BENCHMARKS THE U.S. DISTRICT COURT OF OREGON HISTORICAL SOCIETY NEWSLETTER “A Judge Should Listen.” Judge Edward Leavy’s Remarkable 47 Years on the Bench By Clark Hansen

This article is based on an oral history of Judge family farm today, and similarly, in Judge Leavy’s Edward Leavy by Clark Hansen. The oral history ordered chambers. was completed in 2004 for the U.S. District Court Born two months before the 1929 stock market of Oregon Historical Society, and stored at the crash, Ed Leavy entered a family that, while not af- Oregon Historical Society fluent, did not suffer from a lack of necessities. Leavy grew up in a secure and stable family during the Following the personal pa- Great Depression. The Leavys emigrated from Ire- per trail on Judge Edward land in the 1880s and by 1900 had found their way Leavy can be challenging. In to Oregon. Following an initial effort at dairy farm- preparation for his oral his- ing near Portland, the Leavys settled in Marion tory, my first request of County in 1910 and began cultivating hops. Ed Judge Leavy was to review Leavy’s grade school days were spent at the small articles or papers that Butteville Grade School, in the area once known as showed his reflections or French Prairie La Butte and from there to Woodburn thoughts on jurisprudence. High School. By his sophomore year, he knew he Smiling, he replied he had wanted a legal career. An early teacher noted a “con- none, gesturing across his tentious” quality. office to the uncluttered desk and neatly arranged Ed Leavy was the first member of his family to cases. It was evident this orderly office was devoid graduate from college. He earned a business degree of the types of material one might rely on for bio- from the University of Portland in 1950 and a law graphical research. Were there files somewhere with degree from Notre Dame in 1953.During law school, notes or letters? No. In fact, even at Notre Dame in 1951, he married his high school classmate Eileen Law School he had not taken notes. Hagenauer, and subsequently raised four children. On the bench, Judge Leavy said that rather than His private practice began at Bert McCoy’s Eu- jotting notes down during a trial, he would ponder Continue on page 4 testimony in a manner that might convey to un-

aware lawyers he had nodded off. They would ad- Photo by Owen Schmidt dress the bench with a question or request and without hesitation, he would summarize and re- spond. It would be the last time the lawyer would make that assumption. A judge should listen, Leavy advises. What a contrast to my previous oral history with the late Judge James Burns. In his chambers he would part stacks of books and papers like Moses at the Red Sea to provide a niche for a small tape recorder. Perhaps Judge Leavy’s upbringing required orderliness and efficiency. As the youngest of ten children in a farming family, there was much to be done on the Aurora, Oregon hops farm. In the early years, hops were harvested by hand and dried with 30 cords of wood. Efficiency, organization and hard work were, and still are, required in a commodity that fluctuates in value with unpredictable weather, Judge Ed Leavy greets guests to his hop farm at this year’s supply and demand. That effort is evident on the picnic and barbeque.

