The U.S. District Court of Historical Society Newsletter Judge Otto Skopil Four Decades on the Federal Bench By Adair Law

udge Otto Richard Skopil, Jr. passed away peace- committee was created to prepare a long range Jfully on October 18, 2012 at the age of 93. The plan for the federal judiciary. Chief Justice Wil- eldest son of German immigrant parents, Judge liam Rehnquist elected Judge Skopil to chair the Skopil was born in Portland and grew up in the committee. On completion of the plan, which was Salem area. He attended Willamette University for adopted by the U.S. Judicial Conference, Judge his undergraduate (’41) and law degrees (’46). He Skopil was honored by a resolution from Chief served in the Navy during World War II. He had Justice Rehnquist. Here is an excerpt: a long and successful private practice in Salem, “He set a standard of skilled leadership and Oregon. He was appointed by President Richard earned our deep respect and sincere gratitude Nixon in March 1972 to the U.S. District Court for his innumerable contributions as Chair- for Oregon where he served for nine years, the last man of the Long Range Planning Committee two as Chief Judge. In September 1979, he was and his past service in numerous other posi- elevated to the Ninth Circuit by President Jimmy tions. We acknowledge with appreciation Carter. He was very proud of being appointed by Judge Skopil’s commitment and dedicated a president from each political party. service to the Judicial Conference and to the Judge Skopil took senior status in 1986, but entire federal judiciary.” maintained a full workload for many years. Until Continue on page 13 his death, he was deciding cases and maintaining regular office hours at the federal courthouse in downtown Portland. In reporting his passing, the Los Angeles Times noted that he made historic rulings on California water rights and the right of an Irvine teacher with AIDS to remain in the classroom. He participated in thousands of cases and authored hundreds of them. He was pleased to have the opportunity to author many opinions regarding the sovereign rights of local Native American tribes. Judge Skopil also served in the administration of the federal court system. He was a member of the Board of Directors of the Federal Judicial Center, the educational arm of the federal courts. He was requested by Chief Justice Warren Burger to serve during its formative years on the U.S. Conference Committee on the Administration of the Magis- trate’s System. He served for 11 years, with six Formal (yet smiling) judicial portrait of Judge Otto years as chairperson. In 1990, a new conference Skopil, painted by Richard H. Wiley.

Fall 2012 1 President’s Message Voices from the Oral History The U.S. District Court of Oregon Historical Society has a noble purpose that deserves our focus and energy. As we often Collection say, we work to preserve the history of the legal community By Janice Dilg in which we all live. But why is that important? Personally, I was not trained as a historian, and I do not ince 1988, the District Court claim any unique wisdom on the subject. But I can search the SHistorical Society’s Oral History Internet, and these quotes shed some light on why preserving Program has collected biographical our history is important: interviews of judges, lawyers, and lay persons who play a significant “If you don’t know where you’ve come from, you don’t know role in Oregon’s legal history. These where you are.” – James Burke oral histories are preserved by the “The past reminds us of timeless human truths and allows for the perpetu- Oregon Historical Society archives. ation of cultural traditions that can be nourishing; it contains examples The Oral History Collection currently of mistakes to avoid, preserves the memory of alternatives ways of doing includes more than 150 interviews. things, and is the basis for self-understanding....” – Bettina Drew All of the interviews are preserved “History is who we are and why we are the way we are.” – David as audio recordings, and since 2006 McCullough most interviews include at least one video-recorded interview session. “History cannot give us a program for the future, but it can give us a With funding from the Attorney fuller understanding of ourselves, and of our common humanity, so that Admissions Fund, along with vol- we can better face the future.” – Robert Penn Warren unteer transcribers, almost all of In my Internet search for wisdom to answer the why question, I also the oral histories in the collection ran across a clue for what we are to do: have been transcribed, providing a “History will die if not irritated. The only service I can do to my profes- written transcript in addition to the sion is to serve as a flea.” – Henry Adams sound recordings. All sound record- ings and transcripts are available at The Society had a busy year. We completed the oral histories for Judge the Oregon Historical Society Davies Garr King and Judge Michael Marcus, and Peter McCabe, assistant Research Library. director of the Offices of Judges Program and one of the architects of the Currently, oral history interviews original magistrate system. Oral histories for Judge Michael Hogan, Jus- are underway with Judge Michael tice Michael Gillette, Stephen Wax, and Frank Noonan are in progress, R. Hogan, former Oregon Supreme as is a posthumous history of Judge Donald Ashmanskas. Final review Court Justice Michael Gillette, Fed- and editing of transcripts for Judges Edward Leavy, eral Public Defender Steven T. Wax, Ancer Haggerty, and Diarmuid O’Scannlain, are in and former Assistant U.S. Attorney progress as well. Frank Noonan, Jr. Michael O’Rourke, At the annual picnic in August we celebrated Ore- creator and narrator of our annual gon’s role in advancing the development of the Mag- Lifetime Service Award video, and istrate Judge’s system. It was the 10th anniversary of I conduct the oral histories funded our first picnic at Judge Leavy’s farm, and the 100th by the Attorney Admissions Fund. year that the Leavy family has operated their farm. (See the sidebar for the interviews We also initiated work to republish The First Duty, completed from 2004-2011.) This the remarkable 1993 book written by our organiza- summer we had the good fortune tion on the history of the District of Oregon. to conduct an interview with Peter To everyone who contributed to these efforts—thank you! McCabe, assistant director of the – Stephen Joncus Offices of Judges Program, who helped write the original legislation creating the magistrate judge system, and lobbied for its adoption around the country. You can read more about

