BENCHMARKS THE U.S. DISTRICT COURT OF OREGON HISTORICAL SOCIETY NEWSLETTER Upcoming Famous Cases Series Arguing Before the United States Supreme Court By Bill Long

ou are cordially invited to attend the next pro- a violation of the Eighth Amendment prohibition Ygram in the Famous Cases series on Thurs- against infliction of cruel and unusual punishment. day, May 1, 2003 from 4 to 5:45 p.m. in the Cer- The Court concluded that no constitutional viola- emonial Courtroom (16th Floor) of the Hatfield tion occurred. The case emerged from a June 1980 Federal Courthouse. The program “Arguing Before riot at the Oregon State Penitentiary. the U.S. Supreme Court” will feature Stephen Mr. Volpert will describe his involvement repre- Wasby, the leading scholar on Oregon cases that senting the Vernonia School District in Vernonia have been considered by the Court, as well as a School District 47J v. Acton, 515 distinguished panel of Oregon attorneys who have Us 646 (1995). At issue in this de- argued before the Court. CLE credit for the pro- cision of a divided Court was the gram is pending. Refreshments will be provided. constitutionality of the school Professor Stephen Wasby, now emeritus profes- district’s practice of subjecting stu- sor from the University of Albany and a former dents desirous of participating in student of retired Oregon Supreme Court Justice interscholastic athletics to random Hans Linde, will start off with an informative pre- urinalysis. The focus of the Court’s Tim Volpert sentation on the contribution of cases originating consideration was a student’s fed- in the District of Oregon to U.S eral and state constitutional right to be free from Supreme Court jurisprudence. He unreasonable searches. The issue remains of great will be followed by Federal Dis- interest in 2003 due to the nature of privacy rights trict Court Judge James Redden; students and student athletes are entitled to under David Frohnmayer, President of state and federal constitutions. the University of Oregon; and Continued on page 2 Timothy Volpert of Davis Wright David Frohnmayer Tremaine. Each participant will describe some of the facts and law of their respective cases, preparation for argu- ment before the Court, the experience of arguing before the Court and any additional pointers or observations of interest. There will be a question- and-answer period after the presentations. Judge James Redden will speak on Idaho ex rel Evans v. Oregon and Washington, 444 US 380 (1980), which was argued in 1979 and decided in 1980. At issue was the State of Idaho’s ability to secure an equitable apportionment of various runs of anadromous fish originating between their Idaho spawning ground and the Pacific Ocean. President Frohnmayer will speak on arguing Whitley v. Albers, 475 US 312 (1986). This 5-4 Judge James Redden (right) presenting a tee-shirt to Judge decision of the Court treated the issue of whether Malcolm Marsh at an earlier Famous Cases presentation. infliction of pain (shooting at a prisoner) during a The portrait of Judge Robert Belloni watches over the proceedings. prison riot without prior verbal warning constituted

SPRING 2003 Famous Cases continued President’s Message Each of these cases originated in the District of Oregon. Judge Owen Under Tom Sondag’s strong leadership, 2002 was a great year for Panner heard the Whitley case. our Society. For all those who care about the history of our U.S. Though he is too humble to admit it, District Court, 2003 will also be an exciting year. Bill Long is he was reversed by the Ninth Circuit leading our new Famous Cases committee with their first presen- in that case and the Ninth Circuit was tation “Arguing before the U.S. Supreme Court” on May 1. After further reversed by the United State several years of fine work by Jeff Druckman, Heather Van Meter Supreme Court. is heading our Newsletter committee. She has already hired our Please join us on May 1 for what new Benchmarks editor, Adair Law. Adair takes over from Sue promises to be an informative and Morey who maintained the high standards we enjoy from Benchmarks. lively discussion. Jenifer Johnston is leading the Events committee. Once again, our annual picnic will be at the Leavy hops farm on Sunday, August 3rd. Peter Rich- Book Review ter is heading the all-important Membership committee. Steve Brischetto Dead by Sunset: Perfect Husband, is continuing as chair of the Oral History committee. This committee’s Perfect Killer? By Anne Rule work goes to the very heart of why we have a society. Finally, Judge Panner, Published by Pocket Books Judge Redden, past