FALL 2004 A Tribute to the President’s Message Honorable Roosevelt Summer is over. Kids are back at school. The leaves on the trees Robinson are changing color. Its that time of year when we spend more By Chief Judge Ancer Haggerty time at home, watching football, reading a book, a fire in the fireplace, reflecting on the year’s accomplishments. I consider myself lucky to have been The Historical Society has had a successful year, with well-at- a friend to tended Famous Cases presentations in the spring (Pierce v. Soci- Roosevelt ety of Sisters) and fall (One Nation Under Something: The Pledge Robinson. The of Allegiance in Public Schools). It was especially nice to see so man, though many women from St. Mary’s join us for the Pierce presentation far too modest (thanks to Judge Brown for her efforts in this regard). We also to discuss the completed the oral histories of Judges Ed Leavy and Donal Sullivan, and obstacles over began Judge Malcolm Marsh’s, preserving their thoughts and memories from which he tri- long, distinguished careers. Our annual picnic was a great success, and Chief umphed, rose Judge Ancer Haggerty’s participation in the water balloon toss was a defi- from humble, nite highlight (his clerk did beat him in the egg walk, I have to say). Eileen difficult begin- Hon. Roosevelt Robinson Leavy’s flowers on all the tables were lovely and it was a pleasure to see nings to serve Senator Mark and Antoinette Hatfield, along with Judge Otto and Jane this state and its people as an excep- Skopil. tional jurist. He was orphaned at a Our annual dinner (October 28) is fast approaching and now we select young age and raised by his grand- our new officers, executive committee members, and board members. For mother. His public education began in me, this means a year of being president of this wonderful organization is a one-room schoolhouse in a coming to an end. It has been a pleasure to serve the group, and I look hardscrabble crossroads known as forward to continuing my involvement with the executive committee and Valdosa, Georgia. In my experiences, working on the newsletter (as long as they’ll have me). I have learned that such circumstances In closing, I would like to thank all of the executive committee members, often lead to paths that end in desti- board members, and general members that support the organization finan- nations that are dramatically different cially and in other ways. We accomplish quite a bit through your generosity than that of a highly respected Circuit of time and money. It is one of many tributes to the Oregon Bar that attor- Judge. That Roosevelt emerged to ac- neys, judges and others put effort into preserving the past and future of our complish so much, while remaining legal system. As I reflect on the past year, I am once again reminded that it such a kind, compassionate and is a noble thing to say I am a member of the Oregon Bar. thoughtful human being, speaks elo- –Heather Van Meter quently about my friend’s character. Roosevelt followed his grade school friend, Jim Morrison, to Oregon. Both Randall Kester Honored for Lifetime Service had attended seminary and became ministers. Jim went on to become head The U.S. District Court of Oregon Historical Society an- of a local church. While remaining nounces that Randall Kester is the inaugural recipient of our life-long friends with Jim, Roosevelt Lifetime Service Award. The award recognizes Kester’s many pursued a different way to minister to years of dedication to preserving Oregon’s legal heritage and people. He obtained a Bachelors De- his decades of exemplary professionalism in the practice of gree in sociology from the University law. of Portland, and then in 1976 earned First and foremost an Oregonian, Kester graduated from his Juris Doctorate from Lewis & Willamette University in 1937, then went on to Columbia Clark Law School. He practiced law Hon. Randall Kester University’s Law School, graduating in 1940 and joining the with much zest—and success—in Or- Oregon State Bar the same year. He represented railroads in egon for fourteen years before being his early career, including Union Pacific. By 1947, he was teaching at North- appointed to the bench. western College of Law. He served as president of the Multnomah Bar Associa- As a judge, Roosevelt was known tion in 1956-57 and then was appointed an associate justice to the Oregon as a friendly, down-to-earth jurist who Supreme Court for one year. was devoid of pretensions. Despite After his time with the Supreme Court, Kester continued to represent rail- threatening jail sentences for anyone roads. He was general solicitor and senior counsel for Union Pacific from 1958 who snickered at his golf game dur- until 1981. He continues to represent railroads and other clients at his law ing a round, on the bench Roosevelt firm, Cosgrave Vergeer & Kester. was fair and of the highest integrity. Throughout his career, he has been involved in a leadership capacity with Although he was known to richly en- many community organizations, including the Portland Chamber of Commerce, joy his uncommon good luck at play- Continue on page 8 Continue on page 8

