Owen Panner: An Oral History

i ii Owen Panner An Oral History

FOREWORD BY JUDGE OWEN PANNER

US District Court of Oregon Historical Society Oral History Project Portland, Oregon

iii Copyright © 2011 United States District Court of Oregon Historical Society Printed in the United States of America

PROJECT STAFF Janice Dilg, Editor & Oral History Liaison Adair Law, Page layout Michael O’Rourke, Interviewer

iv CONTENTS

Foreword...... x

Introduction...... xi

Tape One, November 23, 1994...... 1 Side 1—Family History Side 2—Golf & Youth Activities Tape Two, November 29, 1994...... 15 Side 1—Early School Experiences Side 2—College & Army Experiences Tape Three, November 30, 1994...... 28 Side 1—Basic Training, Officer Training School,, Courtship &Marriage Side 2—Law School Tape Four, November 30, 1994 ...... 44 Side 1—Early Law Career, Duncan McKay Side 2—Blank Tape Five, December 2, 1994...... 51 Side 1— Colorful Characters Side 2— Memorable Bend Citizens, Early Cases Tape Six, December 2, 1994...... 66 Side 1—Mitchell Flood, A Murder Case Side 2—Blank Tape Seven, December 19, 1994...... 74 Side 1—Judge McCulloch Memories, Judge John Kilkenny, Condemnation Cases, Counsel for Warm Springs Side 2—Warm Springs Tribal Council Tape 8, December 27, 1994...... 90 Side 1—Recovering Kah-Nee-Ta Side 2—McQuinn Strip, Pelton & Round Butte Dam Tape 9, December 27, 1994...... 106 Side 1— Timber Development Side 2— A Potential Job Tape 10, December 27, 1994...... 121 Side 1­—Internal Disputes, Native Fishing Rights Side 2—Celilo Falls & The Dalles Dam

v Tape 11, January 13, 1995...... 131 Side 1—Tribal Termination Side 2—Life in Bend Tape 12, January 13, 1995...... 145 Side 1— Expanding Contacts in Oregon, Range of Cases Side 2—Blank Tape 13, February 9, 1995...... 152 Side 1— Legacy of the Sixties, Honesty of Oregonians Side 2— Divorce Cases Tape 14, February 9, 1995...... 166 Side 1—Judicial Appointment, Nomination Process Side 2— Nomination Process (cont.) Tape 15, August 5, 1998...... 176 Side 1—Serving on the Bench, Relations with Appellate Courts, Attorney Relations Side 2—Magistrate Judges, Important Cases Tape 16, September 30, 1998...... 190 Side 1—Far West Federal Savings & Loan, WPPSS Litigation Side 2— Tonya Harding, Judicial Activism Tape 17, September 30, 1998...... 206 Side 1—Sentencing Guidelines Side 2— Blank Tape 18, October 9, 1998...... 208 Side 1—Media Coverage of Trials, Drug-Related Cases Side 2—Sentencing Hearings Tape 19, October 14, 1998...... 223 Side 1— Size of the Ninth Circuit Court, Possible Ninth Circuit Appointment Side 2— Possible Ninth Circuit Appointment (cont.) Tape 20, April 13, 2000...... 233 Side 1—Judicial Complaints, Memorable Judges & Attorneys Side 2— Life Outside the Court Tape 21, April 13, 2000...... 248 Side 1—Life Outside the Court (cont.) Side 2—May 15, 2000 Video-taped Session, December 19, 2005...... 252 Side 1- Mandatory Sentences, Civil Liberties, Moving to Medford, Federal Court Practices, District Court Historical Society Side 2 - Caring for Land and Animals Endnotes...... 263 vi vii FOREWORD

The Oral History Project of the District Court of Oregon Historical Society began in 1983. Through the efforts of Judge James Burns and his wife Helen, a gathering of lawyers, judges, and historians took place at the Society’s inception. The Honorable Robert F. Peckham, District Judge for the Northern District of California, discussed the Northern District Historical Society and the inspiration was born for Oregon’s District Court Historical Society, the second such organization in the country. The original Board of Directors of the Society was composed of twenty-one members with bylaws including the Presiding Judge of the Court, the Chief Justice of the Oregon Supreme Court, and the President and a representative of the Oregon State Bar. The original officers and directors included outstanding judges and lawyers – Judge John Kilkenny, Honorary Chair, Judge James Burns, Chairman, Randall Kester, President, Manley Strayer, Vice President, Elizabeth Buehler, Treasurer, Susan Graber, Corporate Secretary, and Robert M. Christ, Executive Secretary, along with many other top names in Oregon’s legal history. The Society decided to collect, study, preserve, analyze, and disseminate information concerning the history, development, character, operations, and accomplishments of the United States District Court for the District of Oregon. It was therefore logical that the Oral History Project should be established to preserve the histories of the judges, law firms, and lawyers who actively practice in the Court. With the assistance of Rick Harmon and James Strassmaier, the Oregon Historical Society held seminars to educate volunteers in taking oral histories with a biographical and Court-oriented focus. The Oregon Historical Society has been most

viii cooperative in agreeing to maintain these histories in their permanent collection for study by scholars and other interested parties. These oral history interviews have been taken by recording devices, and are either transcribed or transcription is underway. A transcript reproduces, as faithfully as possible, the original sound recording that reflects the special value of oral history, namely its free and personal expressiveness. Most of the transcripts in the District Court Collection have been lightly edited and reviewed for clarity and accuracy by the narrators. That process continues. It is through these wonderful oral histories that the story of the Court is told. We now have recorded nearly 120 individuals since the project began. The goal is to record the individual histories of all the judges of the Court, as well as those of participating lawyers. The Court has a rich tradition reflected in the activities of the judges and lawyers of the Court. The recording has been done not only by professional historians, but also by dedicated volunteers. As one such volunteer said, “The opportunity to interview someone that you always admired is truly an exciting experience.” The history of the Court is being created by the men and women who have participated in its collection and activities. The Society’s goals are to collect as much of that history as possible, because is it the history of the law and those who make it that constitutes the moral development of humanity. All of us who are students of the law venerate it. We are also interested in the people who make it. Judge Owen Panner February 28, 2006

ix

INTRODUCTION

Owen Panner was born on July 28, 1924 in Chicago. His parents Elmer Panner and Irene Murphy Panner took their new baby boy home to Whizbang, Oklahoma where Elmer worked as an engineer in the oil fields. Two years later the family moved to Shawnee, Oklahoma. They lost their savings in the 1929 stock market crash, but fared better than most due to Elmer’s steady employment. Living at the boundary of East and West, North and South, Panner heard stories of race riots from his Detroit cousins and witnessed first-hand violent racism during a summer spent in Arkansas. In Shawnee, blacks literally lived on the other side of the railroad tracks in a separate community with separate schools. “That was how things were in those days,” but Shawnee’s blacks and whites lived together in relative harmony. Black employees in the Panner household were almost like family and were cared for in their retirement years. Members of the nearby Tecumseh Nation attended the white high school and Panner counted several as friends. He had an Indian girlfriend for a year or so that he “liked very much.” Panner recalls the practical advice offered by his parents such as his mother Irene’s adage, “No job is very hard once you get started,” and his father’s admonition to “use your brain” and not rely on conventional wisdom. His father also passed on the love of the game of golf, Panner started playing with him at age six and became an expert golfer. In 1941, Panner enrolled at the University of Oklahoma, but World War II interrupted his studies. He enlisted the Army in 1943, hoping to be a paratrooper, but wound up in the infantry instead, and went to officer’s training in New Orleans. By war’s end he had reached the rank of First Lieutenant and commanded troop transport ships on several Atlantic crossings. After the war, Owen Panner returned to the University of Oklahoma and entered law school with a golf scholarship. Upon graduation he set out on a road trip west to Colorado and New Mexico, looking to settle somewhere with mountains nearby. In New Mexico he made a considerable sum playing golf for a dollar a hole with a local businessman. He decided to extend his trip to Oregon, arriving in Bend in 1949. The sun was out, the Three Sisters were brilliant, this was the place. Panner first worked as a car salesman, meeting many people, some of who became future clients of his law practice. After passing the bar in 1950, he joined the practice of Bend attorney Duncan McKay, becoming the trial lawyer for the office and representing

x clients in matters big and small. A significant early case was a lawsuit won against the State of Oregon by property owners who suffered losses during the disastrous flood of Mitchell, Oregon. In 1955, Owen Panner became the attorney for the Confederated Tribes of Warm Springs, due in part to friendships with tribal members dating back to his car salesman days. It was the beginning of a 25-year relationship, and a period of great progress and economic development on the Warm Springs Reservation. In the early days, Panner provided advice on projects such as the construction of the Kah-Nee-Ta resort and the development of the tribes’ timber resources. One complex matter Panner handled for the Warm Springs Tribes was the recovery of 79,000 acres of land known as the McQuinn strip. Omitted from the reservation due to a faulty survey in 1871, Panner rallied support for the Indian’s claim with Congressman Al Ullman and Senator Mark Hatfield. He negotiated with cattlemen, the Forest Service, and timber interests on the land until everyone was on board. In 1972, Congressman Ullman introduced, and Congress passed, a bill returning the land to the reservation. After 100 years, and several previous attempts, the Warm Springs got their land back. It was Congressman Ullman who recommended Owen Panner to President Jimmy Carter for one of three new positions on the U.S. District Court of Oregon. In December 1979, President Carter nominated Owen Panner, along with Jim Redden and Helen Frye, to the Oregon District Court. In the intervening 30 years, Panner has handled many high profile matters, including early cases from the 1980s Savings and Loan crisis to a ruling on Oregon’s hotly contested land use law in 2009. In today’s increasingly partisan critique of the judiciary Panner find’s himself in the middle: “I’m very liberal in my thoughts and compassion about people. I’m pretty conservative fiscally. But I don’t think in extremes, and most federal judges I think are pretty much the same ay.”w Owen Panner’s oral history was recorded in multiple sessions between 1994 and 2005. Owen is a great raconteur and his oral history is replete with vividly detailed stories. To read it is to traipse through the twentieth century, from rural Oklahoma in the 1920s, to Central Oregon in the 1950s, to the lofty heights of the Mark O. Hatfield Courthouse.

Michael O’Rourke

xi xii years of age was driving mules pulling barges on the Erie Canal. Never had any education, but became very substantial in the oil business and became a confidante and friend of Andrew Mellon and other Family History prominent people of that era.

MO: Today is November 23, 1994. This MO: Now, this is your mother’s father? is Michael O’Rourke for the Oregon Historical Society, and we’re starting an OP: Yes. Owen Murphy. He helped interview with Judge Owen Panner. The the college there in little Washington, interview is taking place in his chambers Pennsylvania. My mother and father, at the courthouse. after they met and were married, came to Today we’re starting at the Whiz­bang, Oklahoma, where my father beginning, so tell me a little bit about was working for Shell Oil Company. some of your earliest memories? Maybe They were living there when I was born. you can just start off telling me about your Because my mother had lost one previous parents, your father and your mother, and child, she had to have a caesarean, and what you remember of them from that they went to Chicago to a prominent time and what kind of people they were. doctor in those days on caesareans, where I was born. So I was born in Chicago and OP: My father was one of eleven immediately went to Whizbang, where children, grew up in coal mining and steel we lived for two years. Then we moved mill areas of Pennsylvania. He was the only to Shawnee, Oklahoma, where he became one who made it to college. He got there an independent geologist and petroleum because he was a good athlete, baseball engineer. pitcher, football player, and he went to the University of Pittsburgh in Pennsylvania MO: Did you mention what your father’s and got a petroleum engineering and a father did for a living? geology degree, and that’s what took him to Oklahoma after school. OP: My father’s father was a farmer My mother grew up in Washington, in Rochester, Pennsylvania, which was a Pennsylvania, just out of Pittsburgh, and steel, coal mining area, and the producer came from a family of oil people. Her of a lot of good athletes out of the father founded the Murphy Oil Company Pennsylvania coal mines and steel mills. in Pennsylvania and was an immigrant from Ireland. He came over and at twelve MO: Did you know your grandparents?

Panner, Tape One, Side One 1 OP: Yes, I knew my grandfather on remember the Model T’s. In those days my father’s side, but I did not know my Model T’s were running around all over grandmother on his side. I knew my the place, and then the Model A came grand­mother on my mother’s side, but out. Model T’s, I have memories of not my grandfather. those in the late ‘20s and early ‘30s. My grandmother on my mother’s Even though we had a little fancier car side lived in Washington, Pennsylvania that we traveled in most of the time, my for many years, and I got to know her father did have a Model T at one time, well because we went back there and and I remember you had to back it up visited in the summer with my cousins. the hill because if you went up a hill My mother had two sisters, both of who frontwards, the gas wouldn’t siphon would visit in the summer back there, so I into the carburetor. So you had to back got acquainted with them. them up the hill.

MO: Were these summer-long visits? MO: Did you stay with your grandmother? OP: Usually a month, six weeks, something like that. Long enough to get OP: Yes, we stayed in her house. She pretty well acquainted. had a big old three-story house. She had a gardener, and she always had one of MO: Did you enjoy those? the college students there at Washington & Jefferson College who drove for her OP: Yes, they were wonderful. We used because she didn’t drive. She had a fancy to travel by train or car from Oklahoma car. She was a Methodist and a very devout back to Pennsylvania, and in those days one, and Sundays there was nothing you traveling was a little different than it is could do except read or go for a ride in now. Took four or five days to drive from the car. She loved to play anagrams and Oklahoma to Pennsylvania. My father Parcheesi, other games like that, but you was doing well, and we always had a couldn’t play them on Sunday. good car, in those days a Packard. He Meals were precisely on time. usually had Packards, and then he had a Breakfast was at 7:30, lunch was at field car, a Model A, a Ford or Chevrolet twelve o’clock, dinner was at 6 o’clock, that he used in the field. and those times were absolutely held to. The discipline at the table was altogether MO: So he would get new Packards different than today. fairly often? MO: Was it different, also, from what OP: Every few years, yes. I still your family practiced?

2 Panner, Tape One, Side One OP: Oh, absolutely. It was very well substituted some wine that looked just controlled. Even as a six-year-old, seven- like grape juice— year-old, eight-year-old, we had to have a clean shirt and a tie on at dinner. Everyone MO: In his glass? had to sit quietly at the table ‘til everyone was finished. Everyone started together. OP: In everybody’s glass, all the adults, A prayer was said, of course. It was very and I can remember my grandmother good, I have fond memories of it. taking a sip and saying, “Elmer, your grape juice has fermented.” MO: Is that how it struck you at the time, also? MO: The bottle in the basement was a practice that your father had at your OP: I don’t suppose so. I don’t really grandmother’s house? remember that. I had a kind of a wild cousin who was always in trouble, and I OP: Yes. remember Billy was always resenting all sorts of things, but I can remember being MO: Not at your house, though? pretty malleable about the whole thing. My father suffered a little with it OP: That’s right. No, not at our house. when he came back. He’d usually come Our house, we had strict rules about back for a couple weeks in the summer and dinner, but my father was working long frequently would play golf, and if he was hours frequently, and so the timetable late for dinner, there was big trouble. And wasn’t as precise as it was back there. my father liked to take a drink of bourbon There were pretty strict rules. Everybody before dinner, and that was not allowed sat down together, unless my father in that house. He had a practice that my couldn’t get in at a reasonable hour. We grandfather had started—my grandfather said a prayer. Everybody stayed until also liked a little drink, though his wife dinner was finished, and everybody ate didn’t allow it, so he kept a bottle down all of their food. That was the rule, and in the basement, hidden. So my father nobody announced what they liked or continued that tradition. He would go didn’t like, that wasn’t acceptable. down and have his drink in the basement and then come up to dinner, and everyone MO: What about ties? knew what he was doing, including my grandmother, and they ignored that pretty OP: No, we didn’t have to wear ties. We much. had to wash our face and hands, be neat, I remember once my father—we but didn’t have to be very formal. always had grape juice, and my father I remember one summer my

Panner, Tape One, Side One 3 grandmother took us to Rehoboth Beach stopped at a hotel, usually a pretty nice on the Atlantic Coast, and it was so formal hotel in some town. that even—I think we were about eight or nine then—even eight- or nine-year-old MO: Would you have standard or boys had to have coats on to go into the favorite stopping points along the way? dining room in the evening. So we got a little bit of culture. OP: Yes. As I remember, we took Route 66, and we stopped at St. Louis, and we MO: I want to ask you a few more stopped at Chicago. Those are the main questions about your parents and your ones that I remember. early upbringing, but as long as we’re on the subject of your grandmother, I’m MO: Did you ever do anything at any of curious about the journeys. You mentioned these places? already that it took five days by car, and sometimes you went by train. Did you OP: Usually not. I don’t ever remember look forward to the journey itself? us going much out of the way. I can remember us going to a few parks and OP: We did. We always enjoyed it. The having a picnic lunch on the way, things train rides and the car rides were fun. of that nature, but that was about it. I’m sure my two sisters and I got a little boisterous at times, but I remember that MO: I guess you got to see quite a bit of mostly from my mother’s comments. But I the countryside doing that. don’t have any memories of us having any serious problems traveling. We enjoyed it. OP: We did. In those days, the drought was on. Oklahoma had dried up pretty MO: If you were on the train, I assume well. We lived in a pretty nice part of you just went straight through? the state in Shawnee, but those were during “Grapes of Wrath” times. My first OP: Pretty much. In those days trains memories, from around 1930 to ‘34, is it moved a little differently. You changed was pretty tough around Oklahoma. It trains here and there. But we did have didn’t affect us a lot because of my dad’s sleepers. business, but the farmers had a very tough time. That was before they really had good MO: And if you were in the car, I assume land conservation measures, and the dust you’d stop? blew, and it didn’t rain. I remember one story in Life OP: We’d stop at a hotel. In those days magazine early about a western Oklahoma they didn’t have a lot of motels. We usually family that all their friends moved out

4 Panner, Tape One, Side One year after year, and his wife wanted to go, MO: Right. And then those people went and he wouldn’t go and leave his farm, west. and every time his neighbors would leave, why, he’d give them a tire or a mattress MO: Right. So we went east to Joplin, for their land. They were just going to Missouri and St. Louis, and then on east abandon it, so he’d just take it over. And from there. finally the drought came in I think it was ‘33 or ‘34, and he had all his crops planted, MO: So I assume there were a lot of and the wind started to blow, and the wide-open spaces in those days in that seeds started to blow away, and his wife part of the country? said, “This does it, we’re leaving.” And he said, “Yep, we’re leaving.” OP: There was a lot of wide-open space, So they started down the road with and no hedgerows. Now there are so what they could carry. They didn’t have many irrigation dams and reservoirs, and anybody to leave their land to, and they they plant high rows of trees and hedges, got a few miles down the road, and a dark and they don’t plow it all up at once, like cloud came up, and it started to rain, and they did in those days. They plow forty he said, “We’re going back.” here and forty there, and it’s beautiful And they went back, and at the now. It’s different completely than it was time this Life magazine article was being then. Oklahoma is rolling oak trees, lots of written, he owned tremendous quantities red clay, red soil. of land, and two or three banks. That was I remember once my cousin from the end of the drought, and from then Detroit, Michigan came out and visited on the wheat crops and everything were us, and when we got him from the train wonderful. So he just happened to be in Oklahoma City, driving to Shawnee we there at the right time. go through an area that is really bright red So that was the era that was written soil, and he was nine or ten, but he was about. determined that somebody had painted that soil. He wanted to know why they MO: When you were out on the road, painted that, you know, and it actually would you see people actually migrating? looks in many ways like it’s painted in the area where it’s red. OP: Not really, because from Shawnee, Another time I was visiting him which was right in the middle of the in Detroit—his father was one of the vice state, pretty much, we went east, and presidents of Michigan Bell, and they the real drought problems were mostly belonged to the Detroit Yacht Club, and in western Oklahoma, northwestern and we were swimming in the pool there at southwestern and the Texas area. the Yacht Club. This was in the early ‘30s. Panner, Tape One, Side One 5 And there were some people right a farmer. He was adopted, and we never next to the pool there taking furniture and knew anything about his real family, but things off of a fancy yacht, probably a 40-, he was adopted, and so the name Panner 50-foot sailboat. They were even taking isn’t related to my blood at all. It was his the brass wheel off the yacht. And being adopted name. curious kids, we were over there saying, He was Jacob, and I have memories “What are you guys doing? What are you of him being a wonderfully kind man. He doing?” quit farming. By the time I knew him, he And they said, “We’re going to go had sold the farm. sink this yacht.” I remember my dad and grandfather And we said, “Oh, don’t sink it. telling me a story about them losing one of Give it to us.” my dad’s sisters to scarlet fever. She was “No, we’re going out and sink it.” literally burning up with scarlet fever, and And sure enough, they took it out in those days they didn’t have antibiotics to the middle of the Detroit River right and other things, and the medical advice there—we could watch them—chopped a at that time, the doctor said, “Don’t give hole in the bottom of it, climbed in a little her any water.” They didn’t believe she dingy, and sunk that yacht. should have water. And we went home and asked my And I remember my dad saying cousin’s father, “What’s going on?” And that he would sneak her water because he said, “It’s going on every day. People she was crying for water. And I remember can’t afford the taxes—Depression, can’t him telling me that “No matter what any afford it anymore, can’t sell it, don’t want professional ever tells you, sometimes to pay the taxes, put it down.” they’re wrong, and you have to use your So we got a good impression of brain, you have to think.” And he told what was going on in the Depression. me that as an example: that was the People were committing suicide when best medical advice at that time, that if the stock market crashed in ‘29, I can somebody had scarlet fever, you didn’t remember that. My dad lost a lot of money give them water, which now is absolutely in the stock market. I can remember that. I wrong. You just fill them with liquids. was five years old then, I guess. I can remember both my dad and my grandfather telling me that story, and MO: What about the grandfather on it made a great impression on me because your father’s side? whether you’re dealing with a lawyer or a doctor or an engineer or what, you still OP: He played the organ in the church have to use your brains. beautifully. He had a wonderful touch, had played the organ for years. He was MO: So you do have some memories of

6 Panner, Tape One, Side One the Depression, even though you were They had mules that they farmed with. I quite young at the time? was privileged to get to help drive a mule plowing occasionally when my friend OP: I do. I can remember we had a would let me. He was bigger than I was, a wonderful neighbor who was a lawyer, big, stout farm boy. and he had to take work with the WPA I can remember hoeing corn, and (Works Progress Administration). they had two horses, too, that he worked, Roosevelt started the WPA to break out of as well as the mules, farming, and if we the Depression, you’ll recall, and he took worked hard enough, his dad would let a job with the WPA, digging ditches, to us ride the horses occasionally. After we’d support his family. This would have been finished a good day’s work, why, we could 1936. Things were very tough. ride the horses for a little while. So he wasn’t all bad. MO: This was a lawyer in Shawnee? I can remember, too, being jerked right up over the plow when it hit a rock OP: This was a lawyer in Shawnee, yes. or a hard spot going along. I don’t know And he later became a very prominent, if you ever saw a hand plow pulled by successful lawyer, but to get out of the a mule, and I wasn’t very big, and I can temporary problems, he started digging remember hitting a hard spot and the ditches. plow going like this, and me just going right with it. MO: That memory wasn’t enough to put you off law, though, eh? MO: Up over the handles?

OP: No. No, but it has caused me lots OP: Right up over the handles, yeah. of times to appreciate the fact that I’m not Whoa! digging ditches. He had a wonderful big pond on There was a big farm, right next to that farm, too, a nice muddy Oklahoma where we lived, and I had a good friend pond that seemed awful big in those who lived on that farm, and his dad was days that we used to swim in. Lots of quite cruel to him, as many were in those cottonmouth water moccasins. We swam days. I mean, I thought he was, at least. right with them. Splashed around a little He whipped him pretty severely. Didn’t to keep them away from us. permanently injure him, but he would use willow switches and whip him pretty MO: So they’d be in the water with you? good. They were having a really tough OP: Yes. I don’t know if it’s true, but time, and his dad was a little bit grouchy. we always believed they couldn’t bite you Panner, Tape One, Side One 7 under the water, if you were under the got our health, and I’ve still got a good water. It made sense because we always profession, and things will be just fine.” thought if they opened their mouth underwater, they’d get too much water in MO: Did he lose essentially all of his their mouth. They wiggled along on top of savings? the water. One time we were feeling for golf OP: He lost pretty much all of his balls at the golf course in the lake, going savings, yeah. He had invested, as he put along. We could just barely reach the it, a little too heavily in the stock market. bottom, you know, feeling for golf balls, In those days, nobody ever thought there nose out of the water. I came up to this could be a crash. It was just up and up and pipe, six-inch irrigation pipe that’s about up. half submerged in the water, and here’s a snake looking at me right like this on MO: The Roaring Twenties. that pipe at nighttime. And I remember thinking, “You’re supposed to hold real OP: The Roaring Twenties, and things still,” but I wasn’t going to hold real still! I were hot. The flappers were going to just ducked under the water. town. We used to go in the water for the pro to get golf balls out for him. [End of Tape One, Side One]

MO: So were the snakes aggressive? OP: We had a maid when I was growing up. Her name was Maudie. She was a OP: No. Most of them weren’t wonderful lady. She was with us many cottonmouths, weren’t poisonous. Most of years. them were water snakes, and it was awful My mother had a great sense of hard to tell the difference. So we treated humor. I remember one Thanksgiving them all as poisonous. Maudie was bringing the turkey in to dinner and stumbled or slipped or MO: Sounds like a reasonable course. something, and the turkey went on the You said you remembered your floor, and my mother very cheerfully said, father losing money in the ‘29 crash, when “Maudie, it’s just a good thing we cooked you were very young, so I take it that was two turkeys. Just take that one back and quite a prominent topic? get the other turkey.” We didn’t have two turkeys. She just took it back, brushed it OP: It was. It was a quite a little shock, off, and brought it back out, and everybody and it was very upsetting to him. But I knew what had happened, but everybody remember him also saying, “We’ve all was happy.

8 Panner, Tape One, Side Two Anyway, Maudie was with us for supportive of him to his face, sometimes many years, and about the time I got to she was a little softer with us, and I can be a teenager, Maudie announced that she remember a few times my mother would was quitting. She couldn’t take these kids tell us, “Well, you know how your father anymore. She was getting too old for this is, just be patient.” job, and she was quitting. And I remember She was not a tough disciplinarian. my mother saying to her, “Maudie, there’s She always said her mother and father only one difference between you and me: were so tough on her that she didn’t want you can quit, and I can’t.” to be that way. And they were. I mean, we learned from my grandmother, as I told MO: I’m curious about the roles that you. So she was much more moderate. your mother and father played in your Both of them were great upbringing and what kinds of values they philosophers. I can remember so many stressed when you were growing up. things that they told me that I still use. One of my mother’s favorite expressions OP: My father was a throw-back to the was, “Well, remember, Owen, cowards era of Father is All. I don’t know if you ever die a thousand deaths, the brave just die saw that stage play that was so famous, once.” And I have found that very true. but he was in charge of the house. My If you worry about something a lot, you mother was a wonderful person, and she suffer a lot, but if you just do it, why, it’s all loved him, and she respected the fact that done. he was rather dominant and controlling, The other thing she used to say as many fathers were in those days. was, when I would get discouraged He was quite brusque, quite about a job in law school or get behind or firm. There was no disobedience. No something, she would say, “Remember, disobedience. When my father said to me you just take one shovelful at a time, one or my sisters to do something, it was not, at a time, and everything will come out. If “Well, I don’t want to,” or “Well, I’ll do you get confused and forget to take those it after a while.” That was not part of the shovelfuls, then you’ll get in trouble.” program. When he said do something, it And that’s certainly true. was done. She used to say, “No job is very I don’t think he ever whipped any hard after you get started,” you know, of us more than maybe once or twice. things like that. Just great practical advice. I remember a couple whippings that My father was a great lecturer to I got. I don’t know for sure that he ever us. He was always telling us good things whipped my sisters. But I always knew it to remember. He was a stickler on never was a distinct possibility, and there was no giving up or quitting. He was very, very disobedience. And my mother was very persistent. He took up golf at age 40 and

Panner, Tape One, Side Two 9 became very proficient, in fact, became was playing a fellow who had just gone a par shooter, had a good game. I was to the finals of the U.S. National Amateur, fortunate, he taught me. He was married much favored over me, nobody thought late in life. He taught me, and I started at I had a chance, up at Muskogee, and I six years old, dragging a club around and found myself on the 16th hole with about playing with him. He was very patient a 30- or 40-foot putt, and all I had to do about playing with me and getting me was get it in in two and win the match. out, very impatient about being sure that And we had a big gallery, and I suddenly I swung the club right and stuck with it. got very nervous. Hadn’t been too much I can remember once when I was ‘til then. But I got real nervous, and I about twelve or thirteen and getting remember walking over to my dad and to think I was pretty good—throwing saying, “Look at my hand, I don’t know if a club one time, and he walked over I can get this in in two.” very quietly, put a vice-like grip on my And he said, “Well, just go shake shoulder that practically crunched it, his hand, give up the match, and let’s go and said, “We don’t do that. That’s not home.” acceptable. We don’t throw clubs. Any Well, that made me really mad more club throwing, and you won’t be then, see. Then he said, “If you try to sink playing anymore.” I never thought about that putt, you won’t have to putt again. throwing a club again. So I thought, “Well, I’ll try to sink it.” So I tried to sink it, and it rolled right down about that close, you know, just a Golf & Youth Activities tap-in. He had great psychology. He played on the same football MO: Was it difficult to learn golf? team at Pittsburgh University with Jack Sutherland, who became a very famous all- OP: It was difficult. I can remember a American end. My dad was quarterback. lot of times I broke down crying. I’d get So he had tremendous guts, acquired mad at him. He would just stay right with being one of the youngest kids of eleven it. “You’re going to do this, you’re going to in a tough area. There was no quit in him, do this.” I’ve played a lot of golf, I played he was tough. on the high school and college golf teams, won a lot of tournaments, and I attribute MO: It seems as if another possible it all to his determination that I would reaction, though, to his strict ways swing the club properly, that I would stay in teaching you golf could have been in there and fight, not give up. rebellion on your part. One time I was playing in the state golf tournament as a kid. I was sixteen. I OP: Sure. I did rebel a few times, but

10 Panner, Tape One, Side Two that really wasn’t an option with him. And went thirty-six holes, and you were lucky then I would get over it. enough to get two bags, why, you can see I’ve often wondered, should he you had maybe three dollars, if you were have been a little softer on me, but as I think lucky, and in those days you could buy a about it, I’m very satisfied with everything tremendous meal for twenty-five cents. that he did. I still find—one of the tough Big money. things about golf is you learn things over Roughnecks in the oil fields, who and over. You do them, and then you were the highest paid blue collar workers, forget, and the muscle coordination is were making six dollars a day, at the most. difficult, but I still find things that he told And here we were caddying and making me I’ve got to get back to again. maybe three dollars a day, you know, as Especially the temperament. I think thirteen-, fourteen-year-olds. it stood me in good stead in the practice Then on Mondays in the summer, of law as a trial lawyer. I learned that if why, it was caddie day, and we’d play you ever quit, you’re going to lose. No forty-five, fifty-four, sixty-three holes. matter how bad it looks, if you don’t quit, We’d just go round and round playing. something may come out. MO: So the caddies could come and play MO: It sounds like golf was an activity on that day? from very early on for you. OP: Yes. And I could come and OP: It was. I grew up caddying. That play other days because my dad was was the way I made money. We got paid a member—the Elks Club had the golf twenty-five cents a nine when I started course, and he was a member of the Elks caddying, about twelve or thirteen, and Club. Since he had a family membership, maybe you’d get a nickel tip if you were I could play anytime, too, except up ‘til good. And if you got to carry two bags, I was about twelve or thirteen I couldn’t you’d make fifty cents, maybe sixty cents, play on the weekends when others were and that was a lot of money. playing, but by that time I was playing On rare occasions, as I got older pretty good, and they would let me play. and bigger, we could carry four bags and really make money then. And if you went MO: Especially after the match you just thirty-six holes, you know, you’d have so described where you had your 16th-hole much money you didn’t know what to do anxiety, you must have begun to acquire a with it. We would go out at five o’clock bit of a reputation as a good golfer. in the morning Saturdays and Sundays to get first on the caddie list so you could OP: I did. I went on to the finals of that go thirty-six holes caddying, and if you state amateur then as a sixteen -year-old,

Panner, Tape One, Side Two 11 which was kind of unheard of. I lost in tennis champion. She was a fine tennis the finals of that match, but it was a big player. surprise that I could get that far. Later I won a lot of tournaments. In high school MO: What was the relationship between I won the southwestern high school you and your sisters? tournament, which was about five states. It was a very good activity for me. I OP: I’ve thought about that so much. was always busy, either caddying, playing We have such a great relationship that or working. I worked occasionally in it’s always been hard for me to ever the pro shop. I worked some on the golf understand how siblings can quarrel course, worked some in filling stations— about things. We had a good family, and I we called them filling stations then. And do not ever remember any serious conflict. in those days filling stations fixed tires, I was older than they were. They treated did minor repairs to cars, and I was lucky me wonderfully. I think I treated them to have those kind of chances. wonderfully. My younger sister once, not too MO: Did you do that kind of work in the long ago, said to the older sister and filling stations, minor mechanical work? myself, “You know, Mom always liked you and Mary Anne better than she liked me,” OP: Yes. There were two summers and we said, “What? You’re crazy, Janet. when I worked in service stations, and That’s dumb.” Because we never sensed the last summer of high school, I went any partiality at all, and I don’t think there down to El Dorado, Arkansas. My dad was, but she did envision that, at least. She got me a job as a timekeeper down there was the youngest, and I think probably in connection with the refinery that was because she didn’t get to do some of the being built in El Dorado, Arkansas. I things occasionally that we did, being a went down there with him and spent that little younger. summer. But I never had any feeling that any of us were ever preferred or that we MO: Apart from golf, did you have any ever had any conflict at all, and they feel other leisure activities­ that you enjoyed a the same way. They don’t feel we ever had lot? any problems among ourselves at all.

OP: The Elks had a good swimming MO: But your younger sister’s comment pool, and we swam a lot. We hunted. My sounds very much like the kind of dad liked to hunt quail and ducks. Like comment siblings make to one another. all kids, we occasionally played tennis, not seriously, but my sister became a state OP: Yes. We had never heard that

12 Panner, Tape One, Side Two before until just recently, you know, so it in the business world to speak of. It was was kind of interesting and fun, and she different times. Fortunately things have was laughing about it, too. changed.

MO: In what ways were things different MO: And you were a church-going for them, being women as opposed to you, family? a son? OP: Yes, we went to the Presbyterian OP: Well, it was different in those days. Church. Women didn’t have the expectations they have now. MO: And were either of your parents My oldest sister became a teacher. active in the church, apart from just going They both went to college, both joined a to services? sorority, Kappa Kappa Gamma. I was a Phi Delt. They both got their degrees. OP: Not really. Neither one of them Both of them almost immediately— were. They went to church regularly. They my older sister taught for a couple of took part occasionally in things, but they years, but then married, had six girls, and weren’t real active in the church. my youngest sister married a fellow who started out with J.C. Penney’s clothing and MO: Did their offerings of advice and then got into the banking business, and philosophy to you as you were growing she was a housewife, and so was my older up include religion? sister, both of them were for many years. My youngest sister is still married OP: Yes. My father read the Bible to a banker. They own a bank. She has a tenaciously, and all of his background travel agency. and upbringing was Christian. My My oldest sister got a divorce. After father would not read anything but the having six girls, her husband divorced her, Bible. He didn’t want anybody telling and she hasn’t remarried. She’s busy with him what the Bible said, he could read her six girls and her grandchildren, and the Bible. My mother loved to read her husband left her very well off when he commentaries about the Bible. There was left. So she hasn’t ever had a career other a daily church Bible lesson that came out than as a mother, and preliminarily as a of the Presbyterian Church that she read teacher. regularly. She read the Bible a lot, but But women in those days were not as much as my dad. expected to be housewives and mothers. There were a lot of them that were MO: It sounds like your parents had a teachers, but there weren’t any of them good marriage.

Panner, Tape One, Side Two 13 OP: They did have. As I’ve thought remember Mrs. Hamilton, the principal, back about it, mainly I think because my administering three good whacks to me mother yielded to my father. My father as I bent across the desk. would have been very tough. I don’t know that any woman in this modern MO: Do you remember what the society could have gotten along with him infraction was? because he was rather dictatorial. I can remember my older sister, particularly, OP: Yes, another fellow, and I put a had a bad stomach, and she used to leave garter snake in the teacher’s drawer, the table every so often crying because she which she didn’t think was very funny. was sensitive, and my father would say It wasn’t a poisonous snake, but she still something that would upset her, be a little didn’t think it was very funny, and when tough on her. My younger sister and I she asked who did it, I admitted it. The were better at taking it and were not quite other boy didn’t get paddled because he so sensitive. But he was tough. He was didn’t open up about it, and I figured it very demanding, and rather opinionated. was mostly me, anyway. My mother was just the opposite. But I made good grades. My She was wonderfully diplomatic. mother was pretty good about educating Everybody loved my mother. My father me before school, and I started a half a didn’t have an awful lot of close friends. grade ahead of time. In those days you [Recording stops, then resumes] could do that. Then when we got to the second grade, they discontinued that, so MO: I wanted to ask you about your I either had to go another half a grade school experience, too, starting with your ahead or drop back a half grade. I went first memories. another half a grade ahead. So I was a year younger than most kids, and at that age, a OP: Grade school. I can remember year is quite a little bit. being very puny, getting beat up by the So I wasn’t very athletic, as I say, boys. Especially the first few years, I had and I didn’t enjoy sports in those days. a tonsil problem and wasn’t particularly Later, as I got up towards middle school, healthy. But I got out of that pretty quick. things changed a little, and I even played I remember getting a paddling from on the middle school football team, and the principal. We had a little wiry woman did some boxing. principal, and in those days the practice But my memories of school are was if a teacher wanted to administer good. It was a small school, Woodrow discipline, they sent you to the principal Wilson, named after one of our presidents. with a note about how many whacks you were to get with the board. I can MO: And was it a one-room school?

14 Panner, Tape One, Side Two OP: No, there were several rooms. It around behind you, and he’d spend most had grades one through six, and there of the class with problems up on the board, was a separate room for each grade and a and he’d come around behind us, and if separate teacher for each grade. you were talking or not paying attention, he would just rap you slightly across the [End of Tape One, Side Two] shoulder from behind, you know, which caused you to pay attention.

Early School Experiences MO: Were there any teachers from that period that you particularly liked or were MO: Last time you were talking about influential on you? some of your experi­ences in school, and I think we talked about grammar school OP: Well, I remember him. His name and were still in that conversation when was Mr. Flack, and he had little or no sense we had to break. Before we move on to of humor, but he was a good teacher. I later schooling, were there any sub­jects remember Ms. Hamilton, who was our that you were particularly good at or that English teacher, Ms. Flournoy, who was you partic­ularly enjoyed during your our music teacher and also taught us grammar school days? history, as I recall.

OP: I don’t have any recollection of any MO: You mentioned that you were particular sub­jects, unless maybe it was caddying, but that must have been a little penmanship. I always liked pretty writing bit later on? and penmanship. But generally I liked all of the classes. We had wonderful teachers. OP: A little later. I was thinking about It was a school that had, as I think we that, I think I probably started caddying mentioned, grades one through six, and when I was about eleven or twelve. We each grade had its own separate teacher. had a good group of players on the golf I think some of the grades had a couple of course. It wasn’t a big club. Everybody classes because of the size. knew everyone. They were friendly They were good teachers, stricter and respectful of us, and we were very in those days than they can be nowadays, obedient and respectful of them. and the discipline was good. I remem­ We had a good pro. He would see ber we had a math teacher—I never that the younger kids didn’t have too particularly liked math, but he managed heavy of bags to start with, and that they to get our attention. He carried a pointer were instructed properly about manners, around with him, and he would walk and I can remember him being careful

Panner, Tape Two, Side One 15 to see that as younger caddies we didn’t course, as you have to with someone that have the big heavy bags until we got a age. little older. So I did all of those things. Did As we got older, we would carry yard work for my mother, which I didn’t two bags, and on rare occasions, when we ever like. Rode my bicycle a lot. We lived got to be fifteen, sixteen, we carried two on North Broadway, about a mile from bags on each shoulder. And when you downtown Shawnee, and in those days carried two bags on each shoul­der, the kids could ride their bikes up and down rule was you just walked down the middle the sidewalks and the streets without so of the fairway, you didn’t have to go find much fear as they have nowadays. everybody’s ball. They just came and got their clubs. That was when there was a MO: After you entered high school, how shortage of caddies, and it didn’t happen did that change your experience of school? too often, but when that happened, we It was a different school, obviously. were really quite wealthy. Then we’d get a dollar or more for each nine holes, and OP: Yes, it was quite a bit bigger school. if we could go eighteen or twenty-seven The town, as I recall, was about 20,000 at holes, why, we were really rolling in the that time, when I went into high school. We money. had six or seven hundred students in the high school. MO: What kinds of things did you do to I played on the golf team. As a amuse yourself when you were in grammar freshman, and in junior high, as we called school? I think you did tell me about the it then, in the eighth and ninth grades I swimming hole and the water moccasins. played football, and that disappeared when I became a sophomore. I still weighed about OP: I used to go to my friend’s farm 120 pounds and wasn’t that big and strong that I went to school with, I.H. Townsend, and couldn’t quite handle the football, so I and we would work on the farm under his began to concentrate more on golf. dad’s supervision, rather strict, as I think I I worked on the school yearbook, told you. Then we would swim in his pond things of that nature. Continued caddying occasionally. We would occasionally get to a lot. Continued working on the farm ride horses. occasionally, and during high school My father had started me playing worked some in a ser­vice station. golf when I was about six years, actually. Those are the principal things. I rode I didn’t play seriously much until I was my bike to school, about a mile down and around eight, but he played with me and back each day. It was a great town, really, to helped me a great deal. Took me out, of grow up in.

16 Panner, Tape Two, Side One MO: Was there anything about the friends—none of them were wealthy, my academic experience of high school that father’s friends—well, there were a few, stands out at this point? but they weren’t our close friends. There were a few oil millionaires even in those OP: I think I began to like history, days, but most of the oil people weren’t hit government, English, speech, the liberal as hard in the Depres­sion. Oil continued arts. Began to not be quite so happy about to sell, and if they were in oil, they made a math, chemistry, biology, things of that modest living. nature. Lawyers, doctors,and professional people, had a tough time. Those were the MO: Had you started thinking about a days when if you didn’t have some kind of law career at that point? an income, such as oil, it was tough, and the federal government was laying off OP: I really hadn’t. I don’t recall that I people. The state didn’t have many people ever had any thoughts about what I was in those days. So agriculture was in really going to do. Even when I started college, tough shape, and I can remember even in the first two years are substantially the Shawnee—which is in the center of the same for everyone, and I remember state, a rather pretty part of the state—I thinking I wanted to get a good education, can remember the dust blowing in the and it would come to me one of these house and my mother having a problem days. My father and mother encouraged keeping the house clean. me not to worry too much, but just to get We had a very modest home. There my education started, and then maybe were three small bedrooms, my two sisters something would happen. shared one, and I had one, and my mother and dad shared another. I would say it MO: Before we move on, although probably wasn’t more than 1,000 to 1,100 we’ve talked a bit about the Depression— square feet. A nice house, but not big. We you told me about the sinking of the yacht had a nice yard. We had a back yard and a and a little bit about the Dust Bowl times field behind the house that we owned. in Oklahoma—are any other memories My dad came home one day when you have about the way the Depression I was eleven with a horse, which I’d affected people in nee,Shaw­ people that always wanted because I had been riding you may have known personally. Do you at the neighbor’s. He had traded some remember much about that? oil royalties for a horse and a saddle, and brought this horse home. It was a little OP: Most of our family’s friends were mustang, hotter than a pistol, bucked me in the oil business, and it wasn’t hit as off most every day sometime or another hard as agriculture, so an awful lot of my during the day.

Panner, Tape Two, Side One 17 As we got older, why, we would there wasn’t the kind of upheaval or bad try to ride him double, which we knew feeling about it that there is today. Can would make him buck, so that we’d see you fill that picture in a little bit? how long we could stay on. Scooter was OP: Yes, I can. The railroad tracks his name, and every so often I’d get hurt a separated the whites from the blacks. little bit, and my dad would ride him and The blacks lived on the other side of the straighten him out, and then he’d be better railroad tracks, and that was just kind of for a few days, until something scared him an unwritten rule. They had their own again, and he’d buck me off again. schools, their own high school, and their My dad built a little stable for own football team. Those were the days him for hay and a stall for him, and my of separa­tion. In the public, at the railroad responsibilities were to take care of him, station there were facilities for the blacks and I kept him pretty much through high and facilities for the whites. That was a school. I think I was about a junior when way of life, and nobody, not the blacks or we got rid of him. any­body, thought a lot about it. I never remember seeing any MO: Did you replace him with another violence or any problems in Shawnee. I horse? don’t know if I told you about my summer in Arkansas where I saw the violence— OP: No, I didn’t have another horse then. When I went to college, I was fortunate MO: No, you didn’t. enough to get to play polo because the school had a polo team, and they had OP: One summer I worked down horses. They had an artillery ROTC unit in Arkansas in a refinery, my dad there, and they had a polo team. So I was was engineering and supervising the able to make the polo team and get to play construction of a refinery, early in the war. some polo. It was even before the Japanese attacked Pearl Harbor in 1941, as I recall, about that MO: And keep up your horsemanship. time, though. I got on a bus to go to work one OP: Keep up my horsemanship a little. morning, and a young black boy got on—a young black man, we don’t say MO: Another thing about Shawnee that “boy” anymore, but he was young, he was we talked about briefly was race relations probably seventeen or eighteen— and in the town, and you mentioned some when he got on, he started to sit down in things about the status, that they were the front of the bus, and the bus driver separate and not really equal, but that said, “Get in the back of the bus.”

18 Panner, Tape Two, Side One And the black young man looked at why should the blacks have to sit in the him kind of crossways. I was sitting right back of the bus, or why should they have in the front watching it. And he gave the to be excluded from restaurants, as they bus driver a dirty look, and the bus driver were in those days. It was an eye-opening immediately jumped up, and he had a experience for me. black­jack, and he started beating on the kid, you know, and beat him down to the MO: Did your dad have any answers floor, and picked him up and threw him in for you? the back of the bus. I can remember I’d never seen OP: Well he did. I remember that he felt anything or thought about anything like it was a very unfortunate thing that had that, but I never will forget it. It was a developed in this country, starting with terrible thing, and I know that a lot of that slavery and traditions that had developed, went on in the Deep South. and it was very unfortunate. And I But there wasn’t much resistance. I remember he predicted that hopefully mean, that kind of resistance such as he someday it would change. put up was very minor, but it resulted in He had a very good approach to it. so much trouble that the blacks just didn’t He was sympathetic to the blacks, as my resist in those days. It was much later that mother was. We frequently had blacks they began to resist. working around our yard, in our house. My mother and father had a fellow who MO: That must have been quite a did yard work. Jackson Davis was his shocking experience for you. name, and he drove a horse and a wagon with his tools in it, and he would come a OP: It was a terrible experience. I couple days a week and work on the yard. remember being really upset by it, and I And he got too old to work, and my mother have a distinct memory of it always. and father contin­ued to pay him the same salary they had paid him. They had paid MO: Did you talk to your parents about him a monthly salary, and they continued it? to pay him after he couldn’t work, and even after my father died, my mother kept OP: Yes, I did. My dad was down there. paying Jackson Davis. She would take We were living together in a little boarding clothes and food to the Davis kids’ homes. house. I remember talking to him about Jackson would bring his grandchildren, it and asking him how that kind of thing and the maids that worked for us would could go on, and how unfair it was. For bring their kids, and my mother was very, the first time I really began to wonder very helpful to them.

Panner, Tape Two, Side One 19 At the same time, she accepted, as OP: Well, I don’t remember that she ever everybody did, the idea that there was not told me that I couldn’t go with her, but socialization between the blacks and the I remember her telling me—my mother whites, and there was simply no thought of and father both were good students of intermarriage or inter-dating or anything the Bible, and I remember her telling of that nature. In fact, in high school I had me about the Tower of Babel and how an Indian girlfriend. There were a lot of the Lord separated people into different Indians in Oklahoma, and I had an Indian areas, and that it really wasn’t good to mix girlfriend that I liked very much. My the races. She was very gentle about it, but mother treated her wonderfully, but it was I can remember her suggesting that. apparent she wasn’t very interested in that I think the blacks are maybe coming relation­ship. She never showed it to her, to that viewpoint more and more, and the I think. It didn’t bother my father any, he Indians. In the years I represented the thought it was just fine. Indians, they were not very happy when But things were different in those their Indian people intermarried with days. There was an Indian reservation whites or blacks, and blacks have gotten to close by at Tecumseh, and Indians went the point, fortunately, where they’re very to our schools. And in Oklahoma, there proud of their race, and there is more and really wasn’t a strong race discrimination more an indication that the blacks aren’t against the Indians. The Indians had been so anxious to intermarry with whites. pretty well assimilated in most areas. You know, keeping pure the strain. Those things change from time to time. MO: So the Indians went to your school, but black students didn’t? MO: That’s right. You were never serious enough with the Indian girlfriend that it OP: Black students didn’t. And in those came to a head? days there weren’t as many mixtures. Today at Warm Springs, for exam­ple, OP: No. I only went with her for there are an awful lot of young people probably a year in high school, as I recall. who are half black, half Indian, or maybe a fourth black, a fourth Indian, half white, MO: And you made these trips north or whatever. That wasn’t so common in every summer. By the time you started those days. In fact, it was very uncommon. to gain this consciousness, some of the questions underlying the separation of MO: You said your mother wasn’t too the races, did you take that thinking with interested in that relationship. How did you when you went north and observed she show that to you? differences there, as opposed to the way

20 Panner, Tape Two, Side One things were in the South? And if so, what OP: Yes. I remember we used to have were the differences? some arguments. We’d argue about things like that, and I can remember him arguing OP: I remember my cousin from Detroit that the South enslaved the blacks and that I told you about—Detroit had its race that they kept them in their place and that riots in those days. The race riots in Detroit wasn’t true in the North, and it wasn’t. were similar to Watts in Los Angeles. You There wasn’t the separation in the North, would­n’t remember them, but Detroit had but there was separation in fact. They lived some terrible race riots for a couple years in certain areas. They weren’t allowed to off and on, burning of buildings, tearing move into the nice neighbor­hoods. There up of property and cars, injuring of people. were still many separate schools, most [Recording stops, then resumes] My relatives schools were separate. So it was a problem and friends in the North were beginning throughout the country. to say how bad the South was treating the Negroes, and it just occurred to me that MO: And did you identify yourself as a maybe they weren’t being treated any southerner at that time? better in the North, either, and that this is what brought about the race riots, and the OP: Well, we weren’t strictly North was beginning to have problems, Southerners, but we were pretty close to too. it. Across the Red River into Texas, they Those are the main memories I considered themselves part of the South. have. The North was very critical of the We considered ourselves Westerners, South. The people I was talking to in the really. But there were some of the same North were critical of the South, and yet things in Oklahoma that were going on in really there wasn’t any great difference, the South. and I think to some extent that still exists. Did I tell you about the Sipuel We here in Oregon are very critical, as case briefly? Sipuel [ v. Board of Regents of far as newspapers and public statements University of Oklahoma, 332 U.S. 631 (1948) go, about blacks being treated badly, and (per curiam)] I think I did. That was the first yet right here in Portland we have pretty legal case in Oklahoma when she tried to serious problems about the treatment get into the law school. Oklahoma didn’t of the blacks in North­east Portland. The resist school desegregation like some of problems remain and need to be worked the states did. It was a little different. at constantly. MO: We’ll talk more about that case. MO: And you had discussions with your I asked you already about people cousin about this? Is that right? that might have been influential to you

Panner, Tape Two, Side One 21 in your grammar school years. When girlfriend. What was the dating scene like you were a teenager, was there anybody when you were a teenager? outside of your family who stands out in your mind as a good friend or a particu­ OP: Well, it was quite a bit different. larly good teacher or mentor as an adult? It was quite a bit different. When I was OP: I had some really good friends in sixteen, I got a driver’s license. By that our neighborhood that I went all the way time I was starting my senior year in high through school with, of my own age. school, and after that I could drive the I can remember a few high school car and go pick up my date and be in by teachers, but I don’t recall any of them midnight on the weekends and by nine as being particularly strong. There was thirty during the week, if I was allowed to an athletic teacher, instructor, who was go out at all. our golf coach in high school, who I Before that, it was strictly a remember was a very fine, moral man, question of meeting somebody at a school and I remember his influence quite a little event or function, or maybe meeting bit. A fellow by the name of Ray LeCrone. somebody at the movies, or if they lived But mostly it was my father and mother. close by, walking to the movies, things There were some neighbors. There of that nature. It was quite a little bit was a woman who was the wife of a lawyer, different. There were absolutely strict good friends of ours, and she started when rules, a nine thirty curfew during the we were in grade school reading to us one week and midnight curfew Friday and night a week for an hour. Satur­day nights, if I was allowed to go out. It was controlled, and my parents [End of Tape Two, Side One] knew exactly where I was at all times. I can remember my dad coming out to OP: She read to us, and we had regular look for me a time or two when I was a reading sessions. She had a daughter, and little bit late getting in, and there weren’t there were a number of the kids in the too many places to look. There was a neighborhood that would gather around drive-in food stand that everybody went and listen to her read to us, and we would to, and there just weren’t very many discuss and talk about interesting things places to search to find you. and about religion. Other than that, I don’t really MO: That must have been embarrassing remember anyone that was of any to a teenager. particular influence to me. OP: Yes, it was. But I was grateful for MO: You mentioned your Indian it later. I had one friend whose father

22 Panner, Tape Two, Side Two was quite wealthy and was the Buick- They didn’t believe in spending money, Chevrolet distributor in Shawnee, and either individu­ally or by the government, his son always had a Roadmaster Buick that you didn’t have, and so they were not and a pint of whiskey in the pocket of the Roosevelt admirers. car, and his dad wasn’t quite as careful about him. So there were some deviations MO: And what about yourself, did you from what were considered proper by have any political ideas then? my parents, but for the most part young people then behaved quite a little different OP: I didn’t really have any then. I don’t than they do now. think I paid a lot of attention to it then. I don’t believe I ever had many ideas like MO: I don’t know that we’ve talked that until I got into college. I never thought about your parents’ politics, but the period much about it. when you were a teenager was a period I remember going to see Mrs. of a lot of social upheaval and some real Roosevelt because she was the wife of the changes in terms of the presidency, from president, and in those days we didn’t Hoover to Roosevelt, so poli­tics must have have TV, so you didn’t see people like that. been in the air then. You might see a picture occasionally, but that would be about it. OP: They were. In fact, Eleanor Roosevelt came to Shawnee and made a MO: I guess Mrs. Roosevelt must speech when I was in high school or junior have been seen as something quite a bit high. My parents were Republicans. different, too. They didn’t really be­lieve in all the social programs and the deficit spending that OP: She was a very aggressive lady, Roosevelt promoted, and for years my and obviously had a very good heart, mother felt that Roosevelt was the cause of basically a very good person. She had a lot of the immorality, a lot of the wasteful a lot of good social causes, and I’m sure spending that went on in the country. President Roosevelt did, too. He believed My folks were very careful with money. very strongly in what he was doing. He In those days, everybody was afraid of certainly had the talent to pull the country going to the poor house when they got out of a terrible Depression, and I think old. That was a common expression, “You he started a lot of good things. I think his don’t want to wind up in the poor house,” Civilian Conservation Corps (CCC), and and the poor houses weren’t very good. the WPA, put people to work. If you didn’t have any money, you were In fact, off the subject where we are, in pretty tough shape. My dad was very but I believe now that the country needs penurious, very careful with his money. social programs to put people to work.

Panner, Tape Two, Side Two 23 I think if we would give everybody a fraternity houses were really wonderful for chance to work at whatever they’re able to young men. I learned a lot of social graces, do, you know, we wouldn’t have as many a lot of discipline. Study halls were rather welfare problems as we do. I think people strict. You were required to have dates for need to have respect for themselves, and I the social occasions. You were required to think he was able to do that. be hospitable to any alumni or anybody The argument on the other side that came into the house. I can remember is that after he got it turned around, he there were all kinds of good rules, and should have phased it down instead of there were appropri­ate punishments for continuing to deficit spend so much, but failure to abide by them. those balances are sometimes hard to One of the best rules I remember achieve. In any event, the country did turn was that when anybody came in the house around from that point on. That was when other than a member, if you were anywhere we began to go into debt. in sight you rushed to them, introduced yourself, found out who they were, what you could do for them to help them. There College & Army Experiences was extreme courtesy to women, dates. It was a rather polite society, for the most MO: So you went away to college? part.

OP: I went away thirty miles across a MO: And so you lived in the frat house? dirt road to Norman, Oklahoma, to the University of Oklahoma. It was a totally OP: Lived in the fraternity house. In the new and different experience. A couple dormitory the first year. of my good friends went with me at the same time. MO: What year was this? We didn’t travel back and forth across the dirt road very often. My folks OP: This would have been 1941 that I would come over occasionally and bring went to college. me home at holidays, Thanksgiving, Christmas. Other than that, they might MO: So right in the middle of that year come over once a month or so and visit, Pearl Harbor was attacked. but we were beginning to get weaned, and jumping from Shawnee High School to the OP: Right in the middle of that is when University of Oklahoma, which in those the war started, when we got bombed. days was eight or ten thousand students, The war had already started, of course, was a big adjustment.­ in Europe, but we weren’t bombed until I pledged a fraternity. In those days December of 1941.

