pilot district embark upon this new adventure. courts that played a major role in fo- While Judge Panner’s law clerk Jackie Sanders has relocated to Medford, cusing development of a viable case his judicial assistant, Deborah DesJardins, will remain in Portland. Technol- management system. From the start ogy has made this transition easier. Daily mail, email, and video conferencing of this project, our court wished to keep the court connected. At Chief Judge Haggerty’s insistence, Judge Panner encourage attorneys to participate will also maintain Portland chambers on the 8th Floor of the Mark O. Hatfield voluntarily. As a consequence, attor- U.S. Courthouse, which he will use when he is needed in Portland. neys filing their documents electroni- Judge Panner, his wife Nancy and their three horses are settling in on their cally with our court today account 25-acre spread in Jacksonville. Home remodeling, landscaping and a new for over 35% of the entries made to barn have kept them busy during the transition. They plan to raise some the system. cattle on the three pastures and enjoy riding. While Judge Panner claims that Amendments to LR 100, which gov- he and Nancy are basically “rednecks”, they are very elegant “rednecks”! erns electronic filing in the U.S. Dis- Judge Panner is joining the Rogue Valley Country Club, even though he claims trict Court of Oregon, become he won’t have time to play golf for a while. While they will miss their friends effective June 1, 2006. As of Septem- in the Portland area, the Panners are looking forward renewing friends and ber 1, 2006, attorneys will be required acquaintances in Medford. 3 members of Congress, concerned about ODWDA, wrote the director of the Supreme Court Decision continued from page 1 DEA arguing that the DEA should prosecute or revoke the CSA registra- tion of Oregon physicians who pre- vices. The department, in turn, is re- Washington v. Glucksberg, 521 U.S. scribe medications under ODWDA. quired to collect information regard- 702. While rejecting the argument that They contended that hastening a ing compliance with ODWDA and to the right to assistance in committing patient’s death was not a “legitimate make available to the public an annual suicide was a fundamental liberty in- medical” practice and that prescribing statistical report of information col- terest protected by Due Process Clause, controlled substances for that purpose lected. The department’s annual reports and while holding that Washington’s violated the CSA. The director agreed, are available on its website ban on assisted suicide was rationally but seven months later, Attorney Gen- www.oregon.gov/DHS/ph/pas/. Or- related to legitimate government inter- eral Janet Reno disagreed. She deter- egon was, and is, the only state in the ests, the Court also noted “the States mined the DEA could not take the country with such a law. are currently engaged in serious, proposed action because the CSA did ODWDA did not immediately go thoughtful examinations of physician- not authorize the DEA to “displace the into effect. A group of physicians, four assisted suicide and other similar is- states as the primary regulators of the terminally ill patients, and a residen- sues.” 521 U.S. at 719. This statement medical profession, or to override a tial care facility, among others, filed an has been important to all subsequent state’s determination as to what con- action in U.S. District Court seeking to judicial considerations involving the stitutes legitimate medical practice.” enjoin ODWDA from taking effect. In ODWDA. A few months later, on Oc- Oregon v. Gonzales, 126 S.Ct. 904, Lee v. State of Oregon, 869 F. Supp. tober 14, 1997, the Supreme Court de- 913 (2006). 1491 (D.Or. 1994), Chief U.S. District nied a petition for certiorari in Lee. Lee Bills were introduced in 1998 (Le- Judge Michael Hogan granted v. Harcleroad, 522 U.S. 927 (1997). thal Drug Abuse and Prevention Act plaintiff’s motion for preliminary in- of 1998) and again in 1999 (Pain Re- junction preventing ODWDA from The 1997 Oregon Vote lief Promotion Act) designed to block going into effect. Thereafter, the Dis- The injunction was then lifted on Oc- ODWDA. The proposed Pain Relief trict Court held that ODWDA violated tober 27, 1997, but that was not the Promotion Act became a leading cause the Equal Protection Clause because it end of challenges, non-judicial at least, of the Senate Majority Leader, Don did not provide sufficient safeguards to to ODWDA. Believing voters might be Nickles. Neither bill passed. prevent incompetent (i.e. depressed) of a different mind about the moral, terminally-ill adults from committing ethical, and legal choice they had made The Ashcroft Directive suicide; ODWDA irrationally deprived in 1994, the Oregon Legislative Assem- In 2001, John Ashcroft became At- terminally-ill adults of safeguards bly referred a measure to the voters to torney General. As a U.S. Senator against suicide that are otherwise pro- repeal ODWDA in the November 1997 Ashcroft was a proponent of the two vided to adults who are not terminally general election. This time, however, bills and of the DEA taking action. On ill. Lee v. State of Oregon, 891 F. Supp. the vote was only more decidedly lop- November 6, 2001, Attorney General 1429 (D.Or. 1995). The District Court sided, with 60% to 40% voting not Ashcroft issued an interpretive rule, entered judgment permanently enjoin- repeal ODWDA. often referred to as the Ashcroft Di- ing the enforcement of ODWDA. Lee With the second vote, challenges to rective, that “assisting suicide is not a v. State of Oregon, 891 F. Supp. 1439 ODWDA switched from the local level ‘legitimate medical purpose’” within (D.Or.1995). On appeal, the Ninth Cir- to the national level. The medications the meaning of administrative rules cuit reversed. The court held that plain- that attending physicians prescribe un- that had been adopted under the CSA, tiffs had failed to establish actual injury, der ODWDA are regulated under the and that “prescribing, dispensing, or and therefore had no standing. The federal Controlled Substances Act administering federally controlled sub- Ninth Circuit vacated the District (CSA), 21 U.S.C. § 801 et seq. In 