2 Fall Famous Cases: One Nation Under Something by Hon. Jack Landau A panel of experts addressed a packed observed, Bellamy’s original program clude the two words in the pledge, he courtroom on one of the most hotly called for an “Acknowledgment of observed. The House Report on the debated legal issues of the moment, God” through “Prayer or Scripture” bill ultimately enacted explained that the inclusion of the “under God” followed by an address that spoke of “inclusion of God in the pledge will clause in the pledge of allegiance in the nation’s “faith in the underlying acknowledge the dependence of our public schools. The September 23, principles of Americanism in God’s people on their creator.” Thus, 2004, panel presentation was the sec- destiny for the Republic.” Newdow concluded, the express pur- ond of this year’s famous cases pro- The “under God” clause itself, Ellis pose of the bill was religious in na- grams, sponsored by the United States explained, originated in 1954, osten- ture. District Court of Oregon Historical sibly “to differentiate the United States In light of that history, Newdow Society. from godless Communists.” turned to the constitutionality of the The Rev. Dr. Michael Newdow, who “under God” clause. According to Dr. Richard Ellis of recently argued this issue before the Newdow, “the ‘under God’ clause fails Willamette University Supreme Court, picked up the discus- every single test for violations of the opened the program sion by posing the question whether First Amendment that the Supreme with the historical and the “under God” clause should con- Court has enunciated,” including the political context of the tinue to be in the pledge. He began “purpose and effects” test, the “en- current debate. Ellis re- with a historical argument that refer- dorsement” test, the “neutrality” test, marked that all sides to ence to a deity is foreign to the tradi- the “coercion” test, the “imprimatur” Richard Ellis the controversy tend to tion of religious liberty that began test, and the “divisiveness test.” invoke history as a justification either with the nation’s founders. Newdow Local attorney for supporting or for opposing the observed that, before the constitu- Kelly Clark then “under God” clause of the pledge. tional convention of 1787, 9 of 11 proposed a defense Supporters assume that the pledge— state constitutions included religious of the constitution- including its reference to God—is part qualifications. In contrast, the United ality of the “under of a tradition rooted in early Ameri- States Constitution contains no refer- God” clause. Ac- can history. Opponents make much of ence to God at all. To the contrary, it cording to Clark, the fact that the pledge was penned declared unlawful any religious quali- “the pledge repre- by a nineteenth-century socialist who, fications for public office. sents a restatement Kelly Clark presumably, would not have con- Newdow also of a core founding doned including references to a deity. noted that the first political philosophy” that our politi- The “real history,” he noted, is ob- official act of Con- cal freedoms are “given to us by Na- scured by much uninformed rhetoric. gress, the Oath ture and Nature’s God, not by mere The pledge actually originated in Act, eliminated the social compact.” 1892. Its author was Francis Bellamy, reference to “the Also appealing to the historical a former Baptist minister and “Chris- presence of Al- record, Clark noted that the preamble tian Socialist” whose politics stemmed mighty God” that to the Declaration of Independence not from Karl Marx but from a com- Michael Newdow had been proposed openly declares that the people are mitment to living in accordance with by a committee “endowed by the creator” with in- Christian precepts. Ellis explained that proposing the legislation. In addition, alienable rights. In a similar vein, he Bellamy, as editor of the Youth’s Com- the phrasing of the First Amendment, observed that 47 of 50 state constitu- panion (a children’s magazine with a “Congress shall make no law respect- tions mention God as the source of circulation of 400,000), was one of ing the establishment of religion” the rights of the people. George Wash- the planners of a nationwide celebra- leaves the unmistakable impression ington invoked God in his inaugural tion of public schools on the occasion that the framers wished religion to be address. Even Thomas Jefferson, “the of the 400th anniversary of the “dis- a private and not a public matter. patron saint of the separation of covery of America” by Columbus. The “You cannot,” Newdow remarked, church and state,” Clark