24 Belloni, Tape Two, Side Two MO: What was your, and your class- test.” So he did, and the sergeant caught it mates’, reaction to the news of Pearl and said, “Hey, you, what are you doing? Harbor? Get over there. Now tell me what that fourth line says.” I couldn’t tell him. OP: I remember immediately our reaction So they kicked me out of there and was to enlist and go and fight the war. I was sent me over to the infantry, which was the seventeen at that time and not eligible to go next best thing. But my two friends that I in then, unless I lied about my age. My folks had talked into joining the paratroopers talked me out of that, talked me into staying passed and went on into the paratroopers. in college another year or two. Fortunately, they both lived through it, but I finished that year and one more year. I felt really bad, and they were about half College stu­dents were deferred from the mad at me because I’d talked them into it, draft at that age. So let’s see, I was seventeen and then I hadn’t gone. So I went through through that college year, then I was eighteen infantry basic training at Fort Benning, through the next college year, and I enlisted Georgia. as soon as I finished my second year, while I was eighteen still. MO: Before we talk about that, let me ask you about those two years in college. It must MO: Were they drafting at that point? have been distracting—

OP: They were drafting. I enlisted because OP: It was very distracting, and we were I wanted to get into the paratroopers. In very uncomfortable. All the young men those days, everybody was really anxious to thought they should be in the Army, and go and fight. We were very patriotic, wanted our friends a little older were going in. Some to go stab somebody with a bayonet. were taking deferments for medical school, I talked two of my friends into but for the most part people were cheerfully enlisting in the para­troopers. I checked with registering for the draft and being drafted. the enlistment officers, and they said my I think I probably would have been nearsightedness wouldn’t bother me because drafted after I was 18 that year, though I my glass­es would correct it. We went to Fort could have maybe gotten a deferment for Sill, and they passed us on down to Fort college, but that really wasn’t a thought in Benning, Georgia, where the paratroopers my mind at that time. were. I got down there, and we had to take an eye test, and I remember watching them MO: Despite the distraction, had the in the line as they came up, and I said to college experience really taken hold of my friend who was with me, “You stand you by that point? behind me and tell me what those letters are because I’m not going to be able to pass that OP: Yes, it had. I remember one

Panner, Tape Two, Side Two 25 significant way it took hold of me. I had like he had been electrocuted, and he had been to church pretty regularly, and I very thick glasses. I liked him, he was a believed in Christianity. I had a couple wonderful teacher, but I just didn’t follow of very personable professors in history it all always. and government who were atheists and who, as many college professors do for MO: So you were half interested in a students, convinced­ me that it was a bunch diplomatic career. Were there any other of a baloney. Took me quite a little while influences at that point that pointed you to recover from that and get straightened in the direction of law? around. They were wonderful people. One OP: No, not really, except we had a of them was my history professor, Dr. good neighbor—it was his wife that read Wardell. I remember I had the greatest to us—and his name was Joe Reilly, and admiration for him. He was determined he was the lawyer I knew that worked on that I would go into the diplomatic service. the WPA during the Depression to keep He was one of my advisors, and he was his family together and fed. Mr. Reilly pushing me toward a life of being in the became a fine lawyer, and I think looking diplomatic service, and I was about half back—I didn’t think much about it at the interested in that at that time. time, but I think looking back I spent a I had great professors. It was a great little time with him, went to his law office school. I had a good geology professor and occasionally, much as I did with my dad a great government professor. I continued to various jobs in oil rigs, and I liked him to not care that much for math, chemistry, and admired him. In hindsight, that may and sciences. In fact, I tutored math have had a small influence. during the summer before going into college because I was a little bit weak in MO: This thirty miles of dirt road that math. When I got to calculus in my second separated you from your parents, and the year at the university, I was convinced I fact that you were living on your own, didn’t want to do anything that took me was that a positive experience for you? further into math. I just wasn’t very good Did you enjoy getting away from the nest, at it, in spite of the fact that my dad was an so to speak? engineer and an excellent mathematician. OP: I think I enjoyed it. It was exciting. MO: Calculus can be daunting, I think, A little intimidating, but I sure wanted to even for people who are good in math. do it, and I enjoyed it and I enjoyed the fraternity house tremendously. I had a big OP: We had a professor who looked brother in the fraternity house who was just like Albert Ein­stein. His hair looked an all-American basketball player and

26 Panner, Tape Two, Side Two a top-notch guy. A lot of the Phi Delts at ic ideas, one of them was “Lucky Strike Oklahoma then were athletic, we were green has gone to war,” something about famous for being an athletic fraternity. they were always in green packages, and Good football players at a time when there was something about the color green football was powerful at Oklahoma, and that was needed in the war effort, and that good basketball players, good golfers, and was a big slogan, “Lucky Strike green has that’s probably how I wound up there. It gone to war.” was a great experience. I enjoyed it very There were great songs being much. written to inspire people, “When Johnny Comes Marching Home,” wonderful MO: In terms of the war that was going patriotic songs. It was a different approach on while you were college, you got news to war than we’ve ever seen because we of the war from, what, newspapers were attacked, and there wasn’t anything primarily? that anybody could say good about Hitler or about Japan’s attack on the United States. OP: Newspapers, radio. Radio was the There was no feeling like there is even in means of quick commu­nication, and I Bosnia or Haiti—there was no division of remember listening on the radio to Pearl opinion. Everybody said, “We’re going to Harbor. We picked it up right away, and win this thing, we’re going to clean this we got reports from Hawaii, and some Hitler guy up.” He’d been bad since the of the bombing was still going on, as I middle ‘30s, causing trouble, taking over remember, and they were telling about it coun­tries. on the radio. So it was a unified effort. You’ve got, of course, over at the Oregon Historical MO: Did you follow events in the war Society a great exhibit now about the effort fairly closely? here on this coast, but it was the same everywhere. Everybody was patriotic. OP: We did. We were naturally very interested because at that time, you know, MO: And the concerns on the coast here there was a definite threat and a fear led to the intern­ment of Japanese citizens that the Japanese were going to invade living here, and there were even some the West Coast, , and on the West Coast Japanese armaments that reached the they were going through black­outs. The coast in the form of balloons and other defense plants were all blacked out for things they sent in this direction. fear they would be bombed. They’re as a tremendous patriotic OP: Either that or somebody thought effort to save money. Reynolds Tobacco, there were. Nobody was ever real sure Lucky Strike, put on all kinds of patriot­ about it.

Panner, Tape Two, Side Two 27 MO: Do you remember hearing Basic Training anything in the ‘30s about Hitler’s policy with respect to the Jews? MO: We left off yesterday just at the point when you entered the service, and OP: Oh, yeah. He made it clear, it was you told me the story about your eyesight part of his platform right from the start keeping you out of the paratroopers. Why that he was going to get rid of the Jews don’t we pick it up right at that point? You in Germany. They had all the money, and were then referred to the infantry, and he was going to kick them all out. I don’t you had to take a physical for that, too, I know that he ever announced publicly assume? that he was going to exterminate them, but it was clear that he wanted them out OP: They were very mild, nothing of Germany. serious. At that time they were pretty anxious to get people into combat, and so MO: Was this part of why people felt they weren’t too serious about it. The eye negatively about Hitler, do you think, or problem didn’t bother me in going into the was it just his imperialism? infantry.

OP: Well, I think that persecution MO: And you went to Fort Benning? certainly was a big factor, but the other thing he was doing was forming this OP: Fort Benning, Georgia. powerful army and beginning to take over countries, just move in and take them over. MO: And that’s where you did your basic We were beginning to get newsreels, even training? though we didn’t have television, we had movies, and we would go to the movies OP: Yes. Saturday afternoon in high school, even. I can remember seeing the Gestapo and the MO: What was that experience like for goose-stepping Nazis, and the concerns you? were pretty strong. OP: Well, it was a tough experience. [End of Tape Two, Side Two] They were getting ready to send troops right out of infantry basic training into the European theater, and it was a tough course. It was thirteen weeks, as I recall, and very arduous physically and emotionally. They were getting ready to have us stab

28 Panner, Tape Three, Side One people with bayonets and shoot people We had a company commander and so forth. from Kansas who I remember was a We were regularly on twenty-five- football player, and he would take us mile hikes with full field packs and fixed out in the sand hills of Georgia and have bayonets. We spent a couple weeks out us square off and fight each other, bare- living in foxholes in the Georgia mud, in knuckled, to help get in shape a little bit, rain. It was fall, going into winter. It was a and hand-to-hand combat. It was a very good experience, though. interesting experience.

MO: Was carrying a heavy pack like that MO: At the end of it did you feel ready to and camping out in the mud a totally new go to war? experience for you? OP: We were really ready. In fact, I OP: No, not really. I was in pretty good remember being furious that I was being physical shape and got that way pretty sent to Army spe­cialized training in West quick down there. I became a squad Virginia, back to college, and I protested leader, and it seemed a lot easier when violently, but it didn’t do much good. They you were helping other people in your sent forty of us to West Virginia University squad, occasionally helping them carry to go to engineering school. None of us their packs or helping them some way or really wanted to be there, we wanted another, I think it always makes it a little to be in the war. In fact, we weren’t very easier when you’re trying to help people good students or very cooperative, and as than when you’re worrying more about a result, at the end of that term of school your­self. they eliminated that unit and decided to send us back to where we’d do more good. MO: You said that it was emotionally difficult, too. When you were training MO: That must have been especially with the bayonets, et cetera, did the reality ironic for you, since you shied away from that you might have to kill someone in math and any subjects close to engineer­ combat— ing.

OP: Oh, sure. It was taught to us. They OP: Yes. I remember telling one of the had gunny sacks full of blood and guts professors at West Virginia University it that we were stabbing with bayonets, and wasn’t anything against her, I just didn’t learning how to put our foot on them and want to be there. They understood pretty pull them out, in case they got stuck. well.

Panner, Tape Three, Side One 29 OP: Forty-five. I think it might have been Officer Training School late ‘44 or early ‘45 that I got to Los Angeles.

MO: And so then what was next for you? MO: When you went to officers’ training school, was that something that you had OP: Then they sent me to Transportation indicated you would be interested in, or did Corps Officer Training School in New the Army select you? Orleans, Louisiana. By this time it was summertime, hot in New Orleans, and OP: As I recall, they had a number of that was an arduous, tough deal. Officers’ options. Because we had been sent to Army training was very highly disciplined, both specialized training school, they considered in school work and in physical work. that we should do something other than I went through school and came out be foot soldiers. In other words, they were a Second Lieu­tenant. I thought then that I trying to sort out people that had a chance could transfer to the infan­try again and get to do something else, and having come from back into the war, but the government had two years of college, I think they probably other plans, as they frequently did. They fig­ured that we should do something else. sent me to be a pier officer, a loading officer They had a number of different on a dock in Los Angeles, supervising the opportunities in the Transportation Corps. loading of troops and cargo on Army troop OCS was one, and it looked like the best and cargo ships. chance to be a Second Lieutenant and then I’d never seen an ocean up to that maybe trans­fer back to the infantry as a time—well, I’d never seen the Pacific, I Second Lieutenant. guess I had seen the Atlantic, but I really didn’t know anything about it. When I saw MO: So your duty was to supervise the the Atlantic, I was very young, and I really loading and unloading of ships in Los had never seen a big ocean passenger or Angeles, and you said that that was a good cargo ship, but that’s where I was, and that experience? was a great experience. We had stevedores do the physical OP: It was very interesting. We worked work. Our job was to supervise and long hours, basi­cally six days a week, coordinate the loading of Army troops onto had Sundays off, but worked ten, twelve troop transports and Army cargo going to hours a day, six days a week. We lived at the battle lines. an Officers Club. It was pretty comfort­able. Good meals. Had our own private rooms in MO: And this would have been in 1944 the Offi­cers Club. or ‘45?

30 Panner, Tape Three, Side One I kept applying for a transfer to the golf at their club, no greens fees. The infantry, and after about three requests the members would find a game, they would Port Commander, Colonel, called me in buy you lunch, they were most helpful. and told me he was getting tired of these And all of the public courses had that kind applications for transfer. Every time I sent of an invitation to the enlisted men. one of those in, he had to go through a So I was fortunate to be able to whole bunch of paperwork, and that the play all of the best country clubs there. On next time I sent one in, he was going to Sundays, that was what we did, was take transfer me down to Guadalcanal to a off to the golf course, a few of us. stevedore outfit, where the temperature was 105 degrees day and night, year MO: You met your first wife in Los round, and I’d spend the rest of the war Angeles, too? down there. As I remember, he said, “If you OP: I met her there. I had a tooth don’t have enough sense to save your extracted, and the dentist buried the tooth own life, why, I’ll have to save it for you. in the jaw, and it became very infected. As So I don’t want to see any more of these a matter of fact, when it happened I told transfers.” him, “My tooth is stuck in the jaw.” He And that was the end of that. I couldn’t find it after it broke when he was didn’t apply anymore. He was a very extracting it. It was a big mess. nice officer, and he got through to me, And he said, “Oh, it must have and I accepted my role there with him at fallen on the floor,” and he’s looking the port. Subsequently he transferred me all around the floor, Army dentist, and up to the office, where I was involved in he couldn’t find it. “Well, maybe you deciding what cargo went where and what swallowed it.” troops went where as they were needed, I said, “No, I didn’t swallow it. It’s and going through the paperwork of stuck right here in my jaw. It’s there.” deter­mining what went out of the port. So He probed around, but didn’t find it was a good experience. it. The next day I went back to him, swollen up, infected badly, and he was very much MO: Did you have a chance to explore afraid, and he immediately sent me to the Los Angeles? general hospital, where they did surgery and took it out from the outside because OP: I did. We played golf almost every by this time they couldn’t get my mouth Sunday. During the war, every private open, so they took it out. Fortunately by club in the Los Angeles area had an open this time they had penicillin, or I probably invitation to all military officers to play wouldn’t have made it.

Panner, Tape Three, Side One 31 Anyway, they sent me back to disciplined. All you had to do was point to Torrance Hospital after they operated and one of them, “You’re in charge, clean up this kept me in there for a week of penicillin hold,” and boy, things just popped. They all shots, and my wife-to-be was a nurse went to work for that guy like he was Hitler giving me penicillin shots. That’s how I himself. They were very disciplined troops. met her, and we began to date after I got They kept things very neat. out of the hospital, and about six weeks later we were married. MO: How did they wind up in Los Angeles? MO: A very whirlwind courtship. OP: Well, they were sent to a prison OP: Very whirlwind. Times were camp down in the desert of California. different. In those days the war was going I’ve forgotten now the name of the prison on, and about that time I was getting camp, but after they were captured in ready to go overseas on a troop ship. The Africa they were sent down there. When Port Commander said, “Appreciate your they left Los Angeles, they thought they staying here, and I’ll let you take a troop were going home to Germany. They all ship as a troop transport commander.” By had a big full duffel bag of things they’d this time I was a First Lieutenant. acquired here in the United States, all So he got me a position as a troop kinds of things. They were allowed one transport commander, hauling troops over full big duffel bag. and bringing them back, and I was get­ting We didn’t tell them they weren’t ready to leave, so we got married. That going to Germany because we were a got her out of the service. By this time VJ little nervous about going through the day had occurred, so she got out and went canal with them. There were a lot of Nazi home to her home in Long Island, New sympathizers in the Canal Zone, and there York, and I went on a troop ship from Los were 4,000 on the ship, and a small crew, Angeles carrying German prisoners of so we were very cautious about them. war, Rommel’s Africa Corps. Rommel was They were not all released out of the holds the Desert Fox, the feared Nazi in North at the same time. Africa, and these were German Africa During the trip, my radio man on Corps disciplined troops that had been the ship intercepted a radio wireless that captured and were going back to Liver­ they had been sending to someone in pool, England, to work for the English Panama. They were very ingenious. restoring some of the rubble. I took them from Los Angeles MO: From the ship itself? through the Panama Canal to Liverpool, England. A great experience. They were very OP: Yes, from the ship.

32 Panner, Tape Three, Side One MO: Using the ship’s equipment? them by goose-stepping, there were some sad German faces because they didn’t OP: No, using some equipment they really want to be in the hands of the British. had put together. The British were not very sympathetic to So when we went through the Germans at that time. canal, we locked them down in the holds. So when they took them off the ship, After we got out into the Atlantic, our they had them dump all of their things out chaplain came to me, the Army chaplain, on the dock and leave everything except and said he’d been talking to the so-called some underwear and a few little things German chaplain. And he said, “These they could take, and then they said they people are totally reformed. They want to were going to march them about forty have a worship service.” miles to where they were going to be And I said, “That’s fine, as long as camped. It was a tough scene for them, you’re there.” He spoke some German, but I could understand the feelings of the incidentally. British. They’d been bombed unmercifully “Well, they don’t want me there.” by the Nazis. And I said, “Well, that’s too bad. You’re either going to be there, or there isn’t MO: That’s right. I assume that part of going to be a mass service of all of them.” your crew on that ship must have been “Oh,” he said, “you’ve got them some security force of some sort? wrong. They’re differ­ent.” I said, “Well, they could be, but I OP: They were Merchant Marine, don’t sense that.” and we had a Marine gun crew of about So anyway, they gave him a sealed six Marines manning anti-aircraft guns letter and told him not to open it until and avail­able as security, but not a lot of after they got off, and after they got off he security, basically. That’s why we were just opened it, and the gist of the letter was, as glad they thought they were going back “You Americans are suckers. You’re too to Germany. soft. We’ll come back. We will ultimately defeat you.” It just really disappointed MO: Right. Were they at all impaired our chaplain badly. when they were on deck? I mean, were they shackled or anything? MO: So he shared that letter with you? OP: No, they weren’t. We had six OP: Yes, he did. He had the nerve to do holds in that ship, and they were that. When we got to Liverpool, and the bunked about six to eight deep in British Tommies came down mimicking different holds, and it was just canvas

Panner, Tape Three, Side One 33 and iron bunks. They’d converted MO: Was this before the Japanese these freighters to passenger carriers. surrender? And we would let up fifty or 100 at a time on deck and alternate them. But OP: No, this was after the Japanese it’s pretty tough conditions for them. surrender, after VJ day. One of them would get seasick on the VJ Day was an interesting time. top bunk, and all of them would get Everybody was party­ing. We got the sick. It was a tough deal. word in the afternoon, and people started But our troops came the same way. celebrating and partying, and I was We took that ship on from Liverpool over having some drinks with some friends to La Havre, France and brought back when the Colonel said, “I want you to take returning servicemen into New York on all of our ships’ manifests that are getting the same ship. It was tough traveling. ready to go out to San Francisco tonight. You don’t have to do anything. We’ll have MO: I’ve been down below the decks of a driver pick you up, and he’ll have all the some of these Army ships myself. Doesn’t manifests, and he’ll put you on the plane. look too good. We have a hotel room for you at the Palace Hotel in San Francisco.” OP: Big mess. I wasn’t very happy about leaving my friends in Los Angeles, but there MO: Was that your only trip at sea? wasn’t much choice, so I flew up to San Francisco with the manifests. We couldn’t OP: No, I went back and forth between get to the Palace Hotel. All of the Navy, France, England, and Bremerhaven, the Army, everybody in San Francis­co Germany, to New York, carrying had been released, everybody, on leave, replacement troops going over and and San Francisco was a riotous mess. bringing back troops the other way. They were wrecking cars. I saw them take one car, pick it up and push it through MO: I guess at this time the Germans a liquor store window and loot it, turn were defeated so you didn’t have to worry over street cars. It was awful. It was really about their U-boats on the Atlantic or disgraceful. There were something like anything? fourteen people killed, all kinds of rapes. It was a very sad situa­tion. OP: No. People still worried because In fact, I took off all of my officer’s we weren’t sure they’d all gotten the insignia, hid my hat, folded up my coat, word, you know, and that’s why we had because they were assaulting officers, the gunnery crews on, but the war was enlisted men were, and I had about six over. blocks to walk to the Palace Hotel through

34 Panner, Tape Three, Side One the crowds, and I didn’t want anybody to The next day I got to see my cousin, know that I was an officer because word and it was quite a family joke that it turned was they were really romping on officers, out to be a blind date instead of a visit just for fun. It was wild. with my cousin.

MO: Did you fly into a military base MO: This would have followed just a there? couple of days after the Nagasaki bombing when Japan surrendered? OP: Flew into Oakland military base, yes, and then went by taxi, theoretically, over to OP: Yes, it wasn’t long after that. It was the Palace, but got within about six blocks right after that. It didn’t take long after and that was as close as we could get. that happened.

MO: And by this time you were married? MO: I imagine the news of the atomic bombings of Japan was quite amazing. OP: No, I still wasn’t married. It was right after that that I was married. OP: It was. Everybody was in favor of I don’t remember the date of VJ it. We were in a tough war, and it wasn’t day, but I remained in Los Angeles for a getting a lot better, and I’m convinced to good many months after that. In fact, I this day that it was the right thing to do. wasn’t even engaged at that time. I don’t I mean, we would have had a lot more think I was even going with Jackie at that tough times. We were in the process of time. I’m sure I wasn’t because when I got taking those islands back, and the prospect to the Oakland Air Base, I called a young of invading Japan was brutal. lady who was a second cousin of mine that I knew was in San Francisco. I didn’t have her phone number, but I found her Courtship & Marriage name in the phone book, and I called her, and she agreed to meet me that night and MO: Let me return to you meeting celebrate, and I told her I would meet your wife. Did you have time when you her at the Palace Hotel. She said, “That’s were in the hospital to actually have real great.” conversations with her? So sure enough, she made it, and it was about halfway through the OP: Yes. Mostly though—I couldn’t talk evening that I discovered she wasn’t my at first. I could only write notes because cousin, she just had the same name. But my jaw was swollen shut. Took three or she thought it was a good idea to have a four days before I could even talk. She date that night. used to laugh about how ornery I was and

Panner, Tape Three, Side One 35 how mad I was. I was really mad because MO: So you were saying that Long in my judgment it was inexcusable. He Island was a convenient location. should have gotten it out that night before it got infected. So I was really kind of mad OP: It was a very convenient location. about it, and I was writing nasty notes, The Long Island Railroad took about a and I wasn’t very friendly about it. half hour from Massapequah, where she lived, into downtown New York. So we MO: But you got to know her well had some very good leave times in New enough so you could call her up and ask York. Got to see some great stage plays. her out after that? MO: Was that your first experience of OP: Yes. New York?

MO: When you made the trips back and OP: It was the first time I’d been to New forth across the Atlantic, was that also York, yes. I’d been to Washington D.C. before you got married? with the Boy Scouts when I was twelve years old, at a Boy Scout Jamboree, but OP: No, I was married then. When I other than that, that was my first visit to left Los Angeles on the troop ship, I was the East Coast. married. She was a Second Lieutenant in the Nurse Corps. She was an R.N., and MO: When your wife left the service, her home was in Long Island, New York, was that okay with her? and when you got married when the war was over, you were out. So she got out and OP: She was glad to get out. The war went home. was over, and she’d had enough.

MO: That was an automatic reason for MO: You had a chance to meet her family, discharge for a woman? I assume this was after you married?

OP: Yes. I’m not sure whether it would OP: After we were married. We both have been before the war was over or not, called our fami­lies and told them we but at least when the war was over it was were getting married tomorrow, so they an automatic out. weren’t involved. We got married, and I came in and out of New York, shortly after she became pregnant, even which was very convenient. I could stay before I left, and she went home. We had with her folks and her when I came back. our first child—I can just about tell you, backdat­ing now, he was born December [End of Tape Three, Side One] 13th, 1946, and so it must have been

36 Panner, Tape Three, Side Two about March or April that I left Los back there so she could be home for the Angeles, of ‘46. summer and they could visit with their grandchild, and they were interesting jobs. MO: What was your own parents’ One of them was with Grumman Avia­tion response to this twenty-four-hour notice? as a parts runner, where they built a lot of Grumman airplanes. The other one, one OP: They weren’t very happy about it. summer, was digging ditches, which was I had had a girl­friend in Oklahoma that I more money than the parts runner. hadn’t seen for a couple of years. We had no commitments, but I remember my MO: But harder physical work. mother said, “What about Cissie?” you know, and I said, “Well, we don’t have OP: A lot harder. Hot, steamy. We were any plans or commitment, Cissie and hand-digging ditches eight, nine, ten feet I.” But naturally she would have rather deep, and it was pretty hot down there. been there, rather have had a little more The job paid really well, and I found thought put into it. It was a rather short out why because they really worked hard. time to get married. They put in gas lines to houses and so In fact, I think it was, oh, not much forth, and they had a six-man crew, and more than six or eight weeks that we were one foreman who stood over you and saw acquainted when we got married. that everything went well. I took an awful beating for MO: What about her family? several weeks. They were called me Joe College:“Now look what a college OP: Well, they felt the same way. They education gets you,” you know, and so were not all that excited about the whole forth. And they pulled some pretty nasty thing. They were a rather conservative­ stunts on me. When we backfilled the family. Her father was Personnel Director ditches, they had a packer, which was a for Grumman Aviation during the war. jackhammer with an iron plate on it, to They weren’t all that excited, but they tamp the soil down. Well, they put me were excited that she was coming home, at on that, and I didn’t find out until later least, and that offset it a little bit. And then that they only had a man do that for when I came back in from being in Europe ten or fifteen minutes at a stretch, and on the troop ship, they were wonderfully then they’d change off. But they left me friendly and pleasant about the whole on it until I collapsed and vomited, and thing, and we got along very well. thought it was big fun. In fact, as soon as I got out and went But after a few weeks, I got in back to law school, I worked two summers shape, and it was good. Made some good back on Long Island. Her dad got me jobs friends and managed to survive.

Panner, Tape Three, Side Two 37 I couldn’t eat for about a week. I MO: That was convenient, to have him was so tired when I went home at night, in the nursery while you went to school. I’d just collapse. I was just nearly sick. But gradually it smoothed out. OP: Yes, it was, because we didn’t have any baby sitters. MO: And what did you think of your wife’s parents? MO: At this point were you finishing college? OP: Oh, I liked them. They were, both of them, very nice people. Her mother OP: Right after the war, the law was just a delightful lady. Her father was schools had a special dispensation, pretty a little bit grouchy and ornery, but I liked generally. If you had two years of pre-law, him very much. He was a good man. Very they would let you go directly into law disciplined people. school, and so I chose that option. Rather than getting a B.A. degree, I went directly MO: During the school year, you and into law school out of the service. So then your wife lived in Oklahoma? I had three years of law school.

OP: Yes, in Norman. We had a little plywood veterans’ housing house. Two Law School bedrooms, probably about seven hundred square feet, or something like that, MO: Had you made the decision to go plywood walls, but very comfort­able. to law school before you went into the New and neat. service? We both had the GI Bill, so we were rich. We had a lot of money compared to OP: No, not really. My best memory is other students because we had the GI Bill. that when I knew I was going to be able to come back with the GI Bill and found out MO: And what was your wife doing at I could get into law school without further that time? pre-law, I decided I would go ahead through law school. I still hadn’t decided OP: She was going to school. what I was going to do, but I thought law would be a very good background for MO: And you had your first child by any­thing I decided to do. that time, right? MO: How did you find law school? OP: Yes. He went with us to school and went to nursery while we went to school. OP: I liked it very much right from the

38 Panner, Tape Three, Side Two start. I made really good grades, much quasi-contracts—I got paid for that—and better than I’d made in pre-law. The two that was really wonderful because it was years I was there before the war, because such pleasant work. It fit into what I was of the war everybody was a little bit more doing. relaxed, not very disciplined.­ Just coming I did some research work for Dr. out of high school to college was dif­ferent, Culp, who was the oil and gas professor. and I made a B average, in the two years Dr. Phelps, Dr. Reed, those were two of be­fore, but when I came back, I just liked my professors that a couple years after law school. I liked the discussions we had I graduated, went to the University of during class of the cases. We followed the Michigan, which was considered one of case method, of course, and you’d have the top ten law schools in the country. They a half a dozen cases to brief and discuss remained there for many years. In fact, I in class. I liked it very much, and I made had a visit with them in 1981, when I was almost straight As through law school. It back there after becoming a judge at an was a good, challenging time. antitrust seminar, both great professors. Also, having a child and a wife Page Keeton, our dean, had also gave you a little more incentive to work written a number of good textbooks, and more diligently than when you were free was a great teacher. He later became Dean and loose. at the University of Texas. One of my professors, Dr. Dale MO: That’s right. I think you said earlier Vleet, was a recognized scholar in that one of the subjects you enjoyed in negotiable instruments throughout the college, and maybe even before that, was country. We had a great faculty, and a history, so I imagine the study of the cases big class. We had almost 200 in our class, fit in with that interest. coming back from the war. There had been quite an accumulation. OP: History, English, those things. Geography. Those things I really liked, MO: You mentioned your summer jobs and they did fit into law school well. in Long Island, and now the work that MO: While you were at law school, were you did with this professor. Were there there particular friends or professors that other jobs that you held during your time stand out in your mind? in law school?

OP: Yes, I had some great professors. OP: While I was in law school? I had a I was a research assistant to Dr. Merrill, golf scholarship, and I taught a golf class Maurice Merrill, who wrote a number of as part of that activity. legal textbooks. Great scholar, a fine man. Taught constitutional law and contracts, MO: At the law school?

Panner, Tape Three, Side Two 39 OP: Well, at the University. It was part OP: Yes. of the Athletic Department. MO: Can you tell me that story? MO: So you were on the golf team? OP: Sure. It was Ada Lois Sipuel, S-I-P- OP: I was on the golf team. U-E-L. She ap­plied to the University to go When I went to school, I went to see to law school. In those days, the University Dean Keeton and asked him if I could go was segregated, and there were black to law school and play varsity golf because universities and white universities, and that’s what I had the scholarship for. I they turned her down. remember him saying, “Nobody here has But in order to turn her down, the ever gone to law school while they were State had to have a separate but equal participating in varsity athletics. I don’t facility. So they set up a law school in think it can be done.” Oklahoma City using practicing lawyers And I remember saying that I had as professors. It wasn’t much of a law this scholarship and I would lose it if I school—she was the only student. The didn’t get to play. Could we see how my Supreme Court rejected her request to grades were at the end of the first semester, come to the University because it was a and would he defer a decision because separate but equal facil­ity, and Dr. Merrill I wouldn’t start the golf work until next had argued that case successfully for spring? the University, arguing that they had a At the end of the semester, my separate but equal facility, which was the grades were good, and I went back to him, law of the Supreme Court at that time. and I said, “If I only practice golf early in However, she only went one the morning and play on the weekends semester, or one year, I’m not sure, and and keep my grades up, do you think I then she immediately went back to the could make it?” Supreme Court and said this isn’t an equal “Well,” he said, “I don’t think you facility. The Board of Regents came to Dr. can make it, but you can try it.” Merrill and said, “Go argue the case,” and But it actually helped me. The he said, “No, I can’t conscientiously argue discipline was very good because I really that that’s an equal facility with only one began to account for every minute, and it student, and the professors aren’t equal, worked out really well. and I can’t do that.” So the Board of Regents quickly caved in and said, “Fine, MO: I guess it was the professor that she can go to law school.” you did research for that was the one who But when she came to law school, was involved in a lawsuit with a black they had built a two-by-four railing in student? an area of the big classroom. We had

40 Panner, Tape Three, Side Two big classrooms, wooden floors, great big MO: She must have been an windows, and they had built this railing extraordinary individual to have made it for her to sit inside of. We were out in the that far. hall, I remember, there was a lot of activity with her coming. She hadn’t come yet, and OP: She was, I think. I have read about some of the students came in and said, her since. There have been stories in the “Golly, come look and see what’s here.” paper, and there was one not too long ago Sure enough, there’s this railing about her career and what’s happened to cleated into the floor. her and so forth, and she apparently is a very outstanding lady. MO: And the students built this? MO: When you finished law school you OP: No, the University apparently decided to move out west. I think you thought that it would be appropriate, told me that part of what was behind that since there was still this segregation idea, decision was that your wife didn’t get and so they put this up. They had it done. along too well with your family? Some of the university carpenters, I guess. Anyway, we just opened the big OP: Yes. And she didn’t want to live window, jerked it out of the floor, and near her family, and we just decided threw it out on the campus before she we’d be better off to go make a fresh start came. And the word we got back was somewhere. that the professor came in, didn’t see the We had a little money, a couple railing, smiled, and she came in, didn’t hundred dollars or so, and we had a fairly see the railing. She’d been told to sit there. new 1949 Ford automobile paid for, and Somebody said, “Sit anywhere you want we didn’t have any debts, and so she flew to,” you know, and that was the end of that. with my son home to her parents while It was a pretty good outcome. And from I started out to look for a job. We had that time on, there wasn’t any segregation thought about New Mexico and Colorado. at the University of Okla­homa. We liked the mountains. So I set about to find a good place to practice law. By then MO: Did you know this woman at all? I’d decided to practice law. There was an oil company, Phillips OP: No, I didn’t know her at all. I didn’t Petroleum, 66, that had a good reputation, even meet her, I don’t think. My recollec­ and they took one student out of each tion is that she was either a first- or second- law school class into their corporate legal year student—I was a senior when this department. I remember thinking I’d kind happened. I’m not positive about that, but of like to have that job because they were it was about that time. known for being a very good employer.

Panner, Tape Three, Side Two 41 But the son of the chief counsel of Phillips So we went out, and he was a very was in my law school class, and he got nice fellow. I had told him I was looking that job. He was a good student. We were for a job and didn’t have much money, and on the Law Review together. I think I was I think he really enjoyed the game of golf. a little higher ranking than he was, but it He kept doubling up, and I kept winning was close. We were both right at the top. more and more, and I can remember trying I decided, “Well, I’ll go look for a to talk him out of doubling up anymore. job with a law firm,” and that’s what I did. We came to the last hole, the ninth I started out and went out to New Mexico, hole. We were just going to play nine Colorado, and hadn’t really planned to go holes. He owed me $120, he’d doubled on to Oregon, but I had a classmate who up so much. And he said, “I’ll play you had an uncle who was a federal judge here this last hole, double or nothing.” I didn’t in Portland, Oregon. Claude McCulloch, really want to do that. By this time I’d Judge McCulloch, used to come back and kind of counted on that $120, you know, visit with his nephew and a group of us, and I didn’t want to do it, and I thought tell us about the law, talk about federal it was too much money. But you know, it court, talked about Eastern Oregon. He wouldn’t be a good deal to reject that, and had come from Pendleton before he came I said, “Okay.” on the court here in Portland, and he used Then he said, “You have to give me to say what a wonderful place Eastern a half a stroke.” That means if you tie the Oregon was, but I didn’t really see going hole, he wins, see. Well, he was a good that far. golfer, but once again, I really couldn’t not I got out to New Mexico, and I got give him a chance, so I said, “Okay.” in a golf game. I went in to breakfast to a Greek restaurant, and the Greek restaurant MO: So at this point it was pretty well owner and I got to talking about golf, and established in both of your minds who the I told him I had just come off the golf team better golfer was? at Oklahoma, and he said, “Oh, I love to play golf. Let’s go play out at my club.” OP: Well, yeah, but with a half a stroke “No, I don’t really have time to do on one hole, you know, all he has to do is that. I’ve got to find a job.” tie the hole to win it, see. But as it turned “Well, I’ll make it worth your out, he got a five and I got a four, and he while,” he said. “You’re a scratch cheerfully paid me off in cash. handicapper, my handicap is six.” He I remember calling my wife that said, “I like to play, I’ll play you a dollar a night and saying, “Maybe I’ll go on to hole. Let’s go out and play.” Oregon, now that I’ve got a little extra So I said, “Well, okay.” money.”

42 Panner, Tape Three, Side Two So I went through a lot of law firms I’d gotten into the wrong kind of a hotel. I in New Mexico and Colorado, and sure said, “No, no.” That was the end of that. enough, decided to go on to Oregon. I thought, “I’ll get out of this town the first thing in the morning.” I had done MO: There was nothing there for you, or a little research on Portland and Eugene. nothing that appealed to you? But I got up in the morning, and the sky was azure blue, it was October, and it was OP: There were some jobs—the best job absolutely gorgeous. Those big pine trees, was in Albuquerque, New Mexico, a good white mountains, already covered with law firm. I had done my homework on the snow. various law firms that I went to, and they I walked up and saw that that was said, “Here’s a desk right here in the hall, really the wrong part of town on Greenwood we’re so busy, you can have this desk right Avenue, so I walked down to Wall Street here, and we’ll get you figured out.” I had and the Pine Tavern and Restaurant and planned to go back there. In fact, I left a saw the Deschutes River, and I thought, suit of clothes in Albuquerque, thinking “Gee, this is not such a bad town. I think I’d be back after I went to Oregon. I never I’ll look around here a little bit.” got back. My suit of clothes is still there. So I talked to a few lawyers, and That’s how I got to Oregon. one lawyer said, “You can go to work right away.” And I thought, “Well, that’s MO: So you drove on to Oregon after interesting,” and I spent a couple days Colorado? looking at schools and talking to lawyers about things in Bend. OP: From New Mexico I went up to Then I went on to Redmond, up to Denver, talked to some law firms there, The Dalles, down to Portland. I thought had some potential there, but then I went Portland was pretty drab in 1949. In fact, on to Oregon. it was raining down here, and I talked to a Came into Bend, Oregon about couple of law firms, and I thought, “Gee, midnight across the desert. Didn’t see if I have to live here, I’m going back to anything but sagebrush coming in from Oklahoma.” the east to Bend. I got into Bend and I But I kept thinking more and more went up to what appeared to be the only about Bend, and I went back to Bend, and hotel in town, a little second-floor hotel. I that’s where I decided to land. wasn’t looking for fancy places. I went up, and I think the room was [End of Tape Three, Side Two] three dollars, and when I registered she asked me did I want a girl, and I realized

Panner, Tape Three, Side Two 43 Early Law Career process because I was out trying to sell cars. Sold cars to the Warm Springs MO: At the point when we broke you Indians, which ultimately resulted in my were telling me about some of the other em­ployment as their lawyer. places that you looked at. You said you’d been thinking about Santa Barbara and MO: Did your wife join you right after Colorado Springs? you made the deci­sion?

OP: Yes. I hadn’t looked at Santa OP: Yes. She came out right away on Barbara after I graduat­ed from law school, the train. I met her up at The Dalles, she but I’d been there quite a bit during the and my son. In January of 1950 we had war, and I’d written some letters there, our second child, right after she’d gotten but it was pretty far out. I got to Colorado out here. Springs and had a pretty good offer there, and then I came on to Bend, and I came to MO: How did Bend strike her? Portland, and I kept thinking about Bend. I remember talking to my wife OP: She loved it. We had a very modest about three places: Colorado Springs, apartment, just a kitchen and a living Santa Barbara or Bend, and she said she room and a fold-out bed, but we had a was happy with any place. I remember her beautiful view of the mountains, and she dad got on the phone, and he said, “Well, liked it very much. you could have gotten a little bit further away than Bend, Oregon, but I don’t know MO: When you were looking around for how you could have gotten any farther a place, did you have in your mind that away from New York.” you’d prefer to be in a somewhat smaller But we decided on Bend. I had to place? wait almost a year to take the bar exam because in those days Oregon only gave OP: Yes, I think I did. Mainly, I one bar exam a year. So I had to wait ‘til wanted to be a trial lawyer by this the next July to take the bar exam, July of time, I wanted to try cases, and the best 1950. chance to do that was with a law firm In the meantime, I got a job selling that had a trial practice. My future law cars at the Bend garage and working for partner that I went with had a small my future law partner doing some work practice going. He was a justice of the for him that didn’t require admission to peace, had some litigation and didn’t the Oregon Bar. I sold Buicks, Cadillacs, like it, didn’t want to be a trial law­yer, and Chevrolets. Had a chance to get and was looking for a trial lawyer, so it acquainted with a lot of people in that was a good fit.

44 Panner, Tape Four, Side One MO: You said that by the time you automobile job had run out, and I got graduated from law school you had a call one night from Don Emery, who decided that you wanted to practice law. was the Chief Counsel at Phillips. He Was that just as a result of studying the said that his son, Bob, who was my law law and getting more familiar with what school classmate, had decided to go it was all about, or—? into practice on his own, and they had an opening in their corpo­rate counsel OP: I can remember in trial practice situation with Phillips 66, and would thinking that I’d like to try cases as a trial I consid­er coming back, because he lawyer. I think it was a gradual change, thought maybe I might be avail­able. but trial practice and moot court helped And I can remember my wife me, and then I watched some trials. I had saying, “No, we’re not going back.” some friends in law school whose fathers It was tempting because I was were lawyers, and I’d visit the courthouses out of work right then, and I still hadn’t occasionally with them. taken the bar exam, and the weather wasn’t very good right then. And he MO: So trial practice is mock trials that said, “Well, we’ll fly you and your wife you do in law school? both back to talk about it, and if you don’t like it, we’ll fly you back home.” OP: Yes. In other words, no obligation, just come and talk about it. MO: So it wasn’t just that you had So I said, “Well, I’ll talk to her, decided to practice law, but you had and I’ll call you back.” also decided on trial law at that point? Well, we talked, and she just didn’t want to go back at all, and I OP: Yes. I wanted a little security, too, agreed, and so I called him back and and I remem­ber thinking about if the said, “We’re here to stay.” Phillips job had opened up, that was a good secure job. It wouldn’t be a trial MO: Where would this job have been? lawyer, it would be a corporate counsel, but it was a good salary and good OP: It would have been in Bartlesville, security, and I remember being tempted Oklahoma. by that, and I think I probably would have taken that if it had been available. MO: Back close to home? But interestingly enough, about Christmas of the year after we came OP: Yes. And Bartlesville is a very, to Oregon, there was a couple feet of very nice town in Oklahoma. I had a lot snow on the ground in Bend, and my of friends there, and we didn’t know

Panner, Tape Four, Side One 45 anybody in Oregon. We did not know The only two blacks in Bend, one one soul in Oregon. I guess I knew Judge of them was a bootlegger,­ and one of McCulloch, but only barely, just from him them was a kind of a junk man. It was coming and talking to us, and he was the a pure white town, but with no class only one. distinction. I remember one of the things that impressed me, I went out to the golf MO: What place did you have in Bend? club—they had a golf club there, and I went out there, and my partner arranged OP: We just had at first a little apartment, this game with the superintendent of literally one room: a kitchen, living the big sawmill there, and his regular room combined with a fold-down bed. So golfing buddy was the mill janitor, who it was pretty tight at first. Then in a couple was just an ordi­nary blue collar worker, months we found a little house to rent, a and they played every Thursday together. very small house, but comfortable, within Thursday night was stag night, and they’d walking distance of work. have dinner together. I remember being impressed thinking that that’s a good kind MO: You mentioned the spectacular of a place to be, where there isn’t all this scenery and the river and the blue skies, social structure for kids. The superin­ in terms of just the demographics, the tendent and the janitor play golf together. type of town that Bend was then, can you [Recording stops, then resumes] describe it? Was there a real mix of Indians and white people? MO: I think you also characterized Bend earlier when we talked as a Wild West OP: There were no Indians in Bend. town. The Indians were sixty miles away at Warm Springs, but they would come into OP: It was. There were two houses of Bend to buy cars, and I would go up there prostitution running wide open, another occasionally. I sold some trucks up there one semi-open. Gambling was pretty to some of the tribal members, and they rampant. Same was true over in Prineville. came to Bend and would buy cars. It was a different world. Bend was pure white. I think if I remember right there were two blacks that MO: How did you happen to get the job lived in the town of Bend when I went selling cars? Was that just a lucky meeting? there. I remember being surprised, and that wasn’t, of course, a factor at all. The story OP: Yes. I think my law-partner-to-be goes that Bend, like many of the Eastern knew the owner of the Chevrolet-Cadillac- Oregon areas, just didn’t allow blacks to be Buick garage, a wonderful gentleman by there after sundown in the old days. the name of Walter Coombs, and his son-

46 Panner, Tape Four, Side One in-law, Bob Thomas,­ who worked there through Eastern Deschutes, Harney with him. They had a sales force of about County, and that was a good experience— four other salesmen besides his son-in- for the 1950 census. law, Bob Thomas.­ They had a wonderful franchise: Cadillacs, Buicks and MO: So you were supervising the census Chevrolets, and GMC trucks. They were takers? the most prominent automobile dealer in town and had a lot of business. OP: My job was to line up census takers So they put me on a straight for the rural areas, and make sure that commission basis, no guarantees. I loved they got their censuses taken in their areas, it, I loved selling. It was a real thrill, and I areas like Silver Rock, Southern Harney sold an awful lot of vehicles. In fact, I sold County, Denio, Fields —real exciting so many that one day Mr. Coombs, just places. before Christmas, after several months, called me in and said, “You know, Owen, MO: Did you have to travel around to you’re only going to be here for a short these communities, then, to recruit the time, and the other salesmen feel like census takers? you’re selling too many cars.” And he said, “I like it, you know, but there’s a little OP: Yes, and that was a great pleasure, bit of a problem.” too. I made a lot of friends that later I said, “Well, it isn’t the money.” I became clients and long-time friends. thought maybe he was worried that I was making too much money because I was making quite a bit of money. I said, “I’ll Duncan McKay cut back on that.” “No,” he said, “It’s the number of MO: We haven’t talked too much about cars that you’re selling.” your first acquaintance­ with Mr. McKay And I said, “Well, I think I’d be and how you came to link up with him. better off to quit,” because I think that’s what he was suggesting. Rather than OP: Duncan McKay was a big Scotsman, just fire me, he was very nice about it, a wonderfully­ friendly man. He loved to but I think I was being fired, and I said, fish and hunt, that was his life. He really “Well, that’s fine, I’ll quit.” I had made wasn’t excited about the practice of law. as much money as I expected to make He was a J.P., and that paid him a couple ‘til the next July, anyway, so it worked of hundred dollars a month, and he had a out all right. lot of friends. Then I went to work for the Bureau His father was one of the founders of Census, supervising­ census takers of the town of Bend, in fact, surveyed it

Panner, Tape Four, Side One 47 and laid it out as a surveyor. Came out law particularly, haven’t studied that.” here from Minneapolis, Clyde McKay. His So I immediately started studying father estab­lished a title company there in Oregon statutes and Oregon law and Bend, and Duncan was a state policeman reviewing some materials, my notes from and then went to law school. Just a fine, law school, and so forth, and I got kind fine man, but not an aggressive hard of worried. The Oregon bar was just two worker, and was very proud of that fact, days, from nine to five, and the Oklahoma didn’t claim to be. Just a very fine man. bar had been four days, from eight to five. His father, too, was a very fine man. I thought, “Gee, in that short of time—” I remember after I started practicing And, they were failing about 50 percent with Duncan, his father used to come by at that time. I passed it by cramming hard every day when Duncan was out of town the last three or four weeks. to make sure I was on the job when his son was gone. He didn’t tell me that, but it was MO: When you first went to work with apparent because every day Duncan was Mr. McKay, you hadn’t yet passed the bar. gone, why, Clyde would come in and visit What was your work then? a little bit. One day he came in, and he said, OP: Mostly, I was just doing research “Owen, you probably realize that I’ve before I passed the bar. Briefing cases for made a terrible mistake. I’ve been coming him and researching, and occasionally­ by here to make sure you’re working when doing some investigation work, going out Duncan’s out of town, and I need to turn it and talking to witnesses, things of that around the other way: When you’re nature. out of town, I’m going to come by here to make sure Duncan’s working.” MO: And did he pay you hourly? He was a wonderful character. OP: Yes, he would pay me occasionally. MO: Why don’t you tell me about your He was very gener­ous to me. I never even experience passing the Oregon bar exam? asked him. In fact, when I talked about staying, he said, “How much do you OP: Well, I never really thought much want?” And I said, “Well, I’ll just go to about it. I passed the Oklahoma bar work, and you decide what I’m worth,” without any problem before I came out and he was wonderful. here, and I never thought much about In fact, when I came in with him, it until right towards the last, and then I he insisted that I come in as a fifty-fifty began to think, “Golly, I might flunk this partner. And I said, “No, that won’t bar. I don’t know anything about Oregon work because you’ve got a business here,

48 Panner, Tape Four, Side One you’ve got a secretary, typewriters, a safe, versa. We had a very good relationship. accounts receivable. I wouldn’t feel right about that.” MO: You said that he wasn’t very excited “Okay, what do you want?” about trial work, so I assume he didn’t “I’ll start at 25 percent, and we’ll have too much of that in his practice before see what happens.” you came? It wasn’t very long and he said, “Let’s raise it up to 50 percent.” OP: He had some, and he wasn’t doing I said, “Well, let’s make it a third.” I a very good job with it, as he knew, and think this was after about a year. after I passed the bar, he said, “We’ve got He was always very generous about this case coming up in two or three weeks. insisting that I take more. After quite a few You help me prepare this case, and I’ll try years, he said, “I think it’s time to turn this this case, and then after this case, you try around the other way.” He said, “You’re them all.” doing all the work and bringing in all the We went up to try this case, and money, and I don’t want to work so hard, he wasn’t very well prepared. I had really and I want to fish and hunt more. I’ll take worked hard on it. He made an opening a smaller percentage,” which he did. statement, and our client looked at me, We never had an argument in all and Duncan wasn’t satisfied, it was a the years we were together. terrible opening statement. He came back and he said, “I don’t feel very good. I think MO: Sounds like a very amiable partner- I’m going back to the office. Why don’t ship. you take this over?” And that was the last time he went to court. OP: He was totally honest, had a lot of good friends. His friends recognized he MO: He made the opening statement didn’t want to work very hard, so they’d only on that one? come to me and get me to do the job. But he was wonderful. He had a great wife, OP: And I tried the rest of it. and just a top-notch guy. MO: Was that your first trial? MO: Did you spend time socially with them? OP: That was my first trial, and that was before Judge Edward Howell, who later OP: Yes, we spent a lot of time socially became a fine Oregon Supreme Court Jus­ with them. We went to football games, tice. For many years he was a trial judge dances, to their home for dinner and vice- from Canyon City, over by John Day, and

Panner, Tape Four, Side One 49 he tried cases over in the Bend area, also. that time my client got into further trouble And it was one of his first trials, and he and had to take bankruptcy, so it didn’t estab­lished a reputation for being a very really matter. That case never was decided, expeditious judge, efficient. which was kind of a victory for us. Our It was a good trial. There were about role was simply to prevent the foreclosure three lawyers on the other side. It was a of the mechanic’s lien, and they never got mechanics lien case against our client, and that done. it went on for about three days. It involved the construction of a pumice plant that MO: And that was it? some contractors had built for our client, and they got in a big argument about the OP: That was it. charges, and my client didn’t pay them as much as they thought he should have, and MO: So when you were trying the case, so they filed a mechanic’s lien foreclosure especially after Mr. McKay walked out, on his plant. It’s quite a detailed job to did you feel fairly confident and good foreclose a mechanic’s lien. about it?

MO: And your client was seeking to OP: I really did. You know, it’s funny, I avoid the foreclosure, I take it? had done a lot of work preparing the case, and I felt pretty good about it. The lawyers OP: Right. His contention was he’d against me were experienced lawyers, already paid them more than they were very expe­rienced elderly lawyers, very entitled to because they’d done some bad professional and very good. I always felt work, and they weren’t entitled to as much trying cases like I was going to win the as they were asking for. case, and I felt that way about that case, even. Sometimes I didn’t win them when I MO: How did it come out in the end? thought I would, or should have.

OP: Well, it’s a strange thing. It’s [End of Tape Four, Side One, probably the only case that Judge Howell Tape Four, , Side Two Blank] never decided. It wasn’t a jury case, a mechanic’s lien is just before a judge. It was so complicated that he took it under advisement after we fin­ished, and it was about four months later and he still hadn’t decided the case, which was very unusual for him, as his later career proved. About

50 Panner, Tape Four, Side One happened was that Clyde and some of his Colorful Characters friends had buried a bunch of dynamite with some sacks of flour to let them know MO: When we left off last time, we were that it was pretty lively around Bend. talking about your arrival in Bend, and you told me a little bit about the Wild MO: They had told them ahead of time West character of the town and a couple that there was a possibility— of Bend stories, your partner, Mr. McKay, and his father. OP: Yes, they had told them that it was one of the most recent volcanoes OP: Clyde McKay. in Oregon, and that the geolo­gists had thought it could explode any time. MO: And you said the father, in Naturally they were all a little excited particular, had a number of stories to tell when that happened. and that you had heard quite a bit from Clyde was named in several places him. So we could start there. in the story “The Oregon Trunk,” which is the story of the James J. Hill and E.H. OP: A couple of stories. Clyde was a Harriman interests racing up the Deschutes tall, thin, ramrod-straight type of fellow. River from the Columbia with their rail He surveyed and laid out the town of lines. They each had crews building tracks, Bend and was one of its founders in the one on one side of the river and one on early 1900s. There was one story that he the other, and they literally fought their told me about an incident when a group way—dynamited each other’s tracks, shot of visiting dignitaries, including the then- back and forth across the canyon—all the governor, and I’ve forgotten now who that way up through Warm Springs where the was, came to visit Bend. It was quite a trip reservation joins the river. Then up onto in those days up to Bend from Salem or the flats above Madras and past Madras Portland. But anyway, they came up, and to the Crooked River gorge, where the were entertained at the Pilot Butte Inn, Crooked River gorge is very, very deep which had already been built. and very narrow, and there was only one The next day they were going to right-of-way area across the gorge, and show them Oregon’s most active volcano that was over this particular ranch. at Lava Butte, just south of Bend. So they And Clyde told me the story about took them up there, a bright shiny Bend how the foreman of one of the railroad day, as usual, and got them up to the top interests married the rancher’s daughter of Lava Butte, and a tremendous explosion in order to get the right-of-way, and took place, and dust flew in all directions that ended the battle. Once they got that while they were up there. What had right-of-way, the other railroad gave up.

Panner, Tape Five, Side One 51 Interesting that in those days they didn’t MO: When we first met, you told me plan that far ahead. They spent all this a little bit about other lawyers that were money building all the way up the river operating in Bend, and that in those days without knowing how they were going to the typical law office was a little office get across the gorge, but that’s his story usually on the second floor of a building. about the way it happened. Then you and Duncan McKay later opened a ground-floor law office that was perhaps MO: You told me that he would stop by a bit more plush than normal. I’d like you just to make sure you were on the job when to tell me that story, but can you tell me the younger McKay was out of the office, a little bit about the other law practices and then he later decided that maybe he in Bend, and the other lawyers and how should turn things around. their practices compared to yours in those early days? OP: Yes. He had a wonderful sense of humor. Very busi­nesslike, and after I OP: When I started, there was one law started practicing law, maybe six months firm in Bend that was a very fine law firm. or so, every time his son, my senior partner, It was made up of Harvey DeArmond, was out of town, why, Clyde would come Alva Goodrich, Bob Foley and Alvin around the law office to check to make sure Gray, all very fine lawyers, and they I was working on the job. Business was a had substantially all the busi­ness in the little slow in those days, and you didn’t town, all the good business. There was want to miss any business that came in. another law firm of Charles Boardman His son never made any pretense of and Charles Marsh, and then there were being a hard worker. He was a wonderful a couple of individual lawyers. Then there man, but he loved to fish and hunt more was my partner, Duncan McKay, who was than anything, and travel, and after about the Justice of the Peace and had his own six months one day Clyde came in, and private law practice. he said, “Owen, I think you realize I’ve Our office, when I came with Duncan, been coming in and checking up on you was up in the top of the O’Kane Building, when Duncan was out of town, but I think which is a beautiful old building. The rooms I’m going to turn it around, from now on, were small, though. Big windows. Second when you’re out of town I’m going to come floor. No elevator, you walked up the stairs in and check up on him to make sure he’s to get there, and wooden floors, but a very working.” comfort­able office. The title company was just a couple The DeArmond firm was upstairs doors away from our law office in those above the bank in a little better office, days. but upstairs and not much difference.

52 Panner, Tape Five, Side One Everyone else was upstairs. To my MO: And the cowboys didn’t mind? knowledge in those days there was no law office in Eastern Oregon that was down on OP: The cowboys didn’t seem to mind. the first floor. There may have been, but No, they didn’t seem to mind. I never ran into one. Almost all lawyers were considered to be upstairs office MO: This move to the new office came people. just shortly after you came? My senior partner was very smart. Even though he didn’t like to work too OP: It was a couple years after. We were hard, he was very smart, so he got a lease in the O’Kane Building a couple years, I on a downstairs space next to the bank, think. It was probably about 1951 that we just next to the stairway that went up to the moved. DeArmond law firm, so people would have to go past us to go up to the DeArmond law MO: In terms of these other attorneys, firm. We remodeled that office and put in were you getting to know them all by this carpets, and it was pretty nice. time? Harvey DeArmond, who was a wonderful lawyer, was the senior lawyer OP: Oh, yes. It was a small town, and in that firm, and he came in one day to talk we had Central Oregon bar meetings once to me and give me some good advice. a month. There was a very fine law firm “Owen, you know, most of our in Redmond called Cunning & Brewster. business around here is sheep and cattle­ Max Cunning and George Brewster. men and ranchers, and mill workers, George Brewster was a fine trial law­yer, and they get nervous coming in. You’re Max Cunning was an office-type lawyer, making a mistake putting in carpets. They and they made a great partnership. There don’t like to bring their boots covered with was a firm over in Prineville called Don manure in on a carpet, and you’re making Graham and Leif Bechtel, and they were a big mistake to do this.” good lawyers. Quite a little bit of drinking But it turned out that it didn’t went on, and we discussed our various quite work out that way. We began to problems and argued some, but got along get a lot of business, as we probably real well. The bar was very friendly, a would have, anyway, but it wasn’t good bar association. very long after that ‘til they moved their offices. They bought a building MO: And the fact that you were all and moved their offices downstairs, competitors didn’t get in the way of also, and then things in Bend began to amicable relations? change and lawyers began to have nice offices downstairs. OP: No, it didn’t. Everybody recognized

Panner, Tape Five, Side One 53 that our job was to fight ferociously in with them, and I’m trusting you to divide court, but to remain friends, and we them up among these lawyers,” which I pretty well did that, contrary to many of did. He did not make it, so I divided up the local bars in Eastern Oregon that had a the files. little more acrimony involved. But George He was a rough, tough character. Brewster and Harvey DeArmond and He drank a little too much. He loved to Don Graham were fine people, and they gamble. He went to the doctor one time set great examples for us. with a heart problem, and the doctor said Brewster was a wonderful lawyer, to him, “George, what do you like to do and one night he called me from Portland, besides work? You need some recre­ation. and said, “Owen, get down here to You need a little diversion. You work Portland. I’m in the hospital down here, too hard.” Because he worked very long and tomorrow I’m going to have all my hours. veins opened up, and they tell me I’ve got “Well,” George said, “I like to drink a fifty-fifty chance of surviving. I need you whiskey.” down here right away.” “No, that’s not what I’m talking It was a four- or five-hour drive, about,” the doctor said. “Something that but I liked Mr. Brewster well enough and you have fun at.” respected him that I didn’t ask him any “Well, I like to go down to Reno and questions, I just took off and got down Las Vegas and shoot craps and gamble.” there. I got down there about nine o’clock, “No, that’s not too good,” he said. as I recall, and he was pacing around in “Anything else?” his hospital room, and he had clients’ files No, there was nothing else, and the laid out all over the hospital­ room, and doctor said, “Well, you might just as well he had them tagged for what lawyer they keep on working. There’s nothing I can do would go to. for you.” “Now,” he said, “these are the He also left instructions to me files I want you to take over and handle if about a wake if he did die, and so we had anything happens to me. The rest of these a big wake. He said, “Now, my wife won’t files, I don’t want you to look at. You dole know how to do this. She doesn’t believe these out to other lawyers. These are cases too much in drinking, and so you’re in I have against you, and I don’t want you to charge of the whiskey and the wake.” look at those.” Genevieve, his wife, was a very wonderful And he said, “I know I’m going to lady and very good about it. pull through this, but just in case I don’t, I want to make sure my clients are taken MO: So you must have been able to hold care of, and I’ve assigned these cases out to your own with this crowd for him to put the lawyers that I think will do the best job you in charge of this event?

54 Panner, Tape Five, Side One OP: I’d been practicing then probably know him, you’d think he was arrogant ten years, maybe seven or eight years, and ornery, but if you knew him, you but I tried a lot of cases against George realized that he really wasn’t. Brewster. One time I was trying a divorce case against him, and at the recess we MO: What about Mr. DeArmond? were standing back against the bar facing the judge’s bench, with our back to the OP: Harvey was a former legislator, audience. My client, who was a big, before I got there. A very bright, capable rough, tough guy, came up behind him guy. A little short guy. Very dapper. He and choked him into unconsciousness on always went to the golf club, as most of us the floor before we could interrupt. did, on Thursday night, stag night, have a I was just furious at my client, few drinks, play a little poker. and I got him finally loose, and we got One night Harvey got into an George Brewster awake again, and he argument with a big fellow who was a town came out of it all right, and I said to him, character by the name of Bill Baer, big strong “That’s the end of this trial.” I said, “I’m guy. Baer ran the Waldorf Restaurant and going in to the judge and tell him what Tav­ern, bar and cafe, and Baer was a German happened.” by extraction, and he was a Hitler supporter. And Brewster said, “No, you’re Even though Hitler had been defeated, he not. Not on your life.” He said, “I wouldn’t thought Hitler was just the right thing, and miss the chance to cross-examine that son he would make speeches at various times. of a bitch for anything in the world. This This particular night at the bar he trial’s going to go on.” And it did. and Harvey were standing there, and he started telling Harvey what a crook he MO: And did he really nail him then, was, which wasn’t true, and when this when he—? country was put in the proper hands, people like Harvey would be eliminated OP: Yes, he was a pretty tough cross- or something or other. Anyway, he made examiner, and he really poured it on him. Harvey so mad by calling him a crook or Yes, George was a character. telling him he was dishonest that the next thing we all know, here’s little Harvey MO: Any other stories about Brewster punching Bill Baer in the stomach, just that come to mind? right and left, as fast as he could. He was punching him out. Fortunately­ for Harvey OP: Oh, I could spend a day or two on we separated them pretty quick. him, there are so many. He’d been a water master before he started practicing law, MO: And who was the third attorney and he was very positive. If you didn’t you mentioned?