2 U.S. District Court of Oregon Historical Society Experience: Rajneeshpuram” program material for that article came from on the Bhagwan Shree Rajneesh, his the USDCHS oral history collection. followers, and their tenure in Oregon. Additional plans are being made to In his 2006 book, Gus J. Solomon: conduct outreach to state universities Liberal Politics, Jews, and the Fed- to alert them to the existence of this eral Courts, author Harry Stein made valuable resource. extensive use of Judge Solomon’s oral Suggestions for other uses of the history. In the current special issue oral history collection are welcome, of the Oregon Historical Quarterly as are the names of potential narra- These are just two publications which focused on women and citizenship, tors for oral histories to be done in have made use of the USDCHS oral women in the USDCHS collection the future. Please contact Oral His- histories. are highlighted in my article titled, tory Liaison Janice Dilg at dilg@ teleport.com with ideas, or for more McCabe’s interview on page 10. Look “From Coverture to Supreme Court information. for the complete transcript on the Justice: Women Lawyers and Judges in USDCHS website soon. Oregon History.” The primary source The U.S. District Court of Oregon Historical Society wants to make this The U.S. District Court of Oregon Historical Society Oral History Project rich collection of Oregon legal history extends sincere thanks to the Attorney Admissions for dedicating funds, more well known and well used. As Fund and to the individual narrators for giving their time and expertise a historian, I recognize the value of to this worthwhile project. It would not happen without your coopera- collecting these oral histories for their tion and participation. use in both the near and the distant future. Individuals, law firms, legal USDCHS & AAF SPONSORED INTERVIEWS practices, and cases that seem obvious Judge Stephen Bloom, (completed) to those aware of them in the pres- Clerk of Court Robert Christ, (completed) ent, will be the sources of historical Judge John Cooney, (completed) discovery 20, 50, or 100 years hence. Judge Susan P. Graber, (completed) Not only will future users of the col- Judge Ancer Haggerty, (out for review) lection be able to read the written Judge Henry Hess, (completed) words of judges, lawyers, and other Judge John Jelderks, (completed) district court personnel, they will be Judge Robert E. Jones, (completed) able to listen to those individuals’ Judge George Juba, (completed) voices as they express their memories, Judge Garr M. King, (completed) and where video recordings exist, see Judge Edward Leavy, (in progress) them recounting important events in Judge Malcolm Marsh, (completed) their legal work. We can only guess Judge Michael Marcus, (completed) at what uses and analysis might be Attorney Peter McCabe (Magistrate Judge System), (completed) made of issues and opinions in our Attorney General , (completed) time by future scholars and histori- Judge Roosevelt Robinson, (completed) cal enthusiasts. Judge Diarmuid O’Scannlain, (out for review) Significant legal cases are repre- sented in many of the interviews of AAF Sponsored Bound Transcripts judges who ruled on different aspects Judge Robert Belloni, (completed) of a legal issue, or the lawyers who Judge John Kilkenny, (in progress) argued the cases in court. The lawsuits Judge Owen Panner, (completed) and land use applications brought Judge Donal Sullivan, (in progress) by, or against, the Bhagwan Shree Rajneesh and his followers during the A complete list of the interviews contained in the USDCOHS Oral His- 1980s are one such example. Oregon tory Collection can be requested from the Oral History Liaison, Janice Public Broadcasting producers used Dilg, [email protected]. oral history transcripts for their back- ground research for the “Oregon

Fall 2012 3 2012 Lifetime Service Award Arlene Schnitzer, Portland Philanthropist By Adair Law

Arlene Schnitzer is the first recipient and Hannah Surah Director. Simon of the Lifetime Service Award who is recalled that there were 300 Jews in not a member of the legal profession. the town and three shuls. His father Information for this article comes Morris owned a mill and died from from a 1976 oral history of Simon an infection when Simon was still a and Helen Director conducted by boy. At the age of twelve, Simon began Jordan Schnitzer, a 1985 interview learning to become a kosher butcher of Arlene Schnitzer conducted by and his work took him to Berdychev, Bruce Guenther for the Smithsonian Vinyetsa, and Oman. At the dawn of Institution American Artists series, the twentieth century, life for Jews an interview of Arlene Schnitzer con- in Russia became more difficult and ducted in late September 2012, and Simon’s family left in waves. Simon additional research. immigrated to the in 1910 and stayed six weeks in New rlene Director came into the York before he took a train across the Aworld January 10, 1929 in Salem, country to his brothers in Portland. Oregon, joining two older sisters, Simon soon set up a butcher shop in Arlene Director age 3 in her parents’ June and Ruth. Her parents were South Portland. Laurelhurst home. Simon Director and the former Helen Helen Holtzman was born outside Holtzman. of Warsaw to Jacob and Esther Mal- Helen remembered him as a scholar. kah Holtzman on October 26, 1899. As a young girl, she recalled being at PARENTS AND FAMILY As the first daughter of her generation, a dressmaker’s shop with her mother Simon Director was born in Charto- she was the focus of special attention. for the fitting of a dress for Passover. riysk, Russia (now Ukraine) on March Her extended family was comfortably When they were ready to leave, the 3, 1892, the youngest child among well off. Her father ran a factory that janitor would not let them go into the four sons and a daughter of Morris made artificial flowers and plants and street because the Cossacks were out. Helen recalled seeing a Cossack on his horse, swinging a long stick with an iron ball at the end of it. They stayed inside until the danger had passed. Helen carried the memory through- out her life. Helen’s mother died of cancer when Helen was still a child. Jacob Holtzman remarried and the family immigrated to the United States. Their ship arrived on July 4, 1905. Helen recalled they had to stay on the boat an extra day before disembarking. Her stepmother was a harsh woman and Helen eventually went to stay with her Aunt Tillie Borenstein, her father’s sister, who lived in Brooklyn. She worked in a factory making trim- mings for hats. Jacob sold ribbons Simon, Helen, and Arlene Director in their Portland home, 1940. Photos courtesy of in a dry goods store. After divorcing Arlene Schnitzer unless noted. his second wife, he made his way

4 U.S. District Court of Oregon Historical Society to Portland. His sister’s husband, Mayer Borenstein had a cousin, Mor- ris Rosenfeld who lived in Portland. Helen came to Portland in June 1915.