1971, stances to assist suicide violates the Court judgment and remanded with the Bureau of Narcotics and Danger- Controlled Substances Act.” He ruled instructions to dismiss the complaint ous Drugs (predecessor of the Drug that such “conduct by a physician reg- for lack of subject matter jurisdiction. Enforcement Agency) adopted formal istered to dispense controlled sub- Lee v. State of Oregon, 107 F.3d 1382 regulations implementing the CSA, in- stances may ‘render his registration (9th Cir. 1997). The Ninth Circuit did cluding what is now 21 C.F.R. § ... inconsistent with the public inter- not reach the equal protection argu- 1306.04. It provides in relevant part: est’” and therefore subject to possible ments that were the basis of the Dis- “A prescription for a controlled sub- suspension or revocation under the trict Court’s decision. stance to be effective must be issued CSA. The interpretive rule provided for a legitimate medical purpose by an it applied regardless whether state A 1997 Supreme Court Decision individual practitioner acting in the law authorized or permitted the con- In the meantime, in June 1997, the usual course of his professional prac- duct. 66 Fed. Reg. 56608 (Nov. 9, Supreme Court issued its decision in tice.” [Emphasis added.] In 1997, 2001). 4 The next such a practice is legitimate in this sons, the majority said “it is clear to day, on No- sovereign state. us that controlled substances provide vember 7th, –192 F. Supp.2d at 1092. the best and most reliable means for the State of Or- terminally ill patients to painlessly take egon com- Ninth Circuit Opinion their own lives.” 368 F.3d at 1123 n.5. menced an The Ninth Circuit, in an opinion by action in U.S. Judge Tallman, and over a lengthy dis- The Supreme Court Decision District Court sent by Judge Wallace, affirmed. State The Supreme Court granted certio- against the At- of Oregon v. Ashcroft, 368 F.3d 1118 rari. Oral argument was heard the first torney Gen- (9th Cir. 2004). Among other things, week of the October 2005 term, and eral, and filed a the Ninth Circuit concluded that the the Court issued its decision on Janu- motion for a U.S. District Judge District Court did not have jurisdiction ary 17, 2006. In an opinion by Justice temporary re- Robert Jones, who will of the matter, that review in the first Anthony Kennedy, and over the dissent straining order also speak on this instance lay with the U.S. Circuit of Chief Justice Roberts and Justices and a prelimi- Famous Case, issued the Courts of Appeal. The District Court Scalia and Thomas, the Court affirmed nary injunc- first ruling on the had recognized that it might lack ju- the Ninth Circuit. Gonzales v. Oregon, tion “to enjoin Ashcroft Directive risdiction over the matter and had al- 546 U.S. ___, 126 S.Ct. 904 (2006). defendants ternatively treated the actions as The issue, as the Court saw it, was from enforcing, applying, or otherwise petitions for review which it ordered whether the CSA allowed the Attorney giving any legal effect to the Ashcroft to be transferred to the Ninth Circuit General to prohibit doctors from pre- directive pending further order of the under 28 U.S.C. § 1631. The Ninth Cir- scribing regulated drugs for use in phy- court.” On November 8th, U.S. Dis- cuit said: sician-assisted suicide, notwithstanding trict Judge Robert Jones heard the Although we conclude that the dis- ODWDA which permits the procedure, motion and issued a temporary re- trict court did not have jurisdiction, and in particular whether the interpre- straining order. On November 20, the Judge Jones’ opinion on the merits tive rule was authorized by, or other- court heard and issued a preliminary is well reasoned, and we ultimately wise consistent with, the CSA. The injunction. State of Oregon v. Ashcroft, adopt many of his conclusions. Court particularly considered what lev- 192 F. Supp.2d 1077, 1084 (D.Or. – 368 F.3d at 1120 n. 1. els of deference were or were not avail- 2002). Thereafter, the court granted Presumably because the parties had able to the Attorney General’s motions for summary judgment filed shifted their arguments on review, the interpretive rule under the Court’s ad- by plaintiffs and denied a motion to Ninth Circuit focused more on the At- ministrative law jurisprudence. The dismiss and a motion for summary torney General’s authority under the Court held the interpretive rule was not judgment filed by defendants. The Dis- CSA to revoke a practitioner’s registra- entitled to Auer deference, because the trict Court held that the determination tion to dispense a controlled substance, administrative rule that was the sub- of what constitutes a “legitimate medi- 21 U.S.C. § 824. The Ninth Circuit ject of the interpretive rule, was little cal purpose” or practice had been tra- held that while the Attorney General more than a restatement of the terms ditionally left to the states, that nothing had the authority to revoke a registra- of the CSA, that the “language the In- in the CSA delegated to the Attorney tion because a practitioner has “com- terpretive Rule addresses comes from General or the DEA the authority to mitted such acts as would render his Congress, not the Attorney General.” decide as a matter of national policy registration under section 823...incon- The question then was not the mean- whether physician-assisted suicide con- sistent with the public interest as de- ing of the regulation but the meaning stitutes a “legitimate medical purpose” termined under such section” (§ of the statute. “An agency does not or practice, and that in enacting the 824(a)(f)), § 823(f) required the Attor- acquire special authority to interpret CSA, the intent of Congress was to ad- ney General to consider five factors its own words when, instead of using dress problems of drug abuse, drug including the recommendation of the its expertise and experience to formu- trafficking, and diversion of drugs from appropriate State licensing board or late a regulation, it has elected merely legitimate channels to illegitimate professional disciplinary authority, the to paraphrase the statutory language.” channels. The court said: individual practitioner’s experience in The Court held that the interpretive