Panner, Tape Five, Side One 55 OP: There was a lawyer by the name thirty minutes, and everybody knew of Don Graham over in Prineville who where he’d been. He’d go down to the was kind of the leader of the bar in Prine­ house of prostitution and come back to ville in those days. Dan was a little more the game. reserved. He would come to the Central Harvey’s firm represented the Oregon bar meetings occasionally, but prostitutes, and one night I got a call not always. from the Sheriff’s Office in Bend asking if I remember one night he made a I would come down and represent some speech. He’d had a drink or two, and he women that had asked for representation. made a speech about how he loved all I said, “Well, Mr. DeArmond takes care of of us individually dearly, but when we those things,” and they said, “Well, he’s all got together, it was just more than he out of town, and they asked for you.” could stand. So I went down, and I explained to them that my role was going to be MO: What were these poker games like? simply to help them post bail for the night, but that I wouldn’t represent them OP: Well, they were normal poker further. games. I don’t recall any specific instances. But I remember one of the young It wasn’t for a lot of money. Nobody ever ladies—they had brought them in from got mad. In those days, card games were Prineville, and one of the young ladies running all over Bend in the back rooms was being fingerprinted and interviewed, of taverns, and as I indicated, prostitution and the Sheriff asked her name: was running pretty strong. “Jane Doe.” I remember one story, we had a “Address?” fellow who declared that he was a Count “Prineville, Oregon.” from France, Regis de Malisette. His “No, I got to have a better address lawyer represented him there in Bend, than that. What’s your address in and apparently Regis had a big income Prineville?” from the government of France. He was “That’s all the address I’ll give quite wealthy. He put on horse shows, you,” or something. and he had a big spread, and he was very “Occupation?” flamboyant. She paused a little bit and said, Regis would come to the Thursday “Prineville Riding Academy.” night games, and he’d be playing poker, And the Sheriff wrote that down, and pretty soon he would get up and Prineville Riding Academy. say, “Well, it’s time for me to go now. I’ll We got them out on bail, and that be back in about thirty minutes.” And was the last I saw of them. But in those he would leave and come back in about days there was quite a traffic of pros­titutes

56 Panner, Tape Five, Side One from Nevada up to Portland and Seattle, landlord has locked all of our line haul through Bend and Prineville. Since those rigs out of the Madras terminal. Will you places were in effect, “open,” they often go down there and see what you can do?” stopped there or stayed there a while and I went, and sure enough, Nick then went on. Denton, who was the landlord, had some men around there, and they had set up MO: I believe there were quite a few barricades to keep the big line haul trucks card games running here in Portland at from coming into the terminal there at that time. Madras. They were all sitting there with their motors idling. This was midnight or OP: There were. I had a client who used so, and I said to Nick, “What’s going on?” to come down here every six months or And he said, “Well, they didn’t pay the so and gamble. He had a trucking compa­ rent.” ny. His son and I were on the board, I said, “What do you mean, they and I represented them legally, and we didn’t pay the rent? They’ve paid the rent had a fine CPA. It was a good company, to you for years here.” Bend-Portland Truck Company and “Well, they didn’t pay it this time. later became Trans-Western Express. They’re eight days late, and I’m taking it He would come down here and lose big over.” amounts of money, $20-, $30-, $40,000, And I said, “No, you’re not taking it and he’d come home and apologize. He over. You can do that in court, if you want was the owner of the company, and he to, but you’re not blocking this up tonight. owned most of the stock, but he knew These barricades are coming down, and that we were working hard at it, and these trucks are going to start to move, he’d come back and apologize and say, and we’ll talk about this tomorrow, and “If you’ll get me out of this one, boys, I’ll you’ll get your rent, or if we’re in default, never do it again.” But we always knew you can go to court.” that he would, he always managed to “No, no, those barricades are survive, though. staying up.” “Nick, this is the most ridiculous MO: Did you hold an interest in this thing I’ve ever seen. I’m personally going company? to take those barri­cades down, and if you try to stop me, I’m going to knock you on OP: No, I didn’t hold an interest. I was your rear end.” And there were some of the lawyer and on the board of directors. his men and some of our people around. I The way I got there was kind of rough and said, “I’ll give you ten minutes to get those tough. I’d never represented him before, barricades down.” but he called me one night and said, “The I went in the office, and it was

Panner, Tape Five, Side One 57 apparent to me that my truck drivers don’t know whether the Sheriff suggested weren’t going to help me at all. They it or just what happened. were kind of enjoying this. So ten minutes came, and I took my coat off, went out [End of Tape Five, Side One] on the dock, and there was Nick, and he said, “Now, wait a minute, Owen, let’s talk MO: This is a great picture you’re about this.” painting of Bend in the 1950s. “We’ll talk about it when your barricades are down and those trucks are OP: To follow up on the prostitutes, the moving. I’ll buy you coffee, and we’ll talk senior madam, who had been there for about it.” years, a lady by the name of Katherine—I “Okay,” he said, and he backed never knew her last name, I don’t suppose down, and I took the barricades down. anybody did—ran the houses, and she The owner of the company heard had a little drinking problem. She drove this story, of course, and he called me the off one of the irrigation canal bridges into next day and he said, “That’s the kind of the irrigation canal and drowned one a lawyer I want. Been a Teamster all my night. life,” he said, “I want a lawyer that will She had a beautiful home south fight for us. You’re our lawyer from now of town, and her estate sold that home to on.” some people. Sometime later those people And I was. It was a great company came into my office saying they weren’t and a great experience.­ sure about the property they’d bought. They couldn’t understand why men kept MO: And he put you on the board, too? coming all hours of the day and night to the house, knocking on the door looking OP: Yes. It was a little while after that. for Katherine or somebody else. They had finally concluded that they had bought a MO: Sounds like you were beginning to home of a former madam, which I advised get a reputation in town? them, yes, they had. I hadn’t had anything to do with that sale. Naturally they wanted OP: Yes. Yes. out because those things don’t wear off. So I filed a lawsuit to set aside the sale MO: Do you know why the ladies in on the grounds of fraud and a failure to Prineville had specifi­cally asked for you disclose that, and they promptly agreed when their attorney was out of town? and rescinded the sale. It was kind of embarrassing. He OP: I don’t, except that there weren’t had a family, young kids, and people very many lawyers around then, and I would come around in the middle of the

58 Panner, Tape Five, Side Two night knocking on the door asking for the when I joined it, and it got to maybe twice girls. that high by the time I left Bend.

MO: What finally happened to that MO: So it would include local property? businessmen, I assume, and other attorneys, as well? OP: Well, I think they disclosed it the next time, and somebody bought it OP: Yes, other attorneys, doctors, who was willing to put up with it, and professional people, business people. time probably finally wore it out. It was a pretty nice house, a big old white two- MO: What about the Boy Scouts? story house. OP: I was a Boy Scout leader for a MO: You mentioned when we first talked number of years through the church. The that you immediately became involved church sponsored a scout troop, and I was with several civic organizations and other a scoutmaster for that troop for probably organizations in Bend, including the Lions six or seven years. and COC— MO: Did you take them out into the OP: Central Oregon Community Col- woods on weekends? lege. OP: Mm-hmm. We’d take them out in MO: —and the church and also the Boy the summer, and we’d always have one Scouts. What outfit was the Lions Club in winter camp out in the snow so they’d those days? learn how to handle the snow and get along under difficult condi­tions. Always a OP: It was a wonderful organization, good experience. The kids never seemed composed only of men. Women never even to mind the cold very much. Most of us thought about being in it. It met Tuesday who were scout leaders would be huddled at noon downtown in Bend at a restaurant around the fire in the evening, trying to for lunch. Fine, public-spirited men. Had keep warm and afraid to go to bed because constant good projects. Glasses for needy it was too cold. kids, dental things. They were constantly I remember one night one of raising money doing good things for the the kids, twelve, thirteen years old, community. It as a great organization. I he had his little pup tent set up fifty would guess there were probably twenty- or one hundred yards away from the five or thirty members of the Lions Club camp, and he comes walking up to the

Panner, Tape Five, Side Two 59 fire where we were all sitting around OP: Up to the top. As I remember we in his shorts and barefooted, walk­ing got about 150 feet of rope or something through the snow. And I said, “What’s like that, and I think he was probably 100 the matter with you, Joe? Are you feet down from the top when we pulled cold?” him up. “No, I’m just hungry,” he said. He wanted something to eat. MO: Was there road access to the top? “Get back to bed. You’re going to freeze to death.” OP: Yes. You could go around the other That was typical of the kids. The way and get up there. kids loved it. They liked the winter camps as well as the summer camps. MO: Did you do any camping outdoors apart from your involvement­ with the MO: Did you enjoy those outings, too? scouts?

OP: I enjoyed them very much. One OP: Yes. It was a camping area. We time we got a scout stuck halfway up on spent a lot of time camped out. As my Fort Rock—did you ever see Fort Rock? kids grew up, they had 4-H horses, and Fort Rock’s a wonderful escarpment we would go out with the horses and down south of Bend towards what’s now camp out, and other times we’d just go Christmas Valley. Probably a 300-foot- on fishing camping trips. I never camped high cliff, and this kid had climbed up out hunting. We hunted ducks and geese about halfway and then got scared and and quail, but those were day trips up froze and couldn’t go up or down. the river or down to Summer Lake or We rushed into the Fort Rock store Silver Lake. But fishing trips, we would and got enough rope to hang down, and go up to the Metolius area and camp out one of the scoutmasters, not me, one of and fish. them climbed up and tied that rope around his waist and arms, and we hoisted him on MO: Sounds like a good life in Bend. up. Scary. I mean, some of us stayed there and talked to him to just keep him quiet, OP: It really was a good life for the kids. standing there quietly, because he got so Schools in those days didn’t have the kind afraid he couldn’t move, and we were of problems they have now. Drugs weren’t afraid he was going to fall, and it would a problem at all. Crime was very minor have been bad. around Bend.

MO: So you hoisted him up to the top of MO: And you became involved with the the rock? church there, too?

60 Panner, Tape Five, Side Two OP: Yes, I was always active in the I had tremendous admiration church, on the Board of Elders for the for him because of that. He made his church. editorial decisions very carefully and with the highest ethics. He wouldn’t print MO: This was the Presbyterian Church? anything in his paper that he thought was scurrilous or defamatory, unless OP: Presbyterian, First Presbyterian. he was absolutely sure that it was true. [Recording stops, then resumes] Newspaper publishers since that time haven’t had that option. They have to sell papers, and the way to sell papers is to Memorable Bend Citizens have a spectacular story. He was succeeded by a very fine MO: Any other notable figures in Bend man who’s still there. Bob Chandler that you might offer a profile of? bought the Bend Bulle­tin and changed the name ultimately to the Bulletin, and has OP: Robert Sawyer was the editor of become a very famous man throughout what was then the Bend Bulletin, and he the United States. I remember when he owned the Bend Bulletin. Robert Sawyer, left Bend to go for two years to consult in my judgment, was one of the last with the Los Angeles Times about some newspaper owners and edi­tors who was of their problems, he was hired as an able to report and publish his paper on a expert. He’s a past president of the very objective basis. He would not print news­paper publishers in the United any story unless he had someone check States. A very outstanding man. Very it out very carefully to make sure it was outspoken, different than Sawyer. true. Flamboyant. Constantly was attacking He didn’t make a lot of money everyone. Attacked the dentists, attacked with the paper, but he did well, and he the lawyers, attacked the doctors. Had ran that paper with very strict ethics. He plenty of criticism for everybody on his would not publish something just because editorial page. But he’s done a great job somebody said something. Many times with the paper, and he’s been a great he would call somebody down to his philanthropist for Oregon. He’s been library on Drake Road on the Deschutes president of the Oregon Community River—he had a beautiful big home—and Foundation. A fine man. Two good I remember being called down there and owners of that paper. put on the carpet about the accuracy of stories, both ones that I was involved in MO: Bob Chandler, I believe, was also and ones that other people were involved an early friend and supporter of Mark in. What did I think about them? Hatfield.

Panner, Tape Five, Side Two 61 OP: Yes. He’s supported a lot of people. enthusiastic, I’m willing to take a chance Nobody ever accused him of being with you.” So I went on the board. Almost diplomatic. He’s very outspoken, very everybody else in Bend had turned brusque, but always has said very quickly him down. He had good friends here in exactly what he thought and what he Portland that helped him. Ulti­mately would do, and he’s stayed right with that. everybody that he wanted to come on the He ran for Congress one time. I board finally did, and it’s turned out to be went with him on a campaign trip, tried a great organization, in spite of my dire to help him a little bit. It was absolutely predictions. hopeless. He would insult the waitress­ Then the real hero in Bend was Bill es. He would say anything he thought. Healey. Bill Healey, who really was the He was not a politi­cian. He didn’t get moving force behind Mt. Bachelor. Bill was elected. a long-time very close friend and client of mine. Mt. Bachelor was a client of mine. MO: A little too open. Bill had a great life, in spite of his terrible problems in the last years of his life. He OP: A little too straightforward. was an extremely courageous guy. Fought I’ve got a couple more. Don Kerr through one of the most difficult problems has made a great contribution to the anyone can ever have physically for about community and the area through the seven or eight years before he finally died. High Desert Museum. He’s been the Crippled. leading force in that, which is now a great institution. Don was just a very young kid MO: What was that problem? when he came to me and asked me to be on the board. I listened to him and told OP: I don’t know that they ever really him it was the craziest idea I’d ever heard, knew. It was some kind of a nervous would­n’t work, and he’d better figure out disorder similar to multiple sclerosis. It something else to do. was a nerve system degenerative situation And he said, “Can I come back and that put him in a wheelchair, got him so see you with some plans and show you he couldn’t talk. He had to communi­cate what I’ve got in mind?” by a Ouija board. But he never lost his “Yes, you’re so enthusiastic, I’ll courage, and he ran Mt. Bachelor right up listen to you, but I don’t think I’ll change.” to near the end from his wheelchair with He came back a few months his Ouija board and a typewriter that he later with all these wonderful­ plans could hack out some things on. Great wife and diagrams, and I said, “Don, I still that stayed with him and helped him. I don’t think it will work, but you’re so would say that of everybody that’s lived

62 Panner, Tape Five, Side Two in Bend since I’ve been acquainted with OP: Yes, they had stopped him for it, he’s the number one hero. Everybody driving under the influence.­ loved him. So one of the officers said, “Well, I have to tell you a good story these ampoules don’t always work right. about Bill Healey. Being an Irishman, Let’s wait a little while and take another he liked to drink a little. We drank a one.” little together occasionally. One night And they were letting him have he was having a Mt. Bachelor annual drinks of water and coffee and so forth. So stockholders’ meeting, and Senator we talked for another half hour or so, and Hatfield was going to speak to the group, they said, “Well, let’s take another one of and the Senator was late because there these.” So they took it, and this one was was heavy snow over the mountains, .11. And the officer said, “Well, I just don’t and he didn’t get there and he didn’t get trust this machine at all. We’ll take another there, and Bill kept drinking. one in a little bit.” Finally the Senator got there, and So we talked some more, and Bill Bill introduced him, but he’d had a little was telling them all along he wasn’t mad too much then, and the Senator made about them arresting him. They should a great speech, and afterwards I said, have arrested him. Contrary to most of “Come on, Bill, we’ll take you home,” my my visits to help a client that had been wife and I. arrested, usually they’re ornery and surly, “No,” he said, “I’m going to stay Bill was just happy and having fun. here a little while longer,” and so he went So they took it again, and it was back to the bar. between .10 and .11, and once again the Well, about 2:30 in the morning, officer said, “Well, these machines have I got a call from the city police to come been haywire.” down to the police station, they had Bill And Bill said, “Now, Joe, I know Healey down there. I went down, and what you’re trying to do, but it won’t here’s Bill, and he’s just as happy as can be. work.” He said, “I’m guilty. Let’s get this He’s telling them sto­ries, and these officers over with. I appreciate what you’re trying are laughing and listening to him. I’d been to do, but you’ve got a job to do, and I’m there a half hour then, and finally one of guilty.” them said, “Well, maybe we’d better do So they said, “Okay. All right.” this Breathalyzer.” So his wife had flown in from So they did the Breathalyzer, and it back East somewhere, and she was at the came out .12, and .10 was the limit then. police station by the time we finished. She was such a wonderful lady, she very MO: Had they picked him up in his car? cheerfully took him on home. They were

Panner, Tape Five, Side Two 63 leaving the next day to go on vacation. OP: Both. He was a great manager of He’d been working too hard, so he was Bachelor. His employ­ees all liked him. kind of celebrating, and they were going He had a great sense of humor. He loved to Hawaii the next day. everybody. I never really saw him mad at So they took off on a plane and anyone. He had a way about him that was went to Hawaii for a vacation, and about unbelievable. two days later the City Attorney called me I would go to Forest Service up, and he said, “You’ll never guess what’s meetings with him when he wanted happened.” He said, “I’ve never seen or something out of the Forest Service, and heard anything like this, but the officers he would never push them, crowd them, came in to me with an old provision in threaten them like so many clients, but he the City Ordinance that says if they want always got his way. In other words, he just to, they can hold these charges, and if he had a touch. doesn’t have a problem for a year, there When he announced he was going won’t be any prosecution. If he does, then to build—he told me, “We’re going to they can bring these charges back up build a lift to the top of Mt. Bachelor.” again. With your permission, we’d like not And I said, “Bill, the Forest Service to prosecute him.” will never agree to that.” And I said, “Well, that’s wonderful. “I know they won’t, but we’re going I know that’s all right with my client.” to go talk to them.” So I called Bill in Hawaii, and Bill So we went down, and Bill had all said, “Owen, I don’t know how you did it, these beautiful plans to go to the top of but I really appreciate it. You’re a genius.” Mt. Bachelor. And I said, “Bill, I didn’t do “Oh, I don’t think so, Bill. We’ll anything. I’m telling you what happened.” give you an answer, but—” “No,” he said, “I don’t know if you “Well, you fellows are the experts. paid somebody off. If you did, I don’t want You know what to do.” to know about it.” So a few months went by, and Bill And I said, “Bill, I didn’t do came back in and said, “Let’s get that lift anything.” built to the top of Bachelor.” He never would believe that that’s And I said, “Bill, you’ve got to have what really hap­pened. Those officers did a better lawyer than I am to do it. I don’t not want to prosecute him, he was so think I can do that.” popular and such a top-notch guy. And he said, “Well, I’ve got an idea. Come on, let’s go see the supervisor and MO: So his popularity came from the the chief of recreation and so forth.” fact that he was such a nice guy, and also Bill says, “I understand why you that Mt. Bachelor was so successful? don’t want me to build to the top of Mt.

64 Panner, Tape Five, Side Two Bachelor. You think it’s not safe, and the MO: Were there any other cases equipment won’t stand up. We’ve done involving him or Bachelor that stand out all these studies, and we’re satisfied they in your mind? will, and here’s all the engineering detail. But I understand that you don’t want it OP: Yes. They built forty units, an done, and if you don’t want it done, then overnight lodge up there. It didn’t work there’s no alternative for us but to go up out very well. The Forest Service didn’t into Broken Top. So here are the plans to like it. One day Bill decided it wasn’t build a lift up into Broken Top.” working very well, so he told the Board, And the supervisor said, “Oh, that “The Forest Service doesn’t like this, and will never work.” we’re going to tear it down.” “Well, we’re going to have to “Oh, we can’t tear that down. It expand. You can’t hold us down. We’re cost too much money.” moving too fast.” “No, we’re going to tear it down. Within a few weeks he had his We’re going to make the Forest Service permit to go to the top of Mt. Bachelor. happy this time and tear it down.” He never even thought about going into So they did. Broken Top, but he just gave them an He invariably met with resistance option to let him do it. on all of his expansions­ at Mt. Bachelor from a conservative, smart board. Smart MO: Of course, they could have stopped men, but they just never were that excited him from going to Broken Top, too. to spend the kind of money that he wanted to spend. But, with great diplomacy, he OP: Well, they could have, but he made always had his way, and everybody went a strong enough case that we have to along, and it always turned out to be right. expand, we can’t just stay where we are, and he was right, and they recog­nized it finally. He told them then, too, “We’re Early Cases going to take the whole mountain. When we go to the top, ultimately Mt. Bachelor MO: Now would be a good time to ask will have a circular route for a vehicle you about some of your early cases that around the mountain, and everybody can seem notable: the Mitchell flood ski wherever they want to, 360 degrees,” case, and you said you tried a couple of which will ultimately happen. murder cases in Los Angeles? He was like a lot of my good clients, when he wanted to do something, he OP: The Mitchell flood cases probably figured out how to get it done and didn’t were the start of a different era in my need a lot of legal help to do it. career. The Highway Department built a

Panner, Tape Five, Side Two 65 fill and a highway through Bridge Creek MO: And you were saying that this across from Mitchell,­ Oregon. When they inverse condemnation was a bit tenuous— built it, the Mitchell people told them they were going to flood them out because they OP: It was a difficult theory, but it was a were restricting the channel too severely just theory. In other words, the State knew with their tremendous fill that was up they were likely to wipe them out, and higher than the town. When they had a instead of condemning those properties water spout, which they have regularly in to build the highway, they in effect put Mitchell, the water comes down, and that in a facility that would wash them out. It big boulder rock fill they put in wouldn’t was only fair, and the people had warned give, and the water would be forced them. over through the town. But the Highway Fortunately for me, Roy Kilpatrick, Department knew better, naturally,­ and so a lawyer over in John Day, had also picked they went ahead and built the highway, up four or five of these cases, and we and sure enough, a tremendous water decided to combine them and try the cases spout came along and washed out a good that we wanted to first and hope to settle many of the businesses in Mitchell. Behind the rest of them. you is a picture of Mitchell before it was We tried three of those cases, won washed out. them all, before a jury, and ultimately There were eleven people that lost settled the rest of them and got those their businesses or homes or a combination people all their money for their property of both, and they began to look for a lawyer and replacements and so forth. It was to sue the state. A number of lawyers pretty well known throughout Eastern turned them down, said there wasn’t Oregon, and it was a good fee. In fact, the anything they could do, you couldn’t sue state’s lawyer used to refer to our new law the State for that. offices as the house that the state engineers Ultimately, about a half dozen of bought. them came to me, and I told them that I It did change things. It was a very thought it was worth a try. There was a substantial turn­around, and it was the theory in Oregon that had been slightly beginning of my great relationship with touched on called inverse condemnation, Roy Kilpatrick, who was a wonderful that is, when the State does something that Eastern Oregon character, a trial lawyer. causes the loss of property, and didn’t do it by eminent domain, that the effect was MO: This must have been a very early that the property owners were entitled to case for you? recover from the State. OP: It was. It was in the middle to late [End of Tape Five, Side Two] ‘50s that it took place.

66 Panner, Tape Six, Side One MO: Were you referring to the offices OP: Yes, I give him tremendous credit. that you talked about earlier that you and He was a fine lawyer. I learned an awful lot McKay moved into? from him. He just had a talent for getting to the point, knowing the right thing to OP: No, this was a subsequent little do, what was just and fair. bigger improvement. A good trial lawyer is one that has good judgment. It doesn’t always MO: I see. Maybe we can take just a necessarily have to follow the law, minute to talk about Roy Kilpatrick. sometimes justice can prevail over the technical law, and a good trial lawyer has OP: Roy was a great lawyer. He had a feeling to know that, and he did. the ability to come right to the point. He never wasted any words. He didn’t talk very much. He wouldn’t be giving this Mitchell Flood interview now. I wrote to him and asked him if we could take an oral history, and MO: In the Mitchell flood case, was there in typical fashion he wrote back, “Dear any­thing about the trial that was unusual, Judge,” because he always called me or was there a turning point in any of the Judge after I became a judge, even though proceedings in terms of your being able to we were the greatest of friends—“Dear establish this principle that you said was Judge, I am not an object of history, very difficult under the law? truly yours.” OP: Yes, there was, and I learned a MO: Is this because of issues of attorney- great lesson from it. We tried the first case client privilege? for about four trial days when we had a mistrial. Something happened that caused OP: No, I don’t think so. I think he just us to have to start over with a different was set in some ways, and he just didn’t like jury. And after that case, one of the jurors to talk about himself or what he’d done. came up to me and said, “Can I ask you a He had a great career. I think if you question?” asked the law­yers that have tried a lot of And I said, “Sure.” Because he was cases in the last forty years around here through and dis­charged. who the top five lawyers were in the state, Our engineers had helped us, he’d be one of them always. He’s just a and we had prepared a great long great lawyer. demonstrative exhibit showing how the water came down Bridge Creek, hit the MO: Did you discover that about him in embankment, caromed off into the town, this first case? and washed out the buildings.

Panner, Tape Six, Side One 67 This juror said to me, “I’ve been OP: They never went to an appeal, curious about something­ here. Which way which we felt was a real victory. was the water running on this exhib­it?” To us, it was unbelievable that MO: Was the state’s defense that your anybody could have sat there and technical argu­ments weren’t sound, or watched us go through that over and that they weren’t liable in any case? over, and point out how the water came down, without understanding which OP: The state’s defense was that this way the water was flowing, but it taught would have happened, anyway, whether us a lesson. What we know as lawyers the highway had been there or not, it was isn’t always something that jurors know such a massive flood. because they come into it cold, and we As a matter of fact, there were eight didn’t do the right job to explain it to inches of rain that fell in twenty minutes in them. After that we were much more that canyon up above Mitchell, and so the careful to try to lay out which way the argument was the flooding would have water was going and what was going occurred whether or not the highway had on. been there. Well, that wasn’t a very good We tried three cases, and they argument. We went back to 1905, and we were big verdicts, and the State had a witness, Charlie Cottengen [sp?] who appealed. We were a little bit afraid of could testify that there was more water went an appeal because, as I say, the law was down in 1905 than went down in 1956. And a little tenuous, but they were also a the showed us, he proved it for us. little afraid of it, too. The result was that Down below Mitchell were what the head of the Highway Commission they called the dam rocks, and at this point and the chief coun­sel for the Highway the rocks brought the water in and forced Department, who tried the last two it into a space not much wider than this cases—after the first one was lost, the room, maybe twenty or thirty feet wide, chief counsel, Leonard Lindas, who was and no place else the water could go. He a really fine lawyer, decided he’d try the showed us the water mark from 1905 rest of these cases and we wouldn’t have compared to the water mark in 1956. It any more of this foolishness. He was a had been a subject of lots of conversation fine lawyer, and he came down, but he after the 1905 flood, and people went managed to lose the next two, and then down and—“Golly, look how high this after that we settled all the rest of them water came.” for the appraised value of their facil­ We had sheep herders who testified ities. to how big that space was before the state put the fill in and how many sheep they MO: They never went to an appeal? could put down there and graze. And

68 Panner, Tape Six, Side One in 1905, some of these buildings that So sure enough, he was there the were you there you could see were not next morning, but he was still exactly the damaged. same way. He hadn’t changed. How he kept So we had the best of the facts. What from falling down and going to sleep or we were most afraid of was the law, that getting drunker or sobering up—he hadn’t a court might say inverse condemnation­ changed. He was still exactly the same. won’t work in this state. But we felt fairly So I tried it one more morning, and confident about it. It didn’t make any sense it was still the same, and we had to give up because other­wise the State could just go on him because he couldn’t have passed in and do whatever they wanted to with the witness test. immunity. So we felt pretty good. We had them convinced, anyway, they paid off. MO: And you said that this case was a real turning point for you. Was it the first MO: In a case like this, when you’re one that started to make your reputation? doing your pretrial research, how do you find people like Charlie Cottengen? OP: Well, I had tried quite a few cases up to then. I defended an automobile dealer OP: We went over to Mitchell. Our on a tax fraud charge down here in federal clients, of course, were a great help. We court before Judge McCulloch and won that had so many clients that they helped us case for him. That was a good case. find these witnesses. One of the witnesses I’d had a lot of good cases. I had a they helped us find was a sheep herder timber case up in Northeastern Oregon in from over at Fossil that had run sheep Pendleton that worked out real good. That there and could testify about it. We were was in the days when Judge Kilkenny was staying in Fossil, and I was looking for a lawyer, and Judge Parry was on the state him, and I finally found him, and I found circuit bench. There had been a lot, but him one morning at about 7:30, and he that was a big case. I think that gave me was really drunk. I mean, he was standing a lot of confidence, and it did permit us there weaving. He could talk to you. I to build a suitable office building, so we don’t know if you ever saw anybody like could accommodate some more lawyers this, but somebody so drunk they ought and some more secretaries. to be on the ground, but they’re able to function, and he was standing there. And MO: At this point was the firm still you he told me all about the case, but I didn’t and Duncan McKay? want to take him to court that day. So I told him, “I’ll see you here tomorrow morning. OP: Yes. I believe we had also taken We’d like to have you tomorrow morning. in a young lawyer by the name of Dennis Go home and sober up.” Marvin at that time, and maybe a couple

Panner, Tape Six, Side One 69 more. I don’t have that history. I should his mother had fallen down the stairs of have it, but I don’t have the pattern of when her best friend, as a visitor in their house, we took in more lawyers. I think we had at and she died. She was a wonderful lady, least another lawyer or two at that time. how she put up with Bill Baer, we don’t know. But anyway, Alice had been killed, MO: And the lawyers that you added and Gottlieb, which was the son’s name, were also trial lawyers? the lawyer, came over, and said, “My dad wants me to file this case for my mother’s OP: Yes. We tried to get every lawyer in death, to collect for her death, and I need the firm able to try cases. somebody more experienced.” He’d just started practicing. “Would you take on MO: Except for Duncan? this case?” And I said, “No, I won’t take it on OP: Yes. We didn’t try to get him to try because, number one, you can’t win it. She cases. was a guest in their home. She fell down the stairs, but there was nothing wrong MO: You built a building for your with the stairs. You can’t win it. You can’t offices? even get it to a jury. And besides, I have trouble dealing with your dad.” OP: We remodeled an automobile “Well, he wants you to do it.” garage building that was very satisfactory, And I said, “That really doesn’t right there on Bond Street, right across influence me.” from Bill Baer’s Waldorf Tavern, and we He left, but he came back a little could go over and have a cup of coffee or while later. I think he said, “I’ve filed this a sandwich and listen to Bill rant and rave case, and it’s going to go to trial, and will and get a few laughs. He’s the one that I you at least come and sit with me?” was telling you that Harvey DeArmond Well, I’ve always had a hard time punched out. saying no, and I succumbed when I shouldn’t have. I said, “Okay, I will.” MO: Oh, right. The one that was a fan of The result was that I had to try it. Hitler. But we put on the plaintiff’s case, and Judge Howell, who was the judge, had the OP: Yes. He believed all lawyers were lawyers in after we put on our case, and crooked. the defendant had moved to dismiss the MO: But he let you in his place, anyway? case, as they should have. Judge Howell looked at me and said, “Maybe you’d OP: Yes. His son became a lawyer. One better go settle this case,” which told day his son came over to me and told me me that next day he was getting ready

70 Panner, Tape Six, Side One to dismiss it. “I’ll take this up tomorrow Gottlieb to get him over before we went morning.” to trial. I said, “Okay, Bill, I’m all for you. So we came back, and we sat down You’re going to make this wonderful with his wonderful dad, and we said, speech, and I want you to do it because “Bill, we can settle this case for $1,500.” you deserve to go to jail, and that’s what’s Well, he just about went through going to happen. The judge is going to the ceiling. “My wife’s life is worth a lot put you in jail, and that will be fine. I more than $1,500!” know that’s what you want to do.” And I said, “Bill, your wife’s life “Yep, that’s what I want to do. I is worth so many millions you couldn’t want to go to jail.” count it. She was a wonderful lady to put I said, “Okay. I’ll tell you when to up with an old guy like you as long as make the speech, and let’s go.” A little she did, and I couldn’t measure her life reverse psychology. in dollars, but you filed this case, and We get up, the judge dismisses the tomorrow morning I have a bad feeling case. I look at Bill, he looks down at his the judge is going to dismiss it because shoes. The judge goes off the bench, and it should be dismissed. There is no legal he wanders out of the courtroom and liability. It doesn’t have anything to do never made the speech. I know to this day with the value of your wife’s life. So I if I had tried to talk him out of making strongly urge you to take the $1500.” that speech, he would have made it, but I He looked at his son, and he said, just figured if I cheered him on and told “Gottlieb, what do you say?” him to go at it, he wouldn’t do it, which And Gottlieb said, “Oh, Dad, he didn’t because he was so ornery. you’ve got to take this.” Then he made his son appeal the He started on a ten-minute speech dismissal. His son came over and said, about how all lawyers are crooked, the “Will you argue this case?” judge was crooked. Tomorrow morning, “Not on your life. This case was if the judge dismissed this case, in front dead when it started.” And I told his of the jury he was going to stand up dad again, “This is an absolute waste of and tell the judge how crooked he was time,” which it was. It took the Supreme and the whole system was crooked and Court about five minutes to affirm the this and that. He wound up by saying, dismissal. “I expected you to double-cross me, Owen,” pointing at me, “but Gottlieb, I MO: That’s a good story, a lot of never thought you would. Et tu, Brutus,” characters in Bend about that time. and he walked out. And the next morning, I told OP: A lot of characters.

Panner, Tape Six, Side One 71 A Murder Case to death, and it was done right in the middle of the prison yard with a guard or MO: You mentioned this murder case two around and lots of inmates watching that you wound up trying in Los Angeles? it, but nobody would testify, including the guards. This guy was so dangerous that OP: Yes. A young man from Warm nobody really wanted to get in bad with Springs by the name of Kalama was him. indicted for murdering a fellow inmate at So anyway, they take him and Lompoc Penitentiary near Santa Barbara. his buddy, and they put them in solitary Lompoc is a big federal penitentiary, a confinement, but in cells next to each other. Level 5, heavy security penitentiary. He They give them note pads and pencils so was twenty years old, an Indian from Warm they can write notes back and forth, and Springs, and his mother and dad asked me they write these notes back and forth, tear to go defend the case. I explained to them them up and flush them down the toilet. that he could get a federal defender at no Well, that was a dumb mistake because cost, and they said, “No, we want you to the prison authorities pulled them out of do it.” the toilet and put them back together. Anyway, I went down to defend MO: Were you representing the tribe at him, and he told me very frankly they this time? couldn’t prove it, nobody would testify against him. If they did, he’d kill them, OP: I was representing the tribe at this and this and that. And I said, “Well, you’re time. in pretty tough shape. I think you’re So I said, “Okay, I’ll go down and probably going to get executed.” defend him.” The government was trying “No, I’m not going to get executed. to execute him. He had killed two other They can’t prove it. They’ve got no people. He had something like twenty- witnesses.” one felonies that he’d committed by age And at this time I didn’t know twenty. He was a rather disturbed young about these notes, see, and I said, “Well, I man. can’t have you lie.” This inmate that he killed had stolen “No, I’m not going to lie. I’m not his marijuana plant that he and another going to say any­thing.” guy were raising in the penitentiary. The He was a pretty smart kid. worst part was, they had stolen it before it I said, “I can’t argue dishonestly was even ripe. They ruined it. They didn’t anything. All I can do is just object to the even get anything out of it. State’s evidence and do the best I can, but So the upshot of it was that his I can’t misrepresent anything to the court, friend held this guy, and he stabbed him and we’ll see what the jury does.”

72 Panner, Tape Six, Side One He wasn’t sorry at all. We plead­ him in, and by this time the United States ed technically not guilty and put the State Attorney has showed me these notes, and on its proof, the government on its proof these notes are absolutely awful, I mean, before Judge Gray in federal court in Los he tells about how he stabbed him and Angeles. it was good enough for him, and he tells I went down to see him ahead of about a lot of bad sex acts and somebody time, and we had a pretrial conference else that he’s got to kill, and it was just before the judge, and the judge said, “How awful. long is this case going to take to try?” So, we start the trial, pick the jury. The United States Attorney said, “Thirty trial days.” MO: Did you talk to your client about “How long do you think, Mr. those notes? Panner?” And I said, “Two trial days.” You OP: I showed him, and he changed know, this can’t take very long. completely. “Oh,” he said, “it will take two I said, “Well, you’re taking a chance weeks to get the jury.” you’re going to get executed.” And I said, “No, it won’t. I’m not “Well, maybe we better find some going to take a lot of time picking the jury. way to plead out.” He doesn’t know anybody down here. We “They won’t take a plea. I’ve can get the jury in a day.” You know, up already talked to them about that, just in here we would have. case. They won’t take a plea. They’re going The judge said, “Well, we’ll allow to execute you or put you out on the street, 30 days, and if we can do it shorter, we that was the United States Attorney’s will.” words. They’re sick of you.” So I said, “Judge, my clients are We started trial, and the poor people. This is an Indian guy. I came government started putting their case on, down here to represent him, and they and they get to these notes, and I object, a can’t afford to keep me here for a month Fifth Amendment violation. They in effect or two.” set him up to incriminate himself, which “Well, we’ll do the best we can.” I said was a violation of his constitutional The next time I go back down to get rights, and which I had a perfect right to do. ready for the trial, I can’t find him. They The judge said in chambers to the United won’t tell me where he is. They’ve got him States Attorney and me, “Well, Mr. Jones,” somewhere in Los Angeles, and they won’t (the United States Attorney)“it looks like tell me which jail he’s in, and I have to go if I rule as Mr. Panner has suggested, to the judge and get an order for them he’s going to walk. If I rule against him, to bring him in. They do that, and I get why, you’re going to get to execute him,

Panner, Tape Six, Side One 73 if the appellate court says that I’m right. his parents. They wouldn’t let him see I think we ought to make a deal here. I anybody until he’d talk to his counselor, think you ought to take an indeterminate and he wouldn’t talk to his counselor. He sentence,” which in those days they had just lay there. It was so bad for so long that for manslaughter. I finally started trying to get him out of the And the Deputy United States hole because I didn’t think that was doing Attorney said, “No, we’re not making any him any good. I got Senator Hatfield, he deals. We’re either going to execute this couldn’t do anything. kid, he’s so bad, or we’re going to turn him The warden called me up one day out.” after Hatfield had contacted him to know And the judge said, “That’s a bad what was going on and said, “You can get attitude. You don’t want him out. You get the President of the United States, I don’t the United States Attorney down here care who you get, this kid is so bad he’s himself.” staying down there until I says he comes So they brought him down, and the out, and you can’t do a thing about it, and judge chewed on him a while and implied bug out,” in effect. that he was going to dismiss it if he didn’t take a plea. I really didn’t want him out, [End of Tape Six, Side One] either, and his parents didn’t want him out very much. He wasn’t safe to be out. So he pleaded guilty to Judge McCulloch Memories manslaughter, took an indeterminate­ sentence, which means they could hold MO: We talked last time about some him, in those days, until he was ready to of your early legal work in Bend, and I be released. wanted to follow up on a couple of points They sentenced him to Marion from the interview last week. Then we [U.S. Federal Penitentiary in Williamson can move on and talk about how your County, Illinois], which is the toughest relationship with the Warm Springs federal penitentiary and put him in “the Indians started. There are at least two hole” [solitary confinement] because he major cases, or negotiations, that you were wouldn’t talk to anybody, he wouldn’t involved in there. talk to a counsel­or. They put him in the When we had our initial interview, hole, which in Marion means nothing you mentioned that you had come out except one little light bulb, can’t see out or here because of your association with anything, just a dark hole in a dungeon. Claude McCulloch’s son. They kept him there for a year- and-a-half. They would­n’t let him see OP: Claude McCulloch himself. It was

74 Panner, Tape Six, Side One his nephew that was in law school with MO: So your client didn’t have to pay me, and Judge McCulloch used to come any back taxes? to visit his nephew and talk about Eastern Oregon. He was from Eastern Oregon OP: He had some back taxes, but he himself, and so he painted a pretty rosy wasn’t charged with a crime. In other picture of the prospects of practicing law words, he was acquitted of a crime. He in Eastern Ore­gon. had some back taxes to pay, which he took care of. MO: And then you mentioned in our last interview that you had tried a case MO: What about the experience in that went all the way to the District Court Claude McCulloch’s court­room? Did you in front of Claude McCulloch. learn any new things about him in the course of that trial? OP: Yes, it was an income tax fraud case. It was really the first federal case that OP: No, not really. It was always I had. It was an automobile dealer in Bend exciting. I don’t think he had any great indicted for income tax fraud, and that memory of me. When he came to talk to meant the possibilities of jail and so forth. us, he was usually talking to a number of It had to be tried in federal court here in law school students, and I didn’t get the Portland, and I tried that before Judge impression that he had any particular McCulloch for that dealer. memory that he had visited with a group of us in Oklahoma. MO: Was the case itself notable in terms of your career? MO: But did he know about your association with his nephew, or you don’t OP: Not particularly. It was a think so? straight fraud case. They claimed that the automobile dealer had failed to OP: If he did, he never indicated that, report items on his income tax and had and of course, I never would discuss it. deliberately deceived the government, One of the interesting things about which we contended wasn’t so. We that case was it was set for trial before tried it, and, as a matter of fact, Judge Judge Fee, and Judge Fee was a very McCulloch dismissed the case and found precise and prestigious District Judge the defendant not guilty. here in the District of Oregon. My client, without my knowledge, came in with his MO: Was it a criminal case? local minister to see Judge Fee before the trial without Judge Fee knowing that he OP: It was a criminal case, yes. had a case in his court, and he reminded

Panner, Tape Seven, Side One 75 Judge Fee that Judge Fee had married MO: Was that intimidating? him and his wife, and he brought this Episcopalian minister in with him, who OP: It definitely was. I always felt quite knew Judge Fee. a bit of nervousness going into a trial. I They visited a while, and then always felt it probably helped me to make my client made the mistake of—or sure that I was well prepared and rather probably it was good that he did, intense about the case. But I was very actually, in the long run—but in any nervous coming to Portland and going event, he mentioned that he had this tax into federal court, where I really didn’t case before Judge Fee. Well, Judge Fee have any previous experience. became irate. He ordered them out, was very upset because my client had been in MO: And what about Judge McCulloch? to visit with him on a social basis when Can you offer a profile­ of what he was like he had a case coming up for trial. in court? So Judge Fee recused himself OP: He was a very calm man. He was from the case and assigned it to Judge diligent and studious, a fine judge. That McCulloch. It was very embarrassing. I was the only matter I ever had before Judge didn’t know anything about it, luckily, McCulloch. About that time he was beginning and I apologized to Judge Fee about it to spend less time in court and spend more later and told him that I did not know he time in Arizona because of his health. had come in to see him. Apparently my client didn’t know any better, though he should have. Judge John Kilkenny

MO: Do you think your client had in MO: Another thing we touched upon last mind, then, a social call just to help himself time that I thought might be interesting to along? follow up on a little bit, involved another federal judge that we have collected an oral OP: Oh, I’m sure that’s what he had in history from, but your own perspective on mind. It was a very dumb idea. If Judge Judge Kil­kenny. When he was a lawyer, Fee had kept the case, I’m sure it would you mentioned that you tried a timber case not have helped him. in Pendleton, and I assume that Kilkenny was on the opposing side? MO: Was that your first appearance in OP: He was. That case came up to trial federal district court? and then was set­tled. It never actually had to be tried, but we had some preliminary OP: Yes, it was. matters, so I had the chance to get

76 Panner, Tape Seven, Side One acquainted with Judge Kilkenny as a They had an appraisal that the value of lawyer, and he was a very able, very good what they were taking was about $3,000. lawyer. Our appraisal was $95,000. Quite a spread. The United States Attorney1 who MO: That was your first acquaintance was trying the case agreed with me that with him? we should try it without a jury. Well, I don’t think the United States Attorney OP: Yes. realized that Judge Kilkenny had been a sheep rancher himself, and he understood MO: Was it the last time you crossed sheep a little better than the government’s paths with him? appraiser did. Our theory was, and it was a correct OP: Oh, no, many times after that, but theory, that any traffic along that road never again as a lawyer while he was a would disturb the bands of sheep and lawyer. He became a District judge in make it difficult for them to get to the river, Portland, a trial judge, and I tried cases in and that the traffic would be heavier than front of him. the United States had predicted.­ In any One particular one I remember— event, Judge Kilkenny after the evidence our law firm had some clients who had said, “I don’t need to hear any arguments been condemned by the Bonneville Power about this. I’m award­ing $95,000, what the Administration for a power right-of- landowner has asked for.” way. And then another, more interesting Joe Buley, who was trying the case, the State Game Commission had case for the United States, said, “What condemned a right-of-way along the happened to me?” Deschutes River, through this sheep “Well, I guess, Joe, you didn’t rancher’s ranch, and they were planning remember that Judge Kilkenny was a to put a roadway along the river between sheep rancher before he became a lawyer the sheep herder’s ranch and the river. and a federal judge.” They weren’t going to fence it, so they claimed there wasn’t any real damage to MO: He thought it would be good to try the landowner because the sheep could it before just the judge for what reasons? still go to the river to get water, and there wouldn’t be that much traffic on the road, OP: Well, it makes it a little bit shorter sportsmen fishing. and a little simpler. But I’m sure in The State had obtained permission hindsight he wished he had tried it before from the United States to do the a jury because a jury wouldn’t have condemnation, so the Fish and Wildlife been quite so sympathetic, perhaps, to Service was the one doing the condemning. an Eastern Oregon sheep rancher when

Panner, Tape Seven, Side One 77 they were thinking about their own tax MO: Because it would have cost them dollars. more—

MO: In terms of these kinds of OP: I think so. I think so. condemnation cases, it would almost seem to me that a jury might automatically be more sympathetic to the little guy. Do you Condemnation Cases think that that’s true? MO: Another question with respect to OP: I don’t know. They’re always the condemnation case that you later tried dealing with their own tax dollars, so that before Judge Kilkenny, when you are in a makes a difference. I think it depends on situation like that where you’re trying to the individual case. Over the years we’ve assess a value on what your client is losing, talked about that, some cases you think a do you take into account what would be jury might be a little more sympathetic, a straightforward appraisal, or is there others you think a judge might be a little some bartering that goes on? Do you start more sympathetic. off with a higher figure, anticipating that the judge or the jury will strike a balance MO: Back to this original case with between them? Kilkenny when he was a lawyer, do you remember anything about your OP: Yes, I think trial lawyers have to negotiations with him about this original recognize the like­lihood that juries or timber case? judges will try to compromise and find an intermediate solution, though that doesn’t OP: Only that there were some pretty always work out. In many cases I can good legal authorities that gave my remember making offers that I thought landowner a good case. Judge Kil­kenny were a little bit lower than I thought the was smart enough to recognize that and jury or the judge would give us, in order urge Pilot Rock Lumber Company, which to save the expenses of the trial, and was his client, to make a settlement. To telling the other side, “We’ll take this me, it was a very big settlement. I think it much now, but if we have to go to trial, we involved thirty of forty thousand dollars, want more,” and sometimes that helps to which in those days was a lot of money settle them. There are all kinds of different to my client and a good settlement. They techniques. were very happy with it, but I think Judge I remember I had one condemnation Kilkenny, then John Kilkenny, made a case for a rancher by the name of Charlie wise move for his client, too. Parks out at Fort Rock, a very isolated

78 Panner, Tape Seven, Side One area between Bend and Lakeview. Charlie spend a lot of money, I’m going to add my was eighty-two years old, and he had attorney fees on.” white hair, but he was still ranching with So we went on and got ready for his wife. He came into the office one day, trial, and before trial the United States and he was absolutely furious. He said Attorney called and said, “We really ought Bonneville Power was going to put a to settle this case, don’t you think?” power line right through the middle of his “Yes, we should. We should have alfalfa field. He had just gotten that field settled it a long time ago.” so that he could wheel-line irrigate it and “How much do you want?” didn’t have to move pipes himself because “Well, we want $20,000 now he was eighty-two years old, and this new because we’re ready to go and Mr. Parks transmission line though the middle of is eager to go to the Pendleton,” where the his alfalfa field was going to block off his case was going to be tried, “and he’s going ability to irrigate it. to ride up with me.” The thing that made him mad was They had taken his deposition, so that the Bonneville Power negotiator had they knew how impres­sive he was. said, “We’ll give you $3,000, and that’s it. “We couldn’t pay that!” Other than that, we’ll take you to federal But about fifteen minutes later they court, and you’ll lose because landowners called back and paid the $20,000. Charlie always lose.” was vindicated. The power of the United He came in, and he was just furious. States wasn’t always that big. And I said, “Now, Charlie, take it easy. You don’t need to worry. What he said is not true.” Counsel for Warm Springs “I know it’s not true,” he said. “I want to go to court. I want to testify,” and MO: Now would be a good time to ask he was a very impressive, wonderful man. you how you came to be the chief counsel So I called the appraiser, and he for the Warm Springs Indians. How did said, “Well, that’s all we have.” that relationship start? “Well, I think you’re going to be sorry because Mr. Parks will make a pretty OP: In 1949, when I was selling cars, good witness before a jury at eighty-two why, some of the Indians came into with the inability to irrigate his alfalfa the automobile agency. I sold some field.” of the Indians Chevrolets and Buicks “How much does he want?” and GMC trucks, which the dealership And I said, “He wants $15,000, and handled. I think that’s too low. I think if we have to A few years later, when they had go to court, we’ll get more, and if I have to need for a lawyer, because of that

Panner, Tape Seven, Side One 79 acquaintanceship—and I kept up that OP: It was the Tribal Council. They had rela­tionship with some of them. Some called me up there to interview. In those of them were from Oklahoma that days the tribal council was very formal. were working for the tribe, and I had Everything had to be translated from grown up caddying with the Indians English into Indian,2 or vice versa. There in Oklahoma, so I had a good feel for were three chiefs on the council and eight them, always liked them. They asked non-chiefs, elected representatives. It me to consider being their lawyer. was a wonderful group of people. One And they said, “We want you to woman, the rest men. The woman had get a letter from each member of Congress a nursing baby that the chairman of the and the Governor and the Secretary of the coun­cil referred to as the Senator. Every Interior.” so often he would pause and look over at I said, “I don’t know any of those the newborn baby and say, “What do you people. I don’t know how I’m going to get think about this issue, Senator?” a letter.” I remember one of the things they told me that really impressed me, and MO: A letter of recommendation? that was, “We aren’t hiring you to get us into court. We’re hiring you to keep OP: A letter of recommendation. So us out of court. We want to outsmart my senior partner, who was a wonderful the white man, and we expect you to man, knew the Governor, and he knew do that.” And I remember thinking that Senator Morse, and Senator Cordon. He was good advice. Like most of my good said, “I’ll help you get them. Let’s send clients, they didn’t want to get into court. your background and your vitae to them They wanted to find a way to stay out of and tell them the Warm Springs Indians court. are considering you and ask them to check references and see if they can give MO: The Tribal Council had decision- you a letter.” making au­thority over this? Well, they all did. It worked out just fine. I sent them a vitae, and Duncan OP: They did, subject to the approval McKay, my partner, called some of his of the Secretary of the Interior. The friends. The Governor was a close friend Secretary of the Interior had to approve of his, and he called the Republicans. It all attorney contracts in those days, to was Governor McKay in those days, and make sure the attorney was not going to pretty soon it worked out. cheat the Indians.

MO: Who was it, specifically, from the MO: Is that what the reference letters tribe that asked you for the letters? were all about?

80 Panner, Tape Seven, Side One OP: Yes, plus they had a lot of dealings OP: The former attorney was Leland with members of Congress, the Governor, Brown of The Dalles. A good lawyer, a and they wanted to know—it was a very good friend of mine. He recognized after wise move, as it turned out, because after Senator Cordon was defeated that it was that at least they knew who I was, and difficult for him to continue to represent they wanted to be able to deal with those them because he had become his cam­ people and play politics with them. The paign manager. other thing they wanted me to do was not to be actively involved in a party, either MO: Did he play any role in recom- Democrat or Republican, because they mending you to the tribe? had to deal with all of them. They had lost their former attorney, OP: No, he didn’t. He wasn’t that because he became campaign manager for happy about having been released, so he a senator who lost a reelection campaign. pretty much stayed out of it, except one It was Senator Cordon, he lost the re­ general council meeting where the whole election to Senator Neuberger, so that put tribe comes together. In those days in a them in kind of a bad light with Senator long house with dirt floors and one wood Neuberger, who went on the Interior stove. It was a rather cold night, and we Committee right away. They learned a came together at that meeting once, and lesson from that, they didn’t want their he was very friendly. lawyer involved in politics. They wanted him to be able to deal with all of them. MO: Was this prohibition on political involvement any kind of a problem for MO: The fact that you got reference you at the time? letters meant that the people that the tribe wanted to influence knew who you were? OP: No. It made me very happy. Not long before that, we had a state senator OP: That’s right. And we many times resign who represented Klamath County had occasions to go to all of them about and Deschutes County. The Republican Indian problems, tribal problems. They Party came to me and asked me if I would were wonderfully cooperative people. take the appointment to be a state senator They wanted to make friends, not enemies, from Klamath and Deschutes County. and they worked at it very hard, and it My first reaction was, “Oh, that turned out to be a great benefit to them. would be wonderful,” you know, big-shot state senator, and I was pretty young, and MO: Who was the former attorney for I thought that would be great. the tribe? I talked to some of my lawyer friends, including Mr. Brewster at

Panner, Tape Seven, Side One 81 Redmond, who I had a lot of regard remember saying to him, “Mr. Brewster, for, and he said very frankly, “Well, I hear you’re the most wonderful lawyer Owen, if you want to be a politician, in the whole world, and I respect you, but why, it’s the time to make the move. I’m not going to do that.” But if you want to be a lawyer, don’t do We developed a great friendship. it. It will take too much of your time. It will distract you.” [End of Tape Seven, Side One] So I made the decision not to go into politics then, and I’ve always been grateful because I’ve enjoyed my time as Warm Springs Tribal Council a lawyer. MO: The picture you paint of the Warm MO: Was Mr. Brewster someone that Springs Tribal Coun­cil meetings is a very you relied upon for advice? interesting one. I guess you would­n’t see the nursing baby in a comparable white OP: Yes. He was a marvelous man’s meet­ing. man. A great trial lawyer. At that time probably sixty-five years old. OP: No. At the general meetings, they Rough, tough trial lawyer. Gave were cold and dark long houses, and the no quarter, expected none, but Indian people brought young chil­dren. under his brusque exterior had a They’d be sleeping on the dirt floors in very good heart. He was constantly the middle of the winter, no blankets over doing charitable things for people, them. but he would never admit it. He was They’re a wonderful, rugged a rough, tough Irishman. people, and some of them were characters. He had studied law in a law office. There was a wonderful elderly woman Never went to law school, but was a fine named Ella Wolf, and I could write a lawyer, a fine trial lawyer. book of stories about her. Ella Wolf was MO: And you met him after you came to a beautiful lady, at this time probably Bend? 70. Beautiful skin. A voice like a crow, raspy, tough. Fash­ioned herself as being OP: Yes. The first case I had with him, mean. In fact, she was the self-appointed I’ll never forget. He called me up, and he meanest woman on earth, the way she put said, “Now, Panner, here’s what you’re it, and the Tribal Council and everybody going to do. You’re going to do this, you’re was afraid of her. going to do that, you’re going to do this We had the president of Oregon and that.” State College at a general council meeting I listened very patiently, and I one night to talk about the massive survey

82 Panner, Tape Seven, Side One that Oregon State was doing for the tribe. too. She was a great show person. She put We’d hired them for $100,000 to do an on some tremendous shows. extensive survey, and Dr. Strand was at The Tribal Council had to condemn the council meeting. I was sitting beside some of her land once. They had had two him. The chairman of the council was on or three agreements with her, and she’d the other side. always back out on how much she wanted He’d made a speech, and Ella got for her land where they were going to up at the far end of the long house with put the road through her property. She her cane and stood up and said some very finally told the realty company she’d take raucous things in Indian. Nobody could a certain amount, and the chairman of the understand it. And Dr. Strand said to me, Tribal Coun­cil, Olney Patt in those days, “What’s she saying?” And I said, “I’m said, “Well, we’re not going to agree to sorry, Dr. Strand, I can’t tell you.” that until she signs, because if we agree, Whereupon she started walking she’ll change her mind again.” towards him, and we could every so often So she came in to the Tribal Council hear something about Dr. Strand, and it meeting, and the chairman said, “All didn’t sound too good. She started walking right, Ella, if you sign, we’ll think about towards him with this cane, looking just it. You’ve backed out on us three times as mean as could be, and he said to me, before.” “Do you think she’s going to hit me with So Ella sits there in her wheelchair that cane?” And I said, “I don’t know, Dr. and cries. Cries. “I’m an old lady,” she says. Strand, but we’ll be ready.” “I’ve got no wood for the winter. Nobody Anyway, she came right up to him, will bring me any wood. I have no money. raised her cane up, almost as though she I can’t get out of this wheelchair, and was going to hit him, and then reached everybody treats me mean.” Just cried, out and shook his hand and said, “Dr. such a sad sight, looking down at her feet. Strand, you’re a good man.” But he had a She is fairly wealthy, actually, among the few moments of interesting time. Indi­ans, she’s got cattle and land and so There’s a major creek that runs forth. through the Warm Springs reservation So she signs the paper, and Olney called Shitite Creek. Dr. Strand could­n’t said, “All right, Ella, we’ll pay you your say that word. He couldn’t say that word. price.” He signs the paper. She wheels out of the Tribal MO: Do you think Ella was aware of the Council room with tears in her eyes, effect her menacing approach had on Dr. looking down, just barely gets out of the Strand? council in the hall, and all of us could hear her yell out, “Those dumb Tribal OP: Oh, yes. And everybody else was, Councilmen. No wonder we’re in such a

Panner, Tape Seven, Side Two 83 hell of a shape around here. Those dumb the Interior De­partment had to approve Tribal Councilmen let an old woman cheat your appointment as chief counsel for the them!” She was a character. tribe. As a result of some of the research I’ve done about the issues that we had dis­ MO: Did you ever gain any command of cussed earlier concerning Warm Springs their language? that suggested to me that things were different then with respect to the Indians’ OP: No, it’s a very difficult language. position legally, and generally, in society. It’s a very guttural language. I learned a I’m thinking in particular that it few words. seemed like all the business ventures They used to have a lot of fun with that they started up had significant me at their general council meetings. representation of white men on the boards They’d make speeches, you know, and I of directors and even as the managers of couldn’t tell what they were saying, and enterprises, et cetera. Maybe that’s still then the interpret­er, I never could be true today, but I’m just wondering if you sure the interpreter interpreted it exactly can comment on their legal position at correctly. that time and the way in which it might One night Ella got up and made have been different than it is today. a speech, and everybody laughed and laughed. “What’s she saying,” I said to OP: Yes, you’re right, it was different. Linton Winishut, who was the interpreter. The Secretary of Interior held a very I was probably about forty in those strong hold over the tribes as trustee, as days, and she was probably seventy or so. he was supposed to. Gradually over the “She’s saying that you’re her boyfriend, years that has softened as the trustee has you’re her lover, and that you’re going turned over more and more control­ to the to take her off to your home in Bend and Indian tribes. spend the night with her tonight.” At one point, the Area Director, Don The last part was true. I had made Foster, called me into Portland before they arrangements with her to take her up to approved my contract and said, “We’re spend the night with my family, my wife not very happy about the fact that you’re and kids, and see our horses because she giving the Indians economic advice. You’re wanted to see the Arabian horses. So I their lawyer. You’re supposed to give them had made arrangements to do that, so she legal advice, not economic advice, and the just expanded on it a little bit. Everybody Secretary isn’t sure he wants to approve knew it wasn’t true, but they also got a your contract.” great big kick out of it. I said, “Mr. Foster, you’re a wonderful Area Director. I just think the MO: You said earlier that in those days world of you. But I grew up in Oklahoma,

84 Panner, Tape Seven, Side Two and I learned that the Indians that were have a resort manager, you wouldn’t have economically well-off were much better a housing director. You need to hire these taken care of than otherwise.” He had people. You hire them and fire them. You said, “If they have too much money, they’ll need to hire them and get their expertise, drink too much, and they’ll waste their until you get it. Let them train the Indians washing machines and wreck things.” as they come along, but get experts to run I said, “Well, my memory is that your operations. the rich Indians in Oklahoma, somebody They liked that. They bought that, would pick them up out of the gutter and as a result their operations were when they were drunk, and the poor ones successful, where many other tribes were just lay there, and I have to say that I think not because the other tribes insisted on they should be as economically well off their own people. But it was true, you as they possibly can be. I agree that I’m can’t take any group of 2,000 people and not a good economic advisor. They need get very many competent managers out of one, but until they get one, until you send it. them one, when they ask me something, I have to tell them what I think about their MO: And the 2,000 figure was roughly economics.” the size of the— He laughed and said, “Well, I guess that’s probably right,” and he approved it. OP: That was about the size of the But it was true, they really didn’t have any reservation at that time. economic help then, and we began with Vernon Jackson, who was a key leader in MO: It sounds as if the attitude of the their organization, he was the only college Interior Department at that time was graduate they had. Vernon and I both pretty paternalistic towards the Indians. felt that the tribe needed outside help. They needed non-Indians on their boards OP: It was. That had been traditional who knew what they were doing. So we since treaty times. I mean, they felt that always split the boards. We’d have half the Indians needed protection. It was Indians and half non-Indians, the non- absolutely the worst policy that you could Indians being people that knew how to ever have. In other words, if you wanted run a sawmill, for example, in the wood to really ruin somebody’s life, you would products industry. tell them, “Okay, we’re going to give you I used to make the speech to the enough money here to barely survive on, council that you could take your hand and but you can’t do anything else.” It was a put it over the Portland phone book and terrible policy. They tried to make farmers take any 2,000 people, and you wouldn’t out of them when they weren’t. They have a sawmill manager, you wouldn’t didn’t want them to do anything very

Panner, Tape Seven, Side Two 85 drastic or to have any amount of money. It change, Michael. I think Leland Brown did was a terrible policy. a marvelous job for the tribe. I think more It culminated in about 1953 with it was times were changing, and there the Termination Act, which terminated were more opportunities gradually over the Klamaths and terminated the the years for the tribe. I wouldn’t have any Menominees and threatened termination criticism of what Leland Brown did for of Indians all over the country under the them. He had a big hand in negotiating Eisenhower Republican administration. with the Claims Commission over Celilo, Well-in­tended, to get away from this the settlement. He did a good job for them. paternalistic approach, but way too He was a prominent attorney in The Dalles. sudden. All of a sudden, after a hundred But times were changing, and one years of paternalistic effort, they’re just of the big changes was Vernon Jackson, going to cut them all loose, like they did who about that time, the time of the the Klamaths, which was just a terrible transition, Vernon was coming into his thing. own as a young college graduate. I take that back, he left the tribe after I became MO: And you probably observed that lawyer in 1955, right after that, he went from the sidelines? back to college at the University of Oregon and got his business degree, and so he was OP: I did. gone for about three years and then came back after that. MO: When you went in to see Don It was really after Vernon came Foster, this was to approve your contract back that things began to take off because as chief counsel for the tribe? Vernon was an Indian, but he thought much like a white man. His mother was a OP: Mm-hmm. This wasn’t the first Cherokee from Oklahoma. His father was approval, as I recall. They were three-year a Warm Springs. Vernon was a very bright contracts, as I recall, so this was probably guy, and very stubborn. His father was the second approval. Chairman of the Council. They hardly ever agreed on anything. MO: Your first contract started in 1955? Vernon went right ahead about his business and accom­plished what he OP: Yes, ‘55. wanted to do. Like many of my good clients, he would tell me, “Here’s what MO: What differences in approach, or we’re going to do,” and I would say, what new ideas, did you bring to the tribe? “Vernon, I don’t think you can do that,” and he’d say, “I didn’t ask you whether we OP: I’m not sure there was any drastic could, I said that’s what we’re going to do,

86 Panner, Tape Seven, Side Two so figure out how to do it.” And most of Secretary-Treasurer ran the day-to-day the time we would figure out some way to operations of the tribe. do it. MO: And would those three individuals MO: So he had good instincts about typically operate in concert with one what was possi­ble? another? I mean, were they usually on good speaking terms? OP: You bet. You bet. OP: The three chiefs, you mean? MO: How did the interior politics of the tribe work in terms of who got the MO: The CEO and the Chairman of positions on the Tribal Council, and who the Tribal Council and the Secretary- were the leaders? Treasurer?