LIFE IN PORTLAND Just a few weeks after Helen arrived, she made plans with a new friend to go see a nickel movie. She learned her aunt, who was now living in Portland, had other plans for her. Tillie had been buying meat from Simon Direc- tor’s butcher shop and was continu- ally suggesting that Simon meet her niece Helen. Simon came to pay a call. Helen remembered that he wore a suit with a handkerchief carefully folded in the breast pocket. As for herself, Helen recalled, “I was short and fat, but I was nice looking.” After a long conversation and a walk, they decided A family wedding portrait. From left to right: Sam and Rose Schnitzer, Harold and they wanted to continue seeing each Arlene Schnitzer, Simon and Helen Director other. Helen told him that first day, “If we’re going to go with each other, both her parents put time and talent girls, she transferred to Annie Wright let’s always be open and frank. If we into a family business. She absorbed Seminary in Tacoma, Washington don’t want to go with each other, let’s their strong work ethic, but she had and then went to Westlake School be honest.” The couple married on her own plans. She would become a for Girls in Los Angeles from which February 27, 1916. Their daughter great actress. At the age of four, she she graduated. June was born in 1917, Simon and remembered visiting the home of She was back in Portland, and on Helen became U.S. citizens in 1919 her parents’ friends, Sam and Rose a date at a concert in the spring of and daughter Ruth arrived in 1922. Schnitzer. They had a room with 1949 when a good-looking man (who In 1921 Simon Director opened beautiful velvet curtains. Arlene knew the fine art of wearing a hat) Metropolitan Variety Store in Salem, spent much of her visit making an winked at her across the room. Harold the first of a chain of variety stores he entrance through the curtains and Schnitzer had been in the army and opened in Portland, Astoria, Eugene, greeting her make-believe audience. then in the South Pacific conducting Vancouver, Oregon City, Longview, Eleven year-old Harold Schnitzer was business for his family’s firms, Alaska and Spokane throughout the ‘20s and unimpressed. Junk and Schnitzer Steel. Now he was early ‘30s. The family moved back to Arlene attended grammar school back in town. After several missed Portland in 1931 to the Laurelhurst in Portland. She noted that mothers phone calls and conflicting schedules, neighborhood. Simon bought Jennings of her friends didn’t work outside the they saw each other again in August Furniture in 1934, one of Portland’s home the way her mother did. She at the Tualatin Country Club. Arlene first furniture stores, established in nurtured the idea of being an actress. made a point of reintroducing herself 1877. Helen Director was an active Her oldest sister June was a violinist, to him. Harold liked what he saw, partner in the business, as a buyer in so she grew up with the idea of tak- they dated, and when Arlene pro- the gift department and the creator ing part in recitals. She was a candi- posed marriage, he accepted. They of award-winning window displays. date for Junior Rose Princess in 1937. were married on September 11, 1949 She earned the nickname among the When she was 13, she performed as at the Multnomah Hotel. vendors as the “four-wheel brake.” Dinah Lord, the kid-sister role in She was the person who would say The Philadelphia Story at Portland A NEW CHAPTER to her husband, “Honey, we’re not Civic Theater. She attended Lincoln They were still in their first year going to buy that.” High School, but after much discus- of marriage when Harold decided Young Arlene grew up watching sion with her mother and the dean of Continue on page 6

Fall 2012 5 experience. I had wonderful artists, Arlene Schnitzer relationships that I treasured then and continued from page 5 will treasure for the rest of my life.” he wanted to step away from the The Fountain Gallery opened in family business and try something late November 1961 with a show on his own. Harold graduated from that included artists who went on MIT where he studied metallurgy. He to become known regionally and decided against going into a business nationally. Artists in that first show that would compete with his family’s included Kenneth Callahan, Robert wider interests. He pioneered the real Colescott, Sally Haley, Fred Litt- estate investment business and named man, Carl Morris, Hilda Morris, and his company Harsch Investment Cor- Michele Russo, among others. A new poration. This new turn on their path phase of Arlene’s life had opened up together was a surprise to his young Arlene Schnitzer in the Fountain Gallery and the cultural life of Oregon ben- wife, but they were on this path. Har- at 115 SW 4th, 1966. efited from it greatly. The gallery soon old bought his first building in Port- moved to expanded space. Arlene’s ing? Which gallery or where?’ And it land in October 1950 at SW Fifth and enthusiasm for the work combined turned out that there really were no Pine and named it the Ross Building with her mother Helen’s years of galleries, there was no place to see in honor of his mother, Rose. During retail experience made them a potent the work. And I couldn’t believe it. I the next year, he became involved in combination. Harold Schnitzer sup- asked them if I found a space for them, building and operating housing for ported and enjoyed Arlene’s many would they be interested in opening the U.S. military. Their son Jordan accomplishments. a cooperative gallery that they would Director Schnitzer was born May 8, In 1959, David Rockefeller was run. I had never a thought of running 1951. Arlene cared for her young son credited with becoming the father of a gallery.” and was active in Temple Beth Isra- modern corporate art collecting after “And I said to them, out of the blue, el’s Sisterhood, the women’s division he started an art acquisition program ‘If you don’t do this, my mother and of the Oregon Jewish Welfare fund, at Chase Manhattan Bank. It was I will.’ So, I followed through. My and Hadassah. She learned about an idea that was slow to catch on mother and I became partners and we how a well-organized and fun social throughout the West Coast. Arlene opened the first gallery, which was the occasion can help move a good cause recalled in a 1985 interview, “I delib- Fountain Gallery. It was a wonder- forward. erately and conscientiously created a ful experience, wonderful, wonderful In 1954, Simon Director sold Jen- strategy to approach corporations and nings Furniture and all Metropoli- sell them work.” Some of her early cli- tan Variety stores. He retired from ents were Bank of California, Pacific the retail business and began trading Power & Light, and First Interstate in real estate through his company Bank. The Bank of California project Oregon Investments. The next year, led her to work with U.S. Steel in the Harold Schnitzer purchased the Clare- mid-1970s in developing their corpo- mont Hotel in Oakland, California. rate art collection. For over 50 years he built his commer- Perhaps because of her early expe- cial real estate holdings throughout rience in acting, Arlene was very the western United States. comfortable promoting art in a range After Jordan started school, of different media. Starting in the Arlene began taking art classes at 1960s, she appeared in and produced the Museum Art School in 1958. She television and broadcast programs recalled, “I was an adult amid all for 14 years on a variety of public these young adults who were there affairs issues. The programs were for art school. And I’d go into the “Open Door,” “Public View,” and coffee room where the professors “Gerry Pratt on Sunday,” which ran and teachers were, and they were all on Oregon Public Broadcasting and talking about their paintings, so I Arlene Schnitzer at the entry to the other local channels. She worked asked, ‘Where can I see your paint- Arlene Schnitzer Concert Hall, ca 1983. to integrate arts coverage as part of