remarked, celebration included an official pro- “come up with words more broad invoked God in his declaration of gram that culminated in the raising of than that.” Thus, he concluded, those rights. Having school children recite an American flag over every school who claim support for the “under the Declaration of Independence, house in the country. Bellamy wrote God” clause on historical grounds are Clark suggested, could hardly be re- the pledge for that program. simply mistaken. garded as unconstitutional. If that is Bellamy did not include a reference The “under God” clause itself, the case, he queried, then how can the to God in his pledge but not because Newdow explained, did not appear mere reference to God in the pledge of a desire to keep religion out of the until 1954, during the anti-communist of allegiance? classroom. At the time, prayer in hysteria of the Cold War. There actu- Turning to constitutional doctrine, school was commonplace. In fact, Ellis ally were 18 separate proposals to in- Continue on page 6

3 on his Lane County experience, he re- Photo by Adair Law Judge Edward Leavy called civil law practitioner Don Bach continued from page 1 who consistently challenged every traffic infraction for his clients. He viewed such efforts as constructive in gene law firm in 1953, but he was refining the law. He has a similar view tapped to become Lane County on the increasing number of cases be- Deputy District Attorney, where he ing settled through mediation. He be- pursued enforcement of laws on spou- lieves that in some areas of the law sal and child nonsupport. He was ap- not enough cases are being heard. pointed by Gov. Elmo Smith as Lane Cases need to be tried to educate the County District Judge in 1957, and court and public on how the law elected in 1958. At 27, he was the should be applied. Yet Leavy disagrees youngest judge in Oregon at the time with the notion that judges should be and a thirty-year career as a trial judge legal innovators. In replying to a ques- Judge Edward and Eileen Leavy at the 2003 followed. He went on to Lane tion about what constitutes a good USDCOHS Annual Meeting. County’s Circuit Court in January oral argument for a lawyer, he said, 1961, successfully unseating an in- “A good trial lawyer’s oral argument support that made the system success- cumbent and later winning two un- must be well-informed, helpful to the ful. He quickly demonstrated his skills contested elections. Judge Ed Leavy judge and direct.” and was among the first magistrates enjoyed being a trial judge in Lane Although not active in party poli- in the U.S. to try cases. Now, magis- County and throughout his oral his- tics (which might have delayed his trates are generally acknowledged as tory would often reflect on occur- advance to higher positions), Judge partners on the bench and have as- rences of that period in his life. Leavy relished the opportunity to go sumed a major role in Oregon. Oregon federal judges and lawyers door-to-door in his 1960 election to In 1984, he was supported by Sena- are often asked if they had ever gone the Lane County Circuit Court and tor Mark O. Hatfield to replace Judge before U.S. District Court Judge Gus meet the residents of his community. Belloni. He was quickly nominated by Solomon, who had a fierce reputation Occasionally, he would meet citizens President Ronald Reagan and easily for shredding unprepared lawyers. who had been before him as a district won confirmation before the U.S. Sen- Judge Leavy, however, smiled and judge. In 1974, he was a pro tempore ate. Because the unexpected can oc- mentioned an occasion when Judge Justice to the , cur during Senate confirmation, Solomon appeared before his court for hearing the case of Jacob Tanzer v. appointees and their senate sponsors a speeding ticket. It was a very low- Jason Lee, over the 1974 Oregon are circumspect. Upon their arrival in key event. Court of Appeals election issues. the Senate, Judge Leavy and Senators Judge Leavy strongly feels that Owen Panner represented Tanzer but Hatfield and Robert Packwood saw judges should not be controversial. the decision went four-to-three in fa- only one of the committee members However, he has not avoided contro- vor of Lee. in attendance for the hearing, Sena- versial issues. In Lane County Court, Judge Leavy consistently polled high tor Strom Thurman of North Caro- he tried a case in 1966 involving a among his peers and was often sug- lina. That might strike fear in many Emerald jour- gested as a candidate for U.S. District nominees but Senator Thurman nalist that brought the national me- Court. That opportunity arrived in smiled and noted that since Judge dia to the steps of the Eugene 1976 when he was appointed as a U.S. Leavy was sitting between the chair Courthouse. Annette Buchanan wrote Magistrate. The previous commis- of the Senate committee on taxation a controversial