OP: Well, the three chiefs, representing OP: Yes. The Secretary-Treasurer, that’s the three tribes, were elected by their just another name for the CEO, so there tribes, substantially based on inheri­tance. were two, the Secre­tary-Treasurer and the The chief’s job passed down from father to Chairman of the Council. For much of the son or grandfather, if there wasn’t a son, time, Vernon was Secretary-Treasurer and and that’s a little bit of a mystery always. his father was Chairman of the Council. The three basic tribes, the Wascos, Warm But as I say, they seldom agreed on Springs and Paiutes, elected their chiefs, anything, and Vernon never argued with and so they were part of the council by the his father, but he just went about his own tribal constitu­tion of 1934, the Wheeler- business. Howard Act. I remember so many times when The other representatives of the we’d go to a General Council, and his council were elected by districts or areas, father would take one position, and the other eight, and they were elect­ Vernon would tell me, “You tell him that’s ed for three-year terms. The chiefs were not going to work that way.” Those were on for life, and chiefs remained for life. the days when I was very glad that every­ That made up the Tribal Council, and the thing had to be interpreted because it gave Tribal Council was the one who decided me a lot of time to think, while it was being who they would hire as—in those days interpreted, you know, trying to figure out they called it the Secretary-Treasurer, that some way to keep this thing smooth and was Vernon Jackson’s title. He was really get the job done. the business manager, the CEO. There Like the time of the Celilo was the chairman of the Tribal Council, settlement, they had four million dollars who presided over the council, and the from the Celilo settlement, and the

Panner, Tape Seven, Side Two 87 Indians wanted to divide up that four going to hold three million, and we’re million dollars, the tribal members. A lot going to spend $100,000 for an Oregon of money, four million divided by 2,000 State study, and we’re going to invest the was a pretty good chunk of money. rest of it and pay a per capita dividend So we had a General Council every month, based on tribal income.” meeting to decide what to do with the And it worked out just fine. four million dollars, and some member of We started with a fifty dollar a the tribe got up and said, “Let’s just divide month per member divi­dend, and one of it up.” And Vernon poked me and said, the things Vernon put in, too, was that “You tell him that’s not going to work. half of the children’s money went into a We’re not going to do that. We’re going to trust fund for their education, and that use that money to make more money.” built up over the years in invest­ments, So I had to go in a long spiel, and the per capita went up gradually. fortunately it was interpreted, explaining Ultimately almost every Warm Springs how Celilo didn’t belong to this generation child at eighteen had enough money or any other generation. Celilo was a to get through college on a distributed capital asset, and tried to explain how that basis. An educational fund that was worked, and that there­fore the money wonderful. from Celilo had to be used like Celilo the fishery, for the benefit of them and their MO: You mentioned the ways in which children and their grandchildren and so the other tribes in the region dealt with forth. their Celilo money. I suppose this was a In between one of the interpreta- factor in terms of raising the expectations tions, I said to Ver­non, “Don’t you think of those at Warm Springs that wanted the we ought to give them something out of money. the four million?” And he allowed as how maybe we could disburse one million of OP: It was. the four million, which sound­ed like a pretty good deal. MO: I assume there’s at least an informal All the other tribes, incidentally, communication network among tribes just divided it all up, the Yakamas, the Nez that gets the word out? Perce and the Umatillas. They just divided it, and it was gone. OP: Actually, almost formal because So then Olney Patt came on after there’s so much intermarriage. There were me and put the finishing­ touches and said, Yakamas at that meeting, as there are “This is the way we’re going to do it. We’re Warm Springs at the Yakama meetings. It going to divide up one million, and we’re was a big factor because the argument was

88 Panner, Tape Seven, Side Two made, well, all the other tribes got their well as the education­ and the ability? money. But ultimately they were very OP: Yes. But the hereditary claim didn’t glad they didn’t get it. mean much as far as Secretary-Treasurer. That was a chief’s characteristic, but not so MO: Was this one of the first matters much Secretary-Treasurer. that you— The interesting thing is that Vernon did die. Quite a few years later he died, OP: It was fairly soon after I became and I think everybody on the reser­ tribal lawyer that I got into that mess. And vation was very apprehensive about the typical of Vernon, he never said a word the consequences. We began a search for whole time. He just sat there and told us a replacement for him off the reserva­ what to do. But he was very smart. Vernon tion. We didn’t think there was anybody was never a good speaker, just a thinker. on the reservation. His young assistant, Ken Smith was made acting Secre­tary- MO: And you had a good relationship Treasurer, and we went along looking for with him? almost two years, interviewing people. The Council wasn’t satisfied. OP: Marvelous. I used to think while I One morning when I was shaving, was shaving that there was only one thing I thought, “My good­ness, it’s been almost I was really worried about in my whole two years now that Ken’s been acting, life, and that was that Vernon Jackson and this tribe is running really well,” you would die. I didn’t know what would know. So I went up to the Council and happen to the tribe, as stretched out as he said, “What’s wrong with the one that’s had gotten them, if he wasn’t there to help doing it? Let’s make him permanent.” hold it together because he was literally Everybody was unanimous. I father, mother, lawyer, doctor, everything mean, we just hadn’t thought of it. And to those people. They respected him very Ken Smith, of course, became legendary, highly. and still is. He became in effect the You asked a while ago how he got Commissioner of Indian Affairs for the that position. He was just a natural. He was United States for four years under James the brightest, the most educated man, and Watt and did a great job for Indians all everybody looked to him for everything, over the country. Now he’s back again as including the Council. His father drug his Secretary-Treasurer. feet regularly, but the Council would go along with Vernon usually. MO: What were some of the other matters that you had to deal with when MO: So he had the hereditary claim, as you first came to work for the tribe? I

Panner, Tape Seven, Side Two 89 know we talked about how the tribe got Recovering Kah-Nee-Ta Kah-Nee-Ta back from the white doctor. Was that before your time, or was that something­ you were involved in? MO: We were talking about your association with the Warm Springs OP: That was something I was involved Indians last time, and we had just begun in. The Council told me to get Kah-Nee-Ta to talk about the recovery of Kah-Nee- back. Didn’t I tell you that story? Ta, so that would be a good place to start today. Can you tell me, first of all, about MO: You told me in our initial off-tape the background of that story? How did interview, so I’d like to get an account of it. it even come to be that the tribe was not in possession of Kah-Nee-Ta when they MO: Dr. Freeland owned the Kah-Nee- asked you to recover it? Ta resort area. It was about 300 acres of land that contained the good hot springs OP: In the late 1800s, Congress passed along the Warm Springs River. The way what was known as the Allotment Act he got it was very interesting. for Indian tribes, and by that act each tribal member was allotted a certain [End of Tape Seven, Side Two] number of acres of land that they could use themselves. It remained in trust, but for their benefit rather than for the tribe’s benefit, so that it was an effort to bring out private enterprise on Indian reservations. The theory of it was very good, and it did give individual Indians a pride of ownership of a cer­tain piece of land. The act also provided that, with the consent of the Secretary of the Interior, individual Indians could have those allotments converted into fee patent status, or unrestricted title, taken out of trust, in other words, just the same as lands off the reservation that are owned by non- Indians. When that happened, the land went into fee patent status and became subject to property taxes by the county in which they were located, even though the lands were within the reservation.

90 Panner, Tape Seven, Side Two The Kah-Nee-Ta hot springs should out of it, but he did operate it from then up never have been allot­ted to any individual until the middle sixties, when the Tribal because it was a tribal bathing ground Council decided that they wanted to own that the tribe had used for generations. it. So they began to make overtures to buy Even before the treaty was signed, it back from Dr. Freeland, Indians would come there for health purposes and bathe in the hot springs. But MO: And you had some role in that? through a strange set of circumstances, the superintendent of the reservation and OP: And they told me to get it back. So Dr. Freeland managed to get the Kah-Nee- we had an appraisal­ made, and we offered Ta area allotted to individual Indians and Dr. Freeland the appraised price, and he made arrangements to have it transferred did not want to sell and would not sell. to fee patent status and sold to Dr. As chance would have it, a flood Freeland.3 came along down the Warm Springs River and washed out the only bridge that MO: I assume it went through some went into the hot springs from anywhere. intermediate ownership? You couldn’t get there otherwise, except through a very tortuous mountain road. OP: Yes, it had to, but I think—at least When the bridge washed out, Dr. the story goes, and I’m uncertain of exactly Freeland came to the Council and to the how this happened, but the story goes that Bureau of Indian Affairs to rebuild the it was pretty well planned from the time it bridge because it was a very expensive was allotted until it got into Dr. Freeland’s bridge and he could­n’t afford to do it. hands. This was in the ‘30s, the early ‘30s. So Dr. Freeland, who was a medical MO: Could he have done it, anyway? doctor, began operating it and put up a Was the bridge on his land? hot springs resort there for customers. OP: Well, he could have, I think. It was MO: Do you have any idea what he paid on the allotted lands. He could have put for the land at that point? the bridge up if he had wanted to spend the money, but he was talking about very OP: No, I don’t. I don’t remember, large sums of money. but it wasn’t very much because land in So naturally the Tribal Council those days wasn’t worth very much. So it and the Bureau of Indian Affairs, by this wasn’t a big price, and it probably didn’t time recognizing that it should have been have a great value as far as a commercial in tribal ownership all along, said they enterprise. He ran it margin­ally. I don’t were awfully sorry, but they were not think he ever made a great deal of money rebuilding the bridge. Whereupon Dr.

Panner, Tape Eight, Side One 91 Freeland negotiated with the tribe and MO: Before the bridge washed out, did sold it for the appraised value, which at you look into any legal ways of reclaiming that time was $175,000 for the 300-plus the land, and were there any? acres that Kah-Nee-Ta involved. First the tribe and the Bureau of OP: There was a provision in the Indian Affairs combined to rebuild the Wheeler-Howard Act that gave the tribe bridge and restore and rehabilitate the powers of eminent domain, but there resort, and that was right down on the was a serious question as to whether that river. That was the first phase of Kah-Nee- applied to fee patent lands within the Ta. That was the cottages along the river, reserva­tion, as distinguished from trust the tepees, the restaurant, and that was lands. So no serious effort was made. a very profitable business for the tribe. It was not too long after the tribe People liked it. It was a good climate. became very intent on reacquiring Kah- The hot springs pool was a massive Nee-Ta that the bridge washed out. big pool heated entirely by the hot springs at Kah-Nee-Ta. Many people be­lieved MO: And you say the transaction that it was health-giving, Dr. Freeland with Dr. Freeland was set up from the had promoted that. The Indians quit beginning, as its status changed? promoting that because they really didn’t believe it. Oh, I’m sure some of the Indians OP: Well, that’s the story that was told did, but the tribal authorities didn’t want among the old Indians. The records, of to sell it as a health-giving thing. The hot course, don’t reveal that, but that was the water there has no odor, as distinguished story, at least. from many of the sulphur hot water The Indians had lots of stories. One springs in Arkansas and White Sulphur of the best ones was about the Treaty of Springs in Oklahoma. 1865. After the initial treaty, the Indians But it was very successful. And were told by the treaty negotiators in from there a number of years later then 1865 that they needed to sign a new the tribe expanded into the second phase treaty to get some more livestock and and got Pietro Belluschi, the famous blankets and farming equipment and Portland architect who by then lived in so forth. In exchange for these things Boston, world-famous archi­tect, to help the white man was tired of not knowing design the new Kah-Nee-Ta Lodge. Vern where the Indians were when they went Jackson and I went up to Boston, flew up off the reser­vation, so they were told by from Washington, D.C. on one trip to meet the negotiator, a fellow by the name of J. with him and persuade him to undertake W. Perit Huntington, that the new treaty that, which he was very happy to do. required them simply to sign out and let

92 Panner, Tape Eight, Side One them know where they were going when medical profession for the hot springs, they went off the reservation. and he spent lots of years there, you see. No question about that. He was there thirty-some years. So he’d The subsequent Army officers and settled in. superintendents all agreed that that’s what the Indians were told. What was written MO: I can see, then, why he wouldn’t be down in the Treaty of 1865 was that they too enthusiastic about giving it all up and gave up all of their off-reservation fishing having to start all over again somewhere, rights at Celilo Falls, and their hunting but that’s what he had to do? rights in other treaty areas and so forth. It was a total fraud, and not only was it OP: That’s what he had to do. Well, he a fraud, but J. W. Perit Huntington took was pretty near retirement by the time many of the things that the Indians were he got there. I know he was on Social supposed to have, including horses, Security, and probably had a little bit of blankets and so forth, and headed south money. and was never seen or heard from again. MO: Do you know what became of him? MO: And you said Freeland never made much of Kah-Nee-Ta, but he still wanted OP: No, I don’t. He went back to to hang onto it. Seattle—that was his home, and I think he maybe kept his home in Seattle, as well as OP: I think he made a little bit of money, at Kah-Nee-Ta. but he never showed any signs of making any real money, and I don’t think he did. It MO: Now, you’d mentioned last time was a marginal operation. He and his wife that when your approval came up before worked there and took care of it. He gave the Bureau of Indian Affairs as chief coun­ medicinal hot baths and so forth. sel, that one objection they had to the way you were doing business with the Indians MO: Did they live there? was that you were giving them economic advice as well as legal advice. Did that OP: They lived there. apply to Kah-Nee-Ta?

MO: And did you have any one-on-one OP: Not really. Vern Jackson was there dealings with him? What kind of person by then, and he was determined to get was he? that back for the tribe and to put it into business. But I did work with him on the OP: He was all right. He was struggling contracts, the construction contracts, the along, I think. He’d kind of given up his architectural contracts, things like that.

Panner, Tape Eight, Side One 93 It’s always hard when you’re house of it was in Wasco County, part in Jeffer­ counsel, in effect, for an organization to son County. Both of those County Courts separate out legal from economic advice. approved the taking of that property off In other words, there were constant the tax rolls and returning it to trust status times when the Tribal Council would in an effort to assist the Warm Springs say, “Do you think we ought to enter into tribe with their economic development. this contract,” you know, “Is this a good Then a special act was passed— contract or is this not a good contract?” as long as we were doing it, it not only They were wonderful people, very applied to Kah-Nee-Ta, but we got it accepting of advice. Very smart people with written so that any Indian tribe under good judgment, but not a lot of exposure federal supervision, using its own to the white man’s business world. So it money, could repurchase fee patent was pretty constant combination of legal lands inside the boundaries of the and economic advice. reservation and return it to trust status, which was a benefit not only to the MO: Who made the decision to go ahead Warm Springs tribes, but to tribes all and expand the re­sort? over the country. Thereafter, the Warm Springs embarked on a program of OP: Tribal Council. And it took an buying back as many of the fee patent election because it was a good bit of lands as they could. They budgeted money. It took an election of the people. initially almost $100,000 a year to buy There was a provision in the by-laws and back fee patent lands when they could, the constitu­tion of the tribe that required not to compel it, but to try to buy them that when certain sums of money had to back and return them to fee status. be expended, it had to be a popular vote. So Kah-Nee-Ta turned out to be a So both the purchase of Kah-Nee-Ta and very important part of the tribe’s program the later expansion had to be voted on. of sustaining the reservation. One of the things that the Tribal Council delegated to me was to get Kah- MO: Do you know whether other tribes Nee-Ta returned to trust status out of fee have taken advantage of the bill? patent status, and that’s where the tribe’s good relationship with Congress came in OP: They definitely have. Other tribes handy, and with the County Court in both have used it regu­larly. It came too late, Wasco and Jefferson County. Con­gress unfortunately, for the Umatillas. Much of wouldn’t pass a special act returning that their reservation was cut up and into fee to trust status over the objections of either patent status, and they couldn’t get a lot of Wasco County, who owned part of it—part good farm, wheat lands, up there.

94 Panner, Tape Eight, Side One MO: Was it apparent to a majority of the And it gave us a good chance to tribe that this made sense, for the tribe to go to the county courts and lay out the reacquire these lands, or was that decision plan to develop that economically and controversial within the tribe? en­courage tourist activities in Central Oregon, and to encour­age independence OP: The tribe really felt strongly about and to avoid what happened to the retaining the integrity of the reservation. Klamaths. Klamath County itself took After the Klamath termination in the fifties, an awful beating from the termination the Warm Springs Indians were highly of the Klamath Tribe. motivated to maintain their reservation intact and avoid termination, as happened MO: Since it seems that that example to the Klamaths. affected decision making at Warm Springs, maybe you can talk a little about what MO: I guess that example was pretty happened to the Klamaths. close to home. OP: Well, what happened was that they OP: Mm-hmm. A lot of intermarriage, terminated the tribe, and they turned a and a lot of Klamaths moved up to big portion of the land over to the feder­al Warm Springs. A very serious tragedy government, the Forest Service and Fish & for Klamath County, as well as for the Wildlife. Klamath members. MO: And they terminated the tribe by MO: You mentioned that Wasco and buying them out? Jefferson County had to sign off on this decision, too. So they actually had OP: By buying them out. They paid jurisdiction over Indian lands to some them $43,000 per member and permitted extent? them to buy back some of the lands with that money, but most of the money OP: Only to the extent that taxes were was not spent wisely. The United States paid to those counties­ because it was National Bank tried desperately to hold fee patent lands. And also because the some property in trust for the Klamaths members of Congress wouldn’t get the and to hold some of the individual legislation passed without the consent of members’ money in trust for them, but it those two counties, and they had many went very quickly on cars and—just as a more voters than we did. And very wisely, non-Indian poor family that got $43,000 we agreed with that theory. We wanted would have a very hard time holding their permission and their blessing. onto it.

Panner, Tape Eight, Side One 95 MO: What was the impetus behind The Modocs and the Klamaths that? Were there Indians among the had historically been warring tribes. Klamath Tribe that stood to gain from this They had a little more violent history. transaction? And when the Klamaths were about to be terminated, they came up to see me OP: Well, it was a vote. By voting in about it, and I said I would represent favor of termina­tion, they each got $200 in them—they wanted me to represent cash. them to try to avoid it. I said I would It was motivated by the Eisenhower represent them if they could get their Administration believing that the Indians own people together, the two factions would be better off if they weren’t kept that were very seriously at each other’s under federal supervision, and there were throat at that time, but that couldn’t some very smart people who believed happen. that the paternalistic attitude of the United States towards the Indians had MO: They came to you, it sounds like, been destructive of individual Indian shortly after you became counsel for the enthusiasm and incentive, which was Warm Springs? true. But it was too quick and too harsh a way to go about it. OP: It wasn’t too long afterwards. It was after the Termi­nation Act had been MO: I guess that the Warm Springs passed, and they were included in the example is a better one, since they acted Termination Act. It would have taken an together to develop their resources. amendment to the legislation—this was in, oh, probably ‘58 or ‘59—and I didn’t OP: Yes. One of the problems with the think that could be done unless the Indians Klamaths was that basically from treaty could get together on one course of action, times they had been a little more aggressive which they couldn’t. and active politically than the Warm Springs. The Warm Springs had always MO: You said the Eisenhower been a friendly tribe. Didn’t fight any wars, Administration was at least partly were peaceful with the other Indian tribes motivated by the belief that it might be as best they could be. Got along among better for the Indians if they were not themselves. The Klamaths had a lot of taken care of by the government, et cetera. problems, and ultimately the Eisenhow­er I assume that that meant that they had in Administration took advantage of the fact mind not just the Klamaths when they did that there were internal disputes between this, but other tribes. Were the Klamaths the Klamaths, two factions. the first go at this idea?

96 Panner, Tape Eight, Side One OP: The Klamaths and the Menominees OP: Ultimately when it was sold, yes. in Wisconsin were the first two big tribes to be included in House Resolution 108, MO: Was it $43,000 per— which was the procedure.4 There was a very strong feeling OP: Per member. in the Bureau of Indian Affairs, which reflected the administration’s views. MO: So that included children as well as Secre­tary of Interior was then over the adults? Bureau of Indian Affairs, and there was a very strong feeling that all tribes under OP: Yes. federal supervision should be terminated, but it didn’t go that far, fortunately. MO: It sounds like the $200 for the vote is a questionable procedure. MO: And what about the Oregon congressional delegation regarding the OP: It was. The $200 per capita was on Klamath termination? the same ballot, and conditioned upon voting on termination. Tough deal. OP: They were deeply involved, but the tribe was divided, and they couldn’t MO: But that wasn’t something that really do much about it. I know that the anti-termination faction could have much later, even before the final ax had challenged? fallen, [Congressman] Al Ullman tried desperately to encourage them to get OP: Well, they might have. They argued together, and the Klamaths to get together, about it, but it didn’t do much good. but the tribal members voted in favor of termination. As I say, it was to get the $200 MO: And you said it turned out to be a cash per capita, and it was a fairly close disaster for Klamath County as well as the vote, but those things were very hard to tribe. That became obvious later on? overcome. Tom McCall as Governor later tried OP: Oh, yes. Initially, of course, it was to restore the reservation, but there was a big boon because car sales went way so much confusion, and non-Indi­ans in up, and all kinds of merchandise sales Klamath County were divided in their went way up while the $43,000 lasted. ideas about it. It was a big problem. The problem was when it was gone, why, then there was welfare and problems with MO: The $200 was for the vote, and then Indians that were substantially homeless. they got their $43,000 for person after that? It was a very unfortunate situation.

Panner, Tape Eight, Side One 97 MO: Back to Warm Springs. You almost right from the beginning because succeeded in getting this bill passed that it would have been such a long ongoing allowed them to return the Kah-Nee-Ta struggle—was the recovery of the land. McQuinn Strip. Was it something that they wanted you go do from the very OP: It was certainly one of the things beginning? that Congressman Ullman helped tremendously with the Warm Springs OP: They didn’t really tell me to get it tribe, and Senator Hatfield. Everybody done for quite a while. It smoldered for a helped in the delegation, nobody was long time. It had always smol­dered with the against it, but those two just really worked Indians. They were really burned because very hard at it. they’d been cheated out of that land. Even though they got the revenue from the [End of Tape Eight, Side One] timber sales of the Forest Service off the McQuinn Strip, the principle bothered MO: As a final footnote, you said you them, plus they wanted the grazing rights weren’t too involved in the decision up in there, and they wanted to manage to build the new lodge, but you were the timber themselves, rather than have involved in soliciting the architect? the Forest Service do it. So it smoldered for quite a little OP: I was just involved with the while before they finally said to me, “Get contracts. I think it’s fair to say that I was the McQuinn Strip back. Whatever it takes, at every Tribal Council meeting where all get it back,” and that was the beginning of of this was discussed. I drafted the resolu­ the effort to get it back. tion to be submitted to the people for a vote as to the purchase of Kah-Nee-Ta, MO: In terms of background, in 1887 and also the contract to improve it, and I McQuinn did his survey, but that was drafted the contracts for the architects and probably the second survey. that thing. OP: That was the second survey. That was the one that proved that the original McQuinn Strip treaty survey was wrong.

MO: Another case that you worked MO: And then there was a third survey, on for the Warm Springs Indians—and done— I assume it was something they were interested in having you look into OP: There were lots of surveys done, and

98 Panner, Tape Eight, Side Two all of them came out the same way. It became MO: When was this Court of Claims apparent that there was no question that the decision? McQuinn Strip should have been part of the reservation and that it was an error in OP: I think it was in the ‘40s. I’m not the original survey because the treaty call sure about that date, but it was later than described from the top of Mt. Jef­ferson, on the ‘30s. It was in the ‘40s, I believe. a line towards the top of Mt. Hood, then along the Mutton Mountains, and so forth. MO: But the decision gave the Indians a So there were definite physical boundaries basis to go to Congress? to establish the accuracy of the fact that the McQuinn Strip should have belonged to the OP: Well, it gave them the basis tribe all along. because it determined judicially that the original survey was in error and that that MO: But to no avail, I take it? area should have been included in the reservation. OP: To no avail. The tribe, before I became their lawyer, filed a claim with the MO: I see. Court of Claims for the return of the land. That was probably an error in judgment in OP: But then they put a value on that that the Court of Claims could only give land and said the government has spent money, not the land back, and the Indians more money than that on the Indian wanted the land back. tribe, and therefore the tribe doesn’t The Court of Claims decided the get any money—which is probably case in favor of the tribe and determined fortunate in the long run that they didn’t that the survey was erroneous. They get any money because then it would put a value on the land, which was have been even harder to restore it to rather modest, and then decided that tribal ownership. under the theory they had always used that the government had spent more MO: I read an article about that decision, money than they owed to the Indians and it seemed odd that they would just all for the land, and therefore forget the of a sudden come up with all these bills whole thing. That was the end of that. for services rendered the Indians. But that decision gave us a lot of ammunition with the Congress, and with OP: Yes. other political influences, to convince the Congress that they should pass legislation MO: I also noticed that in the final returning that to the reservation. decision about the McQuinn Strip there

Panner, Tape Eight, Side Two 99 was a reference which I didn’t under­ there some part of the McQuinn Strip that stand. I suspect it has to do with what had been sold off to private owners? we’re talking about now, that there was a triangular piece of land towards the OP: There were some very small pieces eastern end of the strip that had been of fee patent lands that were in there that excluded from that Court of Claims were not recovered, that’s right. decision, and that it was also excluded from the bill that Ullman and Hatfield MO: But the tribe started buying some finally got passed. Did they ever recover of those lands? that land? OP: I think they’ve bought all of those by OP: I’m not sure what you’re talking now. I’m not sure, but they started buying about. The whole McQuinn Strip was them back. Most of them were owned recovered. by Wapinitia cattle ranchers who had Oh, could it have been the little livestock permits in there and so forth, but piece of land where the Forest Service there were little or no improvements on had their ranger station there, Wapinitia them, and the tribe I think has successfully Ranger Station? A very small piece acquired all of those back. of land, maybe less than 100 acres or something that like. That’s the only thing MO: Let me bring you back, then, to I can think of. The Forest Service did keep the point at which the tribe asked you their ranger station there. They had some to aggressively pursue getting back the buildings there, and they kept that. McQuinn Strip. At this point, of course, there had been the Court of Claims MO: I have an article here about it. decision, and then subsequent to that Actually, you’re quoted in this article. there was some legislation enacted in the late ‘40s, sponsored by— OP: You know, I don’t know where that was, but I know that the entire McQuinn OP: Senator Cordon. Strip was recovered, subject, of course, to the twenty years and ten years that were MO: Senator Cordon. And that gave the involved in giving other interests time to tribe revenues that the Forest Service was work out of it. collecting from timber sales. So there had been these actions taken, and probably MO: Right. And when you say the entire everybody else was happy just to leave McQuinn Strip was recovered, what you it sit at that point. So what was your tack really mean is the piece that the U.S. when they first said, “We want to get this government still owned, right? Wasn’t back totally?”

100 Panner, Tape Eight, Side Two OP: Well, my first tack was that it was back, we were going to do it some way or rather hopeless, but talking to Al Ullman, another, and if we did, we would cut them who was by then a very powerful member off immediately. So they had to make a of the Ways and Means Committee, and I choice, either take twenty years and avoid believe was chairman by then of the Ways the risk of losing it sooner, or run the risk of and Means Committee. He and Senator having us not get it done. Hatfield, also, said they would support By this time the tribe had enough the tribe’s legislation, provided we could good friends that we had a combination of get permission from the Wasco County a little bit of leverage, and at the same time Court and from the Wapinitia­ Grazing some good will, and they voted in favor of Association, the people who had live­stock supporting us. grazing permits, and also the principal people who cut timber off that strip, MO: Was that a group that you worried which was Mt. Hood Lumber Company about, in terms of their reaction to it? and Mountain Fir Lumber Company. Armed with that, we went to those OP: Well, I think I worried about all of people. We went first to the Wasco County them, yeah, be­cause these were ranchers Court and tried to persuade them that the who had grazing permits, and there wasn’t tribe had been good neighbors and that any reason for them to help us, so we had they were entitled to this land back. They to give them a little motivation, and that’s didn’t have enough fee patent lands in what we did. there to worry about. By then they were pretty well aware we would probably buy MO: So you used a little bit of carrot and back those fee patent lands, but they were of stick there. quick to give their consent. We then went to the Wapinitia OP: Carrot and stick, yes. Livestock Association in Maupin. Most of And then we did the same with the farmers lived there, and ranchers. We Mountain Fir and Mt. Hood Lumber went to them, and we told them we would Companies. They were even tougher. give them—my memory is twenty years, They got their lawyers involved, and they I saw something in the article about 10 tried hard to bluff us, and we tried hard to years—but in any event, we told them we bluff them, and we told them, “Fine, take would give them, I think, twenty years of your choice.” grazing on the McQuinn Strip if they would It got a little angry at times. They support us. And we also told them, though, were a little tougher to deal with. But that this was only right and just, and the ultimately they decided the risk was too Indians were going to get that back, and if great. They wanted the guaranteed twenty we had to go over their objections to get it years. So they supported us, but we

Panner, Tape Eight, Side Two 101 suspect, though without any information,­ the plane, didn’t go, didn’t go. Finally I that they may not have supported us, went up, and the pilot and everybody even though they wrote letters, because seemed to be ready. They were holding interestingly enough, after the legislation up for something or other, weather or was introduced and we had these letters something, and I got up and went up and all this support, it went right up to the and asked if I could talk to the pilot. I week before the actual vote in Congress said, “We’ve got a terrible problem. on this bill, and Wendell Wyatt called The Indians have been working on this me. He was a Republican, and it was a for 125 years. We have a meeting with Republican administration. And he called the Majority Leader of the House, and me and said, “Owen, you’d better get back it’s absolutely criti­cal. He’s the only one here to Washington with some of your who can get this legislation passed. The tribal members quick because we’ve got tribe always flies United Airlines, we’re big problems. The president has issued good custom­ers, and we’ve got all these a bulletin that all Republicans are to vote Indians back here, and this is all going against this McQuinn Strip legislation.” to go down the tube if we can’t get to He said, “It’s just a stroke out of the blue. him.” Wendell had said he could issue We had no idea it was coming. We think it a bulletin overriding the president. He’s came from the Forest Service. I want you to the only one who can do it, and if he go see the Forest Service with me and with does it, we’re okay. Otherwise, we’re Al Ullman.” So we had bipartisan support down the tube. and all the members of the congressional So the pilot said, “Well, what are delegation supported it. we waiting for?” He gets in touch with Anyway, we got on the plane, six Ground Control and says, “We’ve got an tribal members and myself, and flew emergency. We’re taking off.” back. We had an appointment with then And they said, “All right, you’re Majority Leader of the House, Gerald cleared.” Ford. And he said, “Hang onto your hats because we’re going to go,” you know. MO: So this was the Nixon And we got there about 10:00, Administration? which gave us time to get a cab and go directly from the airport to Ford’s office. OP: This was the Nixon Administration. That appointment was at 11 MO: You must not have been in the o’clock, and we got on the plane at greatest of shape at that point. midnight here, and our plane was due to arrive there at 9:30. We got to OP: Oh, the adrenaline was high Chicago, and we sat on the plane, sat on enough, that didn’t bother us any.

102 Panner, Tape Eight, Side Two We had Congressman Ullman and Rogers, who was Undersecretary of the Wendell Wyatt with us. We went in, and Interior, had asked that Ullman’s bill to I had this speech all prepared because return the McQuinn Strip be deferred. Wendell had said, “You’ll probably only Does that refer to this same thing? have about fifteen min­utes. You’ve got to explain this whole thing in fifteen min­ OP: Same thing, exactly. We went to utes.” So I had it all prepared, and it was see McGuire and the Chief of the Forest obvious to Mr. Ford that I was hurrying Service. They met with us, and they were through it, and he’s smoking his pipe, very pleasant, but the argument was the and he said, “Now, take your time. We’re tribe would be better off to have the Forest going to take as long as it takes to hear this Service continue to manage the tim­ber. story.” He said, “I want to hear this whole We said, “That may be, but it isn’t right. Its story.” part of the reservation, and you’re going And he sat there probably for a half to have twenty years to manage it, and we hour, and he said, “Wendell, do you agree know you’ll do a good job.” Maybe we with this legislation?” softened him up a little, but we sure didn’t “Yes.” get him to change completely. “All of your delegation, Republicans and Democrats? Al, you agree with this?” MO: So it was the Forest Service that “Oh, yes, everybody’s for it. The was the bottom of it? County Court’s for it. The sawmills are for it. The grazing association is for it. OP: Yes. And I don’t know, I’m sure that Everybody’s for it. We don’t know what’s the timber people were not very happy hap­pened.” about it, and I’m sure they may have had And Ford said, “Well, it really some input into it. And it may have just doesn’t matter what happened,” but he been the local Forest Service people at the called his secretary in and said, “Get this McQuinn Strip. They liked it, and they bulletin out right away. It’s probably the lived there at the camp at Wapinitia. Forest Service, and you know what trouble they can cause.” So he said, “That takes MO: I was going to say that it didn’t care of that,” you know, and it passed seem like the Forest Service would have the next day in the House and went on a great interest in the decision, except for through the Senate easily. their own bureaucratic empire?

MO: I noticed an article appeared in OP: Yes, that’s right. That’s right. the Oregonian in May of ‘72 where John McGuire, who was then the Chief of the MO: I have an article from two years Forest Service, I believe, and William later, and it mentions a group called the

Panner, Tape Eight, Side Two 103 Pacific Coast Trail Advisory Council that tors could have twenty more years. We objected to Indian management of the went to a big general council meeting, and thirteen miles or so of the Pacific Crest Trail he raised these objections, and I tried to and wanted the Forest Service to main­tain explain that we’d been 125 years getting its management of that. The article said this done, and another twenty years wasn’t that there was a change drafted in the bill very important, and it was the only way it to give the Forest Service an easement for could have been done. But Charlie never the trail and— really understood that, but fortunately most of the people did and things quieted OP: There was. down, but he was quite upset that we had done that, even though it was his son that MO: So the original setup was that the had been right with me when we did it. Warm Springs would manage the Pacific Crest Trail, and— Pelton & Round Butte Dams OP: That was changed. MO: You mentioned last time that the MO: People agreed to the original idea two of them didn’t see eye-to-eye all the of the Indians managing the trail, though, time, anyway. in the beginning? OP: No. He didn’t want the tribe to OP: I don’t know that it was a big item. buy the sawmill. He didn’t want Pelton It just came up from this association, and or Round Butte dams to go into opera­ the tribe didn’t have any objec­tions to that tion. Fortunately for the tribe, they did. trail continuing through there. In fact, the Pelton and Round Butte dams have just public was given—maybe this is where the been a godsend for them. Fur­nished the ten years came in—the public was given money for many of the things that have ten years of hunting and fishing rights still happened. Portland General Electric gets on the McQuinn Strip. That’s my memory. a lot of the credit for that. There’s a kind of I don’t think it was twenty, I think it was an interesting story about that. ten. That may have been where the ten When we were negotiating that, years came in. why, the Indians and the Tribal Council There was enough feeling on the don’t move very fast, they have to Warm Springs reserva­tion that after this think things over pretty carefully, and was passed, some of the tribal members, Waldemar Seton, who was one of the vice including Vern Jackson’s father, wanted presidents of Portland General Electric, those— they didn’t understand how the and a whole crew of lawyers came up to grazing association and the timber opera­ the Tribal Council meeting, and they said,

104 Panner, Tape Eight, Side Two “We’re going to lose this Federal Power “I’ll do the best I can to smooth it Commission license if the tribe doesn’t out, but number one, we don’t want to sign this contract. We’ve proposed this see Waldemar, and number two, if that’s contract, and you need to do this, and if your final offer, why take your damn dam you don’t do it”— he was a Yale lawyer, and go back to Portland because that’s not and he was standing up making this going to be it.” speech, and it was apparent it wasn’t So they left. And we had a going over at all with the Council. “And wonderful electrical engi­neer, and we go not only that,” he said, “if you don’t sign back in. We had already proposed a lot of it, I’m going to let your people know what things that PGE wouldn’t go for, such as it’s cost them.” the acceleration clauses in accordance with And oh, it got deathly silent, and the cost of living, and they wouldn’t go for Delbert Frank, who was chairing the any of those things, and they thought the meeting, said, “Are you through, Mr. price was too high that we were asking. Seton?” So we raised the price even more, put in And Waldemar said, “Yes, I’m some more things, such as the reser­vation through.” of power at the re-regulating dam for the So Delbert said, “You just take your tribe and all kinds of things, and sent it damn dam, Mr. Seton, and go back to down to them and told them that was it. Portland. We’re not interested in dealing No more negotiations. Take it or leave with you.” it, and don’t bring Seton back. And they This had been going on for a couple signed on. years. Big money. So they all looked at me as the only MO: So Seton really offended people at white man there, and I looked down at that meeting? the table, and they all went out. Clarence Phillips was PGE’s lawyer, a wonderful OP: Well, his Yale style didn’t make it. man. They went out in the hall, and I mean, in fair­ness to him, he was a good Clarence asked if he could see me. I went guy and a very capable guy, maybe a little out, and he said, “What are we going to do too efficient. now?” But the point of that story is that I said, “I don’t know what you’re Tribal Council could not be hurried. I going to do, but I can tell you right now, got the same treatment that Waldemar the compensation is going to go way up, got a number of times on things that and Waldemar Seton isn’t going to ever were obviously very good for the tribe, I be welcome here again. Don’t bring him thought, but they were not ready for that, back. And some time is going to have to you know, and they would very politely— go by. It’s been spoken.” they never told me to go home—but Panner, Tape Eight, Side Two 105 through the kind of silent treatment or MO: And they just wanted the rights to otherwise they would let me know that I the hydropower from Warm Springs? was just pushing a little too hard. OP: They wanted the right to run the MO: And what about this issue of the water over the dams and put half the dam Federal Power Commission­ permit? That on the reservation. The boundaries of the does sound like it could have been a reservation were the center of the Metolius serious issue. and the Deschutes Rivers, so the Indians actually had title to half of the Deschutes OP: Well, it wasn’t. Waldemar was using and half the Metolius adjacent to the river, that. The Federal Power Commission but they had the exclusive fishing rights wanted those dams built, and they were to both rivers. So they had to deal with the going to extend it, you know, which they tribe. did. It was a good year later that everything was finished up. MO: There was one funny story I came across that may have been a complete [End of Tape Eight, Side Two] non-element in terms of all the things that developed there, but there was a story that MO: Anyway, Round Butte dam and— a Boy Scout troop was involved in locating what was the other one, Pelton? McQuinn’s original markers, right around the time that you were mounting the OP: Pelton. Pelton was the first one, effort to get the land returned to the Warm and then Round Butte. The contract Springs. Did you know anything about was to build Pelton right away, with an that? option to build Round Butte later, but the compensation was fixed on both of them. OP: Yes, the Scout troop at Warm Springs did go up and help locate them. MO: And these were dams that were going to be constructed by Portland MO: Did they need to be located? General Electric? OP: Not really. They were on paper. OP: Yes. McQuinn did a beautiful survey with markers and so forth. What they were MO: And were they providing the doing was just locating the markers. They capital for the dams? could have been replaced from metes and bounds or laid out, but the troop just had OP: Yes. fun going up and finding them.

106 Panner, Tape Nine, Side One MO: In the final agreement, the ranchers Olallie Butte. See, the tribe actually owns got to hold their grazing permits. Actually, about half of Mt. Jefferson, and there was the language that the paper quoted wasn’t talk about putting one on Mt. Jefferson or that they got them for twenty years, but on Olallie Butte, which is right across from until the present permits expired, and that Mt. Jefferson. they could extend it beyond that in case of But the prospect of putting a hardship. Or did they just get it for twenty public road through that critical part of years? the reservation and through the Papoose Lakes area just turned everybody off. OP: My memory is they got them for Even Vern Jackson wasn’t in favor of that. twenty years, not to exceed twenty years, He was much in favor of develop­ment, maybe. Their permits could be extended but that was too much. It would have been by the Forest Service up to the twenty a long road through the most beautiful years. We couldn’t guarantee them that part of the reservation. The Papoose Lakes because the Forest Service maintained country is like the Jefferson Wilderness jurisdiction,­ so the Forest Service could area. It’s just magnificent around Mt. renew their permits up to twenty years, Jefferson there. but I could be a little off on that. MO: I guess part of the agreement was MO: So the Forest Service continued to that the Jeffer­son Wilderness area would administer that. be excluded from this agreement on the McQuinn Strip and would continue to be OP: Yes. administered by the—

MO: I see. And then the other thing— OP: Yes. and I suspect you were involved in floating this idea, but it sounds like it MO: Was that any kind of sticking point never came about—was one of the things for the tribe? that was announced when the McQuinn Strip settlement took place was the tribe OP: Not really, because they felt might develop a ski resort on Olallie Butte. confident that nothing would ever happen I guess since there’s no resort there, that to it, it would be maintained. Incidentally, must not have happened. that was a very small part. The triangle came together at the top of Mt. Jefferson, MO: There was a lot of conversation and it was a rather thin sliver there that about that, but the tribe never really went into that wilderness area. seriously considered it. There was talk about it being on Mt. Jefferson or on MO: One other question about Kah-

Panner, Tape Nine, Side One 107 Nee-Ta—to bring the story up to date on I don’t blame the Indians for doing development—the recent story there is it. I’m not sure it will be beneficial to them. that they’re considering a new expansion I think in the long run they may be sorry, of the resort to include a casino operation. too, but I don’t know about that. I think What are your thoughts about that in they’re pretty well clear to do it, if they terms of it being a good idea or a bad idea want to do it on the reservation. The tribes for the tribe? that have had trouble are ones that didn’t have a reservation to put it on, like down OP: There was talk about that while I at Seaside where they’re trying to put one was still their lawyer, and they rejected it. in. The tribe doesn’t own the land, they’re The Warm Springs have always rejected it, just trying to get permission to do it. but when the State went into the lottery business, and all the other tribes are going into it, it’s pretty hard to ask them not to Timber Development do it. I personally never favored the MO: Another thing that I noticed was lottery. I think it was a terrible thing to that at a certain point you gave the opinion do. I think it’s still a terrible thing. I know to the tribe that individual members of the some people who are seriously affected by tribe didn’t have to pay state income taxes, it. One young man that works at the golf and apparently they had been up until course where I some­times play has a wife that time. Was there an actual change in who is totally addicted. I mean, she’s put the law that exempted them, or was this him into bankruptcy writing bad checks, just an oversight? had his wages garnished, just playing the lottery. It was an opening wedge into a OP: No, it was a series of court decisions serious problem, and all of these Indian and Supreme Court decisions, and it was casinos will soon be followed, I’m sure, by limited, as I recall, to income earned from non-Indian casinos. I’m sure the State will their trust holdings, from their trust lands. say, “Well, if the Indians can do it, we can In other words, their salary and wages, license other people.”­ other things such as that, were subject to Initially when they proposed the income tax, but income from trust lands lottery, they talked about very limited weren’t at that time. I haven’t followed the funds being expended to advertise it and law on that recently. I’m not sure how it’s promote it. Now it’s just constant, all kinds developed, but it’s gone through a lot of of advertising implying you’re going to changes. get rich of you play the lottery. I think it’s just awful. MO: Another major subject with

108 Panner, Tape Nine, Side One respect to the Warm Springs that you name of Souther, who was Calvin Souther undoubtedly were involved in, was the here in Portland. Gunderson was from development of their timber industry and Washington D.C. Calvin Souther was the the plan that was afoot to build a new senior partner in a law firm, Souther Mott mill on the reservation—well, there were Spaulding, at that time, which is now the a couple of competing plans. There was a Schwabe law firm. plan that was put together by a group of The tribe ultimately rejected that consultants that was a fairly costly plan plan because it gave too much control compared to the second plan, but the of the tribal timber to the consulting other plan was that the Indians would just management group, and decided to go simply acquire the mill that was already with their own board of directors that the on the reservation that was owned by— Tribal Council would elect and their own I’ve forgot­ten his name now, but the state management, which I think ultimately representative at the time. was a very smart idea. The Warm Springs Forest Products Corporation was OP: Sam Johnson? organized, and the tribe purchased the assets from Jefferson Plywood, which was MO: That’s it. Sam Johnson. But basically at that time Sam Johnson, and there was a con­sulting group that was also the sawmill from the Robert Wilson recommending a larger operation at the family, and I think made a very wise move same time. I guess the tribe decided to go to do that. with Sam Johnson’s mill and bought some other equipment from off the reservation, MO: There was an article that said that from a plywood plant. the Gunderson group was involved in this initially through the Interior Depart­ment, OP: There was a group called that they had solicited their help? Gunderson & Associates. OP: Yes. Gunderson made his approach MO: Gunderson & Associates, right. through the Bureau of Indian Affairs, which was very wise on his part, and got OP: Gunderson & Associates worked the support of the Bureau of Indian Affairs. a long time with the tribe to try to put We had a big meeting here in Portland together a long-term management at the Bureau of Indian Affairs, and the contract whereby the tribe would own the Bureau of Indian Affairs was promoting mill but Gunderson & Associ­ates would the Gunderson plan. I became a little bit manage it. It was headed by a man by of an anomaly because I listened­ to the the name of Gunderson and a man by the whole thing—I’d seen it before and read

Panner, Tape Nine, Side One 109 it—and I just could not agree. I mean, the contract. I was not prepared to have any tribe was giving up too much control over part in entering into another situation to tie their timber. up the tribe’s timber for any length of time. I remember being very reluctant, but I made a speech about it, a rather strong MO: There was quite a difference as to speech, and said I just couldn’t agree with the outlay, too. I think the Gunderson plan it from a legal standpoint. We had a Tribal was priced at $15 million for development, Council meeting in a separate room after versus the Sam Johnson plan, which was that, and the Council said forget it, even only a little over two million, and my though they had been wined and dined notes said that the tribe would have to pretty heavily by the Gunderson people. It sell their timber at an appraised value of was quite a carefully thought out program nineteen dollars per thousand board feet by Gunderson and Souther. or something like that, when the going I can’t say for sure that it wouldn’t market price at that time was twenty-eight have worked out, but it just involved too dollars, or some­thing. much of a risk for me. I was not, of course, very popular with Gunderson and the MO: I couldn’t understand why anybody Bureau of Indian Affairs and Mr. Souther, would consider it, and the Bureau of Indian who’d been a good friend. Nevertheless, I Affairs—their motives were good, I know, had to look out for the tribe in this. I felt but it looked too much like another Kah- so strongly about it that I think I indicated Nee-Ta-Freeland deal. It just wasn’t good that I just couldn’t agree to that, and I think for the tribe. I would have probably quit as tribal lawyer Fortunately, by then Vernon and if they’d gone for it because I had lived Olney Patt—Olney Patt being over the through one session where the Wilson years the solid rock of judgment at Warm family acquired a long-term timber cutting Springs. I can remember at the Tribal contract on the reserva­tion. I watched Council meeting that followed—there was timber being sold to them for a dollar-and- a great hushed silence after I made my a-half, two dollars a thousand for good speech, and nobody really knew what to pine logs when the Forest Service was say. And I said, “I think we need to have selling them for fifty, and we wound up a Tribal Council meet­ing.” And I can having a lawsuit against the Wilson family remember Olney Patt saying, “That’s the and the Secre­tary of Interior to break that way it’s going to be, we’re not going to get contract, and did get it broken. I had very into this.” able help. In fact, the real brains behind the The natural conservativeness of the lawsuit was Frank Nash of Miller Nash tribe came through, even though they had here, and the result was that we broke that been pretty well sold. But Indians had been

110 Panner, Tape Nine, Side One taken advantage of so many times that they The Bureau of Indian Affairs had a were very nervous about things like that, motivation to get the tribe into the timber so they were quick to sup­port me. business themselves on the basis that with competent management that would make MO: Had you talked to people about this it look good, you know? I never accused ahead of time? anybody of any wrongdoing. It was just that it just seemed heavily weighted in OP: No, I really hadn’t. To tell the truth, I favor of management, and I just couldn’t had talked to the Gunderson people quite a see it. lot about it, but I hadn’t heard it exactly the way it came out at this meeting. In other MO: There was apparently also an issue words, there had been quite a little change of the tribe losing its tax exempt status had in the program, and I had not talked to the Gunderson participated? Bureau of Indian Af­fairs, and the changes that had been made—it was marginal OP: It was in effect a kind of partnership, before, but the changes that had been made the way it worked out, with the non-Indian really wiped it out. group, and I was a little worried about that, but I don’t think that was the major MO: I had a note, too, that the tribe hired consideration. a firm of engineers and planners, Cornell Holland & Hayes to figure out what they MO: Had you let anybody know that you had there, what it was really worth. were going to quit if they went for this?

OP: Mm-hmm, and what needed to be OP: No, I never said that, but I think done. That’s right. the Tribal Council members that were there realized how strongly I felt about it. MO: But that firm recommended that the In the first place, the changes that came tribe hire Gunder­son? about were so significant at that meeting that I hadn’t expected at all. The length of OP: That’s right,but that didn’t work out. the contract, the commitment at a certain I think everybody’s motives in this thing price on the timber, some of those things were good. Gunderson, in order to get into were brand new. I mean, they had not been this, were going to make a big investment disclosed at all, and there wasn’t any way in it, too, and they believed they needed to negotiate it. In other words, I’ve been in this kind of protection,. Cornell Holland those things before, and there was no way Hayes & Maryfield was a great engineering to negotiate that. firm, but they had a big motive in a fifteen, It’s true, Gunderson when they twenty-million dollar deal. made the presentation, and it was a very

Panner, Tape Nine, Side One 111 elaborate presentation, said, “Now, all of con­tract, and number one was, there was these things are subject to negotiation,” but to be no pledging or control of the tribal it was apparent to me you couldn’t start timber. It was to be sold separately by the negotiating on a transaction like that. tribe on an appraised basis and with the Tribal Council’s approval. MO: Would this be a typical way that Olney Patt had always stood behind people would do busi­ness with the tribe, that concept: “We don’t want to over cut that they would spring it on you, their this reservation, and we don’t want to sell attorney, at the last minute? this timber for less than the fair market value, and that’s the way it’s going to be,” OP: I didn’t think so. I remember I was ever since we broke the Wilson contract, in a near state of shock when I saw it laid sued the Secretary of the Interior and out, and I saw the Bureau was in favor terminated that contract. He never forgot of it and some of the tribal members had that, and I never did, either. already been sold on it, you know, and I can remember looking at Olney Cornell Holland Hayes & Maryfield, who in that meeting and seeing some wheels I respected were there. I think even Vernon turning in his mind, too. But that’s just the Jackson was surprised at my reaction, you way it was. I think Gunderson realized, too, know, at first, but he quickly agreed. So that that that deal was not going to sell, and he was kind of the end of the negotiations. wouldn’t go for anything much different. We just said, “No, this whole Really that was kind of the meeting of it, concept is not going to work.” that was it. We went back and said, “Forget it.” Tough times. MO: From Gunderson’s point of view, it seems like it would have been a smarter MO: In terms of these kinds of decisions move to have you on board. that the tribe made, and that you helped them make, it sounded like econom­ics was OP: Well, obviously, as it turned out, a big factor, maybe even the chief factor, but but they knew they couldn’t have gotten it also sounds like you’re saying that their me on board. I mean, I think they knew own traditions and their own relationship that. to their land maybe played a role in some They had been working on this of these decisions, too. for a year or two, and I had had lots of meetings with them, and all of the OP: No question about it. Really I think meetings had been based upon the tribe my speech was primarily legal. I just retaining control of the timber, a short- outlined what the effect of this contract term management contract. I had laid to was, you know, that legally their timber them the groundwork for the management was going to be tied up for years, probably

112 Panner, Tape Nine, Side One selling it at less than fair market value. MO: I guess similar kinds of issues came MO: And they also had an environmental to the foreground in the whole McQuinn consciousness about being able to control Strip negotiation, too. One of the questions the cut and— was whether or not hunting would be permitted on that McQuinn Strip land, OP: Sure. and it was permitted for a period of time afterwards, but that must have been also MO: —and have they gone on to manage the tribe’s consciousness about the natural their timber lands in any different way resources coming into play. from the rest of the state? OP: Mm-hmm. There was another OP: Beautifully. They’ve done a great consultant that I should mention, beautiful job. The Bureau of Indian Affairs and that was a fellow by the name of Jerry Forestry Branch, is charged with the Dibble, who was an electrical engineer responsibility of managing the Indian from Redlands, Cali­fornia. It’s easy for me timber in trust for them, and that’s under to look back and think what a wonderful the Secretary of the Interior. But the job I did, but Jerry Dibble, for example, Bureau of Indian Affairs Forestry Branch on Pelton and Round Butte was the key has always worked very closely with the person, just like Paul Sanders was in Tribal Council. They never make a sale many ways on the timber. All of these are that the Tribal Council doesn’t approve. marvelous people. The Tribal Council is very careful to see Jerry Dibble’s father worked for the that they are cutting on a sustained yield, tribe when I first started with them. He that there’s more growing than is being did a survey for the whole reservation. cut. It’s been a very satisfying operation. At one point Jerry insisted that electrical The tribe hired their own forester, a service be given to the outlying areas of fellow by the name of Paul Sanders, who the reservation. PP&L had the agency is just a wonderfully competent man of electrical distribution system on the great integrity. Over the years he worked reservation, and Jerry said PP&L ought to with the Bureau of Indian Affairs Forestry put it to other places on the reservation. and the Tribal Council to make sure as He called me and talked to me about it: an independent forester that things were “I don’t see why they don’t do that. Let’s done properly. Paul Sanders was a great get the co-operative out of The Dalles, hero up there to me and to the Council Wasco Electric, to take over the whole both because of that kind of advice you reservation if PP&L won’t do it.” need. We asked PP&L to do it, and they said, “No, we can’t do that. It’s not eco- [End of Tape Nine, Side One] nomically proper.”

Panner, Tape Nine, Side Two 113 So Jerry and I went to Wasco Electric MO: And you were present at this lunch and had a draft of a contract all ready to where PP&L made their pitch? sign to kick PP&L off the reser­vation. Even though I am a private power person, we OP: Oh, yeah. Glenn Jackson was a had to do what we had to do to get the great man, and a far­sighted man, because electricity over the reser­vation. it wasn’t long after that that the tribe got Glenn Jackson heard about it at the sawmill and started expanding that, the last minute, and he called me from and things began to pop a little more, and Portland, and he said, “Owen, this is terri­ I think they’ve come out economically. ble. What can we do to stop this?” But it was the principle of the thing, And I said, “Well, I don’t know. It’s too. They didn’t want to be kicked off the gone pretty far.” I said, “If I were you, the Indian reservation, unfair to the Indians. first thing I’d do would be to invite the Tribal Council down to Portland for lunch MO: And certainly didn’t want to see a and tell them you’re sorry and tell them PUD gain new terri­tory at their expense. you’re going to put power all over the reservation.” OP: No. “By gosh, that’s exactly what we’ll do.” And he did. He called them in. He MO: Were there any other folks from said, “We’ll match everything Wasco PP&L that attended that lunch that you Electric’s proposed to you and a little more. recall? We don’t want to lose that reservation.” At that point I felt kind of guilty, so OP: You know, I don’t think so. The local I got a hold of Wasco Electric and said, “I manager in Central Oregon was not there. I want to tell you what happened. You’re don’t remember anybody significant being responsible for this, and we owe you a lot there. for the work you’ve done.” Glenn Jackson was an interesting “Oh,” they said, “Owen, forget it. guy. He was a very friendly, straightfor- We weren’t going to make any money out ward, honorable man, and I think he just of that deal, anyway. We were doing that wanted to visit with them. Vern Jackson, as a favor to the Indians. Let PP&L take it Olney Patt, Delbert Frank, Charlie in the neck.” Jackson from the reservation went. Not So we signed the contract with the whole Council. Probably half a dozen PP&L. But Jerry Dibble figured that out. of them. He’s the key behind that deal, and PP&L The luncheon was at the Arlington kept their word and did a beautiful job. Put Club, one of the few times Indians were power everywhere on the reservation, and in there. They have been many times they all got telephones and power lines. since, I should say. In fact, we still have

114 Panner, Tape Nine, Side Two Warm Springs Museum meetings there, OP: He was Chairman of PP&L. I’m at the Arlington Club, occasionally. sure he had someone with him, but I can’t remember who it was now. It was a long MO: As long as we’re chatting about time before Don Frisbee was at the top of Glenn Jackson, can you offer a profile of PP&L. him and some of the ways in which you dealt with him over the years? MO: Would it have been Jack Lansing, maybe, or Don McClung? OP: I, like everybody else, thought he was one of the really great men. I was OP: I just don’t have any memory of that. privileged to serve with him on Governor I’d almost say it was just Jackson. Hatfield’s Economic Advisory Committee. It was really the first one that had been MO: I’ve talked to other people about done in Oregon. Mark Hatfield, when he Glenn Jackson, and one person at PacifiCorp, was Governor, appointed an Economic I think, referred to him as “Mr. Oregon,” Advi­sory Committee. characterized his time at PacifiCorp as Gerry Frank was the first Chair of Chairman as doing as much business out the group, and Glenn Jackson was on it, of their office there for the State and for the and a number of prominent people from Highway Commission and other civic enter­ around the state were on it. Later, Glenn prises as he did for Pacific, maybe more. became chairman of that committee. I was privileged to know him and OP: Well, he did. No question about it. He appreciated his abilities and talents. He was a great man. was a terrific man. You know, this meeting wasn’t to draw any contracts or to do any business. MO: At the time that he called everybody This meeting was just to re-establish PP&L’s to the Arlington Club to talk about the relationship with the tribe that was about to reservation electrification he must have be broken, so it was nothing but a friendly been—well, when was this approximately? meeting, and Glenn Jackson saying, “I’ll tell you, we’ll match anything they’ll do, and a OP: Well, it was after we had acquired little bit better.” Kah-Nee-Ta, it must have been, but I would think it was before the sawmill deal. It MO: And then you worked out the details must have been in the late 60s or early ‘70s. later.