6 U.S. District Court of Oregon Historical Society gathered discussed the recent death of a well-known attorney or judge whose history and knowledge of the court not had been captured. After Arlene’s recent experience gathering oral histories of northwest artists, she became co-chair of the oral history committee with Warren McMin- nimee. Katherine O’Neil recalled that Arlene understood the concept, “had a plan, worked the plan, and kept pushing us. If we came upon a practical barrier, Arlene was quick to help us problem-solve that. She clearly understood that you can’t just walk in off the street and take a competent oral history, that people needed train- ing in this. She organized the very Enjoying the continuing conversation, Harold and Arlene Schnitzer, 1995. first oral history training session we regular news programming. organized U.S. District Court of had, given by one of the masters at While Arlene constantly worked Oregon Historical Society. Along the Oregon Historical Society, and, to expand her horizons, there were with Judge Susan Graber, Katherine clever Arlene, she arranged for us to also contractions. Her mother Helen O’Neil and Caroline Stoel, she was have lunch before we had our train- passed away in May 1976 and her among the first four women asked to ing. With full bellies, we were much father Simon in 1981. In February join the Society. She recalled that she more teachable.” 1977, the Fountain Gallery was was “flattered, really, that I would be Arlene served on the board from destroyed in a four-alarm fire. By asked to join what I thought of as a 1984 to 1991 and during that time the end of March, the Fountain Gal- very distinguished group of people. oral histories were conducted for lery had a show of new work in its It was 1984 and it was a challenge the following judges: Robert Bel- new location on NW 21st and Davis, for me, because it brought me into a loni, William East, Alfred “Ted” where it remained until the gallery broader world of thinking. I was not Goodwin, John Kilkenny, and Gus closed in 1986. only flattered to be asked to join them, Solomon. Other legal figures inter- Throughout the 1970s and 1980s but I just enjoyed it so very much.” viewed included, Hugh Biggs, Rupert Arlene was involved in a range of cul- Throughout her youth and during her Bullivant, University of Oregon Law tural and civic projects. She served adulthood, she’d heard the comment Continue on page 14 on Governor Bob Straub’s Oregon “You sound like an attorney,” from Government Ethics Commission, was both her father and her husband. president of Artquake, a late summer When asked about her time working celebration of the arts in Portland. In with Arlene Schnitzer on the board, 1981, Harold and Arlene Schnitzer 2005 LSA recipient Katherine O’Neil donated $1,000,000 to the renovation started with one word. “Fun. She is a of the Portland theater now known lot of fun to be with. She adds zest to as the Arlene Schnitzer Concert Hall. any experience. On a serious note, you Arlene was also co-chair with Bagley can learn a lot from an accomplished Wright of Seattle (developer of the woman like Arlene. She’s a shrewd Space Needle and an art collector) in businesswoman, she was a paragon of gathering oral histories of Northwest an effective board member. She could artists for the Smithsonian Institution. figure out the personal dynamics in a given situation, figure out what the JOINING THE BOARD real agenda is, and move people and Arlene Schnitzer with her son Jordan In 1984 Judge Owen Panner asked get a consensus toward that agenda.” at the 2012 annual meeting. Photo by Arlene Schnitzer to join the newly At an early board meeting, those Mary Orr.

Fall 2012 7 Board Secreatry Carra Sahler stands between Judges Edward Leavy and Garr King

Multnomah County Circuit Court Judge Karin Immergut (third from right) joins past Oregon Attorneys General (left to right) Hardy Myers (1996-2009), David Frohnmayer (1981-91), Attorney General (2012- ), former Attor- neys General, Judge James Redden (1977-80), and Governor Ted Kulongoski

Annual Dinner 2012: 100 Days, a Lifetime & 100 Years of Service By Anne Marie King Susan Glen, Multnomah County Circuit Court Judge Marilyn Litzenberger, and On October 25, 2012, the Historical Society Trudy Allen and its guests met for the Annual Dinner. President Steve Joncus welcomed attendees, and presented the Society’s Lifetime Service Award to Portland philanthropist and early USDCHS board member, Arlene Schnitzer. The award was accompanied by a video docu- mentary of her life. In accepting her award, She spoke of her fondness for Portland and the importance of organizations such as the 2012 Lifetime Service award Historical Society. recipient Arlene Schnitzer with The evening was also a celebration of Judge Owen Panner. Past President Kari Furnanz with col- Oregon’s attorneys general. Nearly all living leagues Abby Miller and Brian Bent. former attorneys general were present including the Hon. James A. Redden, David B. Frohnmayer, Governor Ted Kulongoski, Hardy Myers, and Ellen Rosenblum, Oregon’s first woman attorney general. Notably, as guests were introduced, Judge Redden had the distinction of hearing his name called twice: once as a federal judge, and once as a former attorney general in attendance. Judge Anna Brown then introduced the evening’s speaker, Oregon’s incum- bent Attorney General, Ellen Rosenblum. Rosenblum has been involved and supported the Historical Society for many years, as both board member and president. She also instigated our Famous Cases series (see page 15). Attor- ney General Rosenblum in turn presented an informative and entertaining speech entitled “The Office of – My First 100 Multnomah County Circuit Court Days; The Past 100 Years.” This included a slideshow review of all Oregon Judge Edward J. Jones and Oregon attorneys general, beginning with the first, George E. Chamberlain, who Supreme Court Justice Rives Kistler. entered office in 1891. The evening concluded with standing ovation for all Photos by Mary Orr and Jeanne Galick attorneys general present.