piece about the use of sioner system allowing district judges (Senator Packwood) and the chair of marijuana on the campus. Buchanan to appoint persons to handle certain the Senate committee on appropria- refused to divulge her sources to a court matters was abolished by Con- tions (Senator Hatfield), he really had grand jury as ordered and Judge Leavy gress in 1968. It was replaced by the no reason to worry. After a few min- fined her $300 for contempt. He did Federal Magistrate Act to provide of- utes, everyone was shaking hands. not believe journalists have more ficers of the court assistance in the One of Oregon’s most controversial rights than other citizens. Eventually, expanding workload of U.S. District episodes came before Judge Leavy Oregon’s “shield law” for journalists Court judges. Judges Otto Skopil and when he heard the case of Bhagwan resulted from this case. Throughout Robert Belloni spearheaded the efforts Shree Rajneesh. The Bhagwan’s ma- his career, Leavy never worried to pass the Act and promoted it roon-clad followers poured into Or- about making enemies. Reminiscent throughout the country. Judge Skopil egon from all over the world in the of his thoughts on note-taking he also sought to make federal court a early 1980s. They established a hotel, said, “You do not make enemies by friendlier place. The Oregon District restaurant, bakery and disco in down- ruling but by not listening. Rule and Court became a prototype for other town Portland, and purchased the Big don’t apologize.” districts, and appointed George Juba Muddy Ranch, sprawling over Wasco When asked about lawyers who get in 1971, Michael Hogan in 1973, and and Wheeler Counties, in north-cen- clients off on technicalities of the law, Edward Leavy in 1976. Judge Leavy tral Oregon. Thwarted in their ambi- he saw no problem. Drawing again credits Judge Skopil for the crucial tions to start a publishing company

4 on land zoned for agricultural pur- appointment occurred after that wa- tional security perspective, it was more poses, they overwhelmed their near- tershed event, his confirmation might important to know what had been est “urban” community, tiny have been much more difficult. Judge done with the classified information, Antelope, with enough registrants to Malcolm Marsh filled Leavy’s position rather than to sentence one man to jail take control of the city council. Fol- on the District Court. who might never reveal the extent of lowers showered the Bhagwan with In the Ninth Circuit Court of Ap- the damage done. As before, his prac- Rolls Royces, while they armed them- peals, Judge Leavy was one of 28 tical, even-handed manner brought selves with weapons. State, county judges in the nation’s largest circuit. resolution to a difficult situation. Lee and federal officials including Gover- En banc judicial panels included pleaded guilty in September 2000 to nor , Secretary of State eleven judges. Normally cases are a single felony charge of download- Norma Paulus, Attorney General heard by three judges. Judge Leavy ing nuclear weapons data to portable Dave Frohnmayer and U.S. Attorney began reviewing cases appealed from tapes and was freed. Currently, the Charles Turner were targeted with the lower courts. In this arena, con- issue continues to grab headlines over various threats. Attempts were made troversial cases would percolate up, what information might have been to transport homeless people into the more often than not, from California’s leaked to the press by government of- county and register them to vote, courts. Among those cases, Judge ficials and pits the rights of the media which brought charges of election Leavy reviewed the issues surround- against the scientist’s right to pursue fraud. The discovery of salmonella ing Proposition 209, which sought to evidence that could prove his claims. poisoning at a restaurant in The Dalles eliminate affirmative action. Maybe it was Judge Leavy’s pen- in September 1984 was traced to the Judge Leavy’s most enduring case chant for organization and efficiency group. Officials worried about a di- might be one from the District of New or because of his capacity for work saster similar to the 1978 mass sui- Mexico, U.S. v. Wen Ho Lee. It in- that he was assigned to mediate the cide that had occurred in Jonestown volved Wen Ho Lee, a Taiwanese- Capital Consultants lawsuit involving in Guyana. born, American citizen who was a labor union trust funds in 2001. This The Bhagwan attempted to avoid a scientist at the Los Alamos Nuclear mammoth case, described by local possible jail sentence by leaving on a Laboratory in New Mexico. When media as “one of the biggest invest- private jet, but was captured while his classified data from the laboratory ment fraud cases in Portland history,” plane refueling. This brought him be- was put on ten portable tapes, in De- included various parties, a number of fore Judge Leavy, who had to sort cember 1999, Lee was charged with class actions and the Department of through many issues and, defuse a 59 counts of mishandling classified Labor. 