presidents Tom Sondag and Nancy Moriarty, and the Reviewed by Judge Owen Panner rest of the Executive Committee continue to provide hard work, enthusi- asm, and continuity. Murder mysteries are wonderful for busy In December, George Dysart passed away after an extended illness. He lawyers and judges. was one of the original members of our group. Through his representa- They help us relax, and tion of the federal government, he played a critical role in securing for the sometimes go to sleep! tribes their fishing rights, and contributed as much as any When there’s a murder lawyer to the legacy of this Court. mystery that’s not only Many of you may have seen recent newspaper stories about the future exciting but true, it of the Oregon Cultural Trust. Our organization was looking forward to makes the experience even better. the development of the Trust and its deferral or demise would be unfortu- In Dead by Sunset, Anne Rule does nate. Created by the 2001 Oregon legislature, the Trust began raising funds her usual meticulous work in getting in December 2002 and in one month raised $1.65 million! It has a goal of all of the details about the 1986 Wash- creating a protected endowment of over $200 million as a permanent source ington County bludgeoning murder of of funding for culture by 2012. As the endowment is built, the Trust plans Cheryl Keeton by her husband Brad to distribute more than $90 million in grant funds for Oregon’s arts, hu- Cunningham. The Kirkus Review de- manities and heritage. scribed her book as being better plot- This could mean three things for the U.S. District Court of Oregon His- ted than the murder. torical Society. First, the Trust would support programs and values that Cunningham is a charismatic, ma- all of us agree are important for our state and nation. Second, the novel nipulative ladies’ man who captures method the Trust uses to raise funds creates an incentive for charitable the love of several brilliant women, giving to our organization and others. Third, the Trust would be a pos- five of whom he marries. To their sor- sible future grant funding source for us. row, they discover he is abusive and As established, the Trust raises funds as follows: Each person can do- they fear for their lives. nate money to a qualifying Oregon nonprofit cultural organization such While Dead By Sunset is not only a as the U.S. District Court of Oregon Historical Society. The donor can fascinating true story, it’s about the take a charitable deduction on his or her state and federal income tax sort of character that many of us know return for this. The donor can match the donation to the qualifying orga- and have known. It involves a mur- nization with a donation to the Oregon Cultural Trust of up to $500 ($1000 der that defied a solution until Wash- per household) and then take an income tax credit in the amount of the ington County District attorney Scott donation to the Trust on his or her Oregon income tax return. Looked at Upham was able to solve it in a most another way, a couple paying federal and state income taxes at a marginal interesting fashion in 1994. rate of 35% can make a total donation of $2000 ($1000 to qualifying Ann Rule’s writing abilities make it organization + $1000 to Cultural Trust) and receive an income tax benefit difficult to put the book aside once of $1350. For a net cost of $650, a couple can do $2000 worth of good. you’ve started it. Whoever said, The loss of the Trust would be unfortunate for the state and our group. “Truth is stranger than fiction” cer- More information on the Trust can be found at www.culturaltrust.org. tainly was correct insofar as this book John Stephens is concerned. I recommend Dead by Sunset without reservation. 2 Judge Owen Panner From Whizbang to the Bench By Heather Van Meter (This article is based on Judge Owen the bar, he ness of segregation and it stayed with Panner’s oral history, completed by found golf to be Panner. the USDC Historical Society in 1998. a useful connec- The oral history project is one of many tor with clients College and military service projects undertaken by the Society to as well as an en- After high school, Panner attended preserve Oregon’s legal history). joyable form of the University of Oklahoma, pledging exercise. the Phi Delta Theta fraternity, play- wen Panner spent his youth in As a student, ing golf, and doing well until Pearl OWhizbang, Oklahoma. His fa- Panner was a Harbor was bombed. A 17 year-old ther was a geologist who hailed from year ahead for freshman, Panner considered lying Pittsburgh and worked in the Okla- his age in