MO: So Jackson was probably the OP: And then other people worked out Chairman of Pacific Power? the details.

Panner, Tape Nine, Side Two 115 MO: Did you have any dealings with MO: There was a lot of commentary at Jackson, besides sitting on the Economic the time about that proposal. There were Advisory Committee? a lot of newspaper articles written on it. Jerry Pratt, who was then the Business OP: Only occasional meetings of the Editor for the Oregon Journal, wrote a Highway Commission, or he’d come up long column on it where he took apart the to Bend occasionally and make a speech deal and looked at the fact that the timber at some event, a senior citizen award or was going to be tied up if they went with banquet or something like that. I think he Gunderson for some time, and that there was the principle speaker at the Senior were some financial disadvantages that Citizen’s Award in Bend one year when I maybe would burden the tribe in the future. got that award or something. Things like Yet you charac­terized Interior and the that. Bureau of Indian Affairs as approaching this feeling that the deal was in the best MO: I wanted to ask a couple of follow- inter­est of the tribe. From your point of up questions about the development of you, you thought it was such a marginal the timber complex and the competing proposition, is this just truly a dif­ference proposals, and then ask you just a little of opinion, or is it a reflection of a carry bit about the subsequent operations of over of the old paternalistic attitudes on that and how that worked out for the the part of the organiza­tions that wanted tribe. to keep the tribes on the reservation and One thing you mentioned was that in their place and not give them too much you were a friend of Mr. Souther, who economic power? represented Gunderson. He was a local person? OP: I think the Bureau of Indian Affairs by that time was sincerely interested in OP: Yes. He was from Portland, and helping the Indians along, and I think I think he was not only representing their motives were entirely good. them legally, but also was a principal in I think Gunderson made a very well- Gunderson’s organization. organized careful pitch with engineers, and I think the Bureau of Indian Affairs MO: And you said that you were friends felt that in the long run it would be better before this time. Did it put a strain on your to get the tribes manufacturing the timber, friendship? even though it was a long-term contract. So I think their motives were good, and OP: Oh, a little bit, but I think we I’m not too sure that they knew all of the overcame it. proposals that Gunderson was going to

116 Panner, Tape Nine, Side Two put out at that par­ticular meeting. OP: Yes, he did. He went on the board I do remember that Doyce Waldrip, of the Warm Springs Forest Products who was with the Bureau of Indian Affairs enterprise. He stayed on the board to and was the Superintendent at Warm assist and advise them some. Springs at that time, immediately reacted Sam Johnson was a wonderful man, in favor of my approach to it. I don’t know a third generation lumber company, a very that he had heard all of the proposal, either. substantial family. He, at one time, had a It was a little confusing, and I never really very conservative political approach to life, went back into it to criticize anybody. The but then he ran for the state legislature. In main thing was that it was done. the process ac­quired a wonderful feeling for humanity and became—he always MO: The Warm Springs did go on to was a good philanthropist, but he became develop their timber business. The mill much more interested in a friendship that Mr. Johnson owned was actually with the Indians and was a good friend of on the reservation, and they went ahead theirs. and bought that mill and bought some equipment from a plywood mill that had MO: And that was a result of his been burned out, is that right? becoming involved in the politics?

OP: Yes. Jefferson Plywood, which at OP: Yes, he went out and made speeches that time owned the plywood mill up at and talked to the so-called average voter, Madras, was operating, but it needed and just learned more of their problems, some modernization, and that had to be and became much more interested, and done. became really quite liberal in his social views in later years. His wife is Elizabeth MO: And Mr. Johnson sold the mill and Johnson, Becky Johnson, one of our this other equipment and property to the board members at the Historical Society, tribe so that they could get into the timber active for many years in every kind of business, essentially? organization. Just a marvelous lady.

OP: Get into the sawmill business, yes. MO: And who was Pershing Andrews? They were already in the timber business, in effect. They were selling logs and selling OP: Pershing Andrews became the first standing timber before that. manager of the mill and operated the mill for the tribe at first. MO: Johnson underwrote some of the financing for the tribe’s purchase of those? MO: Did you play a role in helping set

Panner, Tape Nine, Side Two 117 up the management structure for the mill these people, trying to pick knowledgeable operation? people in the wood products industries for non-members, and to pick their OP: Only the basic organization. It was own members who were the most my view that the mill, and all the tribal knowledgeable in that area. enterprises, Kah-Nee-Ta and every­thing, should be operated by an independent MO: We may have touched on this this board of directors,­ independent from the morning, but when the tribe did decide Tribal Council, and hopefully from the to go with this plan, you had to have that politics of the tribe, and that these boards approved by the Secretary of the Interior— should be organized with roughly half members of the tribe and half non-members OP: Yes. knowledgeable in the field in which they were going to serve. That concept worked MO: I assume the Bureau of Indian out very well for both Kah-Nee-Ta, and Affairs, as well? also for the wood products industries. OP: Yes. The purchase involved such a MO: According to my notes, Indian large amount of money, it was necessary members were Elmer Quinn, Charles for the Secretary to approve it. I think I Jackson and Olney Patt, and Paul Sanders have a picture of that signing ceremony or was on the board. Other white members something when the Secretary signed that. were Mr. Culliman [sp?] was it? MO: Was that at all problematic? OP: Culliman was a substantial logger from the Valley, who was a knowledgeable OP: No, it was a foregone conclusion. man and who the Indians liked and had The Bureau of Indian Affairs had been in it acquaintanceship with from the past. Basil all along, and they wanted to see the tribe Culliman. operate their own sawmill. It was part of the program in those days of the Bureau MO: And Don Foster and Ed Cornwell. of Indian Affairs and the Secretary of the Interior gradually turning over more and OP: Ed Cornwell was also a small more responsibility to the tribes. operating sawmill man from the Valley. MO: Even though they were backing the MO: Did you help identify these people? Gunderson proposal­ earlier, they weren’t going to try to stop the tribe from going OP: I think I was at the meetings, but I ahead, since that’s what they wanted them think the Tribal Council basically picked to do?

118 Panner, Tape Nine, Side Two OP: Maybe the word “backing” might Ullman, who was a good friend. He was be a little too strong. I think maybe the then a powerful man on the Ways and better word is “neutral” about Gunderson, Means Committee, though not yet Chair even though they were slightly in favor of the com­mittee and saying, “I don’t like of it. I think we don’t want to imply in this setup, and I’m not going to do it.” any way that the Bureau was in any He had wanted me to do it, and he said, way pressuring the tribe to go with the “Well, let’s you and I both go and talk Gunderson proposal. They were very to Secretary Udall. He’s a good friend of happy immediately with the alternate mine.” He’d been in the Congress with Al, deci­sion, let’s put it that way. and they were good friends. He and I went to visit with Udall, and I asked much the same questions I’d A Potential Job previously asked him. After the meeting, Al said, “I can see why you don’t want to MO: This was Secretary [Morris] Udall? do it,” because I really could get no clue as to who I would be responsible to, who OP: Udall, yes. I would be working with above me. Mr. Udall was unwilling to say that I would MO: Did you know him at all? have a direct line of communication­ with him. He wanted me dealing through John OP: I didn’t know him well, but I had Carver, an Assistant Secretary. They would occasion to meet him when he first went not replace the man who was actually into power as Secretary of the Interior running the Bureau of Indian Affairs in under John F. Kennedy. When Kennedy those days, and with him still in there, was elected, I had a call from a mutual there was no way to do the job. friend. a lawyer in Arizona by the name I said, “Thank you a lot, but I’ll go back of Z. Simpson Cox was a very close friend to Bend.” So that was my contact with Udall. of Udall’s and Kennedy’s. He called and When we bought the sawmill, we asked if I would be Commissioner­ of the had a meeting with him, and he made a Bureau of Indian Affairs. big ceremony out of that, but other than I went back to discuss it with Udall that, and other than mutual friends, I and his aides,, but I couldn’t come to any didn’t know him well. conclu­sions that I would have been able, the way the Bureau was structured under MO: So this post that you were offered the Secretary of Interior, to accomplish in Interior, what would it have entailed? anything worthwhile for the Indians, and so I declined. OP: At that time the Bureau 20,000 I remember going to Congressman employees or something, and I would Panner, Tape Nine, Side Two 119 have been technically, in name, the OP: I was saying that the real problem Commissioner of Indian Affairs, in charge person in the Bureau was later transferred of that branch of the Interior Department. to be Ambassador at Samoa, which was The Interior Depart­ment is made up of a good place for him. He had really been the Bureau of Land Management, Bureau the architect of the termination plan and of Fish and Wildlife, and the Bureau of believed in it very strongly, and really was Indian Affairs, for example, and I was to not, in my judgment, on the right track to be charge of the Bureau of Indian Affairs. assist the Indian tribes. One of my requirements was MO: But not really in charge? that he be transferred out of the Bureau, frankly, and I put that very bluntly to OP: That’s right. There were some civil Secretary Udall, and he probably, maybe service employees that had, for a couple wisely, felt that no young lawyer from of Commissioners,­ run the Bureau in spite Central Oregon ought to be telling his key of what the Commissioner wanted to do. people how to run the Bureau. That was The way he wanted to do it was just not a fine with me. I really kind of liked the law possible situation. And it turned out to be practice in Central Oregon, anyway, and, that way, too. frankly, the Warm Springs tribe was very glad I didn’t do it. MO: Is that the way they wanted it structured? MO: Because they were able to keep you?

OP: Udall just didn’t have the feeling, OP: Yes. or the courage, or whatever you call it, to make the changes that I thought were MO: What was this person’s name that necessary. It could have been my fault, it was the architect of the plan? might have been that I was demanding too much out of bureaucracy, being a young OP: Let’s just say I’ve forgotten it now, enthusiastic lawyer from Central Oregon. he was working for John Carver.

MO: And you didn’t think you could MO: The Tribal Council members and shake the bureaucracy up? people you were associating with at Warm Springs, what were their feeling about their OP: No. There were a couple of people federal overseers, the Bureau of Indian in the Bureau that had been there too long Affairs and the Interior Department? and were too entrenched and too powerful. OP: It always was a very interesting [End of Tape Nine, , Side Two] thing. I’ve always said if you had a child

120 Panner, Tape Nine, Side Two that you wanted to totally ruin, if you and waste them anyway.” told them that all their life they were I mean, it was that kind of an going to have enough money not to starve approach to life that was not right. They on, but not enough to do anything else needed to be encouraged to advance, much, you couldn’t find a better way to make money, become economically sound, ruin somebody’s incentive. And in many these tribes. And ultimately that became ways the Indian people were dependent the role. upon the Interior Department and their trustee, and they had come to rely on that MO: We talked a little bit about Paul paternalistic treatment, on the one hand. Sanders. You said that he had contributed On the other hand, they resented a lot to the tribe, sketch out more of a the things they could­n’t do. So they were personal profile of him. Did you know a little bit ambivalent about the whole him? thing. They certainly did not want the trust termi­nated. They were smart enough OP: I knew him really well. Paul was an to realize they weren’t ready to be on their independent forester. He had a forestry own, and yet they constantly wanted to degree from Oregon State, was a very do more things. And the right approach bright guy. Very straightforward, very was to allow them to do more and more honest, com­plete integrity. He loved the things gradually, so as to prepare them Warm Springs people, and his principal ultimately for self-management and self- client for all these years was Warm gover­nance. Springs. I don’t remember whether he was The Wheeler-Howard Act in 1934 on the first board of Warm Springs Forest was designed to do that. It allowed them Products Industries or not, but if he wasn’t to become incorporated, establish their on the first board, he came on very shortly own boards of directors for business, thereafter. and otherwise gave them quite a bit of He was a very humble guy, but authority, but then the Bureau of Indian very knowledgeable, and the Indians Affairs really didn’t give it to them. Rex liked him and trusted him and had reason Lee, as Deputy Commissioner, didn’t to. He studied the Warm Springs timber believe in them having authority or situation. He was very instrumental in having money, and he was a proponent of the arrangements to buy the sawmill the theory the Area Director called me on: and develop it and to operate it, and he “You quit helping them economi­cally. We consulted with and achieved great strides don’t want them to be rich. If they get rich, with the Bureau of Indian Affairs Forestry they’ll spend all their money on whiskey, Branch. and if they have washing machines and Everyone in the Indian world sewing machines, they’ll just ruin them always said the Warm Springs had the best Panner, Tape Ten, Side One 121 Chief Forester of their Forestry Branch at to raid the Warm Springs Reservation and Warm Springs, and the best personnel. A steal horses and children and women, lot of that was because Paul Sanders, in even after the reservation was created. a quiet, diplomatic way, brought them to And the Warm Springs would go to war that level of management for the tribes. with the soldiers to chase them down and try to stop that. MO: You’ve contrasted the Warm Ultimately, when the Paiutes were Springs to some of the other tribes in the captured and suppressed,­ they were put area, and I’m just wondering if you have on the Warm Springs Reservation. [They any sense of why their history was different were] historical enemies, the Paiutes and than some of the other tribes around, in the Warm Springs and the Wascos, and terms of their generally amicable relations that blend created many problems over the with the white man and just their success. years. Even though there’s intermarriage The Warm Springs certainly do seem to and they worked together, there’s still be one of the friendlier, more integrated resentment between the Paiutes and the and successful tribes in the region. Do Warm Springs and the Wascos, but they’ve you know what the underpinnings of that worked it out. were? The Modocs, of course, stayed south, and they were just much more OP: I’ve heard it explained by warlike, probably because of what the anthropologists that have studied the anthropolo­gists say. Yakamas have done tribes of the Northwest, and it makes very well economically. They are probably sense. Their theory is that in many ways more contentious than the Warm Springs. it’s economic.­ The Columbia River tribes The Umatillas are wonderful had a good life. They didn’t want. They people. Their reservation was primarily were well fed, lots of salmon, lots of game, valuable wheat farm land, and so there lots of berries, nuts, roots. So they were was much more temptation for the white comfortable. man to get a hold of their wheat lands, The Snakes, the Modocs, the and that’s how their reservation got Paiutes, lived in tougher areas. Eastern fraction­ated more than Warm Springs. Oregon, Nevada, and much like the Plains Nobody really wanted the Warm Springs Indians they had to fight very hard for Reservation. what they got, and they learned to fight to In treaty times, the treaty minutes survive. show that they wrote back to Congress The Modocs continued to make war saying, “This is the most worthless land long after the Warm Springs had signed you could ever find. There’s nothing here the treaty and were on the reservation, and any white man will ever want, so this is in fact, the Paiutes and the Modocs used a good place to put the Indians. All it is

122 Panner, Tape Ten, Side One is mountains and rocks and terrible farm sides and we would not be involved ground,” which was all true. It turned out, because we represented all of the Warm however, that water running over the dam Springs. However, the Paiutes didn’t and the timber and those things had some entirely believe that. They got the idea value. that we were taking sides against them, which wasn’t true. Not all the Paiutes, MO: I guess the Yakama wound up with but some of them, especially some of the similar land. younger Paiutes and the more activist Indians. OP: Yes. The Klamaths did, too. The It was the first time in my career Klamaths were very wealthy in resources. with the Indians that there was an outcry It was a shame that they gave it up. to fire me as tribal counsel. When I heard about it, I went up to the Council meeting. The Council was made up of Internal Disputes representatives from each of the three tribes, including the Paiutes. The chief MO: A lot of the Indian nations were of the Paiutes and council members thrown togeth­er on various reservations. were good friends of mine, they did not Did you ever, as chief counsel for the believe this, but they had had a lot of Warm Springs, get involved in internal pressure on them. I went up, and Olney disputes? Patt was chairman then, and I announced that I’d been tribal lawyer long enough, it OP: We tried very hard to stay out of was time to make a change, that I’d seen those, my law firm and I. In about 1978, tribes really split over who’s going to be there was a distribution of a Claims Act the tribal lawyer, and I didn’t want that land settlement, reimbursement to the to happen at Warm Springs, and so I was tribe for the areas that were taken from quitting. the tribe at treaty time. That got the tribe Olney Patt said, “No, you’re not. split wide open. The Warm Springs and The Council has already talked about this, the Wascos contended that the Paiutes and the Paiutes, Chief Johnson and Elmer were not entitled to any of that settlement Quinn, are saying under no circumstances because the Paiute tribe had had a separate will you quit, and there won’t be any settlement and the Paiute members at problem. This is going to quiet down. Warm Springs had participated in that We’re going to have a big General Council other settlement. A terrible mess. meeting in two weeks, and you come to We suggested the Council hire that meeting, but don’t you say a word. independent counsel to handle it on both Don’t say anything. We’ll do the talking.”

Panner, Tape Ten, Side One 123 So we went to that meeting, and successor, Dennis Karnopp, has done the Olney set me up on the stage, and he told same thing really well. me, “Now, you just keep quiet. No matter It’s not easy. Tribal lawyers have what’s said, you don’t say anything.” He tough times. Jim Hovis at Yakama was knew I tended to talk a little bit. a wonderful lawyer, and he stayed with Anyway, he ran the meeting, and them for years. He always managed to he asked all the people that wanted me maintain friend­ships with all of them, fired to make their speeches. Mostly non- and I think one of the reasons is that he resident young Indians were the ones liked his people like I liked the Warm that came up and start­ed talking. There Springs. were eight or nine of them that made I’d been the Warm Springs lawyer speeches, and their speeches were in less than two years when Jim Hovis wrote essence that Panner hasn’t done a good me saying he’d been named the Yakama job for the tribe, should have done this. A tribal counsel. He didn’t know me but lot of them were individual cases where he’d heard I was the Warm Springs some tribal member had been charged lawyer, and could I give him some advice with a crime, or something, and I’d pled on how to be a good tribal lawyer. And I them guilty when they were guilty and wrote him back saying, “The only thing so forth. I can think of, Jim, is that you just like After that happened, then he asked your people and you’re loyal to them and for the people opposed to firing me, and straight with them and work hard.” And the older Indians, the older women, older he quoted me on that a lot of times. men, got up. Then the young members that lived on the reservation started, and MO: Did you have a lot of dealings with one of them had a prepared speech that him? I will never forget. The gist of it was—if Panner’s not a good lawyer, why is it that OP: Oh, yeah, and we were great our tribe is the best tribe in the United friends. Even though the tribes got into States? And why is it we have the most it quite regularly, we remained great income? And we have this, and we have friends. We never had any litigation this, and we have this. Pretty soon they between the tribes. We would never allow took a vote, and it was almost unanimous. that, and we were smart enough to realize So that was the only experience that blood was thicker than water, and we I had where I was accused of being would­n’t get into those things, knowing involved with one or the other faction. sooner or later it would smooth out. Other than that, we stayed out of it and There are so many intermarriages, and so stayed friends with everybody. And my many Yakamas living at Warm Springs

124 Panner, Tape Ten, Side One and Warm Springs living at Yakama that Springs Indians in court, gave them a they always got things worked out. fair trial, didn’t treat them badly. Not like Klamath. If you went to Klamath to try MO: You’ve mentioned a couple of an Indian to a non-Indian jury, you were times the political struc­ture of the tribe, in bad trouble. their constitution and by-laws. Was this all in place when you got there, or did MO: Did you have some experiences in you help them develop those organs? Klamath?

OP: It was pretty much all in place. The OP: Yes, I did. I lost an assault and Wheeler-Howard Act had been passed, battery case for a Warm Springs Indian and the Secretary of Interior supplied to that got in a fight with a Klamath Indian, the Wheeler-Howard tribes, which Warm a young kid, and the Klamath Indian boy Springs was one, a constitution and by- lost his eye. It was a fair fight, and they laws, and those were adopted. Over the were fighting bare-fisted, and a blow to years we made various changes to those his eye put his eye out. They’d been good which were approved by the people at friends, but they’d been drinking, and elections, but essentially the Wheeler- actually the other guy started the fight. Howard Act was a wonderful piece of But the District Attorney down there in legislation and estab­lished a charter of those days was prosecuting every Indian the tribe’s corporation, and it was very case he could. They were tired of the well done. Mostly what I did related to fighting and scuffling, and it only took internal organization, some assistance the jury about fifteen minutes to find my with the Tribal Court, and contracts that young man guilty. the tribe had, relationships they had with The Judge was so upset by the others. verdict—it was Judge Wolfe from Baker— Part of my job also was to represent that he chastised the jury for the verdict individual Indians that didn’t have and said he didn’t see how they could enough money to hire a lawyer when bring in a ver­dict like that. They should they’d get in trouble or when they’d have know that he was not going to sentence litigation with an auto­mobile dealer, or this young man to any jail time at all. He whatever it was, and that was a great was going to put him on probation right source of pleasure. I remember feeling away, which he did. that it was amazing how the non-Indians But I thought about that, and that on the juries in Wasco County and Jef­ case would have never been a conviction ferson County in the immediate area in any court except Klamath at that there responded favor­ably to the Warm particular time.

Panner, Tape Ten, Side One 125 Native Fishing Rights state. In other words, the treaty rights that were given to the Indians meant nothing. MO: One of the major cases that you We couldn’t live with that, and so we were involved with the Warm Springs joined in this litigation against the states that we haven’t talked about yet was of Washington and Oregon. the fishing rights case that was decided, The case was tried to Judge ultimately, by Judge Belloni. Can you tell Robert Belloni. Judge Belloni rendered a me how that unfolded? Gettysburg-like decision. He came out on the bench right after the testimony was OP: That was the exception to the rule. finished and issued about a less than three The Warm Springs didn’t like to get into or four-minute opinion deciding the case. litigation, as I’ve mentioned to you, and it I don’t know if you’ve read it or not, but was very hard to get them to litigate. They the gist of it was that the Indians did have would find some way to solve problems treaty rights on the Columbia River, that otherwise. those treaty rights did mean something. But a combination of things had His interpretation of it was because the occurred on the Columbia River and in language was “in common with the Puget Sound, and the Puyallups had lost citizens of the territory,” that the treaty a case in the Supreme Court of the United rights meant that the Indians were entitled States when they tried to net off the whole to the opportu­nity to catch 50 percent of river and claim they could wipe all the the salmon that came up the Colum­bia salmon out if they wanted to, which was River. Not the right to catch 50 percent, dumb. The situation on the Columbia was but the opportunity to catch 50 percent. so bad that the Warm Springs Council said This was his idea, we hadn’t to me, “We think we’d better get into this.” suggested this theory. It was a brilliant So we did, the Yakamas, Umatillas, theory, and he said, “Now, you go work the Warm Springs, Nez Perce, all joined that out. You have enough scientific together with the Secretary of the Interior knowledge of these fish that you can do in the case of United States v. Oregon,5 that.” because the Oregon Fish Commission— That was basically the key to the at that time it was the Fish and Game ultimate solu­tion, and even though there Commission combined—was being are still hearings and discus­sions, they’re terribly unreasonable in restricting the focused now and guided, and it’s never Indian fishing rights on the Columbia been very serious since then, except that River. The State of Washington Fish many years later the State of Washington, Commission was saying that there were in their anxiety to eliminate the Indian no treaty rights separate and distinct from treaty fishing rights, appealed his decision the rights of every other citizen of the to the United States Supreme Court. First,

126 Panner, Tape Ten, Side One of course, it went to the Ninth Circuit. The didn’t work out so well for them, and so Ninth Circuit affirmed him. Then it went they really resented the Indians catching to the Supreme Court of the United States, any fish. and the thing that angered us was that they had no right to appeal, the appeal time [End of Tape Ten, Side One] had expired, but they used a procedural device to get it up there. The Secretary OP: I think I told you that story about of the Interior and the Solicitor General Celilo, didn’t I? The tribes wound up wanted to have the Supreme Court hear subordinating their interest to the dam, it once and for all because they thought it they let the dam cover the rocks where was a winner, and it turned out to be. The they’d always fished, but they didn’t agree Supreme Court affirmed him. to quit fishing. They didn’t give up their Basically that principle is what fishing rights, even though a lot of the guided Judge George Boldt in his ultimate sports and commercial fisherman later solution to the Puget Sound problem. He claimed they had. came to Judge Belloni and adopted the I was involved with that contract, same principle that Judge Belloni had and they simply subordinated their rights devised in United States v. Oregon. to the dams, and then they began to fish with gill nets, as the other commercial MO: Did you know Belloni at that time? fishermen did, instead of dip nets. We had a big battle over whether they had ever in OP: Only as a judge. I’d been before Indian historic times fished with gill nets, him a couple times in trials, but other than and the anthropologists made that case that, I didn’t know him. very easy, that they had. So it was still a “usual and accustomed” way of fishing. MO: The reason for the states of Oregon and Washington to approach this issue in MO: So the method of taking fish had to such an extreme way in the first place, I be “usual and accus­tomed?” suppose, was because the resource was being taxed by all the demands being OP: That was their theory, and I think placed upon it? there was some basis for that, that they had to use historic methods, dip nets or OP: That, plus an awful lot of political gill nets, but we proved they used gill pressure by commercial fishermen, sports nets. Nobody objected to their using a fishermen, to eliminate the Indian harvest. hook and line. It was the gill nets and the For one thing, they thought that the inun­ dip nets that they didn’t like. dation of Celilo had pretty much wiped The Dalles Dam was probably the the Indians out of the Columbia, but that only dam that’s ever been built that all

Panner, Tape Ten, Side One 127 the sports fishermen and the commercial condemnation, and they had to go to the fishermen and the environmentalists and Claims Court to resolve it. To the Indians, everybody were in favor of, except the the salmon are a religious experience, Indians, because they all thought it would and fishing meant more to them than flood the Indians out and save the salmon any amount of money. They did not want because the Indians were catching so many money. They tried repeatedly to reject it, salmon at their usual and accustomed but once the dam was built, they really fishing place. had no choice.

MO: I see. So instead they switched to MO: Was the cash to actually pay them gill nets, and that was challenged, but not for the fish them­selves? successfully. OP: That was the argument, but the OP: Yes. language of the contract said, “We’re paying you $4 million to subordinate your fishing rights at Celilo to the water Celilo Falls & The Dalles Dam running over the dam.” In other words, it was very clear that all they were doing MO: We haven’t talked about Celilo. The was saying, “We’re going to let the water contract you refer to was an actual cash run over our rocks where we’ve always settlement? fished.” That was very carefully done, and the lawyers for the commercial fishermen OP: Cash settlement for the inundation. and the sports fishermen, as they read The Corps of Engineers, when they built it, quickly agreed they really didn’t have The Dalles Dam, recognized that they had much of a case. So that issue never really to compensate the Indians for the loss ever had to be litigated. of their fishery. So what they did, they calculated the value of the fish that the MO: Was this an oversight in the original Indians caught each year at Celilo, and drafting of the contract? they capitalized that and paid them. In the case of the Warm Springs, it was a total OP: The Corps of Engineers really of $4 million. The theory was that that $4 didn’t care, I don’t think. They just wanted million could be invested and return an the dam built. So it was Indian language inter­est return that would equal the value that went into the contract. of the fish that they caught. That was the theory, but that didn’t MO: Did you help in the negotiations? satisfy the Indians.­ The Indians never wanted it. That was forced on them in a OP: Only indirectly. Frank Nash and

128 Panner, Tape Ten, Side Two Leland Brown handled that case in the covered it for Warm Springs. There were Indian Claims Commission and set­tled it, a lot of incidental small cases, but nothing and I had only an incidental role in it. I that was very significant. I can think of give them credit for that completely. Smart a hundred little cases for individual move. Indians, but they’d make another book. Let me tell you one quick one here. MO: Sounds like it served them well I was defending a murder case in The later on. Dalles of an Indian charged with murder­ ing his wife. Actually, it had been a big OP: Yes. It was one of the unique times ten-day-long drunk, and it ultimately when the Indians have turned the tables turned out that she probably died of acute on the white man. alcoholism. He’d beat her up a little, and she’d beat on him, but—in any event, we MO: As I recall, there was an issue the were in the middle of the trial, and we tribe had to face with respect to what to had an Indian interpreter by the name of do with that money? The $4 million that Thomas Yallup, who was a Yakama. Full they got for the Celilo rights, and that was blood, long braids, wonderful character.­ something that you did help them with? And at one of the recesses, Tom told me this story. OP: Yes, I did. At one of my first general He said, “In the olden days, I was council meetings Vernon Jackson told going across the ferry at Biggs Junction. me to announce to the people that they The ferry would hold four cars, and I weren’t going to divide that money up, had an old Model T on there, and there when there had been all kinds of talk were three other cars on there, and we about what they were going to do with it. got out on the middle of the river, and the ferryboat started to sink. And the MO: That’s right. You told me about that ferryboat captain said, ‘Come on, let’s last time. push these cars off in the river, or we’re Well, I think I’ve brought you all going to drown.’” through all the major cases that you So they get busy, and they push all thought were the most significant with three cars off, and Thomas’ is the only one respect to the Warm Springs. Are there left, and the ferryboat captain says, “Come any other cases that come to mind that on, Thomas, help us push this car off into we haven’t talked about so far that you the river.” think would be worth getting on the Thomas says, “No, you push it off record? in the river, if you want to push it off in the river.” OP: No, I think we’ve pretty well So the rest of the passengers and

Panner, Tape Ten, Side Two 129 the captain pushed Thomas’ car off in When I came to the Warm Springs, they the river, and he was the only one that had no college graduates from the whole collected for the value of his car, because tribe, not anyone. As I told you, Vern all the rest of them pushed their car off Jackson went back to business school after into the river themselves, see? I started being a lawyer for the tribe and got And I said to Thomas, “Thomas, his degree. So it was a different experience don’t I remember that you went to Yale for me, and a wonderful experience. Law School for one semester? Is that how They’re really fine, fine people. Generous you knew enough not to push your own to a fault. Very kind people. car off in the river?” And he said, “Owen, I don’t think MO: Well, let’s leave it at that today, and you have to go to law school to know we’ll continue. enough not to push your own car off in the river.” OP: Very good. Good timing. I always thought that was typical of the Indians’ good judgment. [End of Tape Ten, Side Two]

MO: As a result of growing up in Oklahoma and your exposure to Native Tribal Termination cultures there, you obviously had some sense of what Native American culture MO: I thought it might be worthwhile was all about and some affinity for it, but to follow up a little bit on the dissolution did your time representing the Warm of the Klamath Indians, the dissolution of Springs give you new insights and new their status and dissolution of the tribe. ideas of what the Indians were all about? We talked a little about it before, and you did mention what it meant to the Indians, OP: Oh, yes. I don’t think I ever really and I think we also talked about the knew very much about the Indians, even Eisenhower Administration’s motivations, through I caddied and grew up with a and what was behind the federal push to lot of them in my school in Shawnee. My do this. exposure to Indians in Oklahoma was to I thought it might be good to much more educated and sophisticated go back and talk in more detail about tribes. The tribes in Oklahoma had been exactly what happened to the Klamath there longer and exposed to Western and discover what ways you were civilization longer, and we had judges and involved in this process. I know, as doctors. you told me last time, that there was When you came to the Northwest, definitely crossover between the Warm you’re another genera­tion behind, at least. Springs and the Klamath in terms of

130 Panner, Tape Ten, Side Two intermarriage, and you were in touch understanding what they were doing, or with the situation at the time to some maybe because they were in such need of extent as a result of your association money that they’d rather have $200 than with the Warm Springs. think about the future. One of the questions I had was about the act that was passed in 1954 MO: The $200 was payment just to vote [The Termination Act6] that led to the in the election? tribe’s dissolution. It seemed like in the aftermath, almost nobody was satisfied OP: No. If they voted favorably to with it, that there was really a lot of termination, they got $200, and there was discussion in the press at the time. I know a lot of criticism about that. that Senator Neuberger had proposed I wasn’t personally involved in some modifications in the original plan, the Act itself when it was drafted, and I at least, to the so-called Seaton Plan that didn’t particularly follow it, except from the head of Interior was putting forward, hearing about it. It was a shocking thing as to how to effect the dissolution. Ulti­ because the Klamaths had such a beautiful mately, Neuberger’s modifications didn’t reservation, and those of us working with make it, and they did go with the Seaton Indian affairs, knew at the time that it was Plan, but there was a lot of criticism. If going to create great hardship because the you could tell me, from your perspective, big amount of money that they were going what mistakes were made in that original to receive, which was also a factor with a 1954 assessment. Some of the criticism lot of the more intelligent Klamath voters, is the fact that there were charges that was going to be gone very shortly. As I the election that each tribe member had recall, each member of the tribe ultimately to make was a decision that they maybe got about $43,000 or $44,000, something weren’t competent to make, and the like that, which seemed like a lot of money way the question was put to them was at that time, but it was gone very quickly prejudicial, that was a charge that some for most of the tribal members—not all of members of the tribe had made. them, but most of them disposed of that very quickly. OP: Well, there was a strong feeling that that was true, and a lot of tribal members MO: Approximately 23 percent elected to— and a lot of knowledgeable people working with it felt that the way it was OP: To stay in the tribe. And they were put, com­bined with the $200 per capita allocated a proportionate interest in the payment—in other words, $200 cash for remaining assets. There were some assets each member of the tribe—caused a lot that were left to the tribe, a small land base of members to vote for it without really and some timber, and they elected to stay

Panner, Tape Eleven, Side One 131 in. I don’t frankly remember how they night, and they had quite a little drinking came out. I think they got more money problem at the time. They really had seri­ than the $43,000 when they finished it up. ous problems, economic problems. They’d The remaining members, at the time, been essentially supported, you know, by thought they were probably sacrificing the tribe and the government for many a great deal to stay in. I think ultimately years, and they really weren’t ready for some of them probably benefited more termination. by staying in, but I don’t remember, and I’m not sure that it was the same for all MO: There were also some lawsuits that of them. My memory is that perhaps they grew out of the Termination Act, some of were allocated tracts of land and when the them brought by tribal members. There bank closed its trusteeship for them, why, were issues of exactly how to figure out some more funds were divided up. how to compensate­ the tribe because there was this large expanse of timber, MO: One of the things that struck me and there were environmental concerns, in the reading I did about this was that and there was difficulty because of the in the Interior Department’s testimony interaction between the environmental before Congress in 1954 there was a concerns and the timber sale that made it statement that the Klamath, through difficult to actually appraise the value of intermarriage and cooperative work with the land. The timber was, in some people’s the white population and association with minds, anyway, worth more if you could that population through adult education just clear cut it right now and get it out programs, public schools, and gainful of there, but the environmental side of it employment, that these people, in 1954, said that you should try to manage it on were largely integrated into all phases of a sustained yield basis, and they had a economic and social life. lower appraisal associated with that. It sounds like a real can of worms even to OP: That was a joke. That was just decide what the property was worth at the absolutely ridiculous. That statement was time. made by the Interior Department, and not I know that one Klamath—I don’t by the Bureau of Indian Affairs, I’m sure, know if you were aware of this at the because the Bureau of Indian Affairs, which time or involved in it at all, but a fellow is underneath the Interior Department, by the name of Wade Crawford and his knew better than that. There were many, wife sued the government to go ahead many Klamaths on the reservation that and allow a clear cut of the whole thing, had very little exposure to Klamath Falls so that they could get the maximum and the non-Indian population, except dollar amount out of their share. I believe to buy things and go in on Saturday they were ultimately unsuccessful, but

132 Panner, Tape Eleven, Side One were you involved in any of these legal the other faction, but they were two very struggles? powerful men, and I think both of them believed that what they were doing was OP: Not at all. It wasn’t until several right. years after the Termination Act that Wade Crawford and some of his friends came in MO: Would the other one have been L. to see me about trying to stop the whole Nathan Davis or Boyd Jackson? termination. I think I told you about that, that I felt there was such dissension OP: Boyd Jackson. Boyd Jackson and between various factions in the tribe— Wade Crawford were, in my mind at least, by this point people had begun to count the two key leaders of the factions. on this money—that it was not realistic unless they could get together on some MO: Did you know Senator Neuberger? plan to set aside the Termination Act. I’ve forgot­ten exactly the year Al OP: Yes, very well. I did not know him Ullman was elected Congressman, but before he became Senator. I got acquainted both Congressman Ullman and Senator with him in the Congressional hearings Neuberger, at various times, made over PGE’s application to build Round motions and attempted to cancel out the Butte and Pelton Dams on the reservation. Termination­ Act, but they never could After the court case said that the Federal get enough support. The non-Indian Power Commission could authorize those population wasn’t in favor of it, and the dams, Senator Neuberger scheduled some Klamaths were in such dissension that it hearings in the Interior Committee of Con­ was very hard to do. gress to try to pass legislation to preclude the construc­tion of the Pelton and the MO: What was Crawford like? Was Round Butte dams. he somebody who was a self-interested So immediately we were at odds, party in terms of this transaction, or was rather seriously, because I wanted to help he somebody who had some sense of the the tribes have that economic benefit. greater entity of the tribe? I testified before the committee when Sena­tor Neuberger was Acting Chair of OP: Well, I always thought Wade was a the Interior Committee and they had the very smart man, and I think he was very hearings on whether or not the legislation interested in the tribe and trying to do the should be passed. PGE and the tribal best he could for his people, as was the members went back to testify against that other faction. Wade Crawford was the kind of legislation. leader of one faction. I’ve for­gotten the It was rather hot. Senator Neuberger name of the person who was the leader of held hearings in Oregon. In those days

Panner, Tape Eleven, Side One 133 there were many sport fishing inter­ with Neuberger, and you were a bit at ests and commercial fishing interests odds with him? that didn’t want the dam built because they thought it would destroy the OP: He became quite incensed at me fishing and the runs of salmon in the when I was testifying, and at one point in Deschutes and up the Metolius—when the hearing he said, “Mr. Panner, we don’t in truth and fact there really weren’t want to hear from the lawyers, we want any. The runs by that time had already to hear from the Indians.” He asked the been extinguished, and even hatch­ery then-Chair­man of the Tribal Council to fish had not succeeded in the Deschutes make a statement, in spite of the fact that and the Meto­lius. the then-Chairman of the Council was They were such pristine and highly intoxicated, highly intoxicated. beautiful rivers, the Metolius and the He had had a bad night the night before Deschutes, that it was understandable that and continued on the next morning. the sports fishermen particularly didn’t Olney Patt, who’s just a wonderful man, want those dams built, and Neuberger had a little drinking problem, and I can took their side. I can remember being a still remember Olney looking at him little bit caustic with him, though, because and saying, “Senator, our lawyer speaks the Indians needed the revenue, and I can for us,” and that was all he would say, remember charging some of them that they fortunately. I was a little nervous. had spoiled their own pristine areas in the Later Senator Neuberger and I Willamette Valley, and now they wanted became great friends, and he did like the the Indians to maintain their private little Indians, and he was very helpful to the fishing ground up here, in spite of the fact Indians in the short career that he had that it was to the economic disadvantage before he died. of the Indians. Fortunately, Congress wasn’t able MO: How did your friendship come to pass the law. about?

MO: So it was able to go ahead? OP: We had various Indian business before the Interi­or Department, and OP: It went ahead, and actually the fact occasionally before the Interior Commit­ is that the reser­voirs behind the two dams tees of Congress. I do recall the exact have supplied a lot more recre­ation than details of one time we approached the pristine canyons would have. Senator Neuberger. What ultimately became Public Law 280,7 which was MO: So that was your first encounter the law that gave states jurisdiction on

134 Panner, Tape Eleven, Side One Indian reservations of criminal activities. anybody at various times, and he and We had a good law and order program Neuberger were very strong people, and at Warm Springs, and we did not want they did not get along too well. I haven’t to turn criminal jurisdiction over to the seen the article. It’s sitting on my desk State. here, I’ll look at it. Before that legislation was ever passed, I recall that we went to Senator MO: It’s ironic that they were both from Neuberger to get his support to keep the the same party, senators from the same Warm Springs excepted from that statute, state, and actually to some extent had and ultimately it was done when it was similar values, I think, in terms of the way passed. I don’t recall whether it was passed they saw things. while he was still alive or after, but it was Did you know Morse? going on, at least, while he was there. It was really part of the termination move by OP: Yes, I knew him quite well. We also the Eisenhower Administration. had dealings with him in the Congress on various items. He was always most MO: What kind of person was gracious and helpful to the Indians. On Neuberger? one trip back to see him he insisted that the Indian delegation and myself go OP: I thought he was a very fine man. with him out to his farm in the beautiful He certainly had the interests of Oregon countryside near Washington, where he at heart. He was very considerate and had his famous Saddlebred stallion and his friendly to the Indians. He was a very prize beef animals. He was a wonderfully bright man, and had the respect of fellow interesting guy. Brilliant man. Sena­tors. I heard him make quite a few speeches. I remember once he talked to MO: If you’ve seen the latest issue of the the Portland Chamber of Commerce, and Oregon Historical Quarterly, there’s a very I came down to hear him. At that time he interesting article about the longstanding was very unpopular with the business feud and between Neuberger and Senator people. When he was introduced at the Morse, which was probably at its most Chamber meeting, he received probably fevered pitch right about that time. three or four people applauding, and other than that, pretty much total silence. OP: They did not get along well. Senator Twenty minutes later, when he finished his Morse was a maverick, by self-description, talk, everybody was standing on their feet he was not a team player, by his own cheering. He was an absolute magician description. He took on everybody and when it came to making a speech. I had

Panner, Tape Eleven, Side One 135 a good Republican friend in Bend who minute. That dispute dragged on for a said he wouldn’t go hear him talk because long time after even the final termination it took him about a year to get mad at him took place, and surfaced again in the again. early seventies when there was a decision I used to travel with him on the in court as a result of one of the lawsuits plane occasionally. We would catch the that the original land deal, or cash-out, red-eye special, the mid­night plane out was based on under­valued estimates of of Portland to Washington D.C. He was the land’s worth. Were you involved in on that quite a few times when I was on that later phase? it. We would visit. He was a marvelous sleeper, too, on the plane. He could sleep OP: No, I was not, except that after that wonderfully and relax. In fact, he could there was some additional money paid to sleep anytime.­ He could catch a nap and the Klamaths, and one of the Klamaths then come up just as fiery as could be. came to me to act as trustee, to try to save Sometimes when you were talking to his money for him. I think he was married him in his Senate office, you would think to a Warm Springs member. I sent him to maybe he was asleep, but he was hearing the bank. There were quite a few banks everything that was said. He’d close his that were involved in their individual eyes and relax, but he knew what was trusts: U.S. Bank tried des­perately to help going on. He was a bright man. them as trustee for the remaining tribal I never had an experience with members, but it was pretty much a losing him, but I understand he was a great Dean proposition. When somebody comes in of the Oregon Law School, and a great and says they’d bought a car with their mediator and arbitrator for the National down payment, and they’re going to lose Labor Relations Board during the war. it unless you give them some money out of the trust, or they say, “My wife’s in the MO: You must have found the visit hospital,” you just can’t turn that down. It to his farm interesting due to your own didn’t take very long to get rid of almost interest in horses. all of those individual trust funds. I always said that non-Indians OP: It was wonderful. I really enjoyed in the same economic and educational it. He had his Saddlebred stallion trained status would have done exactly the same to the point that he could actually do thing. It wasn’t just the fact that they some tricks with him, and he loved were Indians that they couldn’t take care showing off to everybody, he was a great of their money. Most of us have a difficult showman. time if some money’s dumped on us and we aren’t economically and educationally MO: Back to the Klamath, just for a prepared to handle it.

136 Panner, Tape Eleven, Side One MO: The other question I had about that MO: Yes, it sounded like he was right in whole business was that the 23 percent the middle. He, along with lots of other that elected to remain, still lost their status people, maybe, made the observation as an Indian nation, or under the original that 50 percent of the adult members of Indian treaties. Can you describe to me the tribe were incompetent to manage what you think their status wound up their personal affairs, but at the same becoming? time seemed to be siding with some of the private interests that wanted it to go OP: They were citizens with a private through. trust is what happened. They were no longer Indians under federal super­ vision, and so they were just the same as Life in Bend any other citizen with a private trustee, the U.S. Bank, as I recall, managed their MO: Let me ask you about what life was affairs, or tried to. like professionally and personally for you in the sixties, when you had settled into MO: And they retained that land? Bend and your practice had developed. Let’s start with your professional career OP: They retained that land, and and the greater political change of scene ultimately some of it was sold, and some that occurred in the sixties. The sixties of it was divided among them. That’s why have this almost legendary status in our you and I are unable to say how much memories now, but it certainly was a time those remaining members got, because of some unprece­dented things, including some of them got land, and some of them the Vietnam War and the reaction here got money, and I just don’t remember any at home to that. I’m wondering how that details about that part of it. played out in Bend and whether it affected your legal practice at all. MO: That fills in the story on the Klamath a little bit. One other question: Did you OP: It really didn’t. We didn’t have any know T.B. Waters, who was helping— Vietnam cases. They were handled in federal court. Judge Solomon had many OP: A management consultant, or of them. I don’t recall that there were any whatever they called him. Bend people that were involved in that. I do recall that my son came to MO: Right. me and said, “Dad, I don’t believe in this war. I’m not going to kill anybody. I’m not OP: I did not know him. He had a tough going to fight. But I know how you feel job. about the country, and I feel the same way. Panner, Tape Eleven, Side One 137 I’m not going to desert. I’m going to enlist That was a great blessing to Central in the Marine Medical Corps, and I’ll go Oregon because of the distance and travel. out and pick people up off the battlefield, In those days, they didn’t have rotary but I won’t carry a gun, and I won’t fight.” plows, and snowplows tried to keep the And I said, “That’s great.” So that’s mountain highways open in the winter, what he did. but they were more like canyons of snow I don’t really recall any Bend young in tough winters. people who went to Canada. Certainly That was an active time. I love Bend, none came to me for legal help. It was and I par­ticipated in all kinds of activities, a tragic thing, of course, and a lot of the everything that I could: the Chamber young people didn’t believe in it, as many of Commerce, the Lions Club, naturally people came to not believe in it later. the golf club. I was on the board of all of Senator Morse, as I recall, was the only one those organiza­tions, president of all of who voted no consistently to not get into them one time or another. Vietnam, and then to get out of Vietnam. I was trying to check some dates for you. I guess it was 1958 that then-Governor MO: That’s right. I think with the Gulf of Hatfield came over to make a speech to the Tonkin Resolution,­ his may have been the Chamber of Commerce. I got what they only “no” vote. call the Bend Junior Citizen of the Year award, and I remember that was my first OP: That’s right. real exposure to then-Governor Hatfield. Shortly after that he asked me MO: Did you ever talk to Wayne Morse to serve on his Economic Advisory about Vietnam? Committee, which was a really great opportunity. He established the first effort OP: No, I don’t recall ever talking to to bring business to Oregon, and he called Morse about that. it the Economic Advisory Committee for the Governor. Gerry Frank was the chair [End of Tape Eleven, Side One] of that committee, and Glenn Jackson was on the committee. It was a wonderful OP: The Community College Act had opportunity for me to get acquainted with been passed in the late fifties as I recall, those people. maybe the middle fifties. Bend was the first Central Oregon community college to MO: What was the experience of being be authorized and established, and I was on the committee like? active in helping to achieve that, and was, in fact, the first chairman of the board of OP: It was great because the Governor Central Oregon Community College. would attend all the meetings, and our

138 Panner, Tape Eleven, Side Two role was to try to stimulate economic MO: Did you know Travis Cross, then, too? development in Oregon. We didn’t have any money, it was pretty much a voluntary OP: Yes, I knew him very well. Travis promotion, but we had a lot of the good was his right-hand man. I still know and business leaders. enjoy Travis very much. I saw him just The Governor took various trips. a few days ago. He’s not too well right I went with him once to New York with now, but I know both Travis and his wife eight or ten business people from Oregon Beverly. He was a great administrative to talk to business [people] in New York assistant to Governor Hatfield. I think he and meet with various people that had went with us on that New York trip, if I’m indicated some interest in coming to not mistaken. Oregon. I remember that trip with great fondness. The Governor, of course, was MO: He obviously had a key role a great speaker, and he proclaimed the in Hatfield’s administra­tion. In fact, I magic of Oregon to them very well. think there’s a story that he and Hatfield planned Hatfield’s path to the governor’s MO: I can’t remember whether the position. gubernatorial election that brought Hatfield to the state house was in ‘56 or OP: I think that’s a fair description. I ‘58, but it was one of those two years, and think the Senator would cheerfully agree Hatfield was quite young. with that. I know how fond he is of Travis. In fact, I talked to him about it not too long OP: Quite young. ago. Of course, Gerry Frank had a great role in the Senator’s career. MO: How did you see him at that time? Did you have any reservations about his MO: That’s right. And you knew Gerry age in that position? Frank at this time, too?

OP: No, I really didn’t. I was about the OP: Yes. same age, a little bit younger. In fact, I remember when he came up to the Junior MO: As long as we’re talking about Citizen dinner, he was very young, only a Travis, can you tell me a little bit more couple years older than I was, but a superb about just what kind of person he is? governor. He’d been Secretary of State already. He’d had a political education. He OP: He was a marvelously efficient man, was eminently qualified to be governor, with wonderful judgment and common and I think was highly respected, in spite sense, and a great poise and personali­ty. of his youth. Everybody liked Travis. I don’t remember

Panner, Tape Eleven, Side Two 139 anybody that he didn’t get along with in both as governor and as senator. He government, which is unusual today, not always insisted on a committee or a group quite so unusual in those days. People of competent people to advise him as to a were a little more friendly. certain number of names from which he would pick a judge. We have a lot of respect MO: And what about Gerry Frank, how for him in the judicial system because he did you see him at the time? never made a political appointment to a judgeship. He always had a group of select OP: Gerry was a dynamo, always. He names given to him from which he would was actually managing the Meier & Frank appoint a judge, which is a wonderful­ stores at that time, and had just opened system because you guarantee that those the Salem store, as I recall, or shortly names come from a competent larger thereafter did. group of people. We always appreciated He brought a lot of enthusiasm it. He would occasionally call when an to the Economic Advisory Committee, Eastern Oregon county needed an interim really set a pattern for that group that District Attorney to see, “Well, what about still continues up to this day. I don’t know so-and-so,” or “what about so-and-so?” whether that’s when he first made his love He called other people, too. affair with New York, when he started traveling then with the Governor, but he MO: Is this approach to making these has followed the Senator’s career ever appointments in con­trast to other people since then. that have been in the Oregon State House?

MO: Although in recent days not in OP: Yes. However, I would say that quite such close contact, I guess. since Hatfield was governor, that practice has been followed most of the time. Not OP: No, that’s right. always. Some of the governors have simply appointed someone that they thought was MO: And did you continue to have competent or wanted to appoint. Not very dealings with Hatfield from that point on? often, fortunately.

OP: Yes, off and on. Of course, we MO: Do you care to mention which would have occasional visits with him governors you think deviated from that about Indian situations. I can remember process? him calling me about possible judicial appointments in Eastern Oregon. He OP: No, I don’t think it would be good. was a wonderfully­ careful man as far as I know that Gover­nor McCall, Governor picking competent people to be judges, Straub didn’t make any straight politi­cal

140 Panner, Tape Eleven, Side Two appointments. Since then there have been judge, we’ve attended a lot of the same a few viola­tions. social functions. I called him the other day about coming over to the house for MO: But you don’t want to get into the dinner on a short notice. Unfortunately details of that? they had some other plans, but he said, “Be sure and keep us in mind for another OP: No. time.” I’ve had dinner with him on a MO: Okay. When Hatfield was still number of occasions back in Washington, Governor, did you ever lock horns with out here. I remember on the Economic him? Adviso­ry Committee I was working with the point man with Disston Saw people OP: No, I don’t recall there was ever from back East to move a plant to Bend, any occasion where I did. Oregon. The Governor had arranged dinner for a few of us, Gerry Frank and MO: Even though there would obviously the Governor and his wife, and the fellow sometimes be issues where the interests of repre­senting Disston Saw and his wife, the Indians would be pitted against the and my wife and I, at Waverly Country State? Club. We’ve had many more occasions where there were more people involved, OP: I don’t think it ever happened. The but where we were close together. Warm Springs Indians were such good diplomats and such good citizens that MO: If you’re out for a social evening they found ways of working through with Senator Hatfield, what kind of things things. If something couldn’t be done, do you talk about? why, they’d find another way to go about it. All the governors, and the Attorney OP: Oh, horses, education, politics. I General when I was at Warm Springs, can remember on a number of occasions now Chief Judge James Redden, were discussing the Indians. He always liked to most cooperative in working with the talk about that, even after I was not their Warm Springs Indians. attorney. The Senator has a wonderful mind, and he really enjoys history, every MO: Was your relationship with subject. He’s just an outstanding man, and Hatfield mostly on an offi­cial basis, or his wife, too, Antoinette. We have been to would you call him a friend? gatherings of people that were involved in the prayer breakfast. He’s been active OP: I would call him a very close friend. in the National Prayer Breakfast. We’ve Over the years, especially since I became talked a lot of religion, of a lot of things.

Panner, Tape Eleven, Side Two 141 MO: We’ll undoubtedly talk more about And I said, “Yes, Hiko, I think I Mark Hatfield as this interview goes on. would. I don’t believe that I could be very I want to backtrack to something comfortable in an environment that told you mentioned earlier when we talked me everything I had to do.” And we used about Vietnam, which was the situa­ to argue about subjects like that quite tion with your son. You described the a little bit. Hiko was funny. His father conversation you had with him and was the director of all transportation in some of the things he said to you at the Southern Japan, so he was from a very time. Did he interpret you as being a wealthy family, quite spoiled, and what supporter of the effort in Vietnam at that you might very well call a sissy. He really time? couldn’t stand any pain or suffer­ing of any kind. I can remember him moving OP: Yes, he interpreted me as being a sprinkler pipes in the summer, and a drop supporter of the country. In other words, of water would hit him, and you could if the country was in it, I don’t think I hear him scream a block away. would have ever—nobody knows, but I In those days we used to go over don’t think I would have ever voted to go to a cattle ranch at Post, Oregon, at in there the way we did. But once we were Aspen Valley on the weekends to ride in there, I didn’t believe in draft dodging. for cattle, and “I don’t want to go to He knew that. I didn’t believe in turning Post, too cold!” But he would go and your back on your country because you stay by the fire as best he could. It was thought maybe they’d made a mistake. so funny because he always swore he When he was a senior in high just hated it over there. We’d make him school, we had a Japanese foreign go ride a little bit. He was a journalism exchange student for a year who roomed student, and after he went home he with him in our house. As seniors in high sent us this article he’d written, first school, that would have been ‘63, ‘64, major article for one of the Japanese along in there, these were two very liberal magazines, and it was all about what young men, my son included. They had a beautiful place Aspen Valley was. It had some liberal teachers in high school, told about the stars sparkling at night and they had all these wonderful idealistic and the cold nights, and you could theo­ries, which are great for young people hear the creek rippling by the little to have. I can remember the Japanese—at cabin door, and the cowboys would that time the saying was “Better dead than go out and round up the cattle, and he Red,” and I can remember the Japanese wound up by saying, “My heart longs foreign exchange student, Hiko was his to go back there to Aspen Valley.” name, saying, “I think you really would be He learned quite a little bit about better dead than Red.” people in the United States. One of the

142 Panner, Tape Eleven, Side Two things he learned was, “I never thought hospital, and ultimately he became an people worked so hard over here. You operative technician. and all your friends worked long hours. He’d only been in about two years I didn’t think people in the United States when Vietnam ended. He had an English worked so hard.” And he found out how degree by this time, at Oregon, but he enthusiastic we were for the country, too. decided he wanted to be a doctor. He said to me, “I know you’ll think I’m wasting an MO: It sounds like that was a very English degree to be a doctor now.” interesting experience for your family. “No, I think you’ll be one of the few educated doctors I know.” OP: It was very good. The first time So I said, “Let me see if I can’t my wife said, “I have to go to a church get you out,” because when he enlisted meeting tonight, you boys wash the dish­ he really thought it was for the Vietnam es,” to Hiko and my son, Hiko said, “In War, but it turned out to be a four-year Japan, boys don’t wash dishes. I don’t enlistment. I said, “There’s no use you wash dishes.” staying in now that the war’s over. Let me And my wife said to him, “Hiko, see if I can’t find some way to help you get you aren’t in Japan. Wash the dishes.” He out.” had a tough time, but he was a good sport “No, I’m going to stay my time.” So about it. he spent two more years in a hospital as an operative technician, and it was great MO: And your son, in terms of his age, experience for him. Ultimately he had to was right in the middle of the Vietnam go back to pre-med and med school, but War? he did.

OP: Yes, he was. MO: What about your wife at this time? What was her life like? MO: But he did enlist, you said, and joined the Marines and was in a medical OP: My wife was an R.N., working at unit? St. Charles Hospital in Bend part-time, and off and on. She worked more as the OP: Yes. kids got older, in school. She was active in the church and a very busy lady. MO: Did he go to Vietnam? MO: And what about your daughter? OP: No, he never got to go. He went through Quantico basic training with the OP: I had two daughters. Kathy was the Marines, and then they sent him to a naval oldest and Irene was next. Kathy was born Panner, Tape Eleven, Side Two 143 in 1950 and Irene in ‘53. They both went I said, “If that’s all I have to do to through high school in Bend. Both were keep from that happening, you don’t have active in sports. Kathy was a Powder Puff to tell me twice.” So I quit, and that came at football player, and they were active on a very good time. We owned this acreage, the farm, because in 1968 we got acreage and we decided to start becoming more outside of town and started breeding and active, and I spent more time working on showing Arabian horses. They had both the farm than I had in the previous time, ridden and competed in 4-H with non- getting exercise. I began to spend a little registered horses, and they both liked it more time with the family after about and rode well and handled horses well, 1968. Up until then, from 1949 up through and so we wanted to give them a little 1968, it was pretty hectic, and I think I did more challenge, moving up another layer, my wife and kids a little bit of a disservice and that’s how we got into the Arabian during that time period by working too horse business. many hours and trav­eling too much.

MO: It sounds like yours was a fairly MO: So you were able to lick that integrated family, in terms of all your problem? various activities, that you functioned as a family unit and that you were able to take OP: Yes, I didn’t have any more problem enough time from your career to spend with it after that. That did it. I’ve never with your family, too. had any desire to smoke or drink coffee since, and I enjoy getting exercise. OP: Bend is a small town, and you In recent years I’ve started playing could go home for lunch in five minutes. I golf again. I pretty much quit playing golf worked very long hours. In fact, up until when my son graduated from high school. 1968, when we started the horse farm, I He and I played golf together occasionally probably worked way too many hours up to then. When he quit playing and and was away from the family too much. went to college, the girls didn’t play, so I We tried to take vacations together. quit golf completely. I’d play once a year, But about 1968 I had a problem but that was about it, and started working called Raynaud’s Phenomenon, and my on the farm in my spare time. hands and feet started going to sleep and turning white, and I came down to a MO: I think you told me earlier that you specialist down here in Portland, and he had won the Bend golf tournament so said, “Well, you’re just fine. You just keep many years in a row that you decided to smoking, drinking coffee, not getting any quit entering the competition. exercise, and in about five years we’ll take your hands and feet off.” OP: My daughter told me I had to quit.