135 lawyers from all over the potentially dangerous situation. In the information, violating the Atomic country represented various parties. end, after his conviction of immigra- Energy Act and then jailed for nine The parties included five law firms and tion fraud, deportation was consid- months pending trial. The FBI later three accounting firms. Despite the ered the best option and the entire acknowledged a flawed investigation large number of lawyers, Judge Leavy settlement soon melted away without and allegations against Lee began to noted that the plaintiffs’ attorneys fees confrontation. Many people credit collapse. The FBI could not determine will be less than 7% of their recovery, Judge Leavy with skillfully handling what happened to the missing infor- which speaks well of their profession. and defusing a potential catastrophe mation. It might have ended up in the Judge Leavy received yet another similar to what was later seen in hands of a foreign power. appointment in the federal court sys- Waco, Texas with the Branch Judge Leavy was assigned to medi- tem. U.S. Supreme Court Chief Jus- Davidians and other cults. ate the case. He felt that from a na- tice William Rehnquist became aware Judge Leavy’s reputation made him Continue on page 7 an obvious candidate for the U.S. Ninth Circuit Court of Appeals. Three CALENDAR years after his appointment to District Court, Republican Senator Hatfield October 28, 2004 again tapped him for the nomination USDCOHS Annual Meeting and Dinner to the Court of Appeals. President Featuring the Honorable Edward Leavy Reagan responded with the appoint- At the Historic Governor Hotel ment and, despite a closer scrutiny by the government and the Senate for Southwest Tenth & Alder, Portland confirmation to the second-highest No-Host Cocktails 5:30–Dinner 6:30 court, Ed Leavy sailed through the process. He noted that the congenial, Randall Kester will receive the inaugural Lifetime Service Award. bipartisan atmosphere in the Senate Judicial Committee, controlled by $60 per person ($50 for government lawyers); $420 for firm tables Democrats in 1986, would shift sig- (A judge will be invited to be the guest of honor at each firm-sponsored table of seven.) nificantly months later with the controversial confirmation hearing of Space is limited, so please RSVP by October 22 at 503.326.8150 or email Robert Bork to the U.S. Supreme [email protected]. Court. Leavy speculated that had his

5 Famous Cases continued ON OUR MEMBERS’ BOOKSHELVES Clark suggested that the “under God” clause is entirely constitutional. He ar- Portland: People, Politics, and Power, 1851-2001 gued that it is secular in purpose and by Jewel Lansing effect; it is merely a “restatement of a historical political philosophy.” There Published by Oregon State University Press, 2003 is, he contended, no endorsement of re- Reviewed by Mary Ellen Farr ligion, no coercion. If a child does not wish to say the pledge, he or she does Jewel Lansing has been a well-known and much respected mem- not have to do so. ber of Portland’s political scene for many years. She was the elected Professor Steven City of Portland Auditor from 1983 to 1986 and was the Green, of Willamette Multnomah County Auditor from 1975 to 1982. She is one of the University School of founders of WIN-PAC, a political action committee supporting Law, concluded the first-time Oregon women legislative candidates. Her affection for program with obser- the city she served is abundantly apparent in her new book. vations about the legal Portland: People, Politics, and Power is an exhaustive study of the devel- and political implica- opment of Portland and its politics from Portland’s beginnings to the start of tions of the pledge de- Steven Green the third millennium. Lansing combed various archives for notes, letters, deeds bate. “This case will and similar documents from which she pieces Portland’s early history, and not go away,” he commented. Green the book is full of interesting details. Lansing spends most of her story on the explained that the case has tremendous period from 1851 to 1941, and it is in these early years that her book is the symbolic importance. It “pulls at our most fascinating. For example, she notes, the “Oregon Country originally hearts and our guts.” The pledge is the sought by the U.S. was roughly equivalent in size to the original thirteen primary mechanism for instilling pa- colonies –357,000 square miles. After the treaty with Britain, the U.S. por- triotic values, and the controversy sur- tion of the Oregon Country encompassed 286,541 square miles, three times rounding it implicates deeper the size of present-day Oregon.” Another example is the fact that Abraham controversies