school and thus smaller than about his age and enlisting. His par- homa oil fields. Along with two sis- many of his classmates until high ents convinced him to stay in school ters, he spent his childhood in a strict school. This led the young boy to de- for two years to see what happened but loving family during the hard velop a range of different skills and with the war. After two years at Uni- years of the Depression and the Dust Panner was not above a few practical versity of Oklahoma, Panner and two Bowl. Judge Panner retains vivid jokes. He was once disciplined for put- friends decided to enlist in the para- memories of the hard times neighbors ting a snake in his teacher’s desk troopers. This was complicated by the struggled through during this era. He drawer. During the late 1930s, his area fact that Panner was nearsighted. remembers one family taking their of Oklahoma was segregated mainly During the eye exam, he arranged to sailboat to the middle of the lake and in its black and white relations rather have a friend help him read the eye sinking it. They couldn’t afford the than in its Indian and white relations. chart. A sergeant caught them and sent taxes. While Panner’s family was not Panner grew up caddying with Indi- Panner to infantry at Fort Benning, hit as hard as others in town, it was ans and for a while in high school he Georgia. during that time that he developed his dated an Indian girl. After basic training, Panner was strong work ethic and his apprecia- It was during a summer working in upset to learn that he was being sent tion for a hard dollar earned that he Arkansas that Panner’s views on seg- to engineering school at West Virginia carries with him today. regation went through a new phase University. On completing engineering The Depression brought not only of development. While riding on a city school, he was sent to the Transpor- economic hardship to many families, bus, he watched a bus driver tell a tation Corps officer training school in it brought medical hardships that black patron to go sit in the back. The New Orleans, and from there to Los lacked many of the reliable cures man flashed a look at the driver and Angeles as a second lieutenant load- known today. Disease struck the the driver immediately began beating ing officer where he coordinated ship Panner family when an aunt con- him with a weapon. It was a graphic, and troop transport loading. He regu- tracted scarlet fever. At that time, it immediate illustration of the unfair- larly requested transfers in hopes of was the prevailing wisdom to keep seeing some actual fighting, until his water and food away from the pa- colonel threatened to send him to tients. Unable to watch his sister suf- Guadalcanal if he continued. The fer, Panner’s father would slip her colonel said “if you don’t have enough water every chance he could. In ex- sense to save your own life, why I’ll plaining it to his son, he told him, “no have to save it for you.” matter what these professionals tell Panner met his first wife, Agnes you, sometimes they’re wrong. You Gilbert, while he was in Los Angeles. have to use your own common sense.” Out of dental pain came pleasure Panner’s youth in Oklahoma was when he went in for treatment on an not all hard times and he enjoyed par- impacted and infected tooth and ticipating in a range of sports, devel- Agnes was a nurse who cared for him. oping a special fondness for golf. He After a brief courtship, they were became an amateur champion and as Judge Owen Panner (left) and former married several months later as he a young man, golf had certain remu- USDCOHS President Wayne Hilliard with prepared to escort a troop transport nerative aspects for him that served a history display at the Gus Solomon to Europe. Because his overseas tour him well in later years. After he joined Courthouse. began after the Japanese surrender on 3 gue the case. Dr. Merrill refused be- work helped him get acquainted with cause he did not believe that the Okla- the terrain of his new home. He met ORAL HISTORY homa City campus was “separate but various members of the Confederated featuring equal.” The Regents then caved in and Tribes of Warm Springs when he was HON. OWEN PANNER Ms. Sipuel was enrolled at the main selling cars, and the Tribes would later law school campus at the University become an important client. Continued from page 3 of Oklahoma. After he passed the bar, Panner de- For her first day of class, the car- cided he would like to do trial work. August 15, 1945, Panner mainly as- pentry staff had built a two-by-four McKay agreed to have Panner second