Oregon Appellate Almanac

NOT IN, BUT LARGELY ABOUT, THE APPELLATE COURTS IN THE STATE OF OREGON OREGON APPELLATE ALMANAC APPELLATE OREGON In Re: A Publication of the Volume 10 Appellate Practice Section of the Oregon State Bar. OREGON APPELLATE ALMANAC 2020 A Collection of Highly Speciﬁc Scholarship, Exuberant Wordplay, V and Fond Memories from the Appellate Practice Section olume Nora Coon, Editor 10 – 20 20 Cite as: 10 Oregon Appellate Almanac ____ (2020) The Oregon Appellate Almanac is published annually by the Appellate Section of the Oregon State Bar. Copies are archived on our website, http://appellatepractice.osbar.org/appellate-almanac, as well as on HeinOnline. To contact the editor, send an email: [email protected] THANKS TO OUR SPONSORS: Publication Information The Oregon Appellate Almanac is printed by Joe Christensen, Inc. Past issues may be ordered in print from HeinOnline. ISSN 2688-5034 (print) ISSN 2688-5018 (online) OREGON APPELLATE ALMANAC Volume 10 (2020) Editor Nora Coon Almanac Editorial Subcommittee Nani Apo Jeffrey Armistead Stephen Armitage Nora Coon Copyeditor Michael J. Beilstein Source Checking Daniel Silberman SUBMISSIONS The Almanac welcomes submissions of approximately 500 to 2000 words in the following areas: . Biographies, interviews, and profiles of figures in Oregon law and history . Court history, statistics, and trivia . Analysis of intriguing or obscure issues in Oregon appellate law and procedure . Humor, wit, poetry, and puzzles The annual submission deadline is June 1. In case of pandemic, natural disaster, or other forces beyond everyone’s control, extensions will be granted liberally. Submissions should be lightly footnoted as necessary to support the author’s assertions. In deference to the fact that most contributors and readers are practitioners, citations should conform to the Oregon Appellate Courts Style Manual. TABLE OF CONTENTS Introduction ............................................................................. 1 Tributes to Justice Hans Linde Hon. Rex Armstrong ............................................................... 3 Hon. Erin C. Lagesen ............................................................... 11 Hon. Jack L. Landau .............................................................. 23 Past, Present & Future Living Up to Our Values ....................................................... 29 Hon. Adrienne Nelson Harlots, Adventuresses, and . Wrestlers? The Maligned Women of Oregon’s Judicial Decisions ............................... 39 Sara Werboff The Strange Project of a Female Attorney ........................... 47 Cheryl F. Coon The Fusion Plot: How Oregon’s First Senator Joseph Lane Plotted to Save Slavery and Destroy the Union .................... 61 Lewis Zimmerman The Appellate Courts Women in the Law, RBG, and Federalism: A Conversation with Chief Justice Walters .................................................... 67 Christine Moore Remarks Delivered at the 50th Anniversary Celebration for the Oregon Court of Appeals, September 6, 2019 ............... 75 Hon. Erika Hadlock Then and Now: The Appellate Settlement Conference Programs .............................................................................. .83 Genevieve Evarts Legal Commentary Let’s Face the Music: It’s Time to Narrow the Abscond- Dismissal Rule ...................................................................... 89 Brett Allin Circumstantial Evidence: Using History to Interpret Legislative Enactments ......................................................... 95 Nora Coon A Reply to Westwood and Wright .......................................103 Hon. Jack L. Landau Wordplay An Ode to the Reasonable Person ....................................... 112 Geoff Briggs Acrostic ................................................................................. 115 Erik Blumenthal 10 OREGON APPELLATE ALMANAC 1 (2020) Introduction Welcome to the 2020 edition of the Oregon Appellate Almanac! It’s been a difficult year, to say the least, but neither pandemic nor fire can stop publication of the Almanac. Thanks to all of our authors for their articles, and to those who have already started thinking about next year’s submissions—write early and write often! We also greatly appreciate the sponsorship of Markowitz Herbold, Davis Wright Tremaine, Thomas Coon Newton & Frost, and Tonkon Torp, whose contributions to the Appellate Section made the printing of this year’s edition possible. This edition of the Almanac is dedicated to the memory of Justice Hans Linde, who served on the Oregon Supreme Court from 1997 to 1990. He was an immigrant, “a giant among American judges” and the architect of Oregon’s modern legal framework. Memorials to Justice Linde from retired Justice Jack Landau, Judge Erin Lagesen, and