8 U.S. District Court of Oregon Historical Society A Tribute to Randall Blair Kester By Ron Lansing Death takes a life from us until we take it back.

n May 31 of this year, Randall Since 1886, legal education in Port- OKester stopped soaring. Sad- land was served by the University of dened by his death, we are never- Oregon and then by Northwestern theless inspired by his life. He was a College of Law, a nighttime school lawyer in Oregon for 72 years— put- taught by judges and practicing law- ting him among the oldest members yers. Its teachers were picked from of the Oregon State Bar. His achieve- among the best of the bench and bar. ments were remarkable. Among the After only six years as a lawyer, Ran- hallmarks was his founding presi- dall was invited to join that faculty. dency of this federal historic society. He was a member of many task Randall Kester and Norm Wiener, the Beyond that reason for tribute lies forces, foundations, institutes, asso- first and second presidents of the soci- an even broader range of leadership ciations, fellowships, and councils. ety. Both were also Lifetime Service and legacy in a host of other law, civic, Indeed, his résumé lists many man- Award recipients. and community annals and assembly. sions in which he was an activist and In Oregon, there are many renowned not a mere joiner. When his popular- ing of Japanese-American violators. organizations, including the Portland ity and labor in those memberships He was joined with pleas from other City Club, the Chamber of Com- gave him title, he made it more than lawyers such as Gus Solomon (who merce, the Mazamas, the Mountain titular; he led. later became a judge on this court) Rescue and Safety Council, the Mount Those sojourns also led him to help and Earl Warren (who later became Hood Ski Patrol, the Multnomah Bar establish this federal court historical the Chief Justice of the U.S. Supreme Association, and this historical soci- society. Aside from being its first presi- Court). For all such service, Randall ety. Randall was president of them all. dent, he also co-authored the book, was eventually bestowed this Society’s He was also the treasurer of the The First Duty: A History of the U.S. first Lifetime Service Award. Oregon State Bar. That organization District Court for Oregon. He wrote Because of the energy and dedication had its subgroups, such as committees the chapter covering the volatile eras evidenced by the foregoing accolades on Continuing Legal Education, Con- of the Great Depression and World in profession, education, historiogra- stitutional Revision, Judicial Admin- War II and its aftermath. His love phy, and civic-mindedness, Randall istration, Procedure and Practice, and for history and the law profession at age 40 reached the highest peak in Appellate Revision. He was chairman targeted him for assistance in publi- the Oregon judiciary. He was robed of them all. cation of a book titled Serving Justice as a justice on the Supreme Court of that covered the history of the Oregon Oregon. State Bar. He also wrote a paper titled From such summits on a divide, “A Day in the Federal Court,” a work there showed another side of Ran- that helped propel the early years of dall’s multi-dimensional character. His the bar’s continuing legal education scales balance between a gavel on one pursuit. Such writing talents also hand and an ice-axe on the other. Just made him a frequent contributor to as he protected and provided under this Benchmarks newsletter. roof for family, law, profession, and As a law advocate, Randall community, so too did he rise outdoors appeared in multiple cases before to nature and her venture and vastness. the bar of this federal court. Among He was a camper, backpacker, hiker, many briefs prepared, one filed during canoer, cycler, and skier, and most of World War II when he was a young all, a mountaineer. He scaled more lawyer beginning his law practice, than sixteen glacial peaks throughout shines. It was an amicus curiae brief the Cascades, the Wallowas, Tetons, in opposition to curfew laws dis- Rockies, and other ranges. He sum- Randall Kester hiking in the 1940s. criminating against and imprison- Continue on page 14

Fall 2012 9 Peter McCabe and the Federal Magistrate Program By Jennifer Jill Esmay (This article was developed from Peter was another basic challenge. “The sal- there’s any hard pattern, but I think McCabe’s oral history conducted by ary, originally, was a big problem. In you’ll find that in small and medium- Janice Dilg on September 19, 2012. 1968, at about the same time that the sized districts, there tended to be McCabe is the Assistant Director of Federal Magistrates Act was enacted, greater use of magistrates because the the Offices of Judges Program. He is Congress also passed the new Salary judges and magistrates were close to the man who facilitated the federal Act, which set up a mechanism for each other—one district judge and one magistrate program and a long-time adjusting the salaries of high federal magistrate, or two district judges and friend and colleague of Judge Michael executives, members of Congress, and one magistrate, or three and two. It Hogan, who brought him to the pic- judges by establishing a commission to was easier than in a court where there nic. All quoted material is from the fix their salaries. However, the Magis- may be 25 district judges and 10 mag- interview.) trates Act had not yet passed, and the istrate judges. It’s just hard to have new magistrates were not included in the same kind of coherence there.” Peter McCabe, the salary legislation. The result was It was clear in the beginning, a graduate of that district judges, circuit judges, and regardless of district size, that the Harvard Law others got a salary increase, but mag- districts that made the best use of S c ho ol , wa s istrates didn’t. We eventually resolved the new system were those that saw r e c r u it e d i n the initial salary problems a couple the potential and recruited former 1969 by t he years later by amending the statute. state judges and respected lawyers Administrative But the low salary was a problem in to the magistrate position. Their title Office of the recruiting magistrates.” was officially changed to magistrate Courts to set McCabe noted that the size of the judge in 1990, but successful districts up the Federal Magistrate Program, district made a difference. “I would treated their magistrates well, called which was passed by Congress in say that in the smaller districts there them “judge,” let them wear judicial October, 1968. He recalls, “I was was more acceptance of the magis- robes, invited them to judges’ meet- literally hired to get the new national trates. It’s a little harder in the big, ings, and “let the bar know that these system going…. We actually did sur- metropolitan districts with many, were important people. Where the vey every district in the country.” many judges, to get uniformity or district judges treated the magistrates They went out, visited the courts to a consensus. In a small district, as fellow judicial officers and tried to determine how many new people were for example, all the judges can get promote them, it worked extraordi- needed. Early responses were mixed. together for a lunch or a meeting, but narily well in district after district. In “Many of the courts, including the in a large district, there is less regu- districts where magistrate had poor district court here in Oregon, saw the lar communication. I don’t think that communication with the other judges magistrate program as a tremendous opportunity to develop a good sys- tem for the bench and bar. But other courts were not terribly interested in the new system. ” When asked about the resistance to the idea, McCabe responded, “You know, a lot of really great innova- tions are not accepted initially. People by nature are generally happy doing things the way they have always done them, especially when they are sat- isfied with the results. Many busy people, moreover, don’t tend to focus on new, untested programs. They generally don’t think much about something until they hear from their colleagues by word of mouth.” There Judge Michael Hogan and longtime friend Peter McCabe at 2012 annual picnic.