144 Panner, Tape Eleven, Side Two She said, “You’re not very popular out and more acquainted and became good there anymore.” That was pretty much my friends. sole recreation during those years from He loved to fish and hunt, and the ‘49 up to about ‘63 or ‘64, and it wasn’t Warm Springs members loved to have tough competition and it wasn’t any big him come up and go fishing because deal to win it. It was a friendly, wonderful he liked them and he was interested in club and wonderful people, but I didn’t their problems and helpful. There was a consider it any great feat, and it was time particular rock on the Deschutes River on to give somebody else a chance. the Warm Springs side that we still call Ullman Rock, where he loved to get out [End of Tape Eleven, , Side Two] on and fly fish the Deschutes River for the big native rainbows. He would always put MO: One of the things you mentioned them back. He didn’t keep them. when we first talked in broad outline about your history was your relationship with MO: Were you much of a fisherman at Al Ullman. In particular, you mentioned that time? that you used to go fishing with him on occasion on the reservation. Tell me more OP: I fly fished a little bit. My senior about that. partner, Duncan McKay, was a superb fly fisherman, and I would go with him OP: I remember Al Ullman when he first occasionally. When I went with Al, I’d came in the law office in Bend knocking fish a little bit, but I just enjoyed being on doors for votes when he was running out there. We would camp out, spend a against then-Congressman Sam Coon. He few nights down on the river or up in the lost that election, but I remember being mountains fishing the high lakes. impressed with him when he came around One year we had a little camp of to ask for my vote, though I didn’t vote for a couple tents set up with some of the him. I was Republican then, and I voted Indians. We had some horses and packed for Sam Coon. into the high mountains, as we did every so The next term, two years later, Al often in the summer. This particular night, stayed with it and won. He came around middle of the night, a storm hit, terrible every so often. Bend was a big population storm, wind blew, started blowing the center in his congressional district in those tents down. It was awful. We packed up in days, which was just Eastern Oregon. the middle of the night and came out. But By this time I was the attorney for the most of the time he enjoyed riding horses Warm Springs Indi­ans, and we had a lot up to the high lakes up in the Papoose of business with them, and we got more Lake country there, fishing those lakes.

Panner, Tape Twelve, Side One 145 MO: Is that on the east slope of Mt. MO: That must have been an adventure. Jefferson? OP: It was. Al was always a good sport OP: It’s on the northeast slope, and a about it, a wonderful­ tough sportsman. little to the north­west. In other words, if Even after he lost his leg, he still loved you can picture a line running between to go. We still went camping and fishing. Mt. Hood and the top of Mt. Jefferson, and My son loved to fly fish, and he would go then down the White River to the Metolius along with us, and he and Al would have and then to the Deschutes, it’s the area in some regular contests in a raft on some that triangle to the northwest and north­ of those high lakes. They would compete east of the top of Mt. Jefferson. Beautiful about who could catch the most fish, and area. it would go back and forth. They had a great time. MO: I’ve never been on any of the reservation lands around there, but I’ve MO: Ullman lost his leg— been around the other side to the Jefferson Park area. OP: He lost his leg in a car accident. He lost it below the knee, and it really never OP: It’s very much the same. A little slowed him down any. He was a tough different, but not much. At those high guy, and it never really slowed him down. elevations, they’re pretty much the same. He had many years in Congress with that artificial limb, and he walked—they didn’t MO: It is beautiful country. I’m surprised have a subway in those days—from the you were able to get out in the dead of House to the Capitol. He’d walk over there, night. you know, back and forth. I always was amazed at how well he could get around, OP: It wasn’t easy. The Indians were and he didn’t seem to suffer any great good horsemen, and I had ridden a lot, amount of pain, though frequently when and we were able to get the horses togeth­ I would stay with him, either camped out er. We were afraid they were going to take or otherwise, I would detect that he was off and leave us, and so we got out. glad to get that leg off and massage the stub a little bit. MO: Sometimes those trails can be difficult to negotiate in darkness. MO: So he still camped after that?

OP: Yes. We had about four miles to go OP: Oh, yeah. Didn’t slow him down a down to the vehi­cles from the camp. bit.

146 Panner, Tape Twelve, Side One MO: We’ve talked about Wayne Morse, MO: What do you think about his recent Al Ullman, and Mark Hatfield. You difficulties? mentioned you also had a pretty close relationship with Bob Packwood, or you OP: Oh, I don’t think about those things. knew him? I don’t have any comment on any of that. We’re so heavily involved in cases of that OP: Yes. sort that most of us just try not to form any opin­ions or thoughts about those kind of MO: What can you tell me about him? things until we have a case before us that we have to decide. OP: I always admired Bob Packwood as being a very bright, capable guy. He always did his homework. He always Expanding Contacts in Oregon knew the legislation that was in Congress, and he understood it, and he exercised MO: Maybe we could talk a bit now about very good judgment in his role in the your growing integration into the state’s Congress. legal community. In the biographical sketch He was wonderfully friendly with they have of you in The First Duty is your the Indians. He was never on a committee service on the Oregon State Bar Board of that particularly dealt with the Indians,­ Governors. Tell me what that body does but whenever we had things, like the and how you came to serve on it? McQuinn Strip or Kah-Nee-Ta, we had to have pretty broad-based support, and OP: When I served on the Board of Bar he was always very cooperative and very Gover­nors, the Oregon State Bar wasn’t help­ful. nearly as big an organiza­tion as it is now. John Holloway was the secretary. We MO: Would you describe your had a staff of probably twenty, twenty- relationship with him in the same terms five people. Now it’s in the hun­dreds. It’s as being a friend? changed completely. The Board of Bar Governors tried to OP: Not as close as with Hatfield. We help the lawyers and help with legislation had a lot of lunches together. We would that affected the bar or the lawyers take him out to lunch when we’d go back generally. In those days we handled all there with the Indians, or maybe dinner of the disciplinary proceedings. In other or something like that, but I never had words, if a lawyer was charged with any social relationship with Senator misconduct, that went to a trial committee Packwood. and then came to the Board for hearing.

Panner, Tape Twelve, Side One 147 Nowadays it goes through a much more as president of the bar. It was a pleasure to complicated process. After we decided watch him function. whether any punishment should be There were at least three or four issued to a lawyer, it went to the [Oregon] top members of the trial lawyers’ bar that Supreme Court for consideration. were on that group. In those days there Our role was to manage the were more trial lawyers proportionately proposals that came before the town hall on the board, I think probably, than there annual meeting of the lawyers at the are now. That was an area that I was annual convention, which in those days interested in. was generally down at the old Gearhart There was a fellow by the name of Hotel. Bob Motts who was the senior trial partner It was a great opportunity for me, in what’s now the Schwabe Williamson coming from a small town in Eastern firm, which was one of the big firms in Oregon, to get acquainted with other Portland. There was Rupert Bullivant, lawyers that were active, and good who was a top notch trial lawyer in lawyers from the rest of the state. the Bullivant firm. There was Bill Dale, who was a fine trial lawyer from here in MO: Roughly what time was it that you Portland. There were lots of good lawyers served on the Board of Governors? on that board at that time.

OP: I’ll check that and get it for you. It’s MO: Did you ever encounter Jim Redden my memory that it was in the late fifties. when he was practicing law in Southern [Narrator’s note: I was on the Board of Bar Oregon? Governors from 1961 to 1963.] OP: I never did. I knew Jim when he MO: Were there any individuals you was Attorney General, but I didn’t know can think of in particu­lar that you came to him before that. I knew of him, and I ran know as a result of that association? into some of his law partners occasionally, but I never did run into Jim—in court, that OP: Oh, you bet. Gene Marsh, Judge is. But I met him at bar meetings, things of Malcolm Marsh’s uncle, was on the Board that nature. of Bar Governors when I was. Former I did run into Judge Frye. We had state senator, president of the senate, a a divorce case against each other when great lawyer in McMinnville, Oregon. she was practicing law. We resolved it. It He was president of the bar when I was wasn’t a complicated case, we worked it vice president, and just a marvelous man. out. A very close confidante of all of the then- politicians, and just did a really great job MO: Didn’t go to trial with it?

148 Panner, Tape Twelve, Side One OP: Didn’t go to trial, no. too bad we can’t act as judge anymore on these cases,” in a kind of a sarcastic way. MO: You said you came to know Jim “Since we were both involved, why, we Redden when he became Attorney really can’t get involved in this anymore, General. What was your interaction with fellows, you’re on your own.” him then? And one of the Indian members said, “Well, we wouldn’t object to having OP: Well, it was mostly over the Judge Redden judge our cases.” Columbia River fish cases. He was And one of the attorney generals involved in those through his assistants, said, “We’d rather have Judge Panner and person­ally. We got acquainted then, decide our cases,” in a kind of a joking and we didn’t have any real serious way, but I thought there was a little bit dispute then. He was very considerate of of truth to that. Both of them figured we the Indians, and they of him. knew their tricks, and so they’d be glad to have us, even though the other side MO: So you didn’t have to go head-to- might feel that we were favorable to them. head with him over any fishing issues? In other words, the Warm Springs said, “We’d rather have Judge Redden hear our OP: No. I don’t know if I told you the cases,” and vice versa. story about the time that he and I were talking on the street, and the Indians in MO: The other thing I noticed in that the Attorney General Office came along? biography was that you were awarded the Trial Lawyer of the Year award in 1973. MO: No, I don’t think so. How did you become nominated for that?

[Recording stops, then resumes] OP: Well, the American Board of Trial Advocates is a group of trial lawyers, OP: Anyway, Judge Redden and I both plaintiffs’ and defense lawyers. It’s a were talking on the sidewalk out here on marvelous group, still in existence. They Broadway—we were waiting for another meet annually and have CLE, Continuing judge—and out of the courthouse came Legal Education, programs and so forth. some of the Warm Springs members and Annually, they vote on somebody also some of the staff of the Attorney for Trial Lawyer of the Year, and that General’s Office. They’d been involved in particular year they voted it to me. They a fish case. spread it out. You know, that’s no big We all shook hands all the way deal because they pick a different one around and visited a few minutes, and every year, but it was nice to have your either Judge Redden or I said, “Well, it’s colleagues say that, anyway.

Panner, Tape Twelve, Side One 149 MO: So it wasn’t necessarily tied to any because that’s the kind of a guy he is, but of your specific cases or accomplishments it wasn’t a close relationship. We had no in that particular year? social relationship. I went to his roast when he was OP: No. It was just whether they liked roasted by his fellow legislators and state you that particular year and thought employees. It was a wonderful event here maybe you were trying some good cases in Portland. I came in, but by that time we generally. knew we were going to be federal judges, The American College of Trial and that was the occasion for the roast, Lawyers is, to me, the most significant and I got better acquainted with him from professional achievement—the American that time on. College of Trial Lawyers is a national But I remember some lawyers organization that has a basic quota of criticizing his appointment when his name about one percent of the lawyers in any first came out for a federal judgeship, and state that can belong to the organization. the basis of the criticism was that he was a The history of that organization and the politician rather than an experienced trial trial lawyers that belong, it just is a group lawyer. And I remember being very, very of lawyers that are considered really defensive about that, and explaining to competent trial lawyers, and it’s an award them they didn’t understand just how long that most trial lawyers would like to and how many cases he’d tried. Because achieve. So I think that to me is probably by that time I knew him and had learned the most significant. just how much trial experience he had, You had to be at that time—and I which was tremendous trial experience, as think still—you had to have practiced 15 well as his experience as State Treasurer,­ years, tried cases for 15 years before you Attorney General, Speaker of the House, could be admitted. I remember feeling ideally suited for the job. very fortunate that I was admitted exactly 15 years after I started trying cases. Range of Cases MO: Moving back just momentarily to Judge Redden, when you became MO: I’m just about at the end of today’s acquainted with him when he was list of questions. One question I had on the Attorney General, was that a close list was a totally open-ended one which relationship then? we haven’t talked about today, and that was just any other cases that you may OP: Not particularly. An have tried as an attorney during the period acquaintanceship. A warm relationship, when you were in Bend that maybe stand as you can only be with Judge Redden out as significant that we haven’t talked

150 Panner, Tape Twelve, Side One about. We have, of course, talked about and that was a series of hearings we went the Mitchell flood case, and you told me a through, and I handled that litigation. little bit about the murder case involving I think probably also I tried some the incarcerated­ Warm Springs tribal heavy cases involving authorities for a member, and a couple of others. Are there trucking company that I represented, in any that we haven’t talked about that you the old days Bend-Portland Truck, and think might be important to get on the later Tran Western Express, and I tried record here? those cases before the ICC and Oregon Public Utility Commission and in federal OP: You know, I tried so many different court. kinds of cases. Did we talk about the So there’s a big mix of everything. Mitchell flood cases? I think we did. And the fishing cases for Warm Springs. I get started, and I could just go on and on, MO: We did, yes. I guess.

OP: I tried some other murder cases. MO: Well, maybe we might pick one or I tried some armed robbery cases. Early two more of those just to make the record in my career, I tried mostly plain­tiffs’ more complete. Obviously we can’t talk personal injury cases, because that’s all a about every one of them. young lawyer could get. In later years, I began defending OP: All right. cases for insurance companies more. But I always mixed it all up, and I really don’t MO: But we’ll save that for next time. have any particularly that stand out in my Thank you very much. mind. I tried negligent homicide cases. I tried death cases. All kinds of injury cases, OP: Very good. Thank you. both for plaintiffs and defendants. It was pretty broad experience. Pretty broad [End of Tape Twelve, Side One, experience. Side Two Blank] I think some of the most com- plicated matters that I handled were working with the Warm Springs Indians Legacy of the Sixties to make sure we got permission to build the Pelton and Round Butte dams. We had MO: Last time we talked about the some very heavy hearings about where decade of the sixties, and I asked the Central Oregon Community College you about where your family was should be located, whether it should be at that time and about the impact of Madras, Prineville, Redmond, or Bend, the Vietnam War on things in Bend. I

Panner, Tape Twelve, Side One 151 thought today we could have a similar It was clear that more violence was discussion about the seventies, the occurring. Up until the sixties, we had changing political times there and the never had a murder on the Warm Springs events in the end of that decade leading Reservation, and very few on the Klamath up to your appointment. Reserva­tion, and very, very few in Central Before we do that, I thought I’d Oregon generally. It was very rare that backtrack to one subject that we didn’t you’d have a murder or a violent rape touch on in the sixties, and I’m not sure if it occurring in Central Oregon. had any impact on you or your career, but Along about that time, things that was all the political assassinations of began to change. I don’t know that it that decade. What your own thoughts are was because of the assassinations, but I about the political violence that occurred think more likely times were changing, frequently during the sixties, starting with and we began to see more crimes—more the assassination of President Kennedy. crimes, too, that didn’t seem to have any What impact did that have in Bend or on meaning or reason to them. Up until that you, and what do you think has been the time, there were very few crimes, even in lasting legacy from that period? the United States, that didn’t have some understandable motive, even though you OP: Well, it’s hard to say, Michael, didn’t agree with the motive, there was a whether those assassinations­ had an motive: jealousy, robbery, a spirit of anger. impact on the country and Central Very few crimes. Oregon, or whether they were the result of When Leopold and Loeb killed changing times. It seems to me that things the young boy just for the sake of killing began to change after World War II quite someone in Chicago,8 I think that was in a little bit. People began to be much more the forties or fifties, that was one of the determined to enjoy their pleasures and first I remember where there was simply do what you want to do, and maybe just be no motive. They just decided they would a little bit more relaxed, not so disciplined kill this kid for the thrill of killing him. and structured in their lives as they had Now that’s become quite prevalent, been up through the Depression and up unfortunately. Drive-by shootings in order through the thirties, forties, and up until to become a gang member. Nowadays World War Two. At that time it seems like in many of the gangs, you have to kill maybe the war attitude took over a little somebody and show no sign of emotion bit. People began to drink more, cele­brate that you don’t even know in order to get a little bit more, had a little more money to to be a gang member. spend. The country became a little more Somewhere in between those two prosperous. eras of time lay the sixties and ultimately

152 Panner, Tape Thirteen, Side One the seventies, and so we began to see mur­ was, as young as he was, he was an idol to ders. We had one in Bend where a young many of the young people in the country, seventeen-year-old woman was killed and that takes its toll. The whole problem for no apparent reason: no robbery, no surrounding that, after the assassination, rape. She was just killed, bludgeoned to didn’t bring a lot of confi­dence. death, found in the Deschutes River.9 Very We had been through an era when unheard of thing. It made na­tional news at everybody believed that the FBI always the time, and more and more things began got their man. Nobody ever got away to happen of that nature. with crime. People believed that, and they hardly ever did. There was a feeling in MO: So you think that to some extent this country for many years, up through the political violence in the sixties was and into the fifties and sixties, that law a reflection of a rising tide of violence enforcement was nearly perfect, and if generally in the United States, or in our you committed a crime, you were going to culture at that time? get caught. What happened after Kennedy was OP: I think that’s true. Of course, the assassinated was very strange. Nobody Kennedys had—in those cases there may really knew for sure because of the way very well have been a motive. We don’t [Jack] Ruby acted and all of these bizarre know that. Nobody will ever know for elements. Same way with Robert Kennedy, sure what the true story is on those two. even though that fellow admitted that he Assassinations, of course, went way back did it, the reason didn’t seem that clear, to the beginning of this country, and long and everybody wondered was he hired by before that, back into Roman times, but somebody, did he have some other motive there was a motive. They wanted to get rid than we know about. of a leader for some reason or another. So it’s hard to tie those to what was going on MO: That’s right. And Martin Luther in the coun­try generally. King, Jr., a little bit later on in the decade.

MO: Some people would say, that OP: I think that was pretty clearly a President Kennedy’s assassination really civil rights matter. I mean, they killed him planted a seed of cynicism in the American because he was expounding too well the electorate, that they maybe lost some cause of the Blacks in the South. But it confidence in the government. did take a long time to bring the man to justice. OP: There’s no question it did. When you have a leader as popular as Kennedy MO: Did you know Kennedy yourself?

Panner, Tape Thirteen, Side One 153 OP: I did not know him at all. I met MO: Edward Kennedy was more Robert Kennedy, but I did not ever meet supportive? President Kennedy. OP: Yes. This was before Chappaquid- MO: What about Martin Luther King, Jr.? dick. He was quite a hero, too. Teddy, as he was known as, was a very capable, OP: No, I didn’t know him. hardworking person, and whatever your We had quite a conflict with Robert politics were, you had to admire the Kennedy. He wrote an article that was diligence of the Kennedy family. With all condensed in Reader’s Digest, quite an the money they had, it would have been expansive article, opposing the Indians easy for a lot of people to have just spent the Claims Commission and the rights of the money and enjoyed themselves, but all of Indians to recover for their lost lands at them worked diligently and very hard for treaty times. It was rather a detrimental the country. Some people on the other side article to the Indians, and to the Indian of the political philosophy might think they lawyers, it seemed to those of us who were misguided, but certainly they worked were representing Indians to be out of hard at it. perspective. This was when he was [US] Attorney General, and he was defending MO: Edward Kennedy remains to this those claims. He made several speeches day a very powerful, perhaps the most that I went to, and I met him then. Because powerful Senator in the Senate. of that, I never had a very friendly feeling for him, and he was not friendly towards OP: That’s right. A very hard-working the Indians at all. man.

MO: Were these speeches in Washington, MO: Before we leave the sixties, did you [D.C.] or here in Oregon? know anybody that participated in the ill- fated Democratic convention in Chicago OP: One of them was in Washington. in ‘68, the one that had all the violence One of them was in either Denver or surround­ing it? Albuquerque, as I recall. I’ve forgotten now which. But they were at National OP: No, I did not. I was not acquainted Congress of American Indians meetings. with anybody who did that. Later we heard his brother Edward Kennedy, who was quite a friend of the MO: And as we left the sixties, we ended Indians, he made a number of those up with Richard Nixon in the White House, speeches, and I had a chance to meet who I guess did provide a transition out of him and visit with him. that decade, and ultimately wound down

154 Panner, Tape Thirteen, Side One the Vietnam War and put at least some They voted for the president who was of the issues of the sixties behind us, but elected. So it was definitely a bellwether then wound up embroiled himself in the county, which to me always showed a polit­ical scandal that ended his career, his lot of the independence of that Central political career. What impact do you think Oregon area. that had on the country or more locally, the whole Watergate issue? MO: And they went for Nixon?

OP: Well, I think all of these tragic OP: They did. I can’t remember for things such as Water­gate take a lot away sure, but I think all of Central Oregon from our spirit of democracy and for pretty much voted for Nixon. Even though the country. There’s no question that Democratic registration was at least as it did. But on the other hand, Central big as Republican over there, there was Oregonians, where I lived, were tough, an awful lot of crossing over and a lot of hardy people. Most of them in those independence. I had great respect for the days had a logging background or an communities of Madras and Jefferson agricultural background in very difficult County and Prineville and Crook County, agricultural country, and I don’t think Redmond, Bend, all of those towns. They they were overly impressed with— had hardy people in them. They were they realized that people, including good people. Madras was in full bloom at even leaders, have feet of clay now and that time, raising clover seed and hay and then, and I don’t think it made a lot of potatoes, the North Unit Irrigation Project difference in that country. Life went on had irrigat­ed about fifty thousand acres pretty much over there. of good ground down there, and even though the weather conditions weren’t MO: Probably just didn’t pay much perfect, they were doing a good job. attention?

OP: Well, I think there’s a lot of truth to Honesty of Oregonians that, though it has been interesting that Crook County for many, many years, and MO: We may not have talked up till now I’m not sure now whether it still exists, about politics at the local level in Bend. but they had always voted the same way Do you have any sense of whether this that the majority did in the country on independence of Eastern Oregon carried presidential elections, whether it was a over into local elections? Demo­cratic president or a Republican president, Crook County always voted the OP: I thought it did. Did I tell you the right way, if the right person was elected. story about Congressman Russ McClusky

Panner, Tape Thirteen, Side One 155 not believing that people in Oregon could judge used some county jail inmates to be honest? Did we talk about that? help him put in a cistern at his house. But the local officials—and this MO: No, I don’t think you told me that. is true in the whole state of Oregon, by and large, and during those times I was OP: The Ways and Means Committee in dealing with governmental agencies, Washington D.C. always had a Thursday the Highway Department, the Attorney night dinner when they talked about General’s Office, the Governor’s Office, things on a social basis, and occasionally, the legislature, I never felt there was any when I was back there on Thursday night, dishonesty or corruption­ involved. Congressman Ullman, who was second or In my more limited dealings in third on the Ways and Means Committee, other states, I’ve had experience with a would take me to these dinners. little different type of approach, you know, I was visiting with Danny but not in Oregon. Not in Oregon. We had Rostenkowski—who later became great lead­ers. We had fine judges, trial Chairman of the Ways and Means judges that I tried cases before. I couldn’t Committee, and here recently had a rather think of better people to do the job. ignominious defeat—and I was telling him that I’d practiced law in Oregon for a long MO: Any stories about these limited time, and I had never come in contact with experiences in other states? what I believed to be a dishonest judge. Maybe a stupid judge, but never one that I OP: Well, going clear back to the house felt was on the take or dishonest. I thought where I was living in law school, one of he was going to fall on the floor laughing. my good friends was the son of Robert He said, “You don’t expect me to believe S. Kerr, who at that time was governor. that, do you, Owen?” He later became a senator, but he used to And I said, “No, I guess coming come down occasionally and visit with us from Chicago, I wouldn’t expect you to and talk about the State and the problems believe it, but it’s true.” And that leads into of being governor and so forth. One night what you were asking me. In all the time I I had occasion to be a little brash, and I was in Central Oregon, practicing law and said to him, “Governor, how is it that dealing with county judges, justices of the you can use your own oil company, the peace, state legisla­tors, circuit judges, I Kerr-McGee Oil Company, to pave all the never felt in any way that any of them were highways in the state of Oklahoma while dishonest, ever, in my dealings with them. you’re Governor?” The only thing I can ever remember, a sign In typical Southern political of dishonesty, was that once our county fashion—he was a big man, very

156 Panner, Tape Thirteen, Side One personable—broke into a big smile, MO: How well did you know laughed, came over, put his arm around Rostenkowski? me, said, “Son, you’ve got a lot to learn. You know, this is a great state we live in, OP: Pretty well. Dan was a very and there are a lot of hide-binders around personable fellow, in many ways a very here. And if my company’s doing the job, fine fellow. A perfect example of there’s we know the State’s getting a fair deal, a little bit of good in the worst of us, and don’t we?” a little bit of bad in the best of us.He Now, he later became a Senator apparently did take some fringe benefits, and was accused by a staffer in the Senate hired some family, near as I can tell. after he died of receiving a $100,000 bribe They’re at least going to try him criminally in connection with the Tennessee grain for those charges. scandal. Nobody believed it, and the guy I’m sure that he believed he was couldn’t prove it, and he was going to entitled to those because contrary to jail, so they thought he was just making popular belief, members of Congress an excuse, but I always had my doubts don’t get very good pay. They have to because of my experiences with him. keep two places of residence. They have I had an official in the State of a big responsibility. They work very, very Washington, once when I was trying to get hard, and unfortunately they have become a PUC permit into Seattle from Portland accustomed to all kinds of fringe benefits, for a trucking company I represented, such as if they don’t use their postage that suggest some amenities in exchange for they’re allowed—they allow themselves granting the permit, which my client so much postage— and if they don’t use fortunately declined to deal any further it, they cash it in, many of them. That’s with him, and we abandoned that whole what Rostenkowski is accused of. I’m sure approach. he never thought that there was anything But it is different in other states. wrong with that. I mean, he could have Oregon is very fortunate. spent that on mailing out silly letters, which he didn’t do much of. MO: In this particular case, was it a In many ways he’s a very fine man. question for your client strictly of the I liked him person­ally. Rough and tough. principle involved? Typical of the type of politician that grew up with Mayor Daly. He was Mayor Daly’s OP: Oh, absolutely. From the time I told right-hand man in Chicago for a long time, my client what this guy had proposed, he and those were interesting­ times. said, “Let’s forget that whole application. He wasn’t a very good fisherman, I don’t want to deal with them at all. We’ll but he liked to fish. He used to come up go another route.” here to Warm Springs with Al Ullman and Panner, Tape Thirteen, Side One 157 the Ways and Means Committee and go the pressure of just too much work, and fishing down on the Deschutes River. I recall at one of the Ways and Means dinners he told me that he couldn’t see MO: The whole committee came? the future for the country. He’d gotten very discouraged because he said, “We OP: Every year they’d come. Not the can continue to raise the tax rates in whole committee, but always eight or nine this country, but we won’t get any more of them would come up. money.” In other words, we’ve reached the end of our taxing rope, and he was MO: Any other regulars from that right. In other words, he was smart committee that you became acquainted enough to see what finally the members with? of Congress are now beginning to see, and that is that financially the country’s OP: Chairman Wilbur Mills never came. in very, very difficult shape, and he was You’ve heard of Wilbur Mills, he was the very discouraged. powerful chairman for many, many years. MO: The cycle of growth that had been MO: Right, and also had his career maintained during the fifties and sixties besmirched— just couldn’t be maintained indefinitely.

OP: Had his career ruined. I got to OP: He just said the appetite of the know him, and in my judgment, his career country for public dollars being spent was ruined because of too much work. He was more than we could raise. In never went on any kind of congressional other words, he had the job of raising junket. He’d never come west of the tax rates, and he said he couldn’t do Mississippi. He came out one time to make it anymore. If he kept raising rates, a speech for Al Ullman, and that was the it wouldn’t matter, people would just first time he’d been west of the Mississippi find a way not to pay them, that was in his whole life. He was from Arkansas. his concern. The tax rates had become He did nothing but work. His ethical stan­ confiscatory, he thought. dards for the committee were severe. He was very discouraged, and it When I was in the process of wasn’t too long after that that he wound handling a divorce for Al Ullman, he up intoxicated in the wading pool with counseled Al and myself a little bit. He the strip-tease dancer, and yet that was did not believe in divorce. He was very totally out of character for him. He unhappy about it. He did not believe in took the cure, went back to Arkansas excessive drinking, which is what finally and got straightened around and went got him. I think he finally broke under back to practicing law. A fine man, but

158 Panner, Tape Thirteen, Side One unfortunately I think that his service to Divorce Cases the country got to him. MO: What led to Al Ullman’s divorce? MO: That’s interesting background on that story because I was familiar with the OP: I think it’s fair to say that Anita headlines, and Fanny Fox, was that her Ullman, who was a wonderful lady, and name? Al did not get along well. Anita, like many women, understandably, had a very OP: Mm-hmm, Fanny Fox. difficult time adjusting to the tense and difficult political life that Al led. I think it’s MO: It seemed like a bizarre story at the always hard for a woman who has a hero time. for a husband, who’s constantly being adored, whether genuinely or artificially, OP: Anybody that knew him knew that courted, I might say, making speeches, that was totally out of character, but he having people applauding and happy had been drinking too heavily for a short about him and ignoring her. Those things while before that. are very difficult, and they grew apart. You know, nobody ever knows for MO: But before that hadn’t been a sure what happens in a marriage. I’ve drinker at all? seen marriages where over the years I’ve thought it was his fault, and her fault, and OP: Before that he might take a social his fault, and her fault, and I’ve gone back drink, but that was it. He was very adamant and forth. And I concluded a long time ago about immoral conduct, excess drinking. when I was handling divorces as a lawyer Al Ullman, too, was very disciplined as far that there’s just really no very good way to as his personal life and alcohol went and judge what happens between a husband everything else. He was a terribly hard and wife. worker, and he was a great Chairman When I was in college I had a of the Ways and Means Committee. wonderful Methodist professor who The members of the committee and the was chairman of the American Bar members of Congress had terrific respect Association for uniform divorce laws. for him. He asked me to research all of the reported divorce cases in the country [End of Tape Thirteen, Side One] and write him a paper on what would be a uniform divorce law. Every state had a different law and so forth, and so I analyzed them all and wrote him this paper and said the only uniform divorce Panner, Tape Thirteen, Side Two 159 law that will ever work in this country is the judge at home, got the restraining one that says if you want a divorce, you order, and on Sunday her husband killed get it, and if you have to go to court, you her and killed himself. So you get a good don’t go to court over whether or not start in the divorce business. you get a divorce, you go to court over I had a marvelous friend who was a child custody or proper­ty and so forth. lawyer, Alva Goodrich, who was shot and I thought he was going to throw killed by an adversary in a divorce case. A me out. If we hadn’t had such a good husband walked in his office and shot him relationship, I’m sure he would have fired right between the eyes with a .22 pistol. I me. But in any event, he said, “That’s had another good friend in Portland who nonsense. I can’t present that,” because was a lawyer who was killed by a woman he was leaning towards something very who he was suing for the husband for severe to try to legally stop divorc­es, being child custody. a very good Methodist. It’s a very difficult thing. I defended But the interesting thing is that a murder case where a woman shot her forty years later, most states now are going estranged husband as he was coming to what they call no-fault divorce, which through the window. It was an easy is exactly what I’d written him about. You defense. He had abused her before, beat simply can’t make people live together, her up before, and she was afraid of him. and while divorce is terri­ble, women were So he started climbing in the window being terribly abused by husbands in when the door was locked, and she shot the days when divorce was not allowed him. either legally or socially.­ They were social It’s just a very difficult thing, and outcasts if they got a divorce, so they had there are no right or wrong answers to it. to put up with whatever happened to I was glad to quit handling divorce cases, them. not particularly because of my own safety. I really never had a lot of concern about MO: Did you do a lot of divorce work? that. I do remember once a fellow that OP: I did a lot of divorce work, up until I was suing for his wife called me from about the middle sixties. I quit doing Kansas City and said he was coming out divorce work because I had some young to Bend to kill me. By chance, the district partners that could take that on, and I attorney was in the office. We were talking thought I’d had enough of it. It’s a very about something else, you know, and terrible thing. One of the first cases I had I said, “Wait a minute, let me get on the when I started practicing law, a woman other phone.” So I put the district attorney came in to see me to get a restraining on the phone and said, “Now, what was order. It was late Friday afternoon. I got that? What were you telling me?”

160 Panner, Tape Thirteen, Side Two “I’m coming out to kill you, you OP: That would have been a better idea son-of-a-bitch, you so-and-so, I’m going than what I did. to kill you.” I said, “Why?” And he said, “Well, MO: Let me ask you if you’ve seen Wilbur my wife wouldn’t be getting a divorce if Mills since he went back to Arkansas? you weren’t pushing her to do it.” I said, “I’m doing everything I can OP: No. to prevent this. I never do that. If there’s any way this can be patched up, I want to MO: Did you know Lyndon Johnson do it. Let’s talk about it.” at all, as long as we’re talking about “No, it’s all over now. You’ve politicians? already done it. I’m coming out there to kill you.” OP: No, I didn’t. No. And finally I said, “Well, are you MO: Any other notable incidents of going to give me a fair chance, or are you corruption that you ran across when you going to sneak up on me?” were in other states? “Oh, you’ll find out,” or something or other. And so we hung up, and I said to OP: Some minor suggestions that the district attorney, “You’re the chief law would be hard to interpret, but you have enforcement officer of this county, you those feelings. I’ve never had it happen heard all of that? What are you going to with a judge that I was before or had a do about that?” case with. Ed said, “Well, Owen, I’ll tell you. You know, the judiciary gets a lot If he kills you, I’ll prosecute him.” of criticism, and the legal system, but I am I said, “Ed, you wouldn’t even very, very proud of the judicial system. convict him of manslaughter.­ It’s not a With very few exceptions in the whole crime for sure to kill a lawyer.” country, judges have been hard working, “Well,” he said, “I will give you honest—in spite of many opportunities a permit to carry a gun.” So I did get a to be dishonest, they aren’t. There have permit to carry a gun, and I always had been only three or four situations in the a gun in my office, in my desk drawer. whole country in the federal judiciary Probably wouldn’t have done me much where judges have had a problem. Some good, and he didn’t ever show up. problems in state courts in Illinois and New York, but they have so many judges, MO: I thought you were going to tell and there are so few that are involved. me that you introduced him to the district attorney on the phone. MO: Has anyone ever approached you

Panner, Tape Thirteen, Side Two 161 in either your capacity as a lawyer or a convicted of it. In New York, recently, judge to try to influence the outcome of a they had the Chief Justice of the New case? York appellate court pleaded guilty to harassment. OP: No, not at all. Not too long ago I asked our judges at a judges’ meeting MO: Wexler was his name? —counting the Magistrates, there were about eight of us present, many of whom OP: Yes. had been state judges before federal judges, many, many years of service. I MO: I remember that case. said to them, “Do any of you ever feel like you’ve ever been approached directly or OP: In Oklahoma for years while I was indirectly to be offered a bribe to handle growing up it was a dry state, and it was a case in a certain way?” You couldn’t a matter of common knowledge that the believe the look I got. Every one of them bootleggers paid off the sheriffs, and the looked at me like, “Are you crazy?” None sheriffs shared with some judges. I don’t of them, not a one of them, had ever felt have any specific information about that, I that anybody was suggesting they do was pretty young, but it was certainly the anything illegal. common feeling. Well, I must say I think that could only happen in a state like Oregon. I mean, MO: You mentioned much earlier about that’s unbelievable because there were the Wild West atmosphere of Bend when hundreds of years of legal experience in you first came there and the houses that group, on the bench. The answer to of prostitution and the card games? I your question is no, as a judge, I have never assume some of that activity was at least felt anybody ever insinuated directly or technically illegal on the books? indirectly any kind of a bribe or an offer to do anything. OP: It was definitely illegal, and it was ignored. It was just a way of life. The MO: Do you have any direct knowledge district attorney didn’t prosecute them. of situations in either New York or Illinois Nobody made any noise about it. It was where there’s been problems? just one of those things that happened. I’m sure that at no time were any OP: The only things I know of are what of those matters ever presented to a court you read in the paper. The Greylord when a court threw the case out. That just cases in Chicago, where several judges, didn’t happen. The only time I know, I got mostly traffic judges, were accused of a call in the middle of the night one night fixing cases for people for fees and were to go down to the jail—I don’t know if I

162 Panner, Tape Thirteen, Side Two told you this or not. They had a bunch of Nobody in the community was com- prostitutes there, and their regular lawyer plaining. If anybody had complained, wasn’t avail­able, and I didn’t know when something would have happened. the Sheriff’s Office called me who they For example, during that time or were or what was going on. But he just a little after, there were some complaints said, “There are some people down here about the gambling card games that went that need to talk to you about getting out on in the back rooms of the taverns, and on bail.” every time there was a complaint, there So I went down, and they had eight was a raid. People went to jail for thirty or nine women that they had brought days or got a fine or something or other, over from Prineville and arrested for and life went on as usual. prostitution. Their lawyer was out of MO: Including the card games? town, and they had asked for me, and so they wanted out on bail, and I arranged OP: Yes. The Elks Club was raided their bail. They had the money, and they once for its slot machines, and the put up bail. Then their regular lawyer slot machines were confiscated, and came back and represented them, and somebody paid a fine and spent ten days they were convicted. in jail, and that was the end of that, those An interesting sidelight to the things happened. story was when I got there they were fingerprinting them and taking their pic­ MO: But as far as you know there was no tures, and the sheriff said to this one need to offer anything to law enforcement young woman, “Name?” officials or— “Jane Doe.” “Address?” Some fakey address, OP: No, I think they didn’t see anything like the name was. wrong with it. “Forget it, it’s not bothering “Occupation?” us, we’ve got more important things to do.” “Prineville Riding Academy.” I don’t think anybody paid anybody The sheriff looked up: “Prineville Riding off. I had a good friend who was the IRS Academy, that’s pretty good.” agent there in Bend, and he always had a lot of fun trying to figure out how to levy MO: With respect to the tolerance of an assessment against the prostitutes. One these activities by local officials, and the day he said, “I’ve got it, I’ll go count the fact that it was very seldom that people towels that are out on the lines behind the were arrested, much less go to court, it place.” They had clotheslines out behind sounds like you think that was just an and towels hanging up, and so he said, understanding of the community mores? “I’ll go count those, make the assessment OP: Yes, it was community acceptance. on that basis.”

Panner, Tape Thirteen, Side Two 163 MO: During the seventies we had the completely the other way now, but it energy crisis with dramatically rising wasn’t very noticeable at that time. gasoline prices and, at least here in The energy crisis resulted in a Portland, long, long lines to get into the real benefit to the Indian tribe because gas station. Do you remember if it had the value of electricity kept rising very that kind of impact in Bend? rapidly. The value of timber kept going up all the time as timber became a little OP: It was about the same. We had a more scarce and restrictions became little of it. but I don’t remember that it heavier on logging. We had put in an was overly serious. Probably not quite escalator clause in the contract so that as bad as here in Portland. the benefit to the tribe was based to some extent on what the power was sold for, MO: That came about as a result of so that was good. The same thing with international events, but more or less respect to timber that was harvested, as at the same time there was a rising I mentioned to you, we broke the old consciousness of environmental issues. fixed-price contract on the timber that The anti-nuclear movement really started the Warm Springs lumber company to gain some steam in the late seventies, had and got an escala­tor clause in that and people were just in general more according to the market value of the conscious of environmental issues. lumber. [clock chimes] There was one issue that straddled both the environmental and the criminal, MO: It’s a great clock. I don’t always I would say, with this fellow J. Hawker, appreciate its audio interruptions, but it’s the fellow that went around bombing a wonderful clock. the BPA towers in the mid-seventies. Did this environmental consciousness and the OP: My grandfather gave that to my extreme expressions of it such as that one, grandmother in the late 1800s, and when have any impact on your practice in Bend? she died she made arrangements with her Did you get involved in those kinds of jeweler to have it taken apart, packed, and issues at all? shipped from Pennsylvania to me out here in Oregon. OP: Not really. We had a number of condemnation cases that I handled where MO: And when was that? Bonneville Power was condemning properties for transmission lines. I think OP: It must have been in the middle during that period of time Central Oregon ‘50s. was balanced in favor of the rancher, the farmer, the logger. That has swung MO: Has it been in your office since?

164 Panner, Tape Thirteen, Side Two OP: Yes. Took me about a year to get a country lawyer. I was driving long jeweler to put it back together and get it distances for trials and arguments. I made running right. That was in Bend, and then friends with a lot of lawyers, and I tried I hand carried it myself from Bend down cases for a lot of lawyers. I was trying here so it wouldn’t have to go through that cases everywhere, losing some, winning a again. higher percent­age of them. I guess it was in the mid-seventies MO: So it’s been running smoothly ever when the American Board of Trial since? Advocates chose me as the trial lawyer of the year in Oregon. I felt then, and still OP: I had it tuned up a year ago, and feel, that’s because I had a lot of friends. I they were very impressed with it, and they liked lawyers, and they were being nice to gave it a complete overhaul. I enjoy it, and me. the chimes are nice. It gives everybody a About that time when they gave chance to sit back and relax occasionally me that award, I woke up one morning when a red hot discussion is going on in and realized that I had always had the here. Cools everybody off a little bit. feeling deep down inside that if I ever lost a case or didn’t accom­plish what I MO: Let’s move on to your own situation set about to do for my client, that I would in the mid-seventies, on the eve of your lose my friends, lose my family, I’d be a appointment to the District Court. disgrace. Objec­tively I knew better than This is a wide-open question, that because by then I had been elected to but how had your twenty-five years of the College of Trial Lawyers and so forth, experience practicing law changed you? but deep down inside I always had that What was your world view at the time driving determination to get done for my that your appointment came around? client what I thought should be done. I don’t think I felt any change at OP: I don’t really think they had any time. Even after I became a judge, I changed me very much. When I started haven’t felt anything except that I was practicing law in Bend, I thought it would very fortunate to be where I was. take five years for me to become a good I remember one incident that I lawyer, and after five years I remember thought was very good. My father was in analyzing it and thinking, “No, it’s going a nursing home, he’d had a serious stroke. to take ten years,” and after ten years I He was eighty-seven, and one of his was smart enough to realize that I never friends and my friends had come into the was going to learn very much. nursing home to visit while I was there, Throughout the sixties and and the word had just been announced seventies, I was just a real small town that I was going to be a feder­al judge. This

Panner, Tape Thirteen, Side Two 165 friend said to my father, “Well, Elmer, you “I don’t like it at all. He’s always stood must be really proud of your son, that he’s up when I come in the room, and now if going to be a federal judge.” I go to court, I have to stand up when he My dad lay there and thought for a comes in the room.” minute. He couldn’t get up or move, but his brain was very sharp and he could [End of Tape Thirteen, , Side Two] still talk very well, and he said, “Well, Bill, the next ten years will tell whether he MO: As I was saying, you had had amounts to anything or not.” occasion, as a result of your work on I always thought that was a very recovering the McQuinn Strip and other appropriate com­ment, and that’s kind of things, to interact with both local and the way I look at it now is—what’s going national political leaders. I assume that, to happen in the next ten years, not what’s to some extent, put you in a position happened in the past. where you were at least visible when the time came around to be nominated, in MO: This was in Oklahoma? that respect, your experience contributed to your nomination? OP: No, this was in Bend. They moved out to Bend after he retired. They first had a summer home on our farm up in Judicial Nomination Bend. I had an acreage, and they built a summer home next to our house in Bend OP: No question about that. I’ve on an adjacent lot. Then when we moved always liked people, and I have enjoyed to the farm, why, we sold both of those civic activities. I was active in the Lions properties and put up a house for them Club in Bend, the Chamber of Commerce, out on the farm, and then they moved the church, and I was active in the permanently to there. That’s where he Oregon State Bar. I always attended the had his stroke and went in the nursing bar conventions here in the Valley, and home. we had them up in Bend. I was always My mother came with me to active on all kinds of issues that the bar Portland and lived about five years after considered. I served on the Board of Bar I was down here as a judge. She was a Governors under a great president of the wonderful person, as my father was. bar, Gene Marsh, the uncle of Malcolm They were just tremendous people. He Marsh, who’s on the court now with me. was very tough. I think all of those things had a lot My mother had a great Irish wit. to do with it. When Al Ullman called me One time somebody asked her how it felt and told me he was going to put my name to have her son be a judge, and she said, up for a judgeship, I remember saying,

166 Panner, Tape Thirteen, Side Two “Well, there are a lot of better candidates the most qualified. Why don’t you take than I am. I’m happy here in Bend, and I my name out and put him in?” don’t feel that I deserve it. For example, “Well,” he said, “that’s just not the Ed Leavy, who’s been on the top of all the way it works.” He said, “I’ll tell you this, bar polls.” I’d never run on a statewide though, the next time we have a chance, bar poll at all. I’d been president of the we’ll be looking seriously at Ed Leavy.” Central Oregon Bar and local things, Sure enough, he ultimately did get it, but president of local clubs and so forth. the point of that is I always felt I was just He said, “Well, that’s not the way very fortunate to get the job. it’s going to work. There will be a bar poll, you will be on it, and we’ll see how MO: Why do you think they passed you come out.” And I remember having over Leavy that first time? real concern, statewide, about how I would come out. And sure enough, they OP: Well, there are some political did have a big bar poll, and sure enough, things, also. Ed was a Republican. I was properly, Ed Leavy was tops of the bar a Republican, but I was Al Ullman’s poll. There were ten or twelve or more on friend. Jim Redden was attorney general, it. I was second, which really surprised a Democrat, and it was Carter who was me, coming from Eastern Oregon, and Ed doing the appointing. Helen Frye was a was such a great man. He’d been a state wonderful woman judge, and they were court judge in Eugene and a Magistrate looking to diversify. Helen has always here in Port­land, so he was eminently said she was just lucky to be a woman, qualified. and I’ve always said, “Well, I was just Then when Al called me and said, lucky to be Al Ullman’s friend.” You “Well, the committee has met.” They had know, those things are political, too, and a statewide committee, appointed by Jim Redden was wonderfully qualified, Democrats and some Republicans to come having been speaker of the house. He up with seven names for the position. They was a very popular attorney gener­al, and turned in seven names to the president. he was going to be governor of this state Al called me and said, “Well, the just as sure as anything. president’s called me, and you’re going to be one of the three that’s going to be MO: He was state treasurer, too. appointed.” And I said, “Who are the other two?” And he said, “Jim Redden OP: State treasurer, yeah. Had a and Helen Frye,” both of whom I knew wonderful lot of friends. to be wonderfully qualified. I said, “Well, what about Ed Leavy? MO: Did you know Jim Redden before I mean, he was first on the bar poll. He’s you became a judge?

Panner, Tape Fourteen, Side One 167 OP: Yes, I knew him quite well. In fact, with it. Al’s my good friend, and he he ap­peared on the Indian fishing cases just got carried away.” occasionally when I was representing the And I remember Mark laughed Indians, and we were on opposite sides, and said, “I can’t think of a better deal.” technically. But actually there wasn’t a lot He said, “If we can get a Democratic presi­ of difference, and we had a very friendly dent to nominate a Republican like you, relationship. why, that would be fine with me. The only thing I’ll insist on, as I always have, is I MO: Why don’t you tell me about how want a blue ribbon committee to screen your appointment came about? When we the names and give us some competent first talked you mentioned that you were a names. We’re not going to have any little concerned about Ullman putting your political appointments.” name forward without any conversations Senator Hatfield’s always done having taken place with the senators of that, as governor and as senator. He has the state. always insisted on a select committee of competent people, Board of Bar Governors OP: I was. I was in trial over in Baker, representatives, a broad diverse group, to Oregon, as I recall, when Al called me, give him certain names, and from those and I said to him then, “I thought it was names, he will pick, so that you guarantee the prerogative of the senior senator of the you don’t get any totally political state to do this.” And he says, “Well, yeah, appointments. but we have a Democratic president, and That was done, and John Schwabe, those two are Republicans. I’m going to who’s a very competent lawyer here in take the lead in this.” Portland, was on the committee. Bob I remember being very flattered Chan­dler, Edith Green. There were two or about it, but very concerned because three representatives of the unions. There Senator Hatfield and Senator Packwood were all kinds of people on the committee,­ were both good friends of mine, and I and they had twenty or so names that they knew how Senators feel about members considered, and they were told to report of the House taking those kind of seven to President Carter, and so they did. liberties. I called Senator Hatfield, and I called Senator Packwood—because MO: Did you know most of the folks on Al said he was issuing a press release, this committee? and I said, “There’s going to be a press release coming out, and I’m very OP: I knew about half of them. We came embarrassed about it, and I want you down and interviewed, and they asked us to know I didn’t have anything to do what our qualifications were and so forth.

168 Panner, Tape Fourteen, Side One MO: That’s the type of questions they and they all got sued, and so it was a very would ask? interesting situation.

OP: Yes, and you know, “Why do you MO: And it was a situation where you want to be a federal judge, and what do and the opposing attorney— you think your qualifications are?” We gave them a memo on our background, OP: We had a lot of conflicts. We had and they asked questions about various a lot of problems. I perceived them as things. One of them was a lawyer from stonewalling or refusing to give discov­ here in Portland that I had had a very tough ery and depositions, and harassing me trial with, and some rather tough feelings, unfairly. They probably perceived me the and I remember being quite concerned other way, which isn’t uncommon in the that he might not think too highly of me legal world. as a judge. Bob Chandler, our editor and publisher of the Bulletin in Bend, it just MO: So it’s not always a completely seemed like we were always on different dispassionate process? sides of the fence, politically and locally on elections and issues. We maintained a OP: Oh, no. Oh, no. On a number of pretty good friendship, but it got a little occasions I’ve felt very close to fisticuffs in tough at times. I thought when I saw those a courtroom. two, “Well, that takes care of that job.” Did I tell you about the time that my client choked the other lawyer into MO: What was the nature of this tough unconsciousness? trial that you mentioned? MO: Oh, I think we did talk about that. OP: There was a company back in Detroit, Michigan that manufactured OP: Emotions get a little high when you solar heating units for houses, and feel your cause is justified and you feel they didn’t work. I represented all the the other side is taking advantage of your distributors, and I sued them for a lot of client. money, and it went on for a couple years. We took depositions all through the MO: Even an attorney, who’s used to East: Indianapolis, Chicago, Detroit, and arguing both sides of any question, can here in Oregon because we represented get into emotional involvement? distributors that had bought this idea and were trying to sell it all over the country, OP: Absolutely. Absolutely. In most and it was a terrible idea. It didn’t work, cases, good trial lawyers feel very strong

Panner, Tape Fourteen, Side One 169 about their causes, and they want them I try to teach young lawyers that in presented fairly, and if they perceive that the long run they will make better friends the other side is not being reasonable, and have better clients and make more which is pretty easy to do, they get pretty money if they do that right up front. excited. MO: And just simply not take the cases. MO: Recognizing that that would happen, how would you make a decision OP: And not take the case. I mean, you about whether to take a case in the do it in a very diplomatic, nice way. Many beginning? times I’ve said to somebody, “You know, I could take this case for you, we could OP: I always felt very fortunate this take it through court, there’s a very small way. From the time I started practicing chance we might win, but the rewards law, I always made the decision based on are not going to be worth the emotional whether I thought my client was right or problems you’re going to have with it and not. My partner that I first started with the expense it’s going to cost you, and was a very honorable guy, and we made I recommend you forget it now. If you the decision right at the first that money don’t want to, I would urge you to go get a would have nothing to do with it. That if second opinion.” a client came in that had a good cause that didn’t have any money, to the extent of MO: Sounds like you’re talking here our ability we would try to represent him mostly about civil cases? anyway, that we would have the courage to tell people when we didn’t think they OP: That’s right. Criminal cases are had a good case. And we did that. different. I was seldom hired to defend I can remember as a young lawyer a criminal case. It happened on occasion. telling a client who worked for the mill But when you’re hired to defend a criminal that I didn’t think he had a good case, but case, you sure don’t do it unless you think when I did that I always recommended you can accomplish something within the they went to anoth­er lawyer. He went to limits of ethics for your client. If you’re a Portland lawyer, who was an expert in appointed to defend someone, you have to that particular field, and got a great big remain ethical, but you have to go ahead judgment. What I learned from that was to and do it. just be a little bit more careful. But I always believed that you studied the situation as best you can, and if you don’t think they have a good case, you tell them so.

170 Panner, Tape Fourteen, Side One “What makes you think I’m not?” Nomination Process “Well, the FBI doesn’t have cute young skirts,” or something like that. MO: So the word came down that you “Don’t tell me that. You’re not from the were named to the feder­al bench by FBI.” President Carter. Was that in 1980? She gets out her identification and shows him, you know, and says, “I just OP: First, the president nominates need to ask you some questions about you. That’s after they go through an FBI Mr. Panner that you work for.” check. They talked to over 300 people “Oh, okay. Come on in.” So she about me before the FBI cleared me. came in and sat down and got her pad I remember my wife saying, “Oh, my out, and she’s writing, and she gets gosh, they’re going to find out about my to a point where she says, “You know overdraft checks.” anything bad about him?” They even stopped one of my “Well, not really. There was that nephews in Atlanta, Georgia, a police time when we had a little problem with officer did, and they picked up his home a brand inspector about that cow that and his license plate and followed him showed up on the place.” And boy, she’s one day and said, “Tell me about your writing away. uncle, has he ever been a communist,” And she said, “What was that and all this various stuff. about?” So the FBI does a big check, and “Well, I don’t know. We never did then the American Bar Association does know for sure where the cow came from, a check, and that all goes to the Senate but it had somebody else’s brand on it, Judiciary Committee, and then they have and that’s all I want to say about it.” to screen you and put you through a And he took her through two hearing. Once they decide you’re okay, or three other things before she finally why, then it takes place. realized he was just pulling her leg, I had a wonderful old guy and his completely. wife who were living on the farm, and they were feeding the horses for us. He’d MO: So there was no misbranded cow? been a jockey and a small horse trainer at places around the Northwest, and his OP: There was no misbranded cow. Or wife, too. And this FBI agent came to the probably there had been one, but we’d door and said, “I’m from the FBI,” and got it back to the neighbor. this guy had a great sense of humor, and he was just tough as heck, and he said, MO: They did your background check, “No, you’re not from the FBI.” and then what’s next in the process?

Panner, Tape Fourteen, Side One 171 OP: Then you go to a committee hearing MO: They’re getting tougher on District before the Senate Judiciary Committee, Court appointments now? and they ask you some questions. At that hearing we all three appeared together. OP: They are. This business of judicial The day before we had an interview with appointments has become pretty difficult. the Justice Department to give us a clue as When Judge Robert Jones was appointed, to the type of questions we’d have put to for example, he’d been on the [Oregon] us and so forth. Supreme Court, they reviewed every Then we all show up together, opinion that he had written and questioned and Senator Hatfield and Congressman him seri­ously, didn’t like some of his Ullman, went with us up to the hearing. opinions, were real nasty. In fact, Friday Our hearing was not difficult like many before he was to appear on Monday they of the Senate Judiciary hearings that you called him and said, “We want a detailed hear about for a Supreme Court Justice. expla­nation by fax of these cases, as to why Nowadays they’re even tougher for you arrived at this decision, and if we don’t District Judges, but ours was very simple. have that by Monday, the hearing will be They were very cordial and very friendly, postponed.” So he spent the whole—these and it only lasted twenty or thirty minutes. are cases, you have to go back and dig out which ones they’re even talking about MO: And that was it? first, and it was pretty difficult.

OP: Mm-hmm, then once that’s done, MO: Did you have to discuss specific the president signs your commission. cases that you had participated in?

MO: You say that the hearings are OP: I did, because they ask you for a getting tougher now? list of the ten most important cases that you’ve tried and what the result was. OP: I want to back up. So it goes to the But ours was very limited. They didn’t Senate Judiciary Committee, they vote it have any problems. Helen had been a out, and then it goes to the floor of the circuit judge in the state, but they just Senate, usually on the consent calendar, didn’t really question us very much. This unless there’s a dispute. So the Senate has was before Bork and some of the other to approve it. Supreme Court things that have happened that have caused them all to get a lot more MO: And your approval by the full sensitive to each other’s nominations. Senate was routine? MO: Although, depending on the OP: Yes. political cli­mate and specific circumstances

172 Panner, Tape Fourteen, Side One there have been instances earlier, too. I who weren’t sure you were still going to know that Judge Solomon’s nomination be around, you know, because the press wasn’t so straightforward. was full of all kinds of stories, and you just had to go ahead. OP: No. In fact, one of the local judges It wasn’t quite so hard for Helen or opposed it. It was a very difficult situation. Jim because they were in public positions already, although to Jim it was a serious MO: That was during HUAC [House question as to whether he really wanted Un-American Activities Committee] and the appoint­ment or whether he was going the [Sen. Joseph] McCarthy days. to run for governor.

OP: Yes. MO: You think so? MO: Do you remember which ten cases you listed as your most important? OP: Oh, yeah. No question about it.

OP: I don’t. I might be able to dig those MO: There were reports that that was out for you. true, but his future as a politician would have been much less certain than accepting MO: That might be of interest. the federal appointment.

OP: I’ll take a look and see if I can dig OP: That’s what he decided. them out. MO: That was also an interesting time MO: Did you talk much with your because I believe Carter was in the position fellow appointees about the process as it of appointing more federal judges as a was unfolding? result of an expansion of the District Court than any other president in history. Wasn’t OP: I think we talked, but very it one-hundred-eighty-some appoint­ limited. The way those things work, ments that he made? you don’t count any chickens until they’re done because so many things can OP: Mm-hmm. happen to derail them, and all of us just went about our business. From the time MO: A large number. Was there anything that Al Ullman first issued the press about that aspect of things that affected release, way early in the process, it was things? three years until the thing was finally completed. In the private practice I had OP: No. Here in this district we had one a lot of interesting situations with clients replacement for Judge Skopil, who’d gone Panner, Tape Fourteen, Side One 173 to the Ninth Circuit, and then we had two to have the chance to do something about additional spots made available by the what I had criticized for a long time. Omnibus Bill. This court was in a real difficult [End of Tape Fourteen, Side One] position before we came on because they just didn’t have enough judges. Judge OP: My only criticism of the judiciary Skopil had left. They were overwhelmed was that it took too long, that the process with work, and they were obviously very was too slow and too expen­sive for glad to see the three of us all of a sudden litigants and that cases should be moved show up and start to work. It made their faster. All of a sudden I was going to get life a lot better. a chance to have something to do about that because even before I came on the MO: Was there any kind of political bench Judge Burns and Judge Skopil furor about that, any concern that Carter urged me to do so, to try to help them might have undue influence on the court? speed things up, because by disposition Judge Burns and Judge Skopil both were OP: I don’t think so. For the most part such kindly wonderful gentlemen that the judiciary wants the vacancies filled. they felt they needed somebody who was They need the judges. Contrary to a lot of just a little tougher and meaner to speed ideas, most of us aren’t too concerned with things up a little bit. whether somebody’s political philosophy is Democrat or Republican. The main MO: They thought you were the guy? thing we want to know is that they have good judgment and good background and OP: And they thought that I was the are capable. It’s a little different when you one to do it. Judge Burns immediately get to the appellate courts. Their political made me chairman of the calendar philosophy becomes more important, but management committee to take control here it’s not that important. It’s a question of the docket and reestablish a little of good judgment, not whether you’re a of the discipline that had been lost, an Democrat or a Republican, a liberal or a awful lot because they just didn’t have conservative. the manpower to keep up. When you do that, you have to keep putting cases off, MO: How did you feel when the and you can’t try them because you don’t appointment finally came through? have the judges to do it. So all of a sudden we did have the judges to do it. OP: I felt very good. I was very happy to have the ap­pointment. I felt very proud MO: How did you feel about having to

174 Panner, Tape Fourteen, Side Two close up the law practice in Bend to move dependent on you, and I’ve maintained up to Portland? contact with a lot of them.