about public values. It Lincoln was offered the job of territorial governor but turned the job down. involves “the intersection of those two Lansing also reminds the reader that Portland was one of the two main subjects that you should not mention in cities on the West Coast and that when “Portland was founded, there was no polite company—religion and politics.” Seattle, no Tacoma, no Boise, no Spokane.” She articulately paints a picture Commenting on the controversy of what life and politics must have been like in those early days. Lansing from a doctrinal perspective, Green concentrates on personalities who were prominent over the years and pre- suggested that, if the Court had struck sents a number of memorable scalawags and rascals. down the pledge, the case would been Many of the issues which Lansing discusses in her book are still with Port- much less remarkable than if the Court land. She details the organization of Portland’s police force and fire depart- had upheld it. “A decision upholding ment. She comments that shortly after World War II The Oregonian criticized the pledge would have wreaked havoc the police department and noted that the doorways of downtown businesses on existing establishment clause ju- were constantly “used at night as convenient toilets, receptacles for liquor risprudence.” Yet, if the Court had bottles and for illicit sex purposes.” She talks of the problems of power gen- struck down the “under God” clause, eration and transportation through and around the city. Lansing documents there almost certainly would have some of the problems of vice which have arisen from time to time in Portland been a constitutional amendment to although she does not concentrate as much attention to those problems as preserve it. she does on the development of political organization. Whether the Court would have ruled Another theme that comes through in Lansing’s book is the diversity which one way or the other, Green suggested, Portland politics have experienced. Although Portland’s history has certainly is an interesting question. There cer- been dominated by Christian males, by 1873, Portland had two Jewish may- tainly seem to be four votes on the ors. Dorothy McCullough Lee was Portland’s first woman mayor, and she Court in favor of the “under God” took office in 1949, having unseated the incumbent mayor in the midst of clause. But, beyond that, “who scandals over vice and corruption. knows?” Green suggested that, theo- If the book can be criticized, that criticism would be that the book focuses retically the Court could justify the much more on politics and power than on the people of Portland, a fact that clause by any of several possible “ex- may be inevitable given the nature of historical documents which exist. None- ceptions” to traditional First Amend- theless, anyone who has any interest in how Portland got to be the way it is ment analysis. For example, he now should read Lansing’s book. The book is a reminder of what Portland suggested that the Court could create was, and it is a tribute to all those who made Portland what it is today. exceptions for longstanding historical practices, “ceremonial deism,” de mini- mis harm, or the need for equal treat- ment as between religion and Continue on page 8

6 Courthouse is being renovated for its judge would never be coaxed into Judge Edward Leavy Ninth Circuit Appeals Court inhabit- this potential damp humiliation. continued from page 5 ants. Outside the legal realm, he re- Minutes later I saw him out there mains connected to the area he grew getting soaked. The laughter and up in. spontaneity brought out a youthful- of his judicial abilities in his handling The USDCOHS held its annual pic- ness I hadn’t noticed in Portland. of the Wen Ho Lee case. There was nic at the Leavy family hop farm in Many picnickers commented on a speculation that because of his obvi- August. There were children’s games, prodigious wall of neatly stacked ous judicial skills, Judge Leavy was including a water balloon toss. I was cord wood, wondering if it was used appointed to the U.S. Foreign Intelli- chided for not joining in. After re- for any of the farming work. Judge gence Surveillance Court of Review, a peated requests I replied, “I’ll only do Leavy responded that it was his fu- court he hadn’t known of. The Foreign it if you get Judge Leavy out there,” ture work. He wanted to be around Intelligence Surveillance courts were es- assuming this dignified Appeals Court long enough to burn it all up. tablished by the 1978 Foreign Intelli- gence Surveillance Act. The Court of Photos by Owen Schmidt, Heather V Review was established to hear appeals by the government from denials of or- ders for wire taps or searches directed against agents of a foreign power. Be- cause of the secrecy under which the government is permitted to operate in these areas, targets do not know about