10 U.S. District Court of Oregon Historical Society and were not given important duties, Those cases limited the jurisdiction but must make a de novo determina- progress lagged.” and authority of magistrate judges. tion of the matter. The district judge Today however, there is very lit- “It was clear to us…that we needed may decide to call more witnesses if tle to no resistance to the program. to seek legislative amendments.” necessary.’ I took that language from McCabe mentioned, “We had two “The biggest dispute, the one that the Campbell case and drafted up districts that held out for years on caused me all kinds of grief, was over some wording for the Congressional giving magistrate judges consent juris- the standard of review in dispositive reports, and both counsel agreed to diction authority—to try civil cases motions” Both the House and Senate it. We wrote language into the House on consent—presumably on Article counsels said “no.” Then, by sheer and Senate Reports. So the Congres- III grounds, but both those districts chance, he came across a Ninth Cir- sional intent is that de novo determi- have come around.” cuit case, [Campbell v. United States nation in the statute means what the Dist. Court, 501 F. 2d 196 206 (9th Ninth Circuit said in Campbell. That EARLY COURT ISSUES Cir. 1974) cert denied, 419 U.S. 879]. agreement went a long way toward AND QUESTIONS “In reading that opinion, I saw that it securing agreement and getting the “I usually met with the chief judge, explained: ‘The district judge does not legislation through.” and often with a committee of judges, have to conduct a new hearing. The and tried to show them the potential district judge can act on the record You can find the full text of Peter for the use of magistrates in their made before the magistrate judge McCabe’s interview with Janice Dilg district by saying what other dis- without conducting a new hearing, at www.usdchs.org. tricts were doing, what the statute allowed….We’d talk about different things. For example, we discussed: Taking a New Path: Judge Michael Hogan Retires how they’re handling prisoner and social security cases; how they’re set- By Adair Law tling civil cases; and what were some udge Michael Hogan retired on October 31, 2012 after of the issues with criminal cases. Jalmost 40 years on the federal bench. Judge Hogan Based on the knowledge of what took senior status last year and now he plans to work in other districts were doing, seeing the mediation. He told KEZI in Eugene, “Senior status means statistics and so forth, we were able I could have cut back on my workload, but frankly that to talk with judges about how they doesn’t suit me and frankly there are too many things I might think a little bit ahead and, if want to do.” Hogan said. “This opens up a whole new they had another magistrate judge, group of disputes that I can work on and I love being perhaps they could ease their civil case with people at pioneer points in their life.” load, back load by using the magis- Judge Hogan was born in Oregon City in 1946. He attended University trate judge to settle cases.” of Oregon and received his J.D. from Georgetown University Law Center in 1971. He clerked for Judge Robert Belloni for a year, was in private practice in CHALLENGES Portland for a year and in 1973 was appointed to serve as a magistrate judge “Soon after the nationwide imple- and a bankruptcy judge in Eugene. President George H.W. Bush nominated mentation of the magistrate system, him on June 27, 1991 to a new seat and he was confirmed by the Senate on within the first year or two, we started September 12, 1991. He served as chief judge 1995–2002. Judge Hogan’s getting adverse decisions from lower judicial secretary of 31 years, Mary Pat Piazza, will also retire. courts and then from the Supreme In a Register Guard article on Hogan’s retirement, Assistant Federal Public Court on the authority of magistrates Defender Craig Weinerman noted that “He held all sides to extremely high under the 1968 Act.” There were two standards in terms of preparedness and civility, and he made better lawyers of decisions in particular. “Wingo v. all of us. He was always a very smart guy, always prepared, and he had a lot Wedding, 418 U.S. 461 (1974) said of wisdom.” Assistant U.S. Attorney Chris Cardani praised Hogan’s “com- that a magistrate judge could not passion and respect for all the people who come before him.” In September conduct an evidentiary hearing in, I 2012, President Barack Obama nominated Multnomah County Circuit Judge believe, a habeas corpus case.” Then Michael McShane to succeed Judge Hogan. there was Matthews v. Weber, 423 Judge Hogan also was deeply involved in the construction of Eugene’s $70 US 261 (1976) that knocked down million Wayne Morse U.S. Courthouse, which opened in 2006. He will soon the handling of social security cases. be the subject of a USDCHS oral history.

Fall 2012 11 Picnicm at the Hop Farm Photos courtesy of Owen Schmidt embers, friends, and family of As a special surprise, Judge Michael historian Janice Dilg was able to inter- Mthe U.S District Court of Ore- Hogan brought along a guest, his view him about his work, see page 10. gon Historical Society got together longtime friend Peter McCabe. In We celebrated anniversaries 100 on a gorgeous August Sunday to cel- 1969 McCabe was recruited by the and 10. After 100 years of farming, ebrate Oregon’s role in advancing the administrative office of the courts the Leavy Family Farm is now a Cen- development of the development of the to set up the new federal magistrate tury Farm. The USDCHS enjoyed magistrate judges system. They also program. McCabe recalled, “I was our 10th anniversary picnic at the enjoyed beautiful surroundings, good literally hired to get it going…. and Leavy farm. A decade of thanks to company, and enjoy excellent food. I’m still doing it 43 years later.” Oral the Leavy family!m