sisted in troop transport between Eu- railing for Ms. Sipuel to sit on instead chair a trial with him and thereafter rope and New York. His wife was of in the regular lecture hall seats. Panner would do the trial work for from Long Island, New York, so he Arriving in the classroom early that the office. Panner did most of the trial stayed with her at her parents’ house day and on seeing Ms. Sipuel’s seat, preparation, and on the first day of when in New York. Their first child Panner and several friends yanked out trial, McKay was so displeased with was born December 13, 1946 and the rude railing and tossed it out of his own opening argument that he mother and child remained in New the window. On entering the room, claimed to be sick, left the courtroom, York while Panner completed his time the professor smiled to see the railing and from then forward Panner in the military before returning to gone and Ms. Sipuel was told to sit handled the trial work. Panner rou- Oklahoma for law school. His father- anywhere. tinely had cases with Harvey De in-law was personnel director for Armond’s firm, Ray Kilpatrick, Grumman Aviation, and Panner Coming to Oregon Charles Boardman’s firm, Cunning & worked for Grumman in the summers Following law school, the Panner Brewster in Redmond, Don Graham’s in New York, while his wife was at- family looked westward. They consid- firm in Prineville and over time devel- tending school. ered Colorado or New Mexico, but a oped a solid reputation in the Central At the time of his discharge, the law school friend’s uncle, Judge Oregon bar. One night, George University of Oklahoma had a special Claude McCulloch, had shared stories Brewster, a Redmond attorney, called program allowing those with two of the beauty of central Oregon. Af- Panner over to his Portland hospital years of college to go directly to law ter winning a round of nine holes, room in the middle of the night so school. Panner went straight to law Panner had enough money to make Panner drove to Portland. Brewster school while still playing varsity golf the trip to the Northwest. He took a had divided all his case files with in- on scholarship for the Sooners. Jug- position in Duncan McKay’s law firm structions for him, just in case his gling family obligations and golf, in Bend, but had to wait nearly a year heart surgery the next morning did not Panner was very focused in law to take the annual Oregon bar exam. go well. Panner was to take over most school, earning nearly straight As and While he waited, he sold cars and also of Brewster’s files, except those involv- becoming a member of the Law Review. helped with the 1950 census. He met ing Panner’s clients, which were to be While he was in law school, the Ada many future clients and his census given to specific named attorneys to Sipuel segregation case arose at the school. Ada Sipuel, a black student, applied to attend the law school in 1946. The University of Oklahoma said no and in 1948 Thurgood Marshall argued Sipuel’s case before the Supreme Court. The Court ruled that University of Oklahoma must provide instruction for black students equal to that of white students. The Regents of the University of Okla- homa created the Langston University School of Law, located at the state capital. Local practicing lawyers were used as the professors in an effort to create a “separate but equal” campus for her. After one term at this cam- pus, Ms. Sipuel’s case returned to the Tribal members and representatives meet with Governor Tom McCall in 1967 to inform him of a Supreme Court with the argument purchase of a sawmill at Warm Springs and the start-up of their wood products enterprise. From that the facility was not “separate but left, General Manager of the Tribes Vernon Jackson, Councilman Olney Patt, Sr., PR equal.” The Regents asked an es- consultant William Marsh, Councilman Charlie Jackson, owner of the purchased mill Sam teemed professor, Dr. Merrill, to ar- Johnson and tribal attorney Owen Panner. (Photo courtesy of the Confederated Tribes of Warm Springs) 4 citation to be held up and if there were Tribes of Warm Springs, Panner was no problems for one year the citation asked to become Commissioner of the would not be issued. The City Attor- Bureau of Indian Affairs under Presi- ney agreed to follow the ordinance dent Kennedy, a position which he and the citation was never issued. considered but declined. Panner told Healey about it, but Healey never believed him and was A member of the bench sure that Panner had pulled some Panner’s civic involvement and his strings. contacts with national leaders