Without doubt there is tremen- dispensing controlled substances, and rule was not entitled to Chevron def- dous disagreement among highly the individual practitioner’s criminal his- erence either because, although the respected medical practitioners as tory. The Attorney General, the court statutory language was sufficiently to whether assisted suicide or has- found, had considered none of these. ambiguous for Chevron deference to tened death is a legitimate medi- The majority rejected the argument apply, the Attorney General had not cal practice, but opponents have of Judge Wallace in his dissent that the promulgated the rule pursuant to au- been heard and, absent a specific Ashcroft Directive does not ban physi- thority Congress delegated to the At- prohibitive federal statute, the Or- cian assisted suicide outright, but only torney General. The Court found that egon voters have made the legal, bars the use of controlled substances while certain matters had been del- albeit controversial, decision that for assisting suicide. Among other rea- Continue on page 12 5 he Hon. Mercedes Lopez Deiz, the demic and professional success. They Tfirst African-American woman ad- provided an education “superior to mitted to the practice in Oregon and Remembering what the children are getting today.” nationally known trial judge and The Lopez children enjoyed the free champion of civil rights, was 87 at the Mercedes Deiz museums, libraries, and concerts avail- time of her death on October 5, 2005.1 able in New York City. Harlem’s Appointed to the Multnomah County Wadleigh High School was the forum District Court bench by Governor Tom for her first political campaign, the McCall in November 1969, Deiz was race for lunchroom director. On the the first African-American woman morning that student campaign judge in the Pacific Northwest. 2 speeches were delivered, Eleanor Nationally, Justice Sandra Day Roosevelt came to address the student O’Connor included her in the group body. Deiz remembered sitting next to of women judges who gathered in Los the First Lady, who gathered the stu- Angeles in 1979 to organize the Na- dent candidates around her after the tional Association of Women Judges, program, complimenting them on run- an organization Deiz later served as a ning for office. The First Lady told director. She chaired Oregon’s Advi- them, “I want you to know that you sory Committee to the U.S. Civil can become anything you want to be- Rights Commission, the ABA Juvenile come, but you have to be prepared and Justice Commission, was director and ready for it.” The message resonated instructor for the National Center for By Katherine H. O’Neil with those Mercedes’ parents gave her State Courts, the Association of Fam- and her siblings. This was the first of ily Conciliation Courts and was a fac- many elections that she won. ulty member at the National Judicial Reform. She had wide ranging and A high school graduate at 16, she College. She taught trial advocacy at eclectic interests as shown in her board worked briefly as a maid at a Fifth Harvard Law School as a Woodrow service in organizations ranging from Avenue boutique before beginning a Wilson Visiting Fellow. Lewis and Clark College, OMSI, and four-year stint at the WPA’s Lafayette In Oregon, Deiz served on several Portland Community College to Good Theatre in Harlem. It was just open- Oregon State Bar committees chairing Samaritan Hospital and Pacific Ballet ing with Orson Welles as director and three including the Civil Rights com- Theatre. John Houseman as producer. Deiz’s mittee. She was an early secretary-trea- She was born Mercedes Frances father insisted that she keep away from surer of the Multnomah Bar Lopez in New York City in 1917, the backstage “where they talk so badly,” Association (the only position open to oldest of ten children of a Czechoslo- so she worked at the switchboard and women at the time) and president of vakian mother and Cuban father of in the box office. Deiz returned to the Owen Panner Inns of Court. She African descent. Her parents migrated Wadleigh High in the evening for chaired the Metropolitan Youth Com- to New York as children. Her father French lessons to obtain the second mission, was vice chair of the Urban was a former vaudevillian and after foreign language required for admis- League, and a member of the his fourth child was born, he began sion to Hunter College. She entered Governor’s Commission on Judicial working as a valet “in those very pres- Hunter College in 1938. In all of her tigious hotels throughout downtown jobs, Deiz was “very active with trade Manhattan.” Like many in their unions,” organizing women within her 1 Beatrice Cannady, a 1922 graduate of Harlem immigrant community, the union of office workers. Northwestern College of Law, has been er- roneously reported by several sources in- Great Depression plunged the family Her brother, Paul Lopez, encour- cluding the Oregon Historical Society to into chronic economic insecurity. aged her to come to Oregon, estab- be the first African-American woman to Deiz’s father abruptly lost his job. Deiz lish residency and end a troubled be admitted to practice in Oregon. In spite drew strength and determination from of having failed the bar exam five times, marriage. With $12 in her pocket, Cannady held herself out as an attorney her Harlem community. “We were liv- she and her four-year-old son, Bill, and was admonished by the OSB board of ing in a wonderful polyglot neighbor- got on the train in 1948. The Afri- governors to desist. Serving Justice: A His- hood of Italians and Jews and French can-American railroad porters and tory of the Oregon State Bar. Pp. 54-56. and Germans and Polish people and waiters were the first Portlanders 2 Sources for this article include the author’s Russian people.” Children ate in each they met. After evaluating her situa- almost 30-year friendship with Judge Deiz; the author’s November 22, 1999 video- other’s homes sharing as food was tion, the porters came to her coach taped interview of Judge Deiz; Oregon available. Deiz remembered eating a seat bearing “a great big stack of Women Lawyers’ AdvanceSheet, fall 1989; lot of spaghetti, homemade and dried sandwiches with