12 U.S. District Court of Oregon Historical Society Lifetime Member Heather Van Meter ALENDAR By Jennifer Jill Esmay C his edition’s Lifetime Member, to worry about January 28, 2013, 3 p.m. Court THeather Van Meter graduated whe t he r my memorial service for Judge Otto from Willamette Law in 1998, obtain- memb er sh ip Skopil, at the Pioneer Courthouse. ing an MBA at the same time. After dues were cur- she graduated, she worked at Ater rent, but more February 4, 4 p.m. Unveiling. Wynne with, among others, Oregon i mp or t a nt ly Portrait unveiling for Judges Ancer Supreme Court Chief Justice Tom because as a Haggerty and Garr M. King. Also Balmer. While at Ater Wynne— n at ive O r e - commemoration of the retirement thanks to Judge Elizabeth Perris— gonian and a of Judge Michael Hogan. she became part of the Owen Panner lawyer I enjoy Hatfield Courthouse, 16th Floor. Inn of Court and got to know Judge learning about Oregon’s unique legal Light refreshments will be served Panner. He introduced her to the U.S. history and helping preserve that afterwards. District Court of Oregon Historical same history. I especially enjoy the Society. She later went to Williams oral histories project and the articles Kastner where she worked closely with that come from it, I think we tend to And thanks to Eric Neiman, the Portland Branch forget in our daily lives that Oregon The U.S. District Court of Oregon Office lead member, and became a has a rich legal history and cast of Historical Society thanks the firms partner, handling product liability characters that shaped and continue and organizations that bought tables and other complex cases and trials. to shape our lives.” at our 2012 annual meeting. Some She also completed a master’s in law As a senior assistant attorney gen- of the firms graciously agreed to from the University of Oxford while eral for the Oregon Department of sponsor Oregon Department of Justice with Williams Kastner. While preg- Justice, Heather mentioned that, “I attorneys who wished to see Attorney nant and after the birth of her twins, am very proud to be working for Ore- General Ellen Rosenblum speak. she taught law in Saigon, Vietnam gon’s first female Attorney General We thank Arlene Schnitzer; Davis and at Lewis & Clark Law School. Ellen Rosenblum, yet another person Wright Tremaine; Hart Wagner; Klar- She is now working for Attorney Gen- that has shaped Oregon’s legal his- quist Sparkman; Lane Powell; Lewis eral Ellen Rosenblum and serving the tory and continues to do so. I realized & Clark Law School; Markowitz citizens of her native state. while teaching that I missed practicing Herbold Glade & Mehlhaf; Miller When asked about becoming a life- law, something with immediate and Nash; Perkins Coie; Stoel Rives; and time member, Heather replied, “I have tangible results, so I was thrilled to Tonkon Torp. been a lifetime member since I served have the opportunity to join the DOJ, as president, many more years and which also allows me to serve my gray hairs ago than I care to count! I home state and its citizens in a way I Judge Otto Skopil wanted to become a lifetime member never was able to in private practice.” continued from page 1 in part because I never again needed Oregon Benchmarks looks forward to publishing a longer article based on his oral history which was restricted until his death. We extend our sym- pathies to the family. Judge Skopil’s family consists of his loving and caring wife of 56 years, Janet R. Skopil, four devoted children and their families. A memorial service honoring his many contributions to the court will take place at Pioneer Courthouse in Portland on Monday, January 28, 2013 at 3:00. Carra Sahler, Judge Garr King, late Magistrate Judge Don Ashmanskas and Heather Van Meter enjoy a Bench and Bar social. Photo by Owen Schmidt.

Fall 2012 13

and here this wonderful group of people, who I had such respect for, was respecting me back….I mean that very, very sincerely. It was just important to me in my life. And I’ve done a lot of things, I’ve worked for a lot of organizations, I’ve put on a lot of events, I’ve sat on a lot of boards, But the U.S. District Court Historical Society has a very, very special place in my heart.” “I think things like the U.S. District Arlene Schnitzer at an event with First Court of Oregon Historical Society Former Chief Lady Rosalyn Carter at the Fountain have a ripple effect. You don’t always Justice Wally Carson, Randall Kester Gallery in October 1980. and Judge Edward Leavy enjoy a feel the importance or the effect of picnic. Photo by Owen Schmidt. what they’re doing at the moment, Arlene Schnitzer but as time goes by, there is a ripple place at the right time. Oddly, how- continued from page 7 effect.” ever, just as I envisioned yet envied School Dean Orlando Hollis, General The members of the USDCHS pro- his experience, I had to wonder if he Chester McCarty, Oregon Secretary foundly thank Arlene Schnitzer for envied my search for that mystery. I of State Earl Newbry, Multnomah being part of the first wave of our say so because he wrote this: “If we County District Attorney Leo Smith, organization’s ripple effect. know all the answers…what would be Oregon Attorney General Robert left for which to search? After all, it is Thornton, and Norman Wiener. Her the search that makes life interesting; work laid a firm foundation for the and the journey may be more impor- further work of the oral history com- Randall Kester tant than the destination.” mittee. She also served as vice presi- continued from page 7 He was a searcher reminiscent of dent in 1990 and was a donor to The mited Mount Hood at least 35 times. this Native American story told many First Duty: A History of the U.S. His respect for the environment led times: A young brave saw a hawk District Court for Oregon which was him to write of the duty “to preserve flying in the sky. When the hawk published in 1993. the planet and its natural resources… swooped off to horizons, the brave fol- Katherine O’Neil recalls that for future generations—leaving the lowed it. Many years later he returned Arlene’s involvement “was a reflec- planet a bit better than we found it.” and was asked why he had been gone tion of her sense of wanting to con- He not only saw venture in and so long. The brave replied, “The hawk tribute to the Portland community, respect for this Earth, he saw its mys- never stopped soaring.” the community in Oregon, in all of teries as well. At evening mountain Search and research, inquiry and its aspects. Her son Jordan, of course, campfires, he would tell of having quest, probe and pursuit brought is a lawyer and she has other lawyers once met the Specter of the Brocken. Randall to many crests, including a in her extended family, but she truly That spectacle is a rare phenomenon Supreme Court seat, multiple presiden- understands the importance of a sound seldom seen—and only by mountain— cies, chairmanships, high tors, and this judicial system to Oregon, and frankly, high on a stony crag with the sun at final cap: He was 95 years old when he to the business community. It’s her your back and a cloud of mist in front died—as venerable as the mounts he way of supporting the legal commu- and below, your shadow is cast long reached. But when it comes to reach- nity and the federal courts.” and huge upon that foggy screen way ing, his lesson and legacy is this: The Arlene was also known for coor- before you. Shoots of light radiate out “reach” that counts is the one given dinating fun and memorable annual of your silhouette while the umbra out, not the one taken in—the journey meetings. She knew how valuable the undulates in eerie convulsions as the not the destination. social aspect could be for people who mist particles surge within the cloud. Randall gave candles to light the were often in adversarial roles. She I have longed to witness that spec- venture and hawkings for hearts to recalls, “Here I was, not an attorney, tacle, but without success. So, I loved follow— reaching for shadows—soar- I worked hard in my community to to hear Randall tell of it. Venture was ing ahead somewhere into The Specter make this community a better place, through him—a right man at the right of the Brocken.