Judge Rex Armstrong appear in this year’s Almanac. We also remember U.S. Supreme Court Justice Ruth Bader Ginsburg, who was a groundbreaking advocate and enduring role model for many women in the law. Both will be missed. We hope that you enjoy this edition of the Almanac, and we welcome your questions, feedback, and submissions for future editions at [email protected]. —Nora Coon, Editor 10 OREGON APPELLATE ALMANAC 2 (2020) The majority opinion in this case will be remembered as the case in which we shot down United States v. Robinson * * * and departed on a lonely journey in the dark of the moon and against the wind into the quagmire of the law of “search and seizure” with only “reasonableness” as a compass. State v. Caraher, 293 Or 741, 760, 653 P2d 942 (1982) (Campbell, J., concurring in the judgment) 10 OREGON APPELLATE ALMANAC 3 (2020) Tributes to Justice Hans Linde Justice Linde’s Structural Approach to Constitutional Construction Hon. Rex Armstrong1 Hans Linde had a profound influence on my approach to law, my legal and judicial career, and my life. His influence began before I met him. I had taken a political science course in American constitutional law at the University of Pennsylvania, which, among other things, had led me to read the recently released first volume of Justice William O. Douglas’s autobiography.2 I came away from that experience enamored of Douglas’s absolutist approach to the First Amendment and interested in knowing more about the analysis and its application. I decided to pursue a legal education and, as a native Oregonian, I applied to and was admitted to Oregon’s three law schools. I learned about Hans’s background as a Douglas law clerk while considering which Oregon law school to attend, and I chose the University of Oregon in part because I thought that I could learn more about absolutism and the First Amendment from Hans. Before classes began my first year at Oregon in 1974, I went to Hans’s office in Fenton Hall to introduce myself and to explain my interest in the First Amendment and an absolutist approach to it. I had been assigned to Hans’s section of the course that he had pioneered at the law school, Legislative and Administrative Processes, and I told him that I looked forward to the course and asked if I could 1 Judge, Oregon Court of Appeals (1995 to present). 2 William O. Douglas, Go East, Young Man (1974). 10 OREGON APPELLATE ALMANAC 4 (2020) meet with him periodically to talk about law. He said that he would welcome that. In addition to Legislative and Administrative Processes, I also took a first-year seminar from Hans on Due Process, a subject about which Hans had distinctive and, to me, compelling views, which, among other things, had led him as a member of the 1961–62 Oregon Constitutional Revision Commission to oppose adding a Due Process Clause to the Oregon Constitution. Hans left for a one-year sabbatical as a Fulbright professor in Germany during my second year at Oregon, so I waited until my third year to take Constitutional Law from Hans. As things turned out, Hans’s appointment by Governor Straub to the Oregon Supreme Court meant that I was able to study constitutional law with Hans for only one semester, but the appointment, in turn, led to a clerkship with Hans at the Oregon Supreme Court and a lifelong seminar in law and so much else with Hans, and a path through my life and legal career that was profoundly influenced by him. As it is, the first semester of Constitutional Law dealt principally with governmental structure and functions, which Hans told me were the constitutional law subjects that he most enjoyed teaching, and I came to share his preference for them as subjects. The second semester, which Les Swanson taught as Hans’s replacement, dealt principally with civil liberties, about which Hans cared deeply but which focused on U.S. Supreme Court doctrine in those areas. And, in light of Hans’s subsequent success in getting Oregon judges to accept their obligation to construe the Oregon Constitution independently, Oregon constitutional law on civil liberties differs in many respects from the equivalent federal constitutional law. 10 OREGON APPELLATE ALMANAC 5 (2020) Hans had a deep and abiding interest in constitutions and the ways in which they establish, define, and allocate governmental power. The breadth and depth of his interest in those aspects of constitutional law support my view that Hans was a structuralist in his approach to the construction of constitutional terms. What I mean by that is that Hans approached the task of determining the meaning of constitutional terms by thinking about constitutional structure and function before turning to constitutional text, and he understood the text in terms of

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