through During his career as an attorney, his work with the Confederated Tribes Panner took on many difficult and played a large role in his appointment unpopular cases. He represented a to the federal bench. As counsel to the group of landowners in the town of tribe, he became friends with many Mitchell in Wheeler County follow- Congressional leaders including Rep- ing a flood caused by the state high- resentative Ullman, who first ap- way department’s road-building, and proached him about the federal Judge Panner and his wife Nancy along prevailed on a novel inverse condem- judiciary. Panner’s initial reaction was with two good friends. nation issue. He also became general that there were many more qualified counsel for the Confederated Tribes candidates, including Ed Leavy. of Warm Springs. He attended general Ullman insisted that Panner add his handle. Brewster passed away soon council meetings which in the early name to the bar preference poll. Ed after, and Panner carried out his days were held in the great hall with Leavy came out on top, but to his sur- wishes for his files. Brewster had also dirt floors and one wood stove. Meet- prise, Panner was second. A commit- left instructions for his wake and ings were often conducted in Sahaptin tee met regarding the open seats, and Panner carried those out as well. and translated into English for Panner James Redden, Helen Frye, and As his legal reputation grew, so did by an interpreter. Panner worked with Panner were appointed by President his reputation as a Bend civic leader. the tribal council and with a loved but Carter in 1980. Panner was thrilled His family of four attended the Pres- feared tribal member Ella Wolf, the with his co-appointees but concerned byterian Church, and he was involved self-appointed “meanest woman on about Leavy until he eventually was with the Lions Club, Boy Scouts, Cen- earth.” He worked particularly with appointed. tral Oregon Community College, General Manager Vernon Jackson to Owen Panner practiced as a trial Chamber of Commerce, Oregon State assist with a range of projects, includ- lawyer in Bend for 25 years before Bar and other organizations. Panner ing establishing education trusts for joining the bench. In that time, he became friends with Robert Sawyer, children, investing in tribal develop- handled divorces, murders, contract and later Bob Chandler, publishers of ment, hydropower development with disputes, federal and state cases. He the Bend Bulletin. He got to know the Pelton and Round Butte dams, was voted Trial Lawyer of the Year Don Kerr, founder of the High Desert sawmills, electrification with the as- and became a member of the Ameri- Museum, and Bill Healey, founder of sistance of the powerful State High- can College of Trial Lawyers. When Mt. Bachelor. One evening Healey, a way Commission Chairman Glenn his mother learned he was being ap- long-time client of Panner’s, was at a Jackson, fishing rights (a case de- Continued on page 6 Mt. Bachelor shareholder-meeting. cided by Judge Robert Belloni), and While waiting for Senator Mark similar tasks meant to improve the Hatfield to arrive, he had a little too ALENDAR tribe’s future. C much to drink. On the drive home, Vernon Jackson was succeeded by I he was picked up for driving under June 18. . .12:30 – 4:30pm Ken Smith, who was equally adept. the influence. He was such a well- Summer Associates Program, New projects included reacquiring the loved citizen that the police did not Mark O. Hatfield Courthouse land that contained Kah-Nee-Ta hot want to issue a citation. They took 4:30pm–Bench and Bar Social– springs and developing the now-fa- Healey back to the station and gave All are invited! Mark O. Hatfield mous Kah-Nee-Ta Lodge. Panner also him water and coffee and kept talk- Courthouse, 9th floor lobby. worked with Senators Guy Cordon ing to him, waiting for the and and Representa- I August 3. . . Annual Picnic at breathalyzer to go down below the tives and Wendell Wyatt to Judge Leavy’s farm.Watch for legal limit. Panner arrived and went recover the McQuinn Strip for the more information about this al- along with the police until Healey fig- tribes in 1972, a large tract of forest ured out what was going on and in- ways popular event. and grazing land that rightfully be- sisted that he be issued the citation. I longed to them. Because of the success October 30. . . Annual Dinner The next day, the officers found an of his work with the Confederated Location to be announced. old but valid ordinance allowing the 5 we’re not wrong, much the same as DIRECTORS OF THE SOCIETY ORAL HISTORY