these methods so there had never been an Meter and Adair Law any appeals. In the first 20 years of the act, the government had never been denied an order for a wire tap or a search. Targets never even knew they were subjects of investigation. His ap- pointment by Chief Justice Rehnquist came in September 2001, just days be- fore the tragedy of 9/11. The FISA Court of Review, deep within a build- ing and encased in steel, is in a very secure location in Washington, D.C. Its only case so far is aptly called In re: Sealed Case, 310 F.3d 717 (2002). In Portland, Judge Leavy, now in Se- nior Status, occupies offices on the 16th floor of the Mark O. Hatfield Federal Top row (from left): Bill Long, John Stephens and Mary Ellen Farr; Judge Otto Skopil; Happy Courthouse while the old Pioneer hayriders. Middle row (from left): Judge Dairmuid O’Scannlain, Declan and Brendan O’Scannlain; Benchmarks team, Adair Law and Jeanne Galick; Jack Collins and Jim Sutherland. Bottom row: Rachel Lezak, Jack Collins, Sid Lezak, Judge Ted Goodwin and Judge Ancer Haggerty; Egg racers Judge John Jelderks, Christopher Wahlgren and Judge Ancer Haggerty. A Fine Summer Picnic On Sunday, August 1, over 200 members and families of the USDCOHS and the Federal Bar Association enjoyed an afternoon of barbecue, music by “Lisa and her Kin,” games, and good humor. Held at the lovely Leavy family hop farm, the weather was glorious, the food toothsome, and there was a lusty sense of competition among the egg racers and balloon tossers. The kids did pretty well, too. It was a pleasure to share such a fine day with family, friends, and co-workers. Judge Ancer Haggerty and his family made a note- worthy entrance in a spectacular convertible, Judge Edward Leavy and Sena- tor Mark Hatfield reminisced about their own hop-picking days, and the children enjoyed the pony rides, hayrides, and the bouncing hut. Many thanks Judge Leavy (left), Clark Hansen and Senator to Jenifer Johnston, Leah Lively, Donna Sinclair, and the Leavy family for Mark Hatfield (right) gather round a hop their efforts in giving us a memorable picnic. –AL basket. 7 The U. S. District Court of Oregon Historical Society 740 U. S. Courthouse 1000 S.W. Third Avenue Portland, OR 97204

Make your reservation today! October 28, 2004 USDCOHS Annual Meeting and Dinner Featuring the Honorable Edward Leavy At the Historic Governor Hotel

Tribute to Roosevelt Robinson cont. from page 2 Randall Kester cont. from page 2 ing poker, no man loved his children and granddaughters more than Roosevelt. the City Club of Portland and he co- He also took the meaning of “well-dressed man” to new heights. founded the Oregon Ethics Commons. The loving tributes spoken at his memorial service were as accurate as they He helped organize the USDCHS, were heartfelt. Getting to know Roosevelt was easy; he made it so. Realizing wrote a chapter covering 1927-1950 how compassionate and eager he was to help others in need was also a simple for the book The First Duty: a His- task. One handshake, a few words, a look into those eyes that sparkled with tory of the U.S. District Court for kindness, that’s all it took. My life and the lives of countless Oregonians are Oregon and served as president in richer for having known Roosevelt. The Oregon bench is the poorer for his 1994-95. absence. Thom Brown, managing partner It is altogether fitting that Roosevelt’s ashes have been cast into the Columbia of Cosgrave Vergeer Kester LLP, River. His legacy among friends and family will flow forever. I began by noting noted, “What an appropriate first how lucky I am to have been Roosevelt Robinson’s friend. I’ll close by admit- recipient! I can honestly say that no ting how proud I am to have called him my friend, too. When good people die, person I have known has given more they are remembered. When great people die, they are missed. I will remember to the profession, generally, and to and miss Roosevelt Robinson. the history of our federal district court, specifically, than Randall. He is truly a rare and extraordinary per- Famous Cases cont. from page 6 son. I feel greatly honored to have non-religion. Each of those possible exceptions are not without problems, he been Randall’s partner the last 17 noted. Whether the Court could reasonably conclude that the “under God” years, to have him be such an im- clause is a longstanding historical practice certainly is debatable in light of the portant part of CVK, and to pub- fact that the clause is only 50 years old. licly express our heartfelt Green noted that there are a number of pledge cases in the judicial pipeline. congratulations to him on receiving Perhaps more important, there is a split among the federal circuit courts about this very special recognition.” the constitutionality of the public display of the Ten Commandments. The an- swers to these questions, therefore, may come sooner rather than later.