14 U.S. District Court of Oregon Historical Society Jim Coon and Bill Gaylord (on guitar and banjo) regale the Famous Cases audience as William Gary takes it all in. Judge Anna Brown recalls the case. Members of the Famous Cases audience enjoy the presentation. Photos by Chad Tucker FAMOUS CASES: Williams v. Philip Morris By Anne Marie King n October 18, 2012, trial attor- twelve years, the case traveled twice to ing, and also its addictive nature. The Oneys Jim Coon, Bill Gaylord, the U.S. Supreme Court, which finally song was also presented at trial for and appellate counsel William Gary upheld the $80 million verdict in 2010. this reason. presented an engaging summary of For the first time, a Famous Cases Following their musical interlude, their case, Williams v. Philip Mor- program included a musical portion. a discussion of appellate practice and ris, in the Hatfield Courthouse. Judge Coon and Gaylord played guitar and its mechanics ensued. The educational Anna Brown offered opening remarks. banjo while singing Tex Williams’ portion of the program was as enjoy- This was fitting because the matter “Smoke! Smoke! Smoke! (That Ciga- able as the musical segment, and many began in Judge Brown’s courtroom in rette).” They presented the song at trial present reported it was the best CLE, 1999, when she was on the Multnomah as relevant in showing popular aware- in substance as well as style, that they County Circuit bench. In the next ness of harm attributable to smok- had attended in recent memory.

Why Did You Become a Lifetime Member?* “It is about helping oth­ers understand the past, so that they can truly contribute to our future.” – Judge Owen Panner

“I thought it was a good statement and symbol for identification with the court and the history of the district. The membership is a form of continuing recollection as well, of the many experiences of trials and appearances in court.” – Arden Shenker Judge Panner “It seemed to be the right thing to do. It was also a way to help preserve the history of the federal court in Oregon and to honor a tremendous bench. Now-Senior Judges, such as Ed Leavy, Otto Skopil, and Owen Panner had a great influence on me in my early practice years, mentoring me by their approach from the bench in how to try cases and what it takes to be a professional.” – Ed Harnden Ed Harnden

“I think the society serves the important role of preserving Oregon’s really interesting legal history. There are significant lessons to be learned from history on the macro level—how wars begin, how peace is achieved. But there is also a tremendous amount to be learned from history on the micro level. And if someone (like the historical society) doesn’t take the time to record it, through oral histories and articles, we risk rushing forward and losing it. The Rajneesh cases, the salmon, Kennewick Man, Casey Martin, Planned Parenthood—that’s great material.” – Kelly Zusman Kelly Zusman Would you like to know more? Go to www.usdchs.org *Quotes are from Lifetime Member articles by Jennifer Jill Esmay.

Fall 2012 15 The U. S. District Court of Oregon Historical Society 740 U. S. Courthouse 1000 S.W. Third Avenue Portland, OR 97204

OFFICERS: Hon. , Ex-Officio; President, Stephen Joncus; Vice President, Kathryn Roberts; Treasurer, Shannon Vincent; Secretary, Carra Sahler; Immediate past President, Kari Furnanz 2012 BOARD MEMBERS: Chief Justice Thomas Balmer, Ex-Officio; Sean Bannon; Michelle Barton; Hon. Anna Brown; Hon. Trish Brown; Tom Edmonds; Julie Engbloom; Jennifer Esmay; Hon. Dennis Hubel; Jenifer Johnston; Anne Marie King; David Landrum; Hon. Edward Leavy; Colin Love-Geiger; Greg Miner; Mitzi Naucler, Ex-Officio; Susan Pitchford, Ex-Officio; Bruce Rubin; Vicki L. Smith; John Stephens; Kara Tatman; Kerry Tymchuk, Ex-Officio 2012 HONORARY MEMBERS: The Belloni Family; Ernest Bonyhadi; Helen Burns; Katherine O’Neil; Hon. Owen Panner; Hon. James Redden; Richard B. Solomon; Norm Wiener 2012 LIFETIME MEMBERS: Jeffery Batchelor, Frank Bauman, Owen Blank, Hon. Anna J. Brown, Helen Burns, Donald Cinnamond, Sarah Crooks, Jan Dysart, Paul Fortino, Edwin Harnden, Cynthia Harrison, Douglas Houser, Jenifer Johnston, Hon. Robert Jones, James Knoll, Hon. Edward Leavy, James S. Leigh, Nancy Moriarty, Jeffrey Mutnick, Elizabeth Newcomb, Verne Newcomb, Daniel O’Leary, Hon. Owen M. Panner, Hon. Edwin Peterson, Dian A history-making photo, past and present Oregon magistrate judges with Rubanoff, Sarah Ryan, Thomas Sand, Arlene Schnitzer, Norman Sepenuk, Arden Shenker, the man who got the magistrate system going at the 2012 Annual Picnic at Hon. Michael Simon, Richard Solomon, the Leavy family hop farm. From left to right: Judge Edward Leavy, Mag- Gayle Troutwine, Heather Van Meter, istrate Judge Dennis Hubel, Magistrate Judge John Jelderks, Judge Michael Timothy Williams, Kelly Zusman Hogan, Magistrate Judge Tom Coffin, Magistrate Judge Janice Stewart and 2012 IN MEMORIAM: Randall Kester, Hon. Otto Skopil Peter McCabe. Photo courtesy of Owen Schmidt LIAISONS: Jan Dilg, oral history; Jeanne Galick, newsletter design; Adair Law, Many of these photos can be seen in color on our website www.usdchs.org. newsletter; Dana Vinchesi, USDC