people. Judges are kind of like people, OFFICERS: Hon. Ancer L. Haggerty, Board featuring you know.” Judge Panner notes that Chairman, Ex Officio; *John W. Stephens, Presi- of his three decisions that went up to dent; *Heather J. Van Meter; Vice President/Presi- ON WEN ANNER the U.S. Supreme Court, all involved dent-Elect; *John J. Dunbar, Corporate/Executive H . O P Secretary; *Jenifer Johnston, Treasurer; *Thomas Continued from page 5 reversals by the Circuit and re-rever- W. Sondag, Immediate Past President. sal by the Supreme Court. The three BOARD MEMBERS: *Randy L. Arthur; Dr. cases are Whitley v. Alberts, a pris- Donald G. Balmer; Jeffrey M. Batchelor; the Belloni Family, Honorary; Ernest Bonyhadi, Honorary; pointed to the federal judiciary, she oner excessive force case, a case in- volving state department of revenue *Duane A. Bosworth II; *Stephen L. Brischetto; said “I don’t like it at all. He’s always Hon. Anna J. Brown; the Burns Family, Honorary; stood up when I come in the room, exemptions for railroads, and an un- Hon. Wallace P. Carson, Jr., Ex-Officio; Robert L. and now if I go to court, I have to fair trade case involving a stationery co- Cowling; Dr. Gordon B. Dodds; *Jeffrey J. stand up when he comes in the room.” operative. Druckman; *Mary Ellen Page Farr; George H. With regard to the quality of the Fraser, Honorary; Brian and Susan Gray, Honor- Although he was saddened to leave ary; *Lynda J. Hartzell; Douglas G. Houser; Dr. his law practice and his horse farm in lawyers appearing in his courtroom, David A. Johnson; Lisa M. Kaner; *Dennis C. Bend, Judge Panner was honored to Judge Panner is very pleased. He notes Karnopp; Randall B. Kester; *Hon. Jack L. receive the appointment, stating “I felt that the legal research is excellent, the Landau; *Leah C Lively; *William R. Long; Angel Lopez, Ex-Officio; Prof. Ralph J. Mooney; *Nancy very proud to have the chance to do lawyers are highly ethical, and over- all are as good as if not better than J. Moriarty; *Chet Orloff;*Hon. Owen M. Panner, something about what I had criticized Honorary; Norma Paulus, Ex-Officio; *Hon. for a long time — the amount of time the high-priced Los Angeles or East James A. Redden, Honorary; *Peter C. Richter; it took to get a decision.” Indeed, Coast lawyers. Judge Panner has oc- *Karen E. Saul; *John L. Schwabe; *Donna L. Judge John Burns had the same idea, casion to assist in other federal dis- Sinclair; Elizabeth Solomon, Honorary; Richard B. trict courts, notably Arizona, when Solomon; Caroline P. Stoel; Prof. Mary C. Wood; and immediately made Judge Panner *Kelly A. Zusman. chair of the calendar management the caseload is too much for the num- LIFETIME MEMBERS: Jeffrey M. Batchelor, committee. ber of judges. Owen D. Blank, Donald Cinnamond, Paul T. Judge Panner had a strong influence While a district court judge, Judge Fortino, George H. Fraser, Edwin A. Harnden, Cynthia Harrison, Douglas G. Houser, Robert E. on the Oregon federal court, from bi- Panner has decided some interesting cases involving the savings and loan Jones, Randall B. Kester, Jeffrey S. Mutnick, Eliza- weekly judges’ meetings to the writ- beth Newcomb, Verne W. Newcomb, Daniel ing of opinions. He encouraged crisis, federal wire taps and Tonya O’Leary, Hon. Owen M. Panner, Hon. Edwin J. succinct writing, collegiality among Harding. Now on senior status, Peterson, Dian S. Rubanoff, Sarah J. Ryan, Arlene the judges, and apolitical decision- Judge Panner is working slightly less Schnitzer, John L. Schwabe, Norman Sepenuk, than full time. He frequently sits on Arden E. Shenker, Richard B. Solomon, Gayle L. making, standards which remain to- Troutwine, William F. White, and Donald R. Circuit Court of Appeals cases. He day. The decisions coming out of the Wilson. *Members of the Executive Committee District Court of Oregon are usually is conscientious about continuing to IN MEMORIAM: Hon. Robert C. Belloni, Hon. affirmed, but once in a while the Ninth serve the judiciary, and regularly James Burns, Raymond Conboy, George D. Dysart, Wayne Hilliard, Chester E. McCarty, and Circuit reverses a ruling. Judge Panner sends anonymous surveys to parties appearing before him to be sure his Frank Pozzi. is not fond of being reversed, stating Newsletter Editor: Adair Law (503) 240-0993; “we’ve got all kinds of reasons why legal abilities remain at their supe- Design, Jeanne E. Galick

rior quality.

Portland, OR 97204 OR Portland,

1000 S.W. Third Avenue Third S.W. 1000

740 U. S. Courthouse S. U. 740

of Oregon Historical Society Historical Oregon of The U. S. District Court District S. U. The