the crusts all cut off, OSB Judicial Candidate Statement of Judge on racks on tenement roofs. Deiz, March, 1990; Images of Oregon chicken sandwiches” for Bill and in- Women by Ellen Nichols; Judges’ Profile, The neighborhood public schools structed her to bring Bill and come Multnomah Lawyer, January 1987. were the foundation for her later aca- to the dining car every day. These 6 men and their relatives became life- went on to become an administrative long friends. law judge with Workman’s Compen- Deiz worked a series of jobs in Port- sation. land until she found work at the Deiz submitted her name to the Bonneville Power Administration in the Multnomah Bar Association for a ju- library. Fairly quickly she met “that dicial appointment but the MBA did wonderful Carl Deiz,” a Portland na- not forward her name to then Gover- tive, World War II vet, and a Tuskegee nor Tom McCall. Governor McCall Airman, on the staff of the Internal was aware of Deiz’s prodigious talents Revenue Service. They married in Oc- (from their years of friendship since tober 1949 and had two children, before he entered politics) and he ap- Karen and Gilbert. Deiz often credited pointed her to the District Court bench Carl Deiz with making her success pos- in November 1969. Thus the first Af- sible. “I could not have done the things rican-American woman to pass the I did without Carl. Especially with re- Oregon bar became the first African- spect to raising our children.” American woman on the bench in the Returning to the BPA after the birth Pacific Northwest. of her son Gilbert, Deiz was encour- The Hon. Mercedes Deiz (left) and Betty State senator and attorney, Don aged to challenge the BPA policy that Roberts Willner became her campaign director closed jobs above her grade level to for the May 1970 primary election and anyone not a World War II veteran. In dazzling smile and fancy black glasses” she handily defeated her male oppo- her civil service exam she scored the and gave Deiz’s age (42) as well as nent. Two years later she ran in the highest possible grade but BPA stood height, weight and home address, not- May primary for a newly created Cir- firm and refused to allow her to ad- ing that she “was trim and pretty in a cuit Court position against seven male vance from GS-3 to GS-4. Deiz quit. black dress with a striped black and opponents. In the fall run-off election In 1954, a friend introduced her to white top trimmed with red roses peek- she defeated Ron Gervurtz by a wide attorney Graham Walker who hired her ing out of the jacket.” Deiz’s office margin. She was re-elected to her Cir- as his legal secretary. Walker recog- address was also given but not the out- cuit Court position for four six-year nized her obvious talent and offered to come of the trial. terms until she was forced into man- pay her first semester’s tuition at After a year on her own, Nels datory retirement at age 72. She con- Northwestern School of Law. She ac- Petersen invited her to join his firm tinued as a senior judge and then as a cepted and enrolled in night law school. which later included Donald Londer mediator. Continuing work as a legal secretary (who also became Deiz’s colleague on Deiz was a special advocate for ju- by day, she attended night law school the Multnomah County bench) and, venile justice with a concern for the and excelled. She was the only woman briefly, Bob Packwood. After 15 many children that passed through her in her class. While in law school she months in this setting, being “in court courtroom. She said that termination worked as a legal secretary at Ander- every single day, without exception” of parental rights was the most diffi- son, Franklin, Jones and Olson. Two and “liv[ing] in the law library,” Deiz cult action that she had to take as a of the partners, Robert E. Jones and judge, yet noted that many parents Cliff Olson, were later her colleagues came into her court wanting their chil- on the bench. dren removed from their home. Recall- After graduating fourth in her class, ing her own parents’ nurture, Deiz she couldn’t get hired, a fact she attrib- firmly believed that the failure of par- uted to gender rather than racial bias. ents to impress on their children that She opened her own office and found they are special and loved was the cause that she “always had lots of work,” of much juvenile delinquency. Security bankruptcies, dissolutions, child cus- at Multnomah County Courthouse was todies, a wide range of trial practice tightened in 1978 after a murder in her and that the “overwhelming majority” courtroom when the husband in a dis- of her clients were white men. solution proceeding killed attorney On October 12, 1960, the Orego- Candice Duboff Jones with a bullet in- nian noted that yesterday Oregon’s tended for his wife. “first Negro woman lawyer” had tried Deiz’s activism with community or- her first case, a land sale foreclosure, ganizations such as the Urban League in room 540 of Multnomah County and the NAACP was kept apart from Courthouse. In line with the sensibili- her profession. She noted that she had ties of the time, the reporter described The “wonderful” Carl Deiz and Judge “always [been] fighting, advocating for Deiz as a “light-skinned Negro with a Mercedes Deiz Continue on page 9 7 ON OUR MEMBERS’ BOOKSHELVES