OP: That was a very sad situation. MO: I assume that if any of your former Through all these times we’ve been talking clients wind up in District Court, you have about, the law firm had gotten bigger to— and bigger and bigger, so by the time I left there were eight lawyers. We had a OP: I would excuse myself, of course, great relationship, and we were making a and have on a number of occasions. Mostly lot more money than I was ever going to the business people. make as a judge. It was hard to leave Bend, I loved MO: What about the Warm Springs? Bend very much. I still had the big horse farm. They made me a lifetime member of OP: Warm Springs I don’t handle. I will the Bend Golf Club, and a lifetime member handle individual cases. I handle criminal of the Chamber of Commerce, the Lions cases off the Warm Springs Reser­vation for Club, and the Central Oregon Arabian individuals that I didn’t represent before, Horse Club that I’d been active with. It but I don’t handle anything involving the was a very hard move, but exciting at the tribe or its fishing rights or anything, even same time. New challenges. though technically I could. Five years is the limit, but I have always felt that if MO: Sounds like there were a lot of well- I were on the other side of that issue, I wishers in Bend that gave you a send-off? wouldn’t feel very comfortable­ with me deciding that case. Jim Redden has done OP: Oh, yeah, and a lot of them came the same thing, he doesn’t handle any of for the ceremony. I had a lunch at the those cases because he was on the other University Club for a lot of my old clients side for the state in many of the instances. and friends that came. It was a very nice occasion. MO: Did you sell your home in Bend? Many of them still call me from time to time. “What will I do about this?” Well, OP: I sold it. It was a couple years later as a judge I’m not allowed to practice law, that I sold it. My oldest daughter stayed but whenever I can, if they want a lawyer on it and kind of looked after it for us. recommended or just some friendly I’d probably better quit, Michael. conversation, I try to help them because, you know, when you practiced law for MO: Okay. So why don’t we call it a day? thirty years in a town, you have a lot of clients, especially older people, that are [End of Tape Fourteen, Side Two] Panner, Tape Fourteen, Side Two 175 older than the three of us, Judge Frye and Serving on the Bench Judge Redden and I, that came on the bench together. MO: Although it has been quite a while So it was a very congenial time. since we last spoke, we did talk a little bit We’ve always had then and still do have about your first days on the court after brown bag lunches on Monday noon your appointment. I was wondering today to discuss the assignment of cases and if we could start off by talking about some the brilliant things we’re going to do the of your relationships that you have as a next week. Then Friday noon we have a federal judge with your colleagues here at noon luncheon where we discuss what a the District Court, and also with some of great job we did or what a terrible mess the attorneys that appear before you, and we’ve made of something, as well as other also the appellate court judges. subjects of interest. What can you tell me about how When Judge Solomon was here, you work together with other judges? he had rather formal luncheons in his chambers every so often, and he OP: When I first came on the court, would invite the mayor, the governor, Michael, there were only six judges, various people to come and visit with including senior judges, and so we were us, generally. We discontinued that after quite close at that time. At that time we he discontinued it, probably feeling circulated each of our opinions that we that maybe it wasn’t quite the precisely wrote individually to all of the judges for ethical thing to do because those people them to review and make comments on, sometimes wound up in cases in our and we had the benefit of Judge Solomon’s court, and we just thought that maybe very meticulous writing style. He was that was not a good thing to do. He never very wonderful at pointing out how to caused any problems with it, but we just shorten things, simplify them. He didn’t discontinued that. So we confine our like “purple prose,” as he said. He liked lunches here in the courthouse to the other direct, straightforward sentences, which judges and Magistrate judges. was wonderful. In fact, he’d give us a few sessions, MO: Was there an upside to those lunch which we asked for, where he sat down meetings? with us and lectured to us for a while on legal writing. Even though we’d all had OP: There definitely was. We talked it before, he was very meticulous about about mutual things that were going it, very helpful, as was Judge Belloni and on in the political world. We got a lot of Judge Burns, the other judges that were benefit out of learning their views, but

176 Panner, Tape Fifteen, Side One some of the judges, myself included, felt opposition from some conservatives, he that might not be appropriate. If someone became very much middle of the road. on the other side of a case involving one You could not distinguish any liberal or of those officials found out we had lunch conservative opinions in his opinions or with their opponent, it wouldn’t be too decisions. He was very good in that area. good. Doesn’t mean that we’ve cut off Most federal judges are. They are appointed all of our relationships with lawyers and for life, and they forget those leanings and politicians. We still have our friends. We try to decide according to the law. don’t isolate ourselves completely in this We sometimes think the appeals court. We’ve lived in the legal world, judges don’t do that, but that’s just the we know the politicians, we know the opinion of the trial judges. When they lawyers, but we are pretty careful about reverse us, we think they made a mistake, it, and if there’s a case pending or apt obviously. to come up in front of us, we stay away from those relationships. MO: Was it Gus Solomon’s decision, then, to discontinue these lunches? MO: Do you remember who some of the politicians and other figures were that OP: Yes. We phased them out. I think attended these lunches? the rest of the judges suggested that maybe we shouldn’t do it anymore, and OP: Yes, I do. I remember Neil he agreed with it. Goldschmidt came on a couple of occasions. I remember Governor Atiyeh MO: You started your description by came. There were half a dozen or more saying this is the way things used to be. different ones that came from time to time. Has the court changed in the interim? One of the mayors came, I’ve forgotten which one. OP: I don’t think so. We still have our Monday noon and Friday noon lunches. MO: Was it significant that Judge We still share the workload completely. If Solomon was a Democrat and that one judge is behind or needs help, there’s mostly—well, you mentioned Vic Atiyeh, always someone willing to help him. It’s a I guess, so they weren’t all Democrats? very congenial court, very congenial. We don’t have any ill feelings among judges, OP: No, Judge Solomon, even though he which is not always the case in all federal was a Democrat when he was appointed courts in the United States. This court has to the court and was quite liberal at the always been most congenial, going back time of his appointment, and had a lot of to the time of Judge Solomon. He quite

Panner, Tape Fifteen, Side One 177 insisted on that. He made his way around generally our job is to follow the law as it’s to all the judges, helping, making it clear written, and we try to do that. that that was the way this court was. Judge Judge Solomon used to say it isn’t Skopil, Judge Kilkenny, all of the prior a question of whether you’re liberal or judges of this court followed that pattern, conservative, it’s a question of whether you Judge Belloni, and it’s lasted. We’re have good judgment. About 99 percent determined to have good relationships. of the cases we have don’t involve any political philosophies at all. They involve MO: Can you tell me about examples of just the law, applying the law and good relationships in other courts that aren’t so judgment to the case. harmonious? MO: In reading some of the recent news OP: Well, it would be pretty hard stories about President Clinton’s troubles, because I don’t know the details. I just know especially one decision earlier this year, that there are many courts, particularly there was something made of the fact the bigger courts, that tend to have more that the judge that made the decision in problems than we do in the smaller courts. his favor was a former law student of his. Los Angeles, for example, they’ve got I forget the exact details, but there were thirty judges down there or something, so questions about it. understandably they can’t be as close as we are. OP: It was a woman judge in Little Rock, and ultimately she issued a number MO: Is it just a size thing, or is it— of rulings against him, and she finally dismissed the case. I believe she tried to OP: I suppose not entirely. Maybe a apply the law as it existed. I don’t think personality thing. I’m sure some federal she showed any favoritism to him. That judges get a little crotchety. They’re kind of decision, of course, is appealable on the like people. record, so if it isn’t sound, the Eighth Circuit could reverse it, and they haven’t shown MO: You also mentioned Gus Solomon’s any disposition to help the president more middle-of-the-road stance, and that particularly, even though many of them are other judges have done the same thing. from Arkansas. Would that be true in other courts?

OP: I think it’s true generally in other courts, among the federal district judges. There may be some rare exceptions, but

178 Panner, Tape Fifteen, Side One be reversed, much the same as people. Relations With Appellate Courts Judges are kind of like people.

MO: Let’s talk about your own MO: When an appeals court judge is relationships with appellate judges. You considering a case that comes out of your mentioned that no judge likes to have court, do they do that without any contact their opinion reversed, but how do you with you? work with the appeals court? OP: Oh, absolutely. Absolutely. They OP: Oh, we have a very friendly just do it on the record. See, everything relationship. We visit with them twice that happens in our court is put in a a year at Continuing Legal Education transcript, and that’s what goes to them. conferences, in the winter and summer, They don’t talk to us at all about it. They and our social relationship with them is hear the lawyers argue the case, and in excellent. We’re friends with them. some cases the lawyers get to argue what The former chief judge of the Ninth the transcript said, but we don’t discuss it Circuit, James Browning, once said the with them at all. circuit judge is the mortal enemy of the district judge, and in a legal sense that’s MO: Is there any conversation about true. In other words, we think they don’t cases once they’ve made a decision? use good judgment when they reverse us. Obviously we wouldn’t have done what OP: It’s not uncommon for us to say, we did if we didn’t think so. We think “You really bungled that one” to one of the they’ve made a mistake, most of them. Not panel judges, or “How could you possibly always. Sometimes when their opinion arrive at a ridiculous decision like that?” comes down, we’ll say, “Yes, that’s exactly And they usually say, “Well, we right.” were dealing with a ridiculous one,” or We have dozens of opinions going something or other. So there’s a lot of up to them all the time, and most of them good-natured banter, especially here in are affirmed. Occasionally when they Oregon. We have wonderful appellate reverse us we will be able to read it and judges personally here. Judge Leavy, agree that we were wrong. Most of time, Judge O’Scannlain, formerly Judge of course, we don’t feel that way. We Kilkenny, now Judge Graber. They’re feel they made a mistake. They didn’t wonderful people, and they come to our understand the case, didn’t understand Friday lunches frequently, and we give the facts, re-wrote the facts. We’ve got all and take over cases. kinds of reasons why we’re not wrong to But we don’t get nasty about it.

Panner, Tape Fifteen, Side One 179 We’re professionals. We may say we’re not prison authorities, and they had a guard sure we understood that one or something hostage on the second floor. of that nature, but most of it’s in a very The guards, under the direction good humor. of Whitley, planned a storming of the barricades, and in the process shot Albers MO: Can you think of any examples of in the leg, who was running upstairs, cases that you had overturned on appeal presumably to get to the hostage, because where there was some interaction between that’s where he was. They shot him to keep you and the appellate judge afterwards? him going up the stairs when they broke through the barricade. OP: No, I don’t, Michael. I’m sure there’s Albers sued Whitley for a been a lot over the years. There’s been a constitutional violation, excessive force, lot of agreement, far more affirmances shooting him in the leg and so forth. I than reversals. Some of the reversals the threw the case out, dismissed it. Said that Supreme Court has corrected them on. the facts or the circumstances were that It’s interesting that of the three cases the prison authorities had to use their of mine that have been to the Supreme best judgment to protect the hostage and Court of the United States, all three of break the insurrection, and it was entirely them were reversals of my decision by proper. the Circuit, and then the Supreme Court The circuit reversed it and ordered reversed the Circuit and reinstated my it sent back to me for trial on the merits to decision. So I’m batting 100 percent with a jury. The Supreme Court reversed them the Supreme Court on the cases that went and said what I did was entirely proper. up. They don’t get anywhere near all of That’s one. them, obviously, but the ones they’ve had have demonstrated my philosophy, that MO: In that case, who appealed it to the frequently the Court of Appeals is wrong. Supreme Court?

MO: Do you remember those three OP: Whitley’s side, appealed it after cases? Would they be worth discussing? the Circuit reversed me and ordered it to a new trial. The State, representing OP: Yes, I remember them very well. Whitley—and I think Attorney General One of them was Albers v. Whitley, who Frohnmayer—then argued that case to was a prisoner at Oregon State, Albers the Supreme Court, and Gene Mechanic was. Whitley was a lieutenant or a captain argued it for Albers, the prisoner. there. The inmates took over Barracks Twenty at the state penitentiary and had it MO: And you threw the case out barricaded off, and they were defying the because—

180 Panner, Tape Fifteen, Side One OP: Well, under any set of the facts as trade law, because the cooperative kicked I knew them, there was no basis, even Northwest Stationers out of the co-op, for accepting everything the plaintiff said what they believed was a good reason. as true, there was no basis for him to Northwest sued the cooperative, claiming sue Whitley. Whitley was acting in an that this was discrimination against them emergency under stress, protecting a to not allow them to remain as a member guard hostage they had, and that was the of the cooperative. end of it. I ruled that they had violated the cooperative’s bylaws, and it was not a MO: What about the other two? Robinson-Patman Act violation, it was not a trade discrimination because there was OP: One of them was a State no antitrust issue involved. Neither the Department of Revenue case against co-op nor Northwest had any appreciable the railroads, the car companies, in market power in the market. The Circuit which the State of Oregon granted some reversed it, and the Supreme Court exemptions of taxes to various types reinstated my decision. of organizations and things and didn’t grant any exemptions to the railroad. MO: Talking about these cases brings The railroad claimed that the State, if up a question, and that is—given that they granted exemptions to anyone, had Congress is constantly enacting new laws, to grant them an exemption. and there probably already are so many I ruled that the State had a laws on the books that it would take right under the statutes and under nothing short of a photographic memory the Constitution to grant a reasonable to be aware of them all, what do you do in number of exemptions—in that case it a case that has new law or law that you’re was about 30-some percent of the types unfamiliar with? of organizations they had granted—and I ruled that the State had the right to do that OP: Well, with the computer techniques without exempting any of the railroad cars we have now, Westlaw and Lexus-Nexus, that were involved. The Circuit reversed and great law clerks, they can find me, the Supreme Court reinstated my anything, statutes or cases that have decision and said it was right. come down on point, and the lawyers are excellent in this court about citing us to the MO: And the other case? cases that apply. I don’t have to remember anything. I just have to be able to analyze OP: The other one was—a stationery it after it’s laid out for me, and then I may store sued a stationery cooperative under have to read it and reread it and study it, the Robinson-Patman Act, the unfair but we get it laid out for us.

Panner, Tape Fifteen, Side One 181 their arguments just the same. It isn’t the Attorney Relations lawyers that are involved in the case, it’s their clients. MO: What is your relationship like with I have done lots of anonymous attorneys that appear before you, and polls of lawyers that have appeared before maybe cite some examples that have been me in the last two or three years. I’m doing before you many times that you may have one right now. The clerk sends them out, a longer-term relationship with? and they’re told that I will never see their sheets, don’t sign them, send them in and OP: Well, I think here in Oregon the clerk will tabulate the results and give we consider that we have the most me the results only. professional, ethical, and competent So I go a lot by those on evaluating attorneys probably in the whole United my work. For many years I quit doing States. We see lawyers from Los Angeles, that because there was a Federal Almanac New York, Chicago, everywhere. Our that did it. But those reviews in the Federal lawyers that practice regularly in this Almanac came out so good in recent federal court here are as good or better years that I didn’t think they were being as any we see, and they’re highly accurate. Either that or I’d lost my touch professional, highly ethical. Doesn’t mean of being mean because they were so you won’t occasionally get a lawyer that complimentary that I decided again to do isn’t prepared or is unprofessional, but it’s my own, which I’m doing now. very rare. As far as close personal relation- MO: And are you getting different ships with lawyers, we don’t have those results? anymore. If we do, we disqualify ourselves from that case, but I don’t have OP: We’ll just have to see. That won’t be any that close. I have an acquaintanceship in for several months yet now. with lots of lawyers. I belong to the Federal Bar Association, the District MO: What kind of survey is this? What Court Historical Society, the Oregon kind of questions do you ask? Historical Society. I’m working with lawyers all the time on various things. OP: They ask, “Is the judge courteous, They know that that means nothing patient? Is he up to date on the law? Does when they come into court. I mean, he study the matter before he decides? Is when they come into court, they’re just he fully prepared? Is he on time? Are his Lawyer A, and if I don’t know the other decisions prompt?” And there’s a range lawyer, that doesn’t mean one thing, from poor to excellent they can check in either. He’s Lawyer B, and you listen to each one of those areas. “Does he favor

182 Panner, Tape Fifteen, Side One the government in criminal cases? Does out districts that are in trouble, and the he favor the defendant in criminal cases? District of Arizona has been behind for Does he favor plaintiffs in civil cases? Does a number of years, really behind. Their he favor defendants in civil cases? Does he judges can’t catch up. They’re under heavy favor one lawyer over another?” All kinds pressure, lots of cases filed, short of judge of things like that. appointments. So I just volunteered to the Chief Judge that I would take twenty cases, MO: And when the Federal Almanac does and they assigned those twenty cases that, is that for information only, kind of to me. I had access through the Internet feedback purposes? to their dockets down there. We handle hearings through telephone conferences. OP: It’s for information to the lawyers, The only time that I’ll have to go basically. The lawyers have access to that, down there will be for the actual trial, and so that if a lawyer’s coming from New by the time that gets ready, half of them will York out here in a case in front of me, he be finished by motions to dismiss, summary can look at it and see what other lawyers judgment, settlements, something or other. have said about me. It’s amazing how they get taken care of, and Generally I am known as a judge the ones that don’t, we’ll try. There’s three who really keeps things moving, requires or four antitrust cases that are tough cases. discipline and structure, hard work, and One of those is the one I was talking about, expeditious handling. That’s what almost the patent case. After a hearing yesterday, all of my surveys in the Almanac have as a matter of fact, the lawyers said, “We indicated, and I know that’s true. I’m think maybe we ought to have a settlement doing a lot of work right now. I told the conference with another judge,” and I know District of Arizona I’d take their twenty that case has been pending four years. The worst cases, to send them to me and I’d only reason they’re doing that is they both handle them from here on the phone and realize now they’ve got to go to trial in go down there and try them when they’re November. They asked to continue, and I ready, and I set all twenty of them for denied it, and so they probably will settle it. trial in a space of six weeks down there, and the lawyers are saying, “Oh, this will MO: When you do your own survey, do never work,” and I’m saying, “Well, we’ll you just keep that information to yourself, see. I’ve done this before. I suspect it will.” or do you actually send it on to the Federal Almanac, too? MO: How do you wind up trying cases in Arizona? OP: I don’t send it to anybody. It’s for my own benefit. I do share it with the other OP: Well, we have a system of helping judges and encourage them to do surveys. I

Panner, Tape Fifteen, Side One 183 think it’s very helpful to us because you get Magistrate Judges comments occasionally that will help you. Maybe you did get a little too impatient. MO: You were saying the Oregon And if you get a number of responses—I courts have initiated what you might call mean, you’re always going to get a few bad a pioneering use of Magistrates on this responses. This is what I didn’t like about court. Can you tell me how that came the Federal Almanac, all I saw were excellent about and how the court was unique—I responses, excellent judge, well prepared suspect that maybe others have followed and all this. Well, you know when you’re the lead. ruling against one side, they’re not always going to be favorable, so you have to take OP: Judge Solomon and Judge Bel- a kind of a cross-section, an average. So the loni, Judge Skopil, Judge Kilkenny, all clerk will tabulate the number of results insisted on appointing very good quality in each of those categories for me so I can Magistrate Judges. The court appoints tell whether—wait a minute, I may have a Magistrate Judges, we get to appoint deficiency here. them, and they started a tradition of The other thing, I’m now seventy- having top-notch people as Magistrate four years old, and I have been before judges, and they also started a tradition judges who were rather senile in my days of getting consents by both sides for the as a lawyer, and I know that none of us are Magistrates to try the case. They got really capable of deciding when we are a statute that authorized that if both losing touch a little bit, and so I’m going to sides in a civil case consented to trial kind of leave that up to the lawyers, too. If by a Magistrate, it could be tried by a I begin to get bad results, why, I’ll have to Magistrate instead of an Article Three think about backing off. judge, like we are. That feeling spread throughout MO: You’re senior status now? the country quite a bit. More and more districts in the United States are using OP: I’m senior status. that system now. The result was always here when you did that you got better MO: What kind of work week does that Magistrates, and it builds on itself. If you mean for you here? get better Magistrates, the lawyers are quicker to agree to them trying the case, OP: I probably work an average of thirty and so we have our Magistrates try almost to thirty-five hours a week on the average, as many cases as we do by stipulation or some weeks longer, some weeks shorter. agreement between the two parties.

[End of Tape Fifteen, Side One] MO: And other courts followed the lead?

184 Panner, Tape Fifteen, Side Two OP: Yes, that’s been called the Oregon OP: No, no. Judge Redden and I started system, and it was started mainly by the practice of jokingly saying to lawyers, Judges Solomon and Kilkenny and Skopil “Well, you don’t have to consent, if you and Belloni. don’t consent, you’ll get an ornery, lifetime appointed Article Three judge who won’t MO: Is the only consideration of whether have any patience with you, or you can a specific case would go to an Article Three consent and get a Magistrate judge, who judge or a Magistrate just simply whether will be a pleasant, courteous, delightful the attorneys for both sides agree? judge.”

OP: What we do here is we have a MO: A specific situation where a computer wheel that assigns the cases, Magistrate has been used—I think, and we put the Magistrates in the wheel anyway—there was a decision in 1994 that just the same as the Article Three judges. the Oregon courts had no authority on So when a case is filed, it may go to an the Warm Springs Indian Reservation, or Article Three judge or a Magistrate judge. maybe it’s Indian reservations generally? They get just as many assignments as we do. OP: That was a state court decision, yes. If there are not consents on those cases that go to the Magistrate judges, they MO: Then around that same time there simply handle them up to the time of trial, was a scheme put forward to establish and then we try them if there’s no consent. a federal Magistrate judge whose But more and more those consents are jurisdiction would be the Warm Springs coming in. It’s very rare now for us to Reservation. Were those two decisions have to try a case that was assigned to a related? Magistrate judge. OP: I think they were. I think probably MO: If the two sides don’t consent, then it that state court decision by Judge Nielsen goes to a full judge and it still goes to trial? was correct. The State, in any event, decided to follow it and not prosecute OP: Yes. It doesn’t change anything. on the Indian reservation, and with that Usually the only time we don’t get consents our United States Attorney decided to are from out-of-state lawyers who don’t prosecute more, and with that, then, we understand how good of Magistrates we agreed to put a Magistrate down there. have here. MO: And that was specifically for cases MO: And people can’t avoid going to that occurred on Warm Springs lands, is court by— that right?

Panner, Tape Fifteen, Side Two 185 OP: Yes. It was a part-time Magistrate ’s under federal supervision, but the position. Dennis Hubel, who was a lawyer tribal court in Warm Springs only has in Bend, took that job on, and he went jurisdiction under their law and order from his offices in Bend down to Warm code for comparatively minor penalties. Springs and just heard cases as a judge at So always, if there’s a serious crime Warm Springs, and it was for the purpose committed on the reservation, whether it’s of considering federal charges for crimes Indian or non-Indian, they probably are that were committed on the Warm Springs going to come to federal court. Reservation. MO: What about the second-order kinds MO: And what about the Warm Springs of statutes that might apply in a regular themselves? Did they interact at all in this? federal court, like the federal three-strikes law, for instance, would that apply on the OP: They were very much in favor of Warm Spring Reservation even if they that. The Warm Springs have always been themselves felt that that was not the way wonderful about liking law and order they wanted to handle their— and the relationships between the Warm Springs Tribe when I was the tribal lawyer OP: It would apply if it was a serious up there and the United States Attorney’s crime and there had been other serious Office, federal court, were always crimes committed to justify the application excellent, and they still are. of that statute. For the most part, the tribe is very glad to have the federal government MO: Given that the Warm Springs have imposing law and order in serious offenses a certain amount of sovereignty over their on the reservation at Warm Springs. own territories, how does that interact with federal law? MO: And they don’t have any desire to necessarily get involved and try to rewrite OP: Well, in the first place there’s some of the minutiae in the law? what’s known as the Assimilative Crime Act, which is a federal statute which says OP: No, I don’t think so. I think the that anybody who violates a state law on only problem really that the tribe has ever the federal reserve is guilty of a federal had is on occasion in the past getting the offense. So any time a serious crime is federal government to prosecute serious committed on an Indian reservation, it can cases. There was a time many years ago go to federal court, whether it’s an Indian when the United States Attorney wasn’t or a non-Indian. really very interested in prosecuting The tribal court has jurisdiction things on the reservation, and that kind of over their members and over Indians stirred up the tribe. For a serious crime,

186 Panner, Tape Fifteen, Side Two for example, their law and order code only Judge Real’s trial, and the defendant was allowed maybe six months in their tribal convicted— jail, which wasn’t enough to discourage serious crimes. MO: That was Barbara Brooks Camp?

MO: As far as you know, the Magistrate OP: Yes, and it involved whether there court at Warm Springs has worked out had been appropriate authorization by well since it’s been there? the Attorney General of the United States to an Assistant Attorney General to issue OP: Well, it’s not there anymore. Dennis a wire tap. The FBI got a wire tap, and Hubel has become a full-time Magistrate as a result of that wire tap they got a here in Portland now, but he will go up conviction. The question was whether or there if necessary. They didn’t have too not between Attorney General [Benjamin much business, and now it’s a question of R.] Civiletti and Attorney General traveling there to do the job if necessary. [William French] Smith—the changing of the guard—whether there had been sufficient authorization. Important Cases The statute requires that in order to get a wire tap on a telephone the MO: I did cite in the letter I sent you application has to be authorized by the a couple of cases that I think you had Attorney General or someone especially identified way back when as being designated by the Attorney General. interesting cases that you had tried here With that authorization, the United in the District Court. States Attorney in the district, in that case Los Angeles, can go to the district OP: I laid those out to refresh my judge, and get a wire tap authorization memory. Which one do you want to talk to tap somebody’s telephone wire. That’s about first? not an easy thing to do, obviously. The government doesn’t really have the right MO: Why don’t we start with United to just go around tapping anybody’s States v. Camp. telephone wires. There has to be reasonable cause and a basis for it, and OP: Okay. Camp was a case in which a judge has to listen to the affidavits and I was sitting on the Court of Appeals, in verify that there’s really a reason to tap that case reviewing a decision by a trial somebody’s telephone. judge, who was Judge Real in Los Angeles. Well, all that was done in this Camp There was a three-judge panel reviewing case, except—

Panner, Tape Fifteen, Side Two 187 MO: And this was a heroin case, right? What happened was, as I recall it, that the stipulation was made before OP: Yes, except that the Attorney either the defendant or the United States General authorized a particular position, Attorney prosecuting the case had a copy a special Assistant Attorney General, not of the actual order issued by the Attorney by name but by position, to do it, and the General. That got lost somewhere and question was whether that authorization didn’t come to their attention until it carried over when the next Attorney came up on appeal, and then we got that, General took on the job. and that left their stipulation technically The Court of Appeals, and I wrote incorrect. So we didn’t want them to the opinion, said it was sufficient, the be left on the record having stipulated statute authorized that, and we affirmed to something that wasn’t correct. But it the trial judge’s decision. didn’t change the trial or result. The guy remained guilty. MO: And what was it about this case that made it significant in your mind? MO: Okay. And what about then the United States v. Crisco? That was the other OP: Well, it was a case of first case. impression in the country, where we dealt with the issue of whether the OP: Crisco was a case which determined Attorney General had to name by name whether or not a defendant under these a certain Assistant Attorney General to circumstances was in custody for the authorize wire taps, or whether he could purpose of a Miranda warning. There do it by position. again, I was sitting on a three-judge panel, and I wrote the opinion. Judge Canby from MO: I see. So this established that you Arizona dissented, and Judge Schroeder could do it by position? agreed with me, so it was a two-to-one decision. OP: Right. This was a case where a defendant who was charged with a drug crime was MO: I also have a note here that you convicted. He moved to suppress the directed that the defendant in this case evidence before the trial on the grounds could withdraw their stipulation of facts, that a statement that he made during an and if they did that, then you would order interaction with the authorities should not a retrial of the case? be allowed in evidence because he was in custody and hadn’t had his Miranda rights OP: No, not a retrial. A remand, but it warning. didn’t change the result. The trial judge ruled that he was

188 Panner, Tape Fifteen, Side Two not in custody. We affirmed that and process unfold? Do you go back and forth analyzed what’s required before a person between the three of you? is in custody. OP: Yes. We hear the oral arguments. MO: He was in the presence of law The lawyers argue the case based on the officers? transcript, no new testimony. After the argument we meet at a conference with OP: He was. Let me see if I can’t give the three judges together. Everybody you here exactly what he said. The DEA expresses their views because they have agents, Drug Enforcement Administration read the briefs ahead of time, and what we agents, along with a Marine captain, met call the bench memo that the law clerks with the defendant and started to advise have written to us, and we say, “Well, I him he was under arrest and explaining vote to affirm,” or “I vote to reverse,” or the charges. The defendant said he didn’t else “I need to study some more.” understand the charges and protested he If everybody says, “We vote to hadn’t done anything wrong. affirm,” then the senior judge on the panel DEA agent said to him, “Hey, you assigns the case to one of us to write, and if met with me for the purpose of seeing somebody wants to dissent after they see sixty thousand dollars that I was going that opinion, then they write their dissent to use to buy a kilo of cocaine.” And the and say the majority is wrong because, defendant replied, “Well, I admit that.” and so forth. At that point he was advised of his It goes back and forth in faxes. constitutional rights, asked to see a lawyer, One of the cases I was on early, I can’t and no more questioning took place. But remember now the name of it, but at the at the trial they used that admission: conference afterwards, I was the only “Well, I admit that.” So then the question district judge on the panel. There’s only became—was he in custody? He had not one District Judge on any panel, and there been taken into custody. He volunteered are always two Circuit Judges. The two this in response to that comment by the Circuit Judges voted to affirm, and I voted DEA agent. not to, to dissent. Close case, very close case. It wasn’t The junior judge, and I was then appealed to the Supreme Court, or if it the junior judge, always has to speak first. was, they denied certiori, I’m not sure. The senior judge said, “Okay, you write your dissent first.” So I wrote that, and MO: In a situation like that, you then they both said, “Well, we agree with mentioned it was a two-to-one decision, you. We changed our mind.” So it goes so when you meet with two other judges back and forth. to look at a case like this, how does that

Panner, Tape Fifteen, Side Two 189 MO: And you make your arguments to a high-profile case or a politically charged the other two judges? case in front of you. The first one on the list, is an OP: The other two judges, right. example of one that wasn’t so high-profile, but one that had some real ramifications MO: And sometimes you sway each for the area locally and nationally, and other, it sounds like? that’s the Resolution Trust takeover of the Far West Federal Savings and Loan. My OP: Mm-hmm. Sometimes you don’t. understanding of that in terms of it coming to your courtroom was that the people MO: This particular case of Crisco more at Far West thought they had worked finely defined the concept of when you out an agreement with the government actually are in custody? to recapitalize their operation, and they had a ten-year period to accomplish that. OP: When you’re in custody. Then Congress passed a law, which threw that into question, and Far West sued to MO: Did you say that went all the way enforce the original agreement? Was that to the Supreme Court? how that came about?

OP: I don’t think so. If it did, they OP: That’s correct. The Federal Home denied certiori without opinion. I don’t Loan Bank and the Federal Deposit In- know whether it was appealed further. surance Corporation and the Federal It could have been because it was a very Savings and Loan Association entered close issue. into an agreement with a group of stockholders at Far West to entice the [End of Tape Fifteen, Side Two] stockholders to put up twenty three million dollars, roughly, to refinance Far West. It was having problems, as all of the Far West Federal Savings & Loan savings and loans were at that time. The federal regulators agreed at that time that MO: I mentioned to you in my letter that they would not change the regulations there are three cases of yours that I thought with respect to Far West’s acquisition of would be interesting to talk about, and defunct savings and loans. also some general questions in terms of Then Congress came along and how high-profile cases are different from passed what’s known as FIRREA, the other cases. Some of the things that you Financial Institutions Reform, Recovery, encounter when you’re in the courtroom and Enforcement Act, in which they did and in a situation where you have either change those regulations. In effect when

190 Panner, Tape Sixteen, Side One they passed that, immediately put Far The Ninth Circuit reversed me. I West into default on their contract with had that matter from May the 4th through the government. September 14th. That was five decisions By the passing of the statute, that I rendered, all in favor of Far West. Congress in effect wiped out their twenty Then a year later, April 1991, the Ninth three million dollars, and the federal Circuit reversed me. regulators declared Far West defunct and In the meanwhile, by the publicity wanted to take it over. and the bad press that Far West got through That’s when Far West came to me the regulators giving out information, with the litigation. To make a long story they lost all their deposits and they were short, I issued a total of six opinions defunct anyway, rendering my decisions saying that Congress couldn’t do that and worthless, in effect, because Far West was breach that contract, that it was a contract broke, in spite of my restraining orders to and that the Fifth Amendment precluded stop the regulators from doing it. But the Congress from changing the contract. word was out, depositors withdrew their The Ninth Circuit reversed me, money, and it wasn’t any good. sent it back. I did the same thing again. It The case then was brought back to went to the Federal Circuit, they affirmed me in the form of a request for a rescission me. After six decisions that I entered, all in and their twenty three million dollars favor of Far West because it was so unfair, back, which I allowed, and decided again ultimately the Supreme Court of the in favor of Far West, that they got their United States agreed with me that they twenty three million dollars back because couldn’t do that. the regulators breached the contract.

MO: If I remember, the lawsuit was MO: You mentioned it was the original originally filed by Far West in January 1990, investors of Far West who got together and by March of that year the government and put together this original deal? had moved to take over Far West.10 OP: I don’t remember whether it was OP: In May of 1990, I issued a temporary all the original investors. Some of the restraining order preventing the federal original investors, and perhaps some regulators from taking over Far West. I new ones, I’m not sure. But in any event, reaffirmed that again on June 8, 1990, and a number of people or organizations put decided the same way repeatedly, August up twenty three million dollars to bail out 8, 1990, and again on September 14, 1990. Far West, with the promise by the federal All of those decisions said in effect that regulators that they would not change the federal regulators could not breach the the regulations, which would put them in contract they had with Far West. default—which they later did.

Panner, Tape Sixteen, Side One 191 MO: What was the Court of Appeals’ OP: Yes. You know, each time that I basis for not agreeing with your decision? would issue a decision, why, the media OP: As is frequently the case, I don’t was interested in it and wanted to know agree with the Ninth Circuit Court of what happened. And they got that not Appeals, and their decision generally only from the regulators, but also from was that the federal government was not the Clerk’s Office and the notices of appeal bound by the contract that the regulators and the papers that the regulators filed had made. and so forth. This case, even though it wound up The atmosphere at that time for all over the country being cited in the Wall Ben Franklin and Far West and a number Street Journal, the New York Times and so of other savings institutions wasn’t forth, was not a complicated case. It was very good. People that were investors, very simple. The simple question was, depositors in Far West pulled out. could Congress breach a contract by an act, and defeat a contract which cost people MO: In your opinion was some of a lot of money? Very simple question. I the information that got out privileged never saw it as very complicated, but the information that shouldn’t have gotten out? Ninth Circuit did, and they figured out a whole bunch of rather silly reasons for OP: No, I do not think that. It was simply reversing it. The theory was in effect that that they were stating their position, and the federal government could do anything frequently quoting what happened, my they wanted to. That’s the best that I can decision and their notice that they were say about it. going to appeal. All of that created a very nervous atmosphere on the part of MO: This group of investors, was that investors. the group that was called Trinity Ventures? MO: When the Supreme Court OP: Yes. There were Trinity Ventures, ultimately upheld your decisions, did Ltd., U.S. Ventures. Partners Three, U.S. that impact that ‘89 law, the Financial Entrepreneur Partners. There were a num- Institution Reform and Recovery— ber of plaintiffs that put money into this. OP: Yes. It said that law could not MO: You said that Far West ultimately, change the standards by which the because of the bad publicity that they federal regulators determined whether an were getting, couldn’t hold it together, organization was in default or not. anyway. You mentioned that some of You see, the federal regulators that information came from the federal have a right to audit savings and loans regulators? and banks and so forth, and they have

192 Panner, Tape Sixteen, Side One regulations which set up under what business. This was 1996 that this happened, circumstances and what accounting six years after it all started. So Far West methods that organization would be in was defunct, but the result was they did default and could be collapsed. Do you get their twenty three million back. understand what I’m saying? What happened was, in order MO: Do you have any opinion as to to invest the twenty three million, the whether Far West might have been able to investors insisted that they not change put things back together again? those regulations for a period of ten years. FIRREA, the act of Congress, did. And that OP: Yes, I think they could have. I think in effect put Far West in default. they would have if they had not been So my first decisions were to interfered with by the regulators on an restrain the federal regulators from doing unreasonable basis. I think some others in that, saying, “You can’t do that. Far West is the country would have. still in existence. You cannot declare them This was a time when the national in default because of FIRREA, which is in approach was to attack these savings and violation of the contract.” They appealed loans organizations. We lost a number that, and the Ninth Circuit agreed with the of them around here. Ben Franklin was regulators and reversed me. in the same position, and I think they’re Then Far West’s lawyers ingeniously going to eventually—they still haven’t got brought another claim for their twenty their money back, but I think they will. three million back. In other words, even You’ll recall it was a time of the though Far West was defunct, they wanted Lincoln Savings & Loan fiasco, when their twenty three million back. The down in Southern California savings regulators tried to move that case to the and loans overextended and did some Court of Claims. The Court of Claims said, illegal things, and that brought national “No, you can’t do that,” and the Federal regulators down on the savings and loans, Circuit affirmed that. So it came back to and it was a time of attacking the savings me, and I awarded judgment in favor of and loans. those investors for the twenty three million I think Far West would have dollars. survived. They were in the process with This was all before the Supreme this twenty three million dollars of buying Court in another case, same facts, entitled up other savings and loans that couldn’t United States v. Windstar Corp. The United make it because of the economic times. I States Supreme Court held that I was think they would have, but that’s only a correct and the Ninth Circuit was wrong, guess. and that they could collect their money. By this time Far West was really out of MO: Would you say that it’s true that

Panner, Tape Sixteen, Side One 193 a lot of these savings and loans got into MO: Would this represent an area trouble as a result of the legislation that where you think maybe Congress wasn’t Congress passed earlier in the eighties as careful as they should have been in deregulating the industry? some of the laws that they passed?

OP: Yes, that plus tougher economic OP: I do think Congress should have times. Along about that period of time, known better than to change the rules. But in the eighties, the real estate market the regulators should have also known— was in trouble, savings and loans were I’m not necessarily critical of the FIRREA having trouble. They had overextended act, but as applied to contracts that were themselves. outstanding it was very unfair. The federal regulators let them Congress was in a mood also to overextend themselves. They encouraged crack down on savings and loans. They’d them to loan money on rather shaky heard enough of Lincoln Savings & Loan, grounds, and they approved it. Then all and some savings and loans that really of a sudden they came in and said, “No, did some dishonest things. As I recall, the this security is no good. This changes your president of Lincoln Savings & Loan down balance sheet. You’re out of business.” in Southern California was ultimately The Farmers Home Loan Bank did convicted of some serious crimes. exactly the same thing with many farmers We had a case here involving some here in Oregon. I ruled against them also, employees of one of the savings and loan and in some instances was able to save the associations that went to jail over making farms. But in many instances the farmers loans to the same borrower, in violation of couldn’t take the pressure of litigation, the so-called “one loan to one borrower” expensive litigation, and constant effort. rule. They would encourage one borrower What they did was federal to get his wife and some friends and regulators for a long period of expansion family to make different loans, which times in real estate urged them to make technically was in violation of the law. So loans, pushed the loans, “Get more there were a lot of problems. loans out.” And the savings and loan associations did that, and then when MO: Were you involved in the Ben the prices went down because of the Franklin legislation? market, that changed their balance sheets sufficiently so they were in default, and OP: No. they lost their farms, and they lost their savings and loan associations. It was a MO: That was somebody else’s case? tough era.

194 Panner, Tape Sixteen, Side One OP: Yes. I’m not sure it was even in this OP: I do remember it vaguely, but I don’t District Court. For some reason I think remember exactly what happened in that they fought it through on a different basis. case. Do you have some record on that? I’m not sure about that. MO: I don’t. MO: Resolving all this actually cost quite a bit of money from the federal treasury OP: It seems to me the case was in front across the board. of me, and if you’ll give me the names again, I’ll look it up and give it to you. It OP: Cost the government lots of money. does seem to me that I remember the case. If many of the savings and loans had been able to bail out, it would have been much MO: She was a federal bank examiner. better for the federal government. OP: I remember the case, but I just can’t MO: In the case of Ben Franklin, anyway, —what was her name? it was bought up by Bank of America, and MO: Lisa Walleri, W-a-l-l-e-r-i. She there was some talk at the time about the worked in Beaverton, but apparently was Resolution Trust Corporation not really employed by the Federal Home Loan getting a very good price for the assets? Bank of Seattle.

OP: Oh, no. When the federal regulators OP: And her claim, as I recall it, was came in that depressed the market terribly. that she was fired for not conniving on I mean, these organizations were done for. these things. They were being picked up by banks and MO: I think that’s right. other savings and loans that were able to survive on a pretty inexpensive basis. OP: That’s what she claimed.

MO: Just as a footnote to this, there MO: Yes. The newspaper account, were a couple of other actions. There anyway, said they conspired to force her to was a woman named Lisa Walleri, who incorrectly report on Far West’s condition. was employed by the Federal Home Her attorney was somebody by the name Loan Bank of Seattle, which I think was of Tom Ryan. originally going to be one of the investors in Far West, and she filed a suit in District OP: I’ll check that. Court alleging that her employers forced her to incorrectly report on the Far West MO: There was also another reference to financial condition. Do you remember the Oregon Department of Justice refusing anything about that? to permit disclosure of records prepared

Panner, Tape Sixteen, Side One 195 by the Office of Thrift Supervision related WPPSS Litigation to Far West —although I’m not sure that resulted in a legal action. MO: Another case that you were involved in around that time, was OP: I don’t remember anything about leftovers from the WPPSS litigation, and that. as a practicing attorney, you represented the Central Electric Co-op, is that right? MO: Maybe we’ll pick up the footnotes next time on that one. Do you have any OP: Mm-hmm. other comments on the Far West case? MO: What was the gist of that case? OP: No, I don’t, except it was a very OP: The co-ops wanted to buy a piece difficult time in the country, and the federal of the WPPSS generating power. In other government, as we’ve mentioned, lost a words, that was the basis for WPPSS, lot of money by unnecessarily collapsing Washington Public Power Supply System. many savings and loans and farmers Throughout Washington and Oregon during this time. I’m not saying they were public cooperatives, agreed to take a all—some of them perhaps should have certain percentage of the power generated been collapsed, but not all of them. by the WPPSS generating facilities. Central Electric Co-op wanted to take a piece of that action. In order to do it, the people who put up the bonds for the construction of the WPPSS generating facilities required a legal opinion from the lawyers for the cooperatives that the cooperative had legal authority under the state statutes to bind itself to meet these long-term bonds. In other words, in order to buy a percentage of the power, the co-op had to commit to pay a certain percentage of these bonds that were used to build the energy supply. I wrote an opinion to the bondholders who put up the money for the construction of the generating facilities for WPPSS, the opinion saying that Central Electric Cooperative, in my legal opinion, has the authority to enter into this type

196 Panner, Tape Sixteen, Side One of contract, to commit themselves to buy MO: But you took the case originally this amount of power and to pay this when you were in private practice? percentage. It was less than two percent, or something like that, of the bonds that OP: When I wrote the opinion I was are used. Other lawyers throughout the practicing law as an attorney in Bend. In state and throughout Washington wrote any event, the case against us lawyers in the same kind of opinions. Oregon went up to the Oregon Supreme When WPPSS failed and had to Court,. The Oregon Supreme Court said quit operating, they sued everybody. I was right, that the cooperative did have The bondholders who took the bath the authority to enter into this contract, sued everyone they could think of to and they threw out the case against the try to collect the money that they had Oregon lawyers who had written such advanced to build this fantastic facility. opinions. Well, they were not successful suing the In Washington, however, it was a cooperatives because the cooperatives, different situation. They had a different because of their special charters, couldn’t political situation up there, and the be held responsible for that debt. So they Washington Supreme Court said the sued the attorneys who wrote the bonds lawyers did not have the right to say the for WPPSS. They sued the cooperatives Washington cooperatives had the legal first, they sued everybody. When nothing right to enter into that and the Washington else worked, then they sued the lawyers in lawyers could be held responsible. Washington and Oregon who had written That created an interesting conflict for these opinions saying that the cooperative the bondholders of WPPSS. They could get a had the legal authority to enter into this judgment against the Washington lawyers, transaction. according to the Washington Supreme So we all got sued for billions. I Court, but not against the Oregon lawyers. used to laugh and joke with my fellow And the Washington lawyers then federal judges—we get sued all the time said, “Well, if the Oregon lawyers aren’t by prisoners and other people for all kinds responsible, we aren’t.” Both of those two of money, sometimes in the millions—but cases went to the United States Supreme I used to say, “Well, you all haven’t been Court, and the United States Supreme sued for billions, like I have.” Court denied certiori and left it as it was. Fortunately my malpractice So the ultimate upshot was that the insurance company defended me. The bondholders finally gave up against the cooperative’s lawyer defended me. My lawyers in both Oregon and Washington. old law firm did, they had malpractice I believe that was the way it worked out. insurance, also. This came about after I At least they did against Oregon, I never was already a federal judge. paid billions for that.

Panner, Tape Sixteen, Side One 197 MO: You mentioned the political give the bondholders some relief. Were situation is different up in Washington. you aware of any of that? Are you suggesting that the Washington Supreme Court was influenced by the OP: I remember hearing about it, but I politics of the situation? don’t know any of the details about it.

OP: I wouldn’t say that, but there was MO: You said originally when the just a different feeling, and I don’t know Central Electric Co-op got involved that whether that had an influence or not. And they wanted a piece of the construction I shouldn’t say that it did because under projects. It was a situation, if I remember Washington statutory law there may have correctly, where they agreed to pay a been some difference between the power certain percentage of the costs of these of cooperatives under Washington law to projects in return for a certain percentage enter into such an undertaking. I never of the power that might come out of them. really studied that. Although, they were not guaranteed any specific amount of power—because [End of Tape Sixteen, Side One] ultimately they didn’t get any power because they were never built. I guess that’s OP: There are bonding lawyers in what they call a take-or-pay contract? Oregon who undertake the tremendous process of making sure that all the legal OP: They were guaranteed their I’s are dotted and the T’s are crossed with percentage of the power that came out of respect to school board bonds, sewage them. The problem was the power didn’t bonds, city municipal [issues] of all kinds. come out of them very long, or at all. Whenever they give an opinion that those That’s why the co-op wasn’t really ever bonds are validly entered into by the held responsible, basically, because they city—if it turns out they were not, then never got anything for it. they are responsible. That’s right. MO: Right. But the argument was that the contracts, as written, obligated them MO: In the WPPSS case I know that to pay anyway. there was a lot done on behalf of the bondholders, although most of it to OP: I don’t think so. I didn’t follow that no avail. Charles Luce, who was the precisely, how they got out of it, but they former head of the Bonneville Power never had to pay any of it. I know that. Administration, came out at Senator Jackson’s behest to try to put the whole MO: At the time I think there was some WPPSS thing back together again and speculation that it might lead to a lot of

198 Panner, Tape Sixteen, Side Two these small co-ops going under if they had to prevent them from disqualifying her to shoulder that burden. to compete in the Olympics. What do you remember as your first encounter with OP: That wouldn’t have bothered the this case? bondholders. The people that bought those bonds wanted their money, and they OP: My experience was rather limited probably did everything they could to get it. in the whole Tonya Harding matter. It came to me because the U.S. Figure MO: It was probably in the co-ops’ case a Skating Association was threatening to decision they made because the Bonneville bar her from skating in the Olympics. She Power Administration told them that they and her lawyers filed an action and asked could no longer guarantee a supply of me to restrain the U.S. Figure Skating power, as they had previously, because Association from barring her from the they were running out. Bonneville was Olympics until they had gone through the also involved in the WPPSS projects, but process that the Skating Association had there was a difference between the first set up under their rules and regulations. three WPPSS plants that were constructed I determined that they were not and the last two. The last two were the following their own procedures in barring ones where the co-ops and the utilities her. I agreed that the Figure Skating directly were on the line. Whereas [for] Association had the power to remove her the first three, Bonneville was in between, from the Olympics, but only after they and so they picked up all of that, and I followed their own rules of procedure in guess we’re still paying for it today. doing it in an appropriate manner. The evidence indicated to me that the Figure OP: I really don’t know anything about Skating Association decided it based on that part, except what I read in the paper, what was in the newspaper, very quickly, and I don’t remember too much about without giving her a fair hearing. I didn’t that. know whether she had been involved at all in this knee-injuring situation at that time, and she was in here saying she did Tonya Harding not have anything to do with it. I think ultimately it turned out MO: Why don’t we move on to a case that the fellow who hit Nancy Kerrigan in that was a lot less technical and a lot the knee may have said something to her higher profile than these two, namely, the about the fact that he was going to do this, Tonya Harding case. I guess that came to but she did not have anything to do with your courtroom because Tonya Harding it—and probably didn’t really believe he sued the U.S. Figure Skating Association was going to do it, but she was told that.

Panner, Tape Sixteen, Side Two 199 That’s what she finally pleaded guilty to Tonya Harding herself in the course of this in the state court. trial? But that wasn’t before me then. The question was very simple: Was the U.S. OP: She came to the courtroom, that’s Figure Skating Association following the only thing. I never talked to her other its rules of procedure in barring than to see her in the courtroom with her Tonya Harding from skating in the lawyer. Olympics? I ruled they were not, and restrained them until they did. MO: Did you have any impressions of Ultimately, Tonya Harding decided her at that time? not to skate anyway in the Olympics OP: I did have some impressions that and pleaded guilty to a misdemeanor she was a rather defeated young lady at or something. that particular time. She was in a very unhappy state of mind. MO: At the same time there was a criminal proceeding underway in the MO: Two people close to her were Multnomah County courts. Did you have implicated, Jeff Gilooley, her partner at much— the time, and Shawn Eckart, her personal bodyguard at the time. You mentioned OP: I had nothing to do with that. that she may have heard a comment from either one of those people, or maybe it was MO: There were some jurisdictional even the man that made the attack. But questions because it could have gone circumstances probably suggested to a lot forward in a—was it a Detroit court, or of people that she did know more about wherever the injury actually occurred? it than she said, just because they were so But there was a request from Multnomah close to her. County to the U.S. Justice Department that the Justice Department take over OP: I never knew anything about any prosecution in the case, in which case it of that, or what the facts were about would have been in the District Court, is that situation. It was strictly a question that right? of whether the Skating Association was following its rules in banning her. OP: I don’t remember that at all. I don’t know what the jurisdictional basis would MO: I know that the publicity have been. In any event, it never did come surrounding the case had some impact on to us except as I’ve told you. your courtroom, in that Sports Illustrated magazine filed a motion to open the file MO: Did you have any interaction with that you had on her case and hired Charles

200 Panner, Tape Sixteen, Side Two Hinkle here in town to represent them. Do understandably got the idea that I had you remember anything about that, or did some basis for a decision, yes or no, on that amount to anything? whether she went to jail or not, which was not true, but people get that idea. I OP: I do remember there was a lot of got letters saying, “You should put her excitement about it. The media jumps in jail.” Others, “The poor thing, she’s on cases like that with both feet, and so had a hard life,” and so forth, but those they were all over the courthouse and the things I don’t pay much attention to. courtroom. I don’t really remember that there was a lot that was secret in the matter MO: Did you deal with some of this that was before me, but I do remember correspondence yourself? Hinkle coming in on behalf of the media, asking to open the files. If I remember OP: No, I don’t ever respond to that right, there was a request that because kind of correspondence. the media was so hard on the case that we limit the attendance in the courtroom MO: What about yourself during the during the hearing. But, but it didn’t course of all this unfolding, did you read amount to a lot because I wasn’t inclined, the newspaper? I don’t believe, to close the courtroom. OP: Not really. You can’t help it to a MO: Were the hearings heavily certain extent because you’re watching the attended? news and there it is, or you’re looking at the newspaper and it’s on the front page. I OP: Yes, they were. don’t pay any attention to what’s in there insofar as it relates to my case. MO: There was also a note in one news MO: And you make some attempt to account I read that your office received a avoid looking at this information? lot of telephone calls about the case? OP: Yes. Most of it didn’t have anything OP: We did. A lot of them. I received to do with the issues I was involved a great lot of letters and telephone calls. with. The issues I was involved with Had some good effects. I heard from were studying their [the Figure Skating some of my friends in law school Association] rules and deciding whether that I hadn’t heard from for years, they were following their rules in banning just saying hello, and now we know her. That was basically the issue I was where you are, or something like that. concerned with, and there wasn’t much But most of it was either really nasty, about that in the papers. It wouldn’t be of or very supportive, of her. People any interest one way or another.

Panner, Tape Sixteen, Side Two 201 MO: It sounds like this wouldn’t have a Judicial Activism huge impact on your courtroom, either, but I understand that Nike Corporation, in the OP: I saw a study the other day that said early days of the information unfolding, nine out of ten people had some kind put up a certain amount of money to help of prejudice one way or another. Not Tonya Harding in her legal defense. Did necessarily racial or sex or whatever, but you know anything about that? we all have prejudices based upon our upbringing, the environment we grew OP: I don’t know anything about that, up in, and the way we see things. By no. I think there was something in the and large over the years I’ve been really paper that maybe mentioned it. proud of federal district judges, trial MO: We’ve talked about a couple of judges, because I have seen year after things like the WPPSS situation where year, case after case, where trial judges there was a lot of money at stake, and the have tried to decide the case based on difference between the Oregon and the the law, and not based on what they Washington Supreme Court decisions on think the law ought to be or what their that matter. social views are. Of course, Washington State was I think, frequently, judges come much more heavily invested in those onto the federal district court with WPPSS plants because they’ve got more either liberal or conservative tendencies, cooperatives and public power entities up naturally. But for the most part, when there. And right away that suggests that somebody comes onto the federal bench there was political pressure up there that with a lifetime appointment, they really didn’t exist to the same extent down here. don’t have to worry about those things The decisions of the two Supreme Courts anymore. They can call it as they see it. went the way you might expect in that Judge Solomon was a great situation. example. He was quite liberal by his own Also, court decisions, I think, can definition when he came on the court back affect the way laws are implemented, and in the late thirties or early forties, I’ve there are even some judges who are a bit forgotten now when it was. He moderated activist in terms of how they approach the and became quite middle-of-the-road in law. I’m just wondering if you could talk his personal views. a little bit about the interaction between I think by and large trial judges take what’s at stake out there in the public it on their oath not to be activist judges, in a particular lawsuit and how that not to try to change the law, but to just do affects proceedings in a courtroom. Is it justice in the individual cases that come appropriate, and when is it appropriate? before them. And believe it or not, that’s not too hard. You look at the law, you look

202 Panner, Tape Sixteen, Side Two at the facts. Many cases are jury cases, you entitled to make a little more policy than instruct the jury according to the law. the intermediate Court of Appeals. Their I don’t see that activism is significant role is to interpret the Constitution and in the trial courts or the federal district the law, and the Constitution is a living court. It becomes much more significant in document. I’m a little more forgiving the appeals courts. Appeals judges, both of the Supreme Court when they write at the circuit level in the federal system philosophy into their opinions—which and on the United States Supreme Court they do a little bit—than I am the Ninth are more concerned, probably, with the Circuit or any of the courts of appeals. political implications of a case. The courts of appeals, technically, should One of the reasons the judges of be following the law as determined by this court want to see the Ninth Circuit the Supreme Court and the statutes of the split is we think there are too many judges United States, and I guess we don’t always and too many widely divergent views think in the Ninth Circuit that happens. between ultra-liberal and conservative. We think there may be some activist It’s an old saying around here, if we knew judges on the Ninth Circuit. what panel was going to consider our appeal, we would know better how to MO: Why do you think that is? decide the case, but that’s a joke. We call them the way we see them, and we let OP: I’m sure they have good motives. them do what they want to. They believe it. You know, we have one It is true that how a case is going judge on the Ninth Circuit who said he to be treated on appeal depends to a would never vote for the death penalty, no large extent in the Ninth Circuit on which matter what the law was. He was against particular three-judge panel you get. If the death penalty. That’s an outrageous you happen to get two liberal judges on a statement, that’s not a statement a judge panel, you’re going to get one result. If you should make. If the people vote for the happen to get two conservative judges on death penalty, the Supreme Court of the another panel, you’re going to get another United States says it’s appropriate under result. the circumstances, whether we agree that I think a lot of that is because it’s there should be a death penalty or not just too big. There are too many panels shouldn’t have anything to do with it. We running around here and there. There’s need to follow the law, and if necessary not very much collegiality. We, in this order the death penalty. But we have district, are much in favor of splitting the some judges who have said, “We don’t circuit and getting it a little smaller. care what the Supreme Court says, we’re The Supreme Court is a little bit not going to do it.” The result has been different. The Supreme Court probably is that the Supreme Court has, in a couple

Panner, Tape Sixteen, Side Two 203 of cases, chastised the Ninth Circuit for reversed the Ninth Circuit over and over staying executions of death sentences. It and over. At one point, there were twenty- hasn’t happened with the district courts two consecutive reversals of the Ninth through the district judges. Circuit. Of the five cases I’ve had that went MO: Besides the death penalty, are there to the Supreme Court of the United States, other examples? in four of them the Circuit reversed me, and then the Supreme Court reversed OP: Oh, sure there are. In civil rights them and reinstated my decision. In one cases, the Ninth Circuit varies very widely of them I must have made a mistake, in their interpretation of the civil rights the Circuit agreed with me, and then the statutes, both with respect to race, with Supreme Court agreed with them, which respect to sex—male versus female— doesn’t happen very often. employment discrimination cases. You But the Supreme Court has find some judges on the Ninth Circuit who chastised the Ninth Circuit. A year ago don’t seem to care much what the facts are, when the Ninth Circuit conference was they’re all for the employee. Others may held here in Portland, one of the Ninth favor the employer more. Those things Circuit appeals judges asked Justice shouldn’t happen. O’Connor how the Ninth Circuit judges Fortunately, the majority of judges could improve their record with the on the Ninth Circuit aren’t in that role. But Supreme Court. Her answer wasn’t what human feelings, and what the law ought he really expected. She said, “Why don’t to be, do come into play. I think we’ve you pay more attention to the district seen, probably because the combination judges?” which brought a big laugh and of people are much more independent applause from the district judges. these days—you know, we’re all a little But in fairness to them, also, I think more independent—we’re a little more the old saying about the Ninth Circuit determined to have our own way, and judges being the mortal enemies of the I think those things are bound to have a trial judges is true. We don’t like it when little effect on judges. they reverse us. Sometimes they do it right, sometimes we don’t think they do MO: Is the Ninth Circuit a particularly it right. So there’s a natural competition, extreme example of this? which is probably as it should be. They’re not supposed to be our “yes” people, OP: Oh, I think so. I think generally either. throughout the United States in the judiciary, the Ninth Circuit is not respected MO: Have you had many situations for its decisions. The Supreme Court has where you have a particular case in front

204 Panner, Tape Sixteen, Side Two of you and you can see the circumstances There are times when we cannot, no and see the people involved, and you feel matter how hard we try, even with the that the law has resulted in an outcome excellent clerks we have, figure out how that really isn’t right in this situation, even the law applies to a certain situation. though it is the law? How do you handle If that’s the case, if we’ve done our very that? best, then I think we have a right to apply justice to the case. But if the law is one OP: Those things do happen. Sometimes way and it appears to be unjust, we have you see that injustices are being done to wait for the legislature or the people, by because of the application of the law. There referendum or otherwise, to correct it. If we is no system of laws that works perfectly start correcting it ourselves individually, in every case, but it is extremely important you know, there’s quite a diversity among that the courts follow the law, even though 500 federal judges in the United States, it does an injustice in an individual case, if plus all the state judges we have. it is the law, so that society can continue to No, the system must function on function. If individual judges themselves the basis of judges following the law as decide what the law should be and what’s given by the legislatures, the Congress, justice, then you have a whole bunch of the Supreme Court of the United States, individuals with all kinds of different state supreme courts in state cases. ideas, and there is no orderliness in the law. So the fact is that even though the law [End of Tape Sixteen, Side Two] does an occasional injustice, if that is the law, you have to let it happen. MO: The idea of cases being tried before Now, it’s not always quite that a jury of peers almost implies that this clear cut. Judge Solomon had a wonderful jury can weigh the law versus the facts of saying. He was a great judge of this court, the case and come up with a decision that and one of the things that he told me because they are peers will reflect justice. when I came on the court: “Owen,” he said, “You study the law just as hard as OP: That’s exactly right. Juries are you can. You try to decide the case in entitled to do justice. They’re instructed accordance with the law. If you’ve studied by the Court to follow the law as the Court the law just as hard as you can, and you gives it to them, but their deliberations are can’t conclude what’s right under the law, secret, and unless it’s a clear case of their then you come down on the side of God. not following the law, in a civil case we And if the Circuit then reverses you, you’ll can so decide. In a criminal case, if they know where they stand.” find a defendant not guilty, even though I think that’s a good description. the law is pretty clear that he’s guilty,

Panner, Tape Sixteen, Side Two 205 we can’t do anything about it. As a trial panel gets off the track, the whole court lawyer, I remember two or three particular is supposed to take a look at it and see if cases where the foreman of the jury, or they want to consider it, and the whole some member of the jury, could come to court then hears the case again. That can’t me after they found a criminal defendant be done with twenty-eight judges, so they not guilty that I was defending, and said, have what they call a limited en banc. They “Well, sometimes the law is just a little too have eleven judges do it, and the shake severe.” depends on what eleven judges happen I remember one time they shook to wind up on that panel. It is not a true the defendant’s hand and said, “Let that en banc panel. Every other circuit in the be a lesson to you, young man, don’t ever United States, when they have an en banc do that again.” panel, they have all of the judges sit on it. Juries have a lot more leeway because they are a big group of people, MO: Another way in which there would and if they arrive at a just verdict, we don’t be more discretion for both judges and often set it aside. juries is in the sentencing of a particular case, but now some of that leeway has MO: So they have more discretion than been taken away by some of the recent a judge does? laws for mandatory sentencing in certain cases. How do you feel about those laws OP: Yes, they do. and that approach?