Active Liberty: Interpreting Our Democratic Constitution By Justice Stephen Breyer Knopf, 2005 Reviewed by Mary Ellen Farr Active Liberty began of any particular interpretation. In this He acknowledges that those critics as a series of Tanner sense, Justice Breyer acknowledges that (including textualists, originalists, Lectures on Human the Constitution must apply to new and literalists) believe that focus on Values given by Jus- matters, thereby necessitating an analy- text, history, tradition, and precedent tice Breyer at sis of the consequences of a proposed will safeguard against judges usurp- Harvard University in interpretation, and a realization that ing the democratic will of the people. late 2004. Justice the original Constitution was insuffi- Nonetheless, he asserts that focusing Breyer used these lec- cient, requiring occasional amendment on active liberty is more in keeping tures to discuss how differences in ju- and interpretation. However, the Con- with the Constitution because no dicial philosophy affect statutory and stitution established a system through judge can actually know what the Constitutional interpretation, and in which citizens may share in the Framers might have thought about some part, to defend his own judi- government’s authority, and that sys- any modern issue. Furthermore, Jus- cial philosophy. Although this vol- tem, Justice Breyer suggests, should be tice Breyer notes that while literalists ume is small, the concepts are not. the ultimate goal of interpretation of eschew analysis of consequences in Justice Breyer’s philosophy begins statutes and the Constitution. case by case study, their entire theory with the principle that the United Justice Breyer applies his theme of is focused upon the consequences States is built on liberty. This liberty active liberty in interpretation to they foresee in the potential for judges includes freedom from government speech, federalism, privacy, affirmative substituting their reasoning for the coercion as well as freedom to par- action, statutory interpretation, and reasoning of the government. Finally, ticipate in government. Justice Breyer administrative law. In each of these he argues that an analysis of conse- calls the latter “active liberty.” His examples, he seeks to demonstrate how quences does not necessitate a choice thesis states that “courts should take application of laws to modern situa- of the right consequence, but rather greater account of the Constitution’s tions can be improved by attention to an analysis and understanding of democratic nature when they inter- the basic concepts of democracy. In his what those consequences might be. pret constitutional and statutory discussion of privacy, he notes that Justice Breyer provides perhaps too texts.” Noting that all judges have cases coming before the Supreme Court few concrete examples, and particu- essentially the same interpretive tools often arise from changes in technology larly too few concrete examples for for statutes and the Constitution-lan- that allow the government to know those not focused on the Supreme guage, history, tradition, precedent, more about the individual than was Court’s case load. Furthermore, these purpose, and consequence-he ob- possible to know in the past. Justice are not simple concepts. However, in serves that judges differ in the em- Breyer acknowledges that Americans light of the recent attention to the ju- phasis they put on those tools. will search for pragmatic laws allow- dicial philosophies of Supreme Court Justice Breyer argues that active ing them to use technology, including justices, Justice Breyer’s book brings liberty (the sharing of power among adopting laws that allow or forbid cer- out many of the basic disagreements the people) should drive judges’ se- tain intrusions. He cautions against the facing the nation and the judiciary. lection of purpose and consequence courts intruding too much into the For that reason, alone, the book is as the bases for interpretation of stat- democratic discussion occurring in the well worth reading. utes and the Constitution. This theme face of technological change. On the falls within an interpretive tradition other hand, the need for the democratic Correction: encompassing a view of democracy discussion also warns against adopting In our Fall ’05 issue, Judge Helen Frye was as including both the rights and the an overly rigid method of interpreting reported to be the first female judge of a duties of the people and calling for the Constitution. general jurisdiction court in Oregon. To judicial restraint. He writes that Justice Breyer defends his analysis clarify, Judge Frye was the first female judges are ill-equipped to determine against those objecting to an interpre- judge in Lane County Circuit Court and whether a law is or isn’t desirable. tation primarily based on purpose and the first female judge able to hear crimi- Therefore, courts should seek to de- consequence, and those who prefer fo- nal cases. Judge Jean Lewis was the first termine what the purpose of the law cusing on text, the Framers’ original female judge of a general jurisdiction court was and the attendant consequences expectations, and historical tradition. in Oregon. We apologize for the error.

8 character included excellence, a humble For her many achievements, Oregon spirit, and tireless commitment to Women Lawyers established the achieve a truly inclusive society where Mercedes Deiz award to be given to equality of opportunity is real....her an individual who has advanced marvelous sense of humor, so that she women and minorities within the legal did not take herself quite so seriously, profession, a fitting memorial to a although she was very serious about the woman who achieved so much and for issues that were important to her.” so many. Mandatory retirement kept Deiz from realizing her oft-stated goal of continuing on the bench until another The USDCHS African-American woman succeeded Oral History Program Long-time friends and colleagues, Mercedes her. The goal was realized March 23, continued from page 2 Deiz (left) and Katherine O’Neil in 1999. 2006 with the investiture of Adrienne lected interviews, including Caroline Nelson. Nelson wrote, “Judge Deiz Stoel and supplements to the histories was a wonderful role model and men- continued of Tom Stoel and George Frasier Mercedes Deiz tor to me. When I first moved to Port- civil rights and human rights and land and began to meet attorneys, We need transcribing sponsors for against any kind of prejudice and dis- meeting Judge Deiz had a profound the following interviews: crimination.” Deiz was a founding di- effect on me. As a female attorney of Ten hours or less rector of Oregon Women Lawyers, a color who had accomplished so much C. Girard Davidson (ca. 9 hours); continuation of her battle against dis- and broken many barriers, Judge Deiz Patrick Dooley (ca. 10 hours); Alice crimination. She wrote, “We must re- was so warm, encouraging and open Tomkins Fee (ca. 8 hours); William member that one voice crying alone that I felt an immediate connection to Hedlund (ca. 6 hours); Carol Hewitt frequently is ignored, whereas many her. Throughout the years, she took (ca. 1 hour); Richard Maizels (ca. 4 voices loudly speaking through a time to check on me, both personally hours); Kristine Olsen (ca. 3 hours); spokesperson shielded by an organiza- and professionally....She was the first George Rives (ca. 4 hours); Noreen tional framework will be heard and person to tell me that I should be a Kelly Saltveit McGraw (ca. 8 hours); heeded.” judge. What she did for me she did for Robert Smith (ca. 8 hours); James She had the gift of relating to indi- countless others but it touched my life Weatherford (ca. 9 hours); David Wil- viduals of any status or ethnicity. Deiz in a very special way.” liams (ca. 2 hours) said that “the way I know how to talk Reflecting back on the words of to people, it has helped a great deal in, Eleanor Roosevelt, Deiz said that Ten hours or more in alleviating some of the terrible stu- achievement, not success, is critical. Jack Collins (ca. 16 hours); John pid ways that this country of ours can “Achievement is the knowledge that Dellenback (ca. 19 hours); Robert act.” That talent coupled with her com- you have studied and worked hard and Duncan (ca. 31 hours); Orlando Hollis mitment to social justice led her to you have done the very best that is in (ca. 20 hours); Lee Johnson (ca. 21 mentor dozens of minority attorneys, you.” She said, “I think that there’s a hours); John F. Kilkenny (ca. 16 hours; male and female, as well as many big distinction between achievement partially transcribed); Berkeley Lent woman lawyers. The Hon. Ellen and success because with success other (ca. 22 hours); Roger Martin (ca. 11 Rosenblum of the Oregon Court of Ap- people are praising you.” hours); Lynn Newbry (ca. 10 hours) peals, remembers Deiz fondly “as a friend and colleague” from their over- lapping years on the Multnomah CALENDAR County Circuit court bench. “I remem- ber her as a very friendly and proud May 11: Famous Cases: United States v. Gonzales person. I also know that she was a Mark O. Hatfield Federal Courthouse, 4:00 – 5:45 p.m. wonderful mentor to just about every minority lawyer she could get her May 25: Book signing for Gus J. Solomon: Liberal Politics, Jews, and hands on.” the Federal Courts by Harry Stein, Oregon Historical Okianer Christian Dark met Deiz Society, 5:30 – 7:00 p.m. when Dark was an assistant U.S. at- torney for Oregon. Dark, now associ- June 29: Summer Associate Program, location, 12 – 4:30 p.m. ate dean of academic affairs and June 29: Bench and Bar Social, location, 4:30– 6:30 p.m. professor of law at Howard Law School, describes Deiz. “She was who Reserve the dates! I wanted to be when I grew up. Her August 20: Annual Picnic & October 26: Annual Meeting qualities as a person and her personal 9 Oral History with Stephen Bloom By Donna Sinclair

This article is based on an oral history working he Bloom said, “I’m not a policy wonk.... of Magistrate Judge Stephen Bloom was at home I didn’t know what a lawyer did, other conducted by Donna Sinclair. The oral with the family. than Perry Mason on TV. I had no history was completed for the U.S. Dis- He didn’t golf, clue.” But law appealed to him and “I trict Court of Oregon Historical Soci- he didn’t hunt, decided that being a lawyer looked ety, and is accessible to the public at he didn’t fly more interesting than being...in the the Oregon Historical Society. airplanes into Department of Education” and so he the sides of headed to Willamette Law School in n spring 2005, Oregon water lawyer mountains, August 1974. “I decided that I wanted Iand part-time Article I Magistrate Stephen Bloom, 2006 and he didn’t to live in Oregon. I didn’t like Califor- Stephen Bloom agreed to record his gamble. He nia, thought there were way too many oral history for the District Court His- was just basically, like I was, either with people....There was just too much traf- torical Society. A series of three inter- the family or working. In his days, a fic and too much pollution. And that views took place in the Portland great role model.” Bloom graduated was when they had no traffic and no chambers of Judge Donald from Taft High School in 1966, at- pollution.” Ashmanskas. The surroundings pro- tended Dartmouth College for two Almost to the day he arrived, he met vided the right note of austerity to un- years and finished at Stanford in June his future wife Becky Nelson, a Min- derline the seriousness Judge Bloom 1970 with a degree in English. nesota graduate of St. Olaf College, brought to his work with the District and a member of his class. “I didn’t Court, despite his good humor and The Vietnam War and Law School want to get involved. I wanted to be a tongue-in-cheek wit. Judge Bloom is a Coming of age during the Vietnam serious student...she was much smarter younger subject than many for an oral War shaped Bloom’s social conscience. than me and she was much more re- history, but time was of the essence “There were a lot of protests on the laxed about it and she thought we since he would soon be leaving for Stanford campus. And I had joined the should have a social life, which we work as a Peace Corps volunteer in Navy ROTC because my best friend in did.” Theirs was “one of the first Armenia at the Constitutional Rights high school was writing me from Viet- classes to let women in, significantly. I Protective Centre. nam saying, ‘You don’t want to be here mean, Norma Paulus was like one of in the Army.’...I lived with a whole two [women] in her class...the mid-70s California Youth house of radical people, SDS [Students is when they were actually recruiting Stephen Michael Bloom was born for a Democratic Society]. Everyone, women law students...now I’m sure the June 10, 1948 in San Francisco, Cali- including me, hated the war.” Bloom men and women are more used to each fornia, to Dr. Allan Bloom and Natalie did ROTC weekly drill marching at five other at that kind of level, but back in Claire Levee. He grew up in the San a.m. on Monday mornings to avoid the mid-’70s it was more unusual for Fernando Valley, where his father was protesters. “We’d have protests on the women to go to law school.” a general practice physician. The old- campus and the Santa Clara Sheriff’s During law school Bloom made the est of three children, he begins his story Office would come on campus. It was dean’s list and was on the Law Review. in 1958: “My mother died when I was a disconcerting time to be in college. Both he and his wife got their first jobs ten of aplastic anemia.” A year after Interesting, exciting, but in Corvallis and stayed there for about her death, his father married Wilma disconcerting....I wasn’t radical but I a year. “My wife didn’t like Corvallis Morgan, a UCLA graduate with two thought the war was stupid. Even my because it had too many people and children. She and Stephen’s father had folks, who were kind of Eisenhower too much rain. So we went to three children. Bloom described her as Republicans, thought the war was stu- “a mom and housewife all of her life” pid. And this best friend of mine, a guy who stayed home with eight children. I played football with in high school, Bloom described the marriage as a he had been killed. It just seemed stu- turning point for the entire family, not- pid. It wasn’t going anywhere....I was ing that “[Mom] saved us from being very resentful of having to go into the juvenile delinquents.” The household service because of the war.” was “hectic” at dinner time. Visitors After two years of service, he left the were common and meals often inter- Navy in 1972 and got a job with the rupted by phone calls from patients. California Department of Education Growing up he remembered only one working with the Equal Educational family vacation and that his father Opportunities Commission. When Stephen Bloom, a veteran traveler, in Kew “worked very hard and when he wasn’t asked why he became a lawyer, Judge Garden. Photos courtesy of Dr. Dan Marier. 10 Pendleton and I got a job in a DA’s of- eight-year term, except part-times, for fice and she got a job in the East Cen- four year terms and we handle misde- New Website tral Oregon Association of Counties meanor and civil cases....The magis- writing an economic analysis of East- trates can’t get felonies, but all the civil The U.S. District Court Historical ern Oregon, which they’re still using. trials are parceled out equally. In other Society is proud to announce that She was a home economist.” She later states they have full-time magistrates we have launched a website, worked for the District Attorney’s Of- just do Social Security hearings, writs www.usdchs.org. You can find fice and on the Umatilla Indian Reser- of habeas corpus, arraignments. It’s out more about the organization, vation. “After four months in the DA’s really boring stuff. It would drive you read past issues of Benchmarks, office I got three job offers and I was crazy....Owen and the other judges in become a member or make a do- neurotic enough to think I’d never get this district have been very, very sup- nation to support our work. another job offer, so I took one with portive of the magistrates. They want the only attorney that was my age, magistrates that the lawyers all respect land in a part of the state near the bor- Garry Reynolds, who is now a circuit and will allow to try the cases. I tried a der between two states, and in a place judge in Pendleton. I practiced with lot of cases in Pendleton.” surrounded by federal land. Don Morrison and Garry Reynolds in He described the way he operated as Hermiston, Oregon, for about eighteen a part-time magistrate in Pendleton and New Challenges months... [then] a job opened up at the benefits he experienced from being As we started the spring 2005 inter- Kottkamp & O’Rourke, where I have in the position. When he began, the views, Judge Bloom provided a two- been since 1981.” position paid $3,000 per year and there minute overview of his life and ended was a good family health insurance by saying, “And that’s it. It didn’t take Starting a Practice plan. Other judges loaned staff for the five hours.” Although I convinced him The practice was small, only the trials and it was the friendship of the otherwise, we barely scratched the sur- three of them: “John Kottkamp, one judges (as well as the ability to make a face of the issues he has been involved of the best trial lawyers in Oregon. He difference in society) that seemed the in, many significant to the state of Or- was just incredibly bright. He was like greatest benefit. Throughout the series egon. We did not delve into the per- six-foot-two, slim, with silver hair and of oral history interviews, Judge sonal tragedies that have touched him incredibly charming...Bob O’Rourke Bloom’s admiration for the judges of in recent years, such as the loss of his who was incredible on water law, great the District Court shone through. He partner John Kottkamp in 2000 and business lawyer, does great probate explained, “I like all the judges. I re- his wife Becky, in a car accident, in work. And me.” In 1988, Bob ally do....They’re all good people. January 2003. He spoke warmly of his O’Rourke was negotiating with the There’s really not a jerk among them. pride in his three children (Benjamin, Confederated Tribes of the Umatilla Seriously, I can say that. I’m leaving, I Molly, and John) and his admiration Indian Reservation on the exchange of don’t care. I’m not trying to butter any- for his wife and stepmother. He noted Columbia River water for Umatilla body up.” how ineffectual politics can be and River waters, a very complicated, long, Judge Bloom spent seventeen years commented on the rationality of the drawn-out process, the Umatilla Basin as a part-time magistrate, trying four law as well as its cumbersome nature. Project. “He got very tired of it...[and] or five cases a year and managing the He didn’t regale me with tales about suggested I take over and become a court’s monthly CVB [Central Viola- his many civic activities, his ethical water lawyer, which was fine because tions Bureau] calendar in Eastern Or- views, or his commitment to social jus- I was getting tired of litigating. That’s egon. During that time he developed a tice, but the stories he told reflect his when the magistrate job opened up, in water law specialty and represented values. 1988.... I was appointed in October of irrigators in some of the most signifi- As does his work in Armenia. In ’88 and then reappointed in ’92, ’96, cant deals in Columbia Basin history. March 2004, Judge Bloom began the 2000 and 2004.” The Kottkamp & O’Rourke practice application process to join the Peace “Art Barrows had been the magis- combined with Corey Byler Rew Corps. In November 2004 he got news trate before me for about eighteen Lorenzen & Hojem in February 2005 that he would be going to Armenia, a years. And Owen Panner was the chief to become the largest law firm regu- part of the former Soviet Republic, in judge. Owen...couldn’t talk Art into larly practicing in Eastern Oregon. He June 2005. As of January 2006, he is trying cases, but he wanted the new also filled in for other magistrates in currently serving as the Rule of Law magistrate to try cases....[He] wanted Portland, ruled on sex bias and exces- Liaison to Armenia for the American to make the part-time magistrate in sive force cases, diversity issues, and Bar Association’s Central European Pendleton like a regular magistrate. worked with the FBI and the U.S. At- and Eurasian Legal Institute. Through Oregon is unique. They treat the mag- torneys Office. As a lawyer, he got one recent emails, he reports he is working istrates like regular judges....Article IIIs of the last water rights for a client from on “amendments to the Armenian con- are appointed for life, but handle the Columbia River around 1990. As stitution, judicial reform, a code of eth- mostly criminal, felony stuff. Article I, a Pendleton-based magistrate, he pro- ics for judges, anti-corruption, and a the magistrates, are appointed for an vided the federal connection to Port- whole lot more.” 11 DIRECTORS OF THE SOCIETY continued from page 5 OFFICERS: Hon. Ancer L. Haggerty, Board, Chair- Supreme Court Decision man, Ex-Officio; *Jenifer Johnston, President; *Kerry Shepherd, Vice President/President-Elect; *Karen egated to the Attorney General, the subject of the interpretive rule was not one Saul, Treasurer; * John Dunbar, Immediate Past Presi- of them. The Court noted that the interpretive rule purported to declare that dent; *John Kreutzer, Corporate/Executive Secretary using controlled substances for physician-assisted suicide is a crime, “an author- BOARD MEMBERS: *Michelle Barton; The Belloni ity that goes well beyond the Attorney General’s statutory power.” The Court Family, Honorary; Ernest Bonyhadi, Honorary; rejected the argument that Congress gave the Attorney General “such broad and *Stephen L. Brischetto; *Hon. Anna J. Brown; The Burns Family, Honorary; Hon. Wallace P. Carson, unusual authority” by “implicit delegation”: “‘Congress, we have held, does not Jr., Ex-Officio; William G. Carter, Ex-Officio; *Tho- alter the fundamental details of a regulatory scheme in vague terms or ancillary mas M. Christ, *Amity Clausen, *Jack Collins; Mr. provisions-it does not, one might say, hide elephants in mouseholes.’” 126 S.Ct. George Fraser, Honorary; *Kari Furnanz; *Kristin Hazard Hamilton; *Matthew Kalmanson, Dennis C. at 921. Having concluded the Attorney General’s interpretive rule was not en- Karnopp; Randall B. Kester, Honorary; *John titled to deference, the Court went on and considered whether the interpretive Kretuzer, *David Landrum; *Hon. Edward Leavy; *Susan Marmaduke, *Greg Miner; *Nancy rule was, even in the absence of deference, otherwise consistent with the CSA. Moriarty; Katherine OíNeil, Honorary; Hon. Owen The Court’s analysis was similar to the Ninth Circuit’s and the District Court’s. M. Panner, Honorary; *Ken Perry; Dr. John Pierce, The Court rejected the argument that the requirement in 21 U.S.C. § 829 that Ex-Officio; Dennis Rawlinson, Ex-Officio; Hon. James A. Redden, Honorary; *Peter C. Richter; controlled substances cannot be dispensed without the “written prescription of *Karen E. Saul; *Donna Sinclair; *Vicki Smith; Eliza- a practitioner” implies that the substance can only be made available to a pa- beth Solomon, Honorary; Richard B. Solomon, Hon- tient for a “legitimate medical purpose.” The Court concluded that the prescrip- orary; *John Stephens; Caroline Stoel, Honorary; *Heather Van Meter; Richard Vangelisti, Ex-Offi- tion requirement does not delegate “to a single Executive officer the power to cio; *Steven Wax; *Kelly Zusman effect a radical shift of authority from the States to the Federal Government to *Executive Committee members define general standards of medical practice in every locality.” 126 S.Ct. at 925. Oregon Department of Human Services’ recent report notes: 2006 LIFETIME MEMBERS: Jeffery Batchelor, In 2005, 39 physicians wrote a total of 64 prescriptions for lethal doses of Owen Blank, Donald Cinnamond, Paul Fortino, George Fraser, Edwin Harnden, Cynthia Harrison, medication. In 1998, 24 prescriptions were written, followed by 33 in 1999, Douglas Houser, Robert Jones, Randall Kester, 39 in 2000, 44 in 2001, 58 in 2002, 68 in 2003, and 60 in 2004. Thirty-two Nancy Moriarty, Jeffrey Mutnick, Elisabthe Newcomb, Daniel OíLeary, Hon. Owen Panner, Hon. of the 2005 prescription recipients died after ingesting the medication. Of Edwin Peterson, Dian Rubanoff, Sarah Ryan, Arlene the 32 recipients who did not ingest the prescribed medication in 2005, 15 Schnitzer, John L. Schwabe, Norman Sepenuk, Arden died from their illnesses, and 17 were alive on December 31, 2005. In addi- Shenk, Richard Solomon, Gayle Troutwine, William tion, six patients who received prescriptions during 2004 died in 2005 as a White, Donald Wilson, Kelly Zusman result of ingesting the prescribed medication, giving a total of 38 PAS deaths 2006 IN MEMORIAM: during 2005. One 2004 prescription recipient, who ingested the prescribed Hon. Robert C. Belloni, Hon. James Burns, Raymond Conboy, George D. Dysart, Wayne Hilliard, Chester medication in 2005, became unconscious 25 minutes after ingestion, then E. McCarty, and Frank Pozzi regained consciousness 65 hours later. This person did not obtain a subse- quent prescription and died 14 days later of the underlying illness (17 days Newsletter Editor: Adair Law (503) 240-0993; Design: Jeanne E. Galick after ingesting the medication). —Eighth Annual Report on Oregon’s Death

with Dignity Act, at 4 (2006).

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