MO: One follow-up question on the Ninth Circuit. You mentioned that there’s Sentencing Guidelines not the same degree of collegiality there, and there is this diversity in terms of how they OP: I think it’s a pretty general feeling handle things. Why do you think that is? among ninety-nine percent of the federal judges in the United States that OP: Size. I think it’s just the size, it’s the sentencing guidelines are terribly just too big. The panels are too far apart. unreasonable. They take away the We’ve got Ninth Circuit judges spread discretion of a trial judge who’s heard the from Arizona to Hawaii to Alaska. They’re case and knows the details to have a little flying constantly. They’re on the road a leeway in the sentencing. week to two weeks a month. They really The mandatory minimums are have a very hard time. extremely harsh. Congress in its political In the appellate system in the wisdom says, “We’re going to clean up federal court, there’s supposed to be what the drug dealer, and anybody that has a they call an en banc hearing. If a three-judge certain amount of drugs is going to spend

206 Panner, Tape Seventeen, Side One thirty years in the federal penitentiary.” You know, the average citizen on Well, you get some Hispanic mule who the street thinks that the way to stamp was offered $200 to take a suitcase from out crime is create more criminal offenses here to there, and it happens to be that and put people in jail for a longer period quantity that results in a 20- or 30-year of time. I don’t think any student of the sentence. It’s crazy. penal system believes that’s true. I think We’re very much opposed to it. it’s fair to say that federal judges believe It isn’t going to change, though. We’re that people who are dangerous ought stuck with it. Nobody who wants to retain to be kept in prison indefinitely and not their seat in Congress is going to vote on released, if they’re dangerous. But people anything that indicates they’re soft on who got caught on a one-shot deal, who crime, or they won’t be in office after the have the potential for rehabilitation, who next election. So they just keep passing aren’t dangerous, ought to be given an laws saying, “We’re going to stamp this appropriate sentence and an opportunity out, we’re going to do this, we’re going on probation to get their life straightened to do that, we’re going to make a new around. We’re filling up the penitentiary federal crime.” Everything’s got to be with people that could be out producing a federal crime. “We’re going to add to and working. these penalties. They can’t get away with Anyway, that’s a soapbox that most this anymore.” So we’re filling up the federal judges are on, but it doesn’t do any penitentiary, in many cases, with people good. Even though members of Congress that don’t belong there very long. Maybe agree with us, they won’t do anything the mule deserves a year or two-year about it. They can’t. It’s too politically sentence, enough to learn not to pick up risky. a suitcase because somebody offers him $200 for it. MO: We must be approaching the three I don’t know a single trial judge who o’clock hour. isn’t opposed to the sentencing guidelines and mandatory minimum sentences. OP: Yes. I have a three o’clock sentencing. MO: There may be some sign of possible future relief in that people are getting [End of Tape Seventeen, Side tired of paying the costs of building extra One, Side Two Blank] prison space. MO: Judge, I thought we’d pick up OP: Well, I don’t know. They can get where we left off last week, and the first awful crowded before they do anything thing on the list here is the O.J. Simpson about it. trial,11 which I realize you didn’t have

Panner, Tape Seventeen, Side One 207 anything directly to do with, but probably, a departure from the norm. What do you like all of us, observed it from afar. As I think about the presence of TV cameras? indicated in my letter, I thought it might give us an entree into some general topics. OP: I think it’s terrible. I think it’s very So why don’t I start off by asking inappropriate. It causes the witnesses, and you what you thought of the Simpson the lawyers, and even the judge, perhaps, trial and what observations did you have to become television actors. Fortunately regarding that trial? in the federal courts we don’t have them. Television cameras aren’t allowed in the federal courts., we’ve been able to fight that off. It hasn’t been easy, there’s constant Media Coverage of Trials pressure by the media to let cameras into our courtroom. We do not let them in, either still or video. OP: Well, I think my feelings about When you do let them in, it it were similar to those of other judges takes away from the solemnity and the that I’ve talked to. We felt that the trial professionalism in the trial and doesn’t judge that tried that case didn’t have result in the kind of justice that should the experience that he needed to have happen in a trial. for such a high profile case with such flamboyant lawyers. The result was that MO: Were cameras, to your knowledge, the trial really got away from him. I think typically allowed in Los Angeles we could predict that if that trial had been courtrooms? held here in Oregon, especially in federal court, it wouldn’t have taken more than OP: Yes, I think so. I don’t think it two or three weeks to try, rather than the was any surprise down there that they extensive time that it took. showed up. The Simpson trial certainly The judge was, as I said, not demonstrated how bad a problem it could experienced in trials of that nature. He did be when you actually display a whole trial not come down on the lawyers and make on television. Actually that’s not as bad as them act professionally, as he should have, if you have the television cameras come and it took too long. in and highlight the things they think are interesting and crystallize public opinion MO: One of the aspects of the trial was one way or another on sound bites and that there was intensive media coverage, shots. including television cameras in the courtroom, which certainly isn’t unique MO: Does it matter in the proceedings to the Simpson trial, but it does represent what the public thinks?

208 Panner, Tape Eighteen, Side One OP: Yes, it definitely does. Unless you for days, taking up testimony of witnesses sequester a jury, keep them locked up, as to decide whether or not it would be given they did in the Simpson trial, you can’t to the jury. All of those things are terribly help but have them exposed to comments destructive of the time of jurors. from their family and friends. If you sequester a jury for long MO: The other issue that intensive media periods of time, you get into the kind of coverage brings up is that trials involve problems that they did in the Simpson trial. more than just the defendant and the judge Jurors begin to have trouble when they’re and the attorneys, but also involve all the away from their family and friends— witnesses, and sometimes the witnesses and the media and everything—for long are implicated in ways that are peripheral periods of time. It’s really not fair to jurors to the case. What about the rights of people to do that to them. We very seldom have that have to participate in a trial in terms to sequester juries. of—they may not be the accused, but they wind up in the courtroom, anyway, and MO: When you said that you thought then wind up having parts of their lives Judge [Lance] Ito didn’t ride herd on the exposed that they would just as soon not attorneys, and that the trial could have have out in public view? been wrapped up quicker, what sorts of things could have been done to wrap it up OP: That’s one of the difficulties that more quickly? you get into. If a witness is subpoenaed to come into court, and if the testimony OP: There are a whole series of things. they’re giving is relevant to the case, they The first is the judge has to know what the have to give it, and they run the risk of issues are in the trial before it starts through having it exposed sooner or later as a pretrial conferences, and the judge has result of that. to confine the testimony to those issues Judges, on the other hand, should and not permit them to wander off. The be very careful not to permit questions and lawyers should not be permitted to make testimony that really is collateral to the speeches and objections and arguments. issues that are involved in the trial. This We don’t have what they call sidebar is one of the tragic things that happened conferences. We don’t have distractions. in the Paula Jones case.12 The president’s We start the trials here after the first day prior sexual activities had nothing to do at eight-thirty in the morning, run straight with the Paula Jones case, and yet it was through till five o’clock, except for an allowed to go off in that direction, and hour at lunch and fifteen-minute recesses look where we are now. in the middle of the morning and the afternoon. They were constantly recessing MO: That was something I had in mind

Panner, Tape Eighteen, Side One 209 when I asked that question. It seemed rare that we close a courtroom and don’t like Monica Lewinsky13 is being called allow anybody in, but we don’t allow them repeatedly to explain things that— to bring in still cameras or video cameras. They come in and they draw sketches, and OP: In some cases you permit past they write their stories, and that’s entirely conduct to be shown under the federal appropriate. We do tell jurors not to read rules. But in a straight harassment case, the newspapers or watch the media about such as I understand from the newspapers the case until it’s over. I think generally that Paula Jones alleged, the only issue was jurors try to do that, if you don’t keep between she and the President there—did them tied up too long. he proposition her or harass her? To allow MO: One question that occurred to me that case to go into all of his past history was that all this information, replete with and perhaps her past history is wrong. It graphic detail, that we’ve seen coming was inappropriate. out about the President’s relationship with Monica Lewinsky—it seemed to me MO: This is an example of a very political that there should have been some legal case, and we had Kenneth Starr14 pressing protection for the grand jury records. for the same information, and ultimately To divulge that amount of detail, word the federal judge decided what you just for word in the newspapers, seemed too said. much.

OP: Ultimately, but way too late. OP: Ordinarily grand jury testimony is not disclosed, except under very controlled MO: Do any cases come to mind from circumstances of impeachment. But here your own experience on the federal bench you have an impeachment proceeding, where some of these issues were involved? and you have the Congress directing the We talked last week about the Tonya Special Prosecutor to investigate, and Harding case. That may have been one of he does it through a grand jury, so it’s a your cases that had the most intense media special case that wouldn’t ordinarily come scrutiny, but were there any other cases up. that come to mind where the media and/ or divulging of information that witnesses MO: So there wasn’t really grounds provided in the media became a problem? for a legal appeal to block any of this information? OP: I don’t think of any particular one, but in many, many cases that you try the OP: I don’t think so. I think the Congress media is interested because it tends to sell has to have it, and once they get it there’s newspapers and TV coverage. It’s very no way to keep it secret.

210 Panner, Tape Eighteen, Side One MO: The other point that I thought how far along the science is. How does a that the O.J. Simpson trial raised was the judge decide whether or not the scientists increasingly complex nature of evidence are correct in saying that something is a and testimony in courtrooms. In particular, certain way, since often things change? his case swung on the DNA evidence, and both sides had expert witnesses testifying OP: I think we all recognize that nothing one way and another. What kind of is absolutely absolute. Even fingerprints problems does this kind of thing cause for have a possibility of some error. With you as a judge in the courtroom? DNA evidence, there is very slim chance of a problem. The best you can do is listen OP: It is more difficult, of course. The to the expert testimony, read everything Supreme Court has outlined the basis for you can about it, and find out whether expert testimony in the scientific field, and it should be submitted to the jury, and required us, properly I think, to hold what’s then tell the jury by instructions how to known as a Daubert hearing in advance evaluate it. of a jury trial to determine whether there is any scientific basis for the testimony. MO: Do any cases come to mind where There has to be some reasonable basis, you, or the juries, were challenged by the otherwise you have experts testifying out technical level of the evidence? of thin air. We have to hold a hearing, and we have to get acquainted with it, and we OP: I have a case right now that do that by reading the experts’ opinions involves Honeywell against Foxboro, both and by hearing the lawyers argue the case. major companies in controls of pressures, It’s still a trial, and we do it. temperatures, and so forth in factories and plants, and they are involved with MO: What about yourself? I know that litigation over their patents. It’s very you’ve wrangled with some pretty tough complex, and I just received the requested cases in terms of the complexity of the instructions to the jury from the parties. detail. Do you have to study up on— The plaintiff requested ninety pages of instructions to the jury. The defendant OP: You sure do. You have to study requested 148 pages of instructions to the areas that are wonderfully interesting that jury. There are some duplicates in there, maybe you haven’t had any exposure to of course, but looking at it briefly, it looks before. You have to find out what they’re like the jury is going to be inundated with talking about. legal instructions about how to decide this case. So it’s a challenge. MO: In the case of DNA evidence, of course, it’s highly dependent on just MO: Do you think juries are actually

Panner, Tape Eighteen, Side One 211 capable of absorbing that much material? OP: I don’t really want to believe that. I doubt that that’s true. OP: I have a lot of confidence in juries. I think in almost every case juries come MO: In that case, the jury apparently up with the right answers—maybe not for didn’t find the DNA evidence credible. Do quite the same reason that some scientists you think that in the case of DNA evidence would, but they seem to sort it all out and the average man on the street can put their come out with the right answer. I think if confidence in a lab somewhere across the there was any area that juries might not country that analyzes samples and comes be as competent as an expert, it’s in the back with a result? patent field because it’s so complicated, the engineering is so complicated, especially OP: I think they’ll just have to hear with computers. every case and hear the testimony on both sides, and they’ll probably come up with MO: Getting back to the Simpson case the right answers. for a minute, I’ll probably put you on the spot with this question, but do you think the jury arrived at the right conclusion in Drug-Related Cases that case? MO: Let’s move on to another subject. OP: I didn’t hear anywhere near all of We talked a little bit last week about the case. In fact, I just saw sound bites mandatory sentencing, and you said that of it on television, so I really don’t have a lot of the laws that have been passed any way to even guess about that. I have in that regard were a response to the so- a lot of confidence in juries. I think for called war on drugs. How much of your the most part people that criticize jury own work is associated with drug-related verdicts without having been there and cases? heard every bit of the testimony don’t really have any basis for doing that and OP: I think of the cases that we try, it’s probably would have come to the same roughly half criminal and half civil cases, result if they had been there. and among the criminal cases, probably three-fourths of them are drug related MO: There was a lot of talk around some way or another. that case about the race card, and some discussion of how perhaps the Simpson MO: Have you seen a change in that case was an opportunity to redress years over the years? of injustice in the courtrooms suffered by black people. OP: Oh, absolutely. It’s gone way up.

212 Panner, Tape Eighteen, Side One MO: We talked last week about the with conspiracy to sell change follows. mandatory sentencing laws and you Depending on the quantity of drugs, that explained your objections to them, and sentence may be anywhere from five to this is part of the legislative response to thirty years, and very often we’ve seen the problem of drugs and crimes generally. situations where that person was offered Looking at the laws that have been passed $200 to take this suitcase from California in the past twenty years or so, since you’ve to a place in Oregon, and they’re caught. been on the bench, what you would say Frequently a Hispanic, not always, but about the legislative process in terms of frequently. In many cases, they don’t have trying to address the drug problem. In any past record. They’re what we call a what ways do you think it’s been effective, “mule,” a very small part of the chain, and in what ways do you think it’s not and yet they’re looking at a penalty of effective, or has caused problems? from five to thirty years depending on the quantity of the drugs. OP: There’s three separate branches, No reason to believe that person is as you know, legislative, executive—the a real threat to society, except that he was President and the officers under him— sucker enough to want $200 bad enough and the judicial branch, the third branch, to carry a suitcase of drugs for somebody. and we don’t generally get into their role. Should be punished, of course. Also We just have to carry out what they tell should be rehabilitated, or in many cases us to do. I can’t help but feel that while sent back to Mexico because he may have we have to be tough on some elements of been illegal. people that are dangerous, that we may With the mandatory sentences and have overdone it a little. the sentencing guidelines, we don’t have any option to be fair in those cases, and [Recording stops, then resumes] there are many of those. We’ve seen poor addicts arrested as they came out of the MO: Are there any cases that you’ve Multnomah County Jail for buying some tried in the drug area that might serve as cocaine to support their habit the day or an example of the problems that you face the hour after they got out of jail. It’s very with the present drug laws? hard. It’s very difficult. Frequently people get conned OP: I think one of the most serious into robbing banks because they have to problems is, and it’s hard for the have drugs to support their habit. The enforcement authorities, the Justice solutions aren’t easy, but the guidelines Department, but frequently a person and the mandatory minimums are filling is arrested carrying a suitcase full of the penitentiary with people that aren’t drugs, a large quantity, and a possession violent. Sure, they represent a threat

Panner, Tape Eighteen, Side One 213 because some way or another they’ve they get that. Usually they get somebody been involved in drug trafficking, but a little bit lower. we’re not slowing that down by putting those people in jail. They can always find MO: Why do you think that is? another person that’s willing to carry the suitcase for $200. OP: It’s just a hard business to attack. The Justice Department has a tough time, MO: You mentioned that an aspect of this and the DEA agents have a tough time. is that sometimes the person that carried the suitcase or somebody lower down the MO: And the people higher up take chain will wind up getting a more severe steps to protect themselves? sentence than someone higher up on the chain as the result of plea bargaining. OP: Sure. How does that happen? MO: Does it break out in economic OP: The Justice Department, the United factors, in terms of the ability to defend States Attorney, has the opportunity themselves? to make deals. They can say to one defendant they’ve caught, “If you’ll tell OP: I don’t think so. I think our federal us everything you know,” as they should defenders, who defend people who don’t be able to, “then we’ll let you off a little have any money, do a really good job. easier, we’ll give you some credits under the guidelines,” which they have a right to MO: Do you see any solutions to this do for cooperation. problem? The first one that squeals and tells on all the others may get off the OP: No, I don’t see any. We could lightest, and yet may be the most always, in some form or another, legalize serious offender. drugs to take the money out of it, but that’s pretty hard to sell. There have been various MO: It sounds like it’s a situation where proposals, such as having the federal the ones with the most to trade— government dispense it at an infirmary with white-uniformed nurses giving OP: The most information, yes. I’m you the shot you wanted and trying to not particularly critical of the Justice encourage you to take treatment and quit, Department. They’ve got a job to do. They but giving it away, rather than allowing want to catch as many people as they it to be sold for such big prices. Maybe can, and frequently what they’re after is then, if something like that could happen, somebody even higher, but seldom do they might be able to police the minors a

214 Panner, Tape Eighteen, Side One little bit better, as they do for alcohol and pay big money for it. You get somebody cigarettes. hooked on cocaine or heroin, they’ve got The experience of Prohibition to have it, and they’ll do whatever it takes should have taught us that we’re not going to get it. That’s one of the reasons we have to stamp out drugs. Public education so many bank robberies, house robberies, programs are wonderful. The more we store robberies. Many of those are drug- can educate young people not to use driven. People are at their wit’s end. I’ve drugs, the better. But as far as solving the never been so unfortunate as to experience problem by policing and putting people it, but it’s clear from the studies and in jail, every time we do put a big drug everything that if somebody is hooked lord in jail, we just raise the price of drugs, with a certain type of personality—some and that encourages somebody else to get people can use cocaine always and not get into it. There’s so much money in it that gone on it. It’s like alcohol. Others can’t, it’s money-driven, and people are going and once they get into it and start having to take a chance. Even college graduates, withdrawal from not having the drugs that people that are respectable, active in their they’ve been used to, they’ll do whatever communities, suddenly find they can make it takes. Whether it’s prostitution, robbing a couple hundred thousand dollars or five banks, robbing houses, they’re going to hundred thousand dollars on a quick deal. get the money to support their habit, and It’s just too tempting, and they’re going to there’s going to be somebody there to sell try it—not everybody, but some are. it to them. I don’t know what the answer is. I don’t see us going to any legalization. It MO: I assume you’ve seen quite a would be very difficult. I see there’s even a few of these people pass through your big brouhaha going on over small amounts courtroom? of marijuana here in Oregon, now. OP: Sure. MO: That’s right. So is it fair to say that you think that might be a solution, but it’s MO: But the drugs that we’re talking just politically impossible to implement it? about, most of them anyway— they have changed a little bit, but they were all OP: That’s right, it’s not possible. available back in, say, the sixties or the Maybe times will change, but I don’t see it seventies, too. Do you have any thoughts happening. as to why it’s become such a problem in recent years?

[End of Tape Eighteen, Side One] OP: No, I really don’t, except that OP: It’s market driven. People want it, society changes, and we’re living a lifestyle

Panner, Tape Eighteen, Side Two 215 now of live it up while you can, get a MO: Do you think the ballot measure good life, do everything you want to do. then is just a guise for pro-marijuana— There’s very little discipline anymore. In our advertising, it’s always the finest cars, OP: I don’t know the answer to that. It the best hamburgers, spend your money sounds like it, but I don’t know. on this and do that. Everybody’s looking for the good life, everybody wants to have the best, and unfortunately some of that Sentencing Hearings involves the use of alcohol [and] drugs. I think even worse, there’s an awful lot of MO: Last week when we concluded our it going on in the schools, and kids get interview you had to go to the courtroom addicted young in many cases. next door for a sentencing hearing, and you explained to me that that was one of MO: On the legalization issue, one thing the hardest parts of your job. If you could we are seeing now is that marijuana is tell me a little bit more about that, and being put forward as a medically useful what you meant by that. drug. We’ve seen in California, at least, passage of an initiative to legalize it for that OP: It’s really painful to see people going purpose, and a similar initiative is on the off to prison under any circumstances. ballot here and other places. There’s been I am inclined to believe that most of the a lot of conversation about this pro and people that are in front of us are there con. I’m just wondering what problems as a result of something in their genes you see associated with this split role for a or something in their environment that drug such as marijuana, where in certain brought them there. I’m personally a circumstances and in other circumstances pretty active Christian. I believe that [even it’s not? with] the most destitute terrible person, you could say, “There but for the grace OP: I don’t really know the answer of God I’d be.” If you were born with the to that, Michael. If I’m not mistaken, same genes that person had and grew up doctors can prescribe drugs now under in the same environment, that’s where certain circumstances, for addicts, under you’d be instead of being a federal judge. controlled circumstances. So I guess I So I don’t have any pride in the fact that don’t see anything too wrong if a doctor I’m a federal judge and here’s some poor prescribes marijuana for some kind of devil out there that I have to send to the a health problem. That’s one thing, but penitentiary. That’s not a happy thought I don’t think that’s what we’re after here because I realize that I might have been with this ballot measure. there, also, if I hadn’t been as lucky as I am.

216 Panner, Tape Eighteen, Side Two It’s hard. Contrary to the popular belief of help they need. But I don’t see that that they’re country clubs, they’re terrible happening, either. It’s much easier to just places. To have your life controlled and be say, “Oh, make it a federal crime, build dominated constantly by someone, very more prisons.” Now I see we’ve got some limited things that you can do. Even if you measure here that are going to guarantee get to watch television a little bit in prison, that anybody who commits a property you turn it off when the guard says so, crime is going to go to the penitentiary, as and you go do what he tells you to, and if that’s going to solve it. They don’t realize you do this and you do that, and you have that in a few years those people will be other prisoners picking on you. It’s not a back out on the street, no jobs, robbing good life. again. I hate to see people go to the Anyway, doesn’t do much good penitentiary, but there’s not any choice. to think about it because it’s not going to People should be in the penitentiary, I’m happen. not saying they shouldn’t, but I agree with Governor Kitzhaber that we’re not MO: Have you made any visits to spending enough money on education prisons? and preventative measures and spending too much on prisons. There’s no question OP: Sure. Sure. Part of the orientation of in my mind about that, and I think most federal judges is to go and visit a number federal judges would agree. of prisons. When I made my tour, I went This business of believing you’re into the prison at Pleasanton [California] going to solve this problem by building and one of the inmates there asked to see more penitentiaries and making tougher me. Turned out that when I was a trial sentences is crazy. It’s not going to happen. lawyer I represented her in this murder, The problem is that kids that don’t have Jeannace Freeman.15 I don’t know if you supportive families, that aren’t in a ever heard of her. She had another lawyer. structured environment, need to be put I represented the Jackson woman who in a structured environment—a healthy was the mother of the kid they threw over one, before they’re gone. We need some into the canyon. Jeannace, at that time, kind of a program that will take kids off had been in prison some thirty years, the streets. Kids that don’t want to go to and the warden said, “She’s been a model public schools and are causing trouble prisoner.” And I said, “Sure, I’ll see her.” in the public schools shouldn’t be there. I knew her from the trial, barely. I didn’t They’re disrupting education for others. represent her. They should be in another kind of school She had some idea that I could where they can get the structured kind get her out, which I have no influence

Panner, Tape Eighteen, Side Two 217 over at all. I wouldn’t have if I could, but “How do you do this, how do you keep I couldn’t. But I did visit with her. The it so neat?” warden said she had behaved perfectly The prisoners run the farm, ever since she’d been in prison all these the gardens. The place is immaculate. years. She probably belongs there. She and Everybody’s halfway proud of the prison the Jackson woman brutally beat up these there, , and his answer is simply: kids, killed them and threw them over You respect people. You expect them to the cliff. She was sentenced to death. Just do things. If they don’t, why, you find before her sentence was to be executed, some consequences, but when they do, Oregon abolished the death penalty you praise them, you treat them like [1964] in one of its shifting moods. I human beings. guess the way it worked, the vote was So I was very impressed with that coming up very soon, after she was to be prison. That’s at Pendleton. executed, and then-Governor Hatfield commuted her death penalty till he saw MO: It’s not the norm, though? how the vote came out. The vote came out eliminating the death penalty, so OP: No, it’s not. I think it’s more the she was spared the death penalty, and norm in the federal prisons than it is in a she’s spending the rest of her life in the lot of the state prisons, who are hard up penitentiary. for money and just can’t keep up with the They released her not too long volume of inmates they have coming in. ago, and I see she was associating with some young people and got put MO: Back to your meeting with Jeannace promptly back in. I don’t know the Freeman, what did she say to you? details of that. We go through death row. I just OP: She just said something like, “It’s went through the Eastern Oregon State been a long time since I saw you, and I just Penitentiary the other day with a visit asked the warden if I could say hello to with the warden. I was very pleased. The you.” inmates were pleasant and upbeat with And I said, “Well, I’m glad to see the warden. The warden was courteous, you, Jeannace, and I’m glad to hear from considerate. He’s trying to run that the warden that you’re doing well, and I’ll prison on the basis of respect of those say a prayer for you. God bless you.” people, even though they have to be That’s the way I feel. That’s all I can controlled and disciplined. Everything do. I mean, I wouldn’t turn her loose if I was neat and tidy. He has had visitors could, and I couldn’t. I have no authority at from all over the country to ask him, all. But I wouldn’t. I mean, somebody who

218 Panner, Tape Eighteen, Side Two does something like that deserves to be know, not even a full column, probably. locked up forever. You can’t do something like that and just forget it. Those things MO: So Jackson’s kids just got in the way are not rehabilitable. of that relationship? Her problems started long before. She started being raped by her stepfather OP: At least that’s what they thought at when she was five years old, and it went that time. on until she was thirteen. Abused and beaten and raped, so what do you expect MO: This leads us into the next question, when something like that happens? which is: It seems like you’re right on the front lines here. You’re in the MO: Some of this came out in the trial, I courtroom, you’ve visited prisons, you’ve assume? even followed up with some of the people that are in prison that you’ve had contact OP: No, it really didn’t come out too with before, this case being an example. much in the trial. It did come out in the It seems like that experience would be sentencing aspect to the jury to some useful to legislators in terms of deciding extent, but it was such a heinous crime how to draft laws and how to deal with that jurors in Jefferson County, where that this, and yet you cited earlier the very well case was tried, didn’t have any sympathy. known concept on which our government I represented the mother, her rests, which is the separation of the partner [Gertrude Jackson], and she branches. But is there any channel for this pleaded guilty. Jeannace wouldn’t plead experience? guilty, but Mrs. Jackson pleaded guilty and waived a jury trial on the sentencing. OP: Oh, we visit back and forth. I’ve We made the showing about her tragic talked to, over the years, almost all of case to the judge, and he gave her life in our senators and members of the House. prison instead of ordering her executed. They’re in a bind. The way the media is I think she probably wasn’t as aggressive now, can you imagine what would happen about the thing as Jeannace Freeman was. to a candidate or a member of Congress Jeannace was the male in the relationship who came out opposing mandatory and dominated Jackson, but it was minimum sentences or some moderation Jackson’s kids that she helped kill. So it of the prison systems? They wouldn’t be was a terrible case. around fifteen minutes. The public would Nowadays they wouldn’t think so vote them out of office just like that. It’s much about that. In those days, that was either tough on crime, or you go. And rather bizarre. Nowadays that would be tough on crime means more prisons, just another page in the newspaper, you longer prison terms.

Panner, Tape Eighteen, Side Two 219 I admire Kitzhaber, even though impossibility of having a different kind of I’m a Republican. He’s come out in the dialogue regarding crime. Do you pin the last week or so saying, “We’re spending responsibility on the media? too much on prisons and not enough on schools and young people,” and he’s OP: To a certain extent. I saw an Op- exactly right. We’ve got to do something Ed the other day by one of our Oregonian to divert this much earlier. Stop the editorial writers that was a dandy. It went Jeannace Freemans. There’s simply no along the lines of what Kitzhaber’s trying facility for teachers and juvenile judges to do. He was cautioning against this idea in the counties. There’s nothing they can of too much concentration on prisons do with these kids. There are a few little and long-term sentences and not enough minor first-aid things, but there’s no major concentration on the problem. There are a program to take kids off the street that few people in the media that feel that way. should be off the street. But if a candidate came out soft I see some other persons running on crime, the media would immediately for the state legislature are saying kids think that was a great story, wouldn’t that are disruptive in a classroom should they? In other words, the writers have to be removed. They should be. You know, get their stories published, there’s nothing my wife’s a teacher. What can she do? they would like better than to say, “Jones Kids bring guns to school, drugs. They is soft on crime,” and that would be the get suspended for two or three weeks. end of Jones. It’s the ability to get it into Or they’re fighting all the time, won’t perspective with the media, which is very abide by any discipline in the school. hard to do. People don’t always read the What can they do with them? They send Op-Eds, where there are some thoughtful them home, generally the homes aren’t ideas. I think someday it may change, capable of dealing with them. They need we may get smarter, but I don’t see it a place where they have a wholesome, happening very soon. structured environment. Taught to get up a certain time, go to school, do certain MO: As you say, there have been shifts things at certain times. But that’s too big a of public opinion over the years. bite for either the federal government or the states to take on. They think it would OP: Oh, yes. In this country we jump be too expensive, but actually it would from one theory to another awful fast. be cheaper in the long run than building prisons and sending these people off. MO: I think that you’re right about the universal stance now of politicians with MO: A minute ago you mentioned respect to getting tough on crime, but the media in connection with the there’s probably a perception out there that

220 Panner, Tape Eighteen, Side Two that’s more of a Republican stance than it one. I think he’s highly dangerous. But is a Democratic stance. We don’t need to there are an awful lot of people that aren’t limit the conversation to just Democrats [dangerous] that are in penitentiaries and and Republicans, but I’m just wondering if prisons. you think there’s any difference between, say, a conservative or a liberal approach? MO: Apart from crime, would you say that a conservative versus a liberal OP: No, on being tough on crime I don’t approach, that either type of political think there’s any difference. Everybody’s expression results in better or worse law tough on crime. “I’m going to be tough on in other areas of law? crime. Don’t let these hoodlums get away with this. These are spoiled kids, and they OP: I always liked Judge Solomon’s ought to pay the price.” comment. Gus Solomon was a great And in many ways they are. Every friend of mine. I enjoyed trying cases in so often you see somebody that comes front of him as a lawyer, and then being out of a wealthy family that’s spoiled an associate with him on the court. And and in trouble, and they should be taken he used to say, “It doesn’t matter whether care of and structured some way. I’m not a person is liberal or conservative. The saying people that commit crimes should question is whether they have good go free. They should not. People that judgment.” commit crimes ought to pay a price, but I think that’s true. Some of my the question is how to pay it and what to best friends are liberals, some of my best do with them. friends are conservatives, but they have In some cases there are no answers. good judgment. We may disagree in some I mean, look at this kid that shot up the areas, but their judgment is good, and school down at Springfield.16 That kid’s overall they don’t go to extremes. gone. There’s nothing you can do with Judge Solomon’s a great example. that kid. Somebody that’s gone that far He started out as quite a liberal, and already, even if he could be rehabilitated, became more and more conservative, by that would drive him crazy. He’d his definition, as he saw more and more of commit suicide if he ever got to thinking life as a federal judge, and he wound up in realistically like the rest of us, wouldn’t the middle of the road, where most of us he, to think he’d done something like that? do. I don’t think most federal judges, with There are some situations where rare exceptions—we talked about this, you can’t do anything. I don’t know what I think—but we generally come down they’re going to do with him. It’s pretty about the middle of the road. hard to execute a kid that age. Certainly he People have a hard time saying shouldn’t be released when he’s twenty- what I am, and I do, too. My wife says,

Panner, Tape Eighteen, Side Two 221 “You’re just a flaming liberal,” you know, must have had cases about that in your and somebody else will say, “Well, you courtroom. are very conservative,” you know, and I’m very liberal in my thoughts and OP: I have. compassion about people. I’m pretty conservative fiscally. But I don’t think in MO: Are there any in particular that extremes, and most federal judges I think would be useful examples to have that are pretty much the same way. discussion around? MO: Just as a footnote, it’s obvious that mistakes can be made in drafting laws all OP: Those cases, each one you have to the time, but we talked last week about look at as it comes. In many cases, the the Far West case, and I forgot to ask government, Forest Service, the Bureau you this question: Do you think that the of Land Management, whatever, is not savings and loan problems that led to the going through all of the hoops that Far West case in your courtroom came out Congress has laid out for them before of the deregulation of the industry? they go into a project or go into a change of patterns. In other cases they have. The OP: I don’t really think so. I think hoops are very heavy nowadays, and what caused the real problem with the probably should be. We want to protect savings and loans was the fact that we had our natural resources. booming economic times in real estate and I think to the extent that a so-called other things for a while, and the federal environmentalist believes in eliminating regulators began encouraging the savings everything that has anything to do with and loans to make more loans, and they the use of federal lands, other than walking pushed them up and up and up, and then around in there and smelling the roses, I the market collapsed. They overextended think that’s a bad approach to life. I see themselves, and the federal regulators a big middle ground developing by both allowed them to get overextended. I think environmentalists and business leaders, that’s more the problem than deregulation. many of whom are also environmentalists, coming together, realizing we need to MO: I’m at the end of the list of protect our resources, but we also need to questions I had for you today, Judge, but protect our jobs. I did indicate that it might be valuable to The idea that any company or discuss other topics we might consider in organization that manufactures or future sessions. One thing that we haven’t produces something is a bad company, talked much about yet which has been a that’s very bad because that’s what’s major trend in the last twenty years or so created the kind of wealth that we all is environmental legislation. I’m sure you enjoy and allows all of us to exercise our

222 Panner, Tape Eighteen, Side Two freedoms and our environmental views. started the ball rolling with introducing But I think things are coming together a legisla­tion to split the circuit: Senator little bit. Hatfield signing on to some of that legislation. And the Montana delegation, [End of Tape Eighteen, Side Two] the Wash­ington delegation have all indicated an interest in split­ting the circuit and supported legislation to do that. Size of the Ninth Circuit Court Last year the Congress created a commission to study it and report back, MO: We talked a little bit about the and that commission that was created has Ninth Circuit and some of the critiques just now issued a draft of their reports for that were made of the court in terms of comments. It’s not final yet, it’s a draft. inconsistency and perhaps an overall liberal bias. That’s one of two reasons that MO: What does the draft recommend? there is a proposal to split up the court, the other one being just sheer size, it has, OP: It recommends keeping the Ninth what, twenty-three— Circuit intact, but dividing it up into three divisions. The divisions would each OP: Twenty-eight, and more requested. have a smaller number of judges sitting within that division, and they would MO: — and some senior judges, too? hear cases from that division and there would always be the entire members of OP: Mm-hmm. Lots of senior judges. the circuit from that division that would be on that panel. It really would be a MO: It’s the biggest court in the country, larger panel, is what it would amount in fact? to, and there would always be at least one circuit judge from outside of that OP: Absolutely. By far. division sitting with that panel. It’s an effort to compromise. It MO: There is actually a proposal now, divides the California north and south, and it’s been a year or two in the works, and it recognizes the need to do something­ maybe even longer. Can you pick it up in drastic because the circuit is too big, but it terms of when people first started talking really is not a very good solution. It’s not as about splitting the court? good as just splitting the circuit. It creates a massive administrative nightmare. The OP: To my memory it’s been talked circuit would still be administrated as one about for ten years and so. A number of circuit, but they would have these three members of Congress from the Northwest divisions functioning­ in certain areas.

Panner, Tape Nineteen, Side One 223 I don’t think it’s a very good idea. he was very pleased with the draft report I doubt that Congress will go along with of the commission, but I’ve heard rumors it. It may give Congress the impetus to go that he really wasn’t very pleased about it, ahead and split the circuit. and I don’t know what’s going to happen now. The ball is up in the air, for sure. MO: I was reading a quote of Judge O’Scannlain recently, who said that all the MO: Goodwin, of course, came from arguments for creating these three divi­ this court originally. sions could be used to split the court, too. OP: He did, but he lives in Pasadena OP: That’s right. There’s no question now. He has a summer home up here. that something needs to be done, and in He was Chief of the Circuit, and he got our judgment—and I say “ours,” most of brainwashed by Judge [James] Browning, the judges on this district court favor a the former Chief, and others who put out split rather than dividing it. such a powerful effort to maintain the MO: Most of the judges in the Northwest, Circuit they convinced themselves it was you mean, or in the Ninth Circuit? good.

OP: All I’m speaking for now is the MO: What do you think are the main judges in this dis­trict. I’ve talked to a reasons for splitting the Circuit? number of them. I suspect that that feeling may run pretty generally throughout. OP: In the first place, there are the three- The judges who wanted it split in the first judge panels with so many judges sitting. place probably still want it split and see You have twenty-eight active judg­es, you this as an argument in favor of split­ting. have all kinds of senior judges, you have Those judges—and there are quite a few dis­trict judges helping them out, you have from the Northwest—who did not favor judges from the Court of Trade and other a split, probably will say, “Well, this is a judges from other circuits coming in, dis­ good solution.” I’m guessing at that. trict and circuit judges. There are so many judges, over a hundred in any one year, MO: Judge Goodwin has said that he’d that sit on various panels, and so many rather see the Ninth Circuit not split, is combinations that it’s impossible to get that right? any consistency in their decisions. There’s no collegiality. There really can[not] be OP: Judge Goodwin’s been a staunch because there are too many. supporter of maintaining the Circuit as it There can’t be any en banc hearings. is. I saw a report that Judge Hug [Ninth They have what they call a special en banc Circuit Judge Procter Hug] publicly stated procedure, which is an eleven-judge court

224 Panner, Tape Nineteen, Side One drawn by lot that may not even include and appealed to them on an assisted anyone that was on the original three-judge suicide case. [They] decided that assisted panel whose decision is being reviewed by suicide wasn’t legal, and then it went the so-called special en banc group. That’s before an eleven-judge en banc panel that less than half of the judges on the circuit, included eight Carter appointees, I think and so justice depends so much on the including Justice Reinhardt, maybe, and draw of what panel you get in the first they decided eight to three that there was place. Then if it goes en banc what en banc some clause in the Fourteenth Amend­ panel you get, plus they’re flooding out ment that did make assisted suicide legal. the decisions in such great numbers that So they reversed themselves. Do you dis­trict judges really can’t keep up with remember that particular case? those decisions, and it’s our responsibility to do so in our own circuit. OP: Oh, I remember reading about it. It The Supreme Court has chastised wasn’t my case, so I didn’t pay too much the Ninth Circuit over the years for its attention to it. It did affect a case that conduct in some cases, particularly the Judge [Michael] Hogan had. That case that death cases. It’s just a mess, frankly. It’s just you referred to came out of the state of a mess. Washington, but it had a big effect on the Oregon case, and ultimately that’s the way MO: You think that splitting the court this circuit finally held, the same way. would solve these problems? MO: But even if the circuit were smaller, OP: It would solve these problems I’m you could still have ideological divisions talking about. I mean, there are always on it? problems, but other circuits that have more reasonable sized courts don’t have these OP: Yes, you could, except that people kind of problems. Quite frankly, among have a better chance of knowing what the many of the circuit judges in the rest of the law of the circuit is. They have a better country the Ninth Circuit is a joke—not chance of reading the cases that their respected. fellow judges decided. If you have ten or twelve judges in a circuit, they can sit en MO: I was reading an article where the banc, all of them, and they can study each assisted suicide measure appeared before other’s cases a little bit better. And they a three-judge panel of the Ninth Circuit have a more collegial relationship because with Judges O’Scannlain and Noonan, I they’re a little bit smaller. You don’t have think, being two of the three, I forget who the wide disparity of views by virtue of the the third one was. Actually it was before numbers. You may still have a liberal judge the voters passed the most recent initiative or a con­servative judge, but you don’t have

Panner, Tape Nineteen, Side One 225 the dice throw that you have when you MO: So you know some of the people had a hundred judges. You never can tell that sat on the panel? what’s going to happen on the panel. So predictability is much easier with a smaller OP: Oh, yes. court than it is with a big court. In the Ninth Circuit, on the serious MO: Were they drawn from— cases that are argued that involve good lawyers arguing seriously, the reversals of OP: There are two of them from the the trial courts are about fifty percent. That Ninth Circuit. There’s Judge Browning, doesn’t include the throwaways, the cases who’s an excellent district judge from that are appealed, criminal cases that are Arizona, and there’s Judge [Pamela appealed with little hope and that thing, Ann] Rymer, who’s an excellent circuit but the serious cases, you can just about judge from Los Angeles. Then there’s flip a coin and decide who’s going to win Justice Byron White, a retired Supreme on an appeal in the Ninth Circuit. Court Justice, who is the chair of the committee. MO: Maybe first of all I should ask you, why do you think this panel that the Senate MO: I noticed also that the proposal, voted to establish last year came up with although it really only addressed the this kind of halfway approach? Ninth Circuit in terms of today’s situa­tion, that it tried to be a little bit more universal OP: I think they were trying to than that and put in some numbers in compromise it. They recognize that terms of the size that a court could get to administratively the Ninth Circuit has before they might split. And then some done a good job. There is no question, numbers that they might get to before considering the size of the circuit, that they would be required to split. Has there administratively they have managed it been any comment, that you’re aware of, pretty well. They’ve managed these three- from other districts around the country judge panels going in all direc­tions and about these kinds of ideas? meeting all over the West pretty well. I think the commission was trying to find OP: No, I haven’t heard anything, but a middle ground that would solve the my guess is that they’re not going to look problems and at the same time keep the very fondly on that idea. For the most Circuit intact. That’s the only thing I can part, you know, the Fifth Circuit was split estimate. I haven’t talked to any of them. when it got too big, and the other circuits Some of them are my good friends, but are doing pretty well. I don’t think they it seems apparent to me that’s what they foresee the kind of problems that this were trying to do. addresses.

226 Panner, Tape Nineteen, Side One When the commission was ordered because of my experience as a trial lawyer by statute by the Congress, it was with that’s where my best abilities are. But I did instructions to look at the entire appellate agree, and Senator Hatfield and Senator process. I think that’s an effort to drag Packwood, who was then in good graces, that in, but basically the reason for the both supported me actively and urged commission was the Ninth Circuit. So my nomination to the Ninth Circuit. I I don’t see that statute as being passed, went back for a hearing before the Justice frankly. Department, which is customary, and interviewed with a number of them in the MO: If they did decide to split the circuit, Justice Department. do you think they might adopt similar language? MO: And this would have been in—

OP: As Judge Diarmuid O’Scannlain, OP: [Edwin “Ed”] Meese was the pointed out, all of the logic is there. There’s Attorney General then. [Ronald Reagan a good split that’s a three-way split. It was the president. would work just fine. MO: And this would have been when?17

Possible Ninth Circuit Appointment OP: My feeling is it must have been along about the mid-eighties, but I’ll have MO: Maybe now would be a good time to check the dates. to talk about your own close brush with I went back, and I remember sitting on the Ninth Circuit. You were particularly the ques­tion that they kept convinced to throw your hat in the ring asking me over and over, each of the back in the eighties, during the Reagan various interviewers: how did I Administration? happen to be appointed by President Carter, to the district bench? They were OP: Yes. Some of the circuit judges obviously immediately suspicious of my asked me to do so, sensing even then a liberal tendencies, having been appointed problem they were having in the Ninth by Carter. I explained to them that I was a Circuit, and suggesting that because Republican, had been all my life, that I was I’d had a lot of trial experience I’d be appointed by Carter primarily because a good addition to the circuit. I was Senator Hatfield, a Republican who was the Chief Judge then of the District of then the Senior Senator, had asked for a Oregon. blue ribbon panel of people to give names I was reluctant to do it because I for the positions that were open for district enjoy trial work, and I really believe that judge. And that panel considered a whole

Panner, Tape Nineteen, Side One 227 lot of people and came up with seven “Well, it’s important for us to know names that they gave to Senator Hatfield these things.” and Congressman Ullman, who was then Chairman of the House Ways and Means MO: Who was your questioner? Committee, and my name was among those. Ultimate­ly I felt that Congressman OP: I’m not going to disclose that now Ullman, who was very close to Carter, because he later had another role so that being in the same party and Chairman of would be embarrassing. the House Ways and Means Committee, Then it occurred to me what had and who—Congressman Ullman was a happened. I said, “Where did you check?” client and a friend of mine—and I thought “Multnomah County, of course.” that had some­thing to do with it, though “I live in Washington County. I vote Carter appointed quite a few Republicans. in Washington County, not Multnomah They listened to that, but nothing County.” happened. Hatfield and Packwood got after “Oh.” Big, long silence on the them again: “What’s going on here, why other end of the line. Then he said, “We’ll isn’t Panner nominated to this position? check that,” and that was the end of the It’s Oregon’s turn to have a member of the conversation. Ninth Circuit.” I went back for another He did not call me back to apologize interview. The same thing happened again, because I had voted in Washington County. exactly, in the Justice Department. He didn’t call me back to say, “I’m really Not too long after that I had a call sorry, we found that you did vote.” I never from a member of the Justice Department heard any more about it. on the telephone. I had reported on the form Interestingly enough, less than a they sent out that I was a Republican and month after that Meese came to the Ninth that I voted Republican in the last election, Circuit conference meeting in Sun Valley. which seemed to be an inappropriate He made a speech to all of the Ninth question in the first place. But because Circuit Judges and the lawyer delegates Hatfield and Packwood were trying to get that were at the conference. In that speech me this job, I filled it out. He said, “We he said, when asked about appointments have checked and found out you didn’t to the federal bench, not mine particularly, vote in the last election as a Republican.” but just generally, “We are doing this on With that I became a little bit testy, the basis of quality people. We don’t even and said, “Well, number one, I’m not sure know what party they belong to.” how you find out whether I did or not, but I’m sitting there listening to this in I want to tell you that I did, and I resent disbelief. He said, “That’s not important to very much your saying I did not.” us at all.”

228 Panner, Tape Nineteen, Side One Somebody did ask him, “Why is it With that I called Senator Hatfield, that no Democrats have been appointed?” and we’ve been great friends, and said, After that Al Ullman got into it, and “What’s going on?” Hatfield got into it with the Administration He said, “We’ve got a hold on this. and Meese and went to see him. Mark went We’re not going to release it, either. This is to see Meese and learned that they had a unconscionable that they’d do this.” litmus test: they would not appoint I said, “Well, I really didn’t want anyone to a federal judge’s position who this job anyway. I am going to withdraw.” had been appointed by a Democrat. That “Oh, no, you’re not.” He said, “This just eliminated them. isn’t your fight anymore. This is my fight now. I’m into this now.” MO: How did they learn this? I said, “Well, you’re holding up a good friend of mine and of my OP: I don’t know how they learned sister’s, and you’re holding up needed it, probably from some staff member or appointments otherwise, and I think I’d something, but I got that word. better withdraw.” At that point, Hatfield being the We argued a little bit, and I Senior Senator, announced there would said, “Well, I think I’ll just call a press be no more appointments go through conference in the morning and announce the Senate to federal judge positions that I wouldn’t take the job even it was unless I was nominated. I didn’t learn offered.” that for a while, and the way I learned And he said, “Well, okay. That’s that was kind of interesting. My sister good of you to do.” called me from Oklahoma and said, Diarmuid O’Scannlain was “Brother, you’re holding up my best appointed after that, who is an excellent friend’s husband’s nomination to the judge. federal court.” So it was a very interesting ex- “What do you mean, Marianne, I perience, in any event, being interviewed don’t know anything about that.” back there and hearing their questions. “Well, as you know, the Dean of the Oklahoma Law School is a good friend of MO: Did you ever figure out the answer mine. His wife and I play bridge together to the question as to how they would learn and we’re in the same yoga club and we’re how you voted, even if they knew which great friends, and you’re holding up his county you were in? nomina­tion. He’s been nominated to be a federal district judge, and you’re holding OP: No, I didn’t. They might have even it up.” been bluffing, I don’t know.

Panner, Tape Nineteen, Side One 229 MO: Presumably there would be no way when you’re traveling that much, it takes they would know how you voted, right? away from your productivity.

OP: I suppose the Attorney General has MO: What did you think about these lots of ways of finding things out with the kinds of tactics on the part of Meese and FBI. I never did know. I know I was very the Reagan Administration? shocked by the call. OP: Politics are politics, I guess. MO: You think this policy came from Unfortunately the appointment of federal Meese? judges is heavily involved with politics.

OP: It definitely did. Meese was a good MO: You didn’t feel, as Senator Hatfield friend of Reagan’s, and I’m sure that they apparently did, that it was stepping over agreed on it. Their motives were to make the line? sure there weren’t any more liberal federal judges because that’s a rather important OP: Oh, yeah. I did. But it’s the consider­ation to a president. We’re here president’s prerogative to nominate who for life, and they like to get people in with he wants to for a federal judgeship. They their philosophy because it does have a can do what they want to. Doesn’t seem big effect on how the country is run. right to us— So that was their motive. They By and large federal judges had a whole long list of things that they throughout the country are outstanding wouldn’t nominate anybody that met people, men and women. I’ve been any of those characteristics. It was called impressed by the quality of them. It’s a a litmus test, and if you didn’t pass that long, hard process, as you’ve learned, for litmus test in all respects, you weren’t Judge [Ann] Aiken. From the time my name going to get nominated. was first mentioned in the newspapers, Personally, I was happy to be Chief it was almost three years until I was Judge of this district and a trial judge appointed, along with Judge Redden and and trying cases where I liked it. I didn’t Judge Frye. It’s a slow, tedious process, particularly want to move, and I didn’t but as the senators almost invariably say, I want to do constant traveling like these understand, they did at our hearing, “You circuit judges do now. Judge O’Scannlain people are there for life, and we don’t want and the others are on the road a week to to put you there without careful thought.” two weeks every month, and that cuts So that’s the way it is. down on their productive time, too. I mean, you can say what you want about [End of Tape Nineteen, Side One] airplanes being fast and so forth, but

230 Panner, Tape Nineteen, Side One MO: Were you even somewhat tempted it was something that understandably to— upset him, and he had a lot of power.

OP: Fight it out? MO: At that point he was probably at the peak of his power. MO: Yes, or to let Senator Hatfield fight it out? OP: And Packwood was solidly behind him, and I don’t know what would have OP: No, I wasn’t. The country needed happened if they had deadlocked. At judges ap­pointed. Anything that holds some point I’m sure Reagan might have up the appointment of judges to fill said to Hatfield, “I need a bill passed,” or vacancies is disruptive of the system. “I need this or that done.” Granted, there are times when Senators And Hatfield might have said, understandably, as Hatfield did, feel that “Well, you’re not going to get anything they need to make a point, and there may out of my committee until you straighten be a reason for it. By and large, when up your appointment process.” the Senate Judiciary Committee is not Those things aren’t good for taking up vacancies—you’ve seen what anybody. I don’t know that that would have happens, there are a lot of vacancies in happened, but I know it has happened in the federal courts, and those things are the past. So, you know, it’s one of those unfortunate. things. In the one case, Dean Alley [Wayne Edward Alley], who was Dean at the Okla­ MO: You said that this was just politics, homa Law School, a spectacular man, but last week when we talked about this great career, grew up here in Portland, as a subject, I think you used the word he was being held up along with many “corruption.” others because of my situation. Hawaii was without two judges for six years OP: That was too strong a word. In because their Senators got into it with a way it is a type of corrupting of the the president. I really didn’t particularly appointment process, but there’s definitely want to see that happen around here. nothing illegal, or corrupt in the sense that it’s illegal, in it. I mean, they can appoint MO: So you thought it might be that whomever they want to. They don’t have kind of situation, where the delay would to nominate anybody. The Consti­tution be substantial? says the president gets to appoint, and the Senate confirms, and presidents can say, OP: It could have been. Senator “I’m not going to appoint any Democrats,” Hatfield is such a marvelous man, but or “I’m not going to appoint anybody

Panner, Tape Nineteen, Side Two 231 that was appointed by a Democrat. That had a heart attack. To say something like person is very suspicious.” that to a group of knowledgeable judges. So I think “corrupt” was only used There was a ripple of laughter that went in the sense that it was corrupting the through, and somebody asked him, “If process a little bit in my view, but I’m that’s true, then why aren’t any Democrats sure not in theirs. These are good people getting appointed?” It was crazy. working hard for what they believe, you know, trying to impose their philoso­phy MO: Did you say Al Ullman got into it on the country. with Meese at the conference?

MO: What did you think about Meese in OP: Oh, no. I can’t remember who told general as the country’s top lawyer? me about the litmus test, whether it was Al or his staff, or Hatfield and his staff. Al OP: There was a lot of criticism was involved in it. of Meese over the years. He was an Wait a minute, I think I’m wrong. enthusiastic, tough prosecutor. I was I’m not sure, I think maybe at this time bitterly disappointed. I think that had to Al had already been defeated. Well, he be an outrageous lie that he told the Ninth wouldn’t have been involved, though, Circuit Conference, saying that they didn’t because he was a Democrat, so there even know the political party of the people wasn’t anything he could do. My memory that they were considering.­ That’s just so is strictly that it was Hatfield who was fallacious it’s unbelievable because I think pushing it. in all of Reagan’s term dozens and dozens of federal judges appointed, only one or MO: That’s quite a story. Anything else two Democrats, all the rest Republicans. about that incident? Iit’s outrageous on its face, and sitting there, knowing in my case they OP: No, I think that’s enough. I will get were checking to see if I really was a the dates if you want them and give them Republi­can, that was disgusting. While I to you. I can check that. don’t know if that was corrupt, it was sure a lie. I know he knew better. MO: Sure. We might as well have them to put in the file, anyway. MO: He probably should have known As I indicated, we had a short list of that his audience knew better, too. subjects today. Thank you very much.

OP: That was the thing: It was not only OP: You bet. a lie, but it was stupid. Judge Redden and I were sitting together, and we pretty near [End of tape Nineteen, Side Two]

232 Panner, Tape Nineteen, Side Two Judicial Complaints purposes of setting up that administrative remedy, so they don’t have to go to court MO: It’s been a while since we last and they can get relief and assistance. met. As I said in my letter, I’ve got some So the simple holding that I had to wrapping up questions to finish your make in the case was that she didn’t have history. I did come across that other case a right to come into court where there was that I thought was interesting where you an otherwise existing remedy, which is the sat in judgment of one of your peers on the general rule in administrative law. District Court, from the Yakama District Court, Judge Alan McDonald. I tt might MO: She hadn’t exhausted her other be an interesting case to discuss, provided options, essentially? you’re at liberty to do so. OP: No, she had not. That’s right. OP: I am. The judges have a system for resolving problems between employees of MO: Is it likely that that case will wind the court and the judge, and that system up back in court, do you think? sets up a procedure whereby employees can complain and get a judge from outside OP: I doubt it. I haven’t heard any their area to rule on it ultimately. more about it, so I just don’t know, but it’s This woman filed suit in federal certainly possible. court against Judge McDonald. She contended that he didn’t treat her fairly MO: Did you know Judge McDonald and that he abused her verbally. very well prior to this? Because it was filed in Washington [State], none of the judges up there should OP: No, not well. I’d met him. appropriately hear the case, and so the Ninth Circuit asked me if I would hear it, MO: I thought you might have even and I agreed to do so, as should be. known him back in the Bend days since One of the questions you asked he was practicing law there in Yakima. was, did I feel uncomfortable judging another judge’s case? I fortunately didn’t OP: It’s possible that I might have, but I have to get into deciding what the facts don’t recall that I ever did. were [or] who was telling the story correctly, since I determined, and I think MO: Did you by any chance happen to properly, that where there is a remedy see or hear about the article in the Seattle set up administratively for an employee Times a couple of months ago, I guess it to complain, they’re required to do that was, with an editorial that followed it, rather than go into court. That’s one of the critical of Judge McDonald? Panner, Tape Twenty, Side One 233 OP: I didn’t see that. Even though a judge is appointed for life, he or she could be taken off the MO: That was another controversy, calendar, not assigned any cases, and if I think unrelated to the one with his he or she commits a felony or other gross employee. It had something to do with breaches of ethics, they can be impeached his writing notes to attorneys in court and by the Senate of the United States. using objectionable language to describe certain people and so forth. MO: I believe there was a case like that just a few years back. OP: I didn’t hear that. OP: Yes, there was a man by the name of MO: What about the general situation Hastings in Florida who was impeached of federal judges in terms of holding them by the Senate. I guess he resigned before accountable while they’re in office? Since impeachment, and he ran for election in it’s a lifetime appointment, of course, they his state, in Florida, and he’s now in the can’t be— House of Representatives. There was another judge from OP: There’s a very substantial proce- Nevada who was impeached for an income dure in the circuits whereby, if there’s tax problem. He was actually impeached a complaint made against a judge by by the Senate. But they’ve been few and anyone, it goes to the Chief Judge of the far between. By and large, I’ve been really circuit. He evaluates it, and if there’s any proud of the ethics and the work ethic and possibility of any merit to it, he will assign the ability of federal judges throughout an investigative group and a hearing the country. will be held. A judge will be given an opportunity to explain, a hearing will be MO: I know there are not many held, and an appeal can be made to the examples. That’s partly why I thought Circuit Court Council, and ultimately to Judge McDonald might be an interesting the Chief Justice of the Supreme Court. one to talk about. That procedure is followed on a regular basis. Most of the complaints that MO: Well, I don’t think he fits in a serious are made are people that don’t like the category. I really don’t know much about judge’s decisions. That’s one that the Chief it. Judge throws out immediately. In other [Recording stops, then resumes] words, that’s not actionable. If you don’t like a judge’s decision, you can appeal MO: Just a final footnote on the McDonald it to the Appeals Court and on to the case, I read some of the complaints that Supreme Court. So that’s not a basis for Katherine Blankenship, I think her name any sanctions against a judge. was, lodged against him, and they could

234 Panner, Tape Twenty, Side One potentially be serious depending on persuaded towards either side’s view until their magnitude and whether they were you’ve heard it all and studied the law. true. I believe it included editing court And finally, to be efficient and expeditious transcripts. She claims she was asked to and diligent. All of those things come in. notarize some signatures without the I think we judges, like lawyers, have people signing the documents actually to understand that what we are doing is in her presence, and that she covered up assisting people in solving problems, and some information during a government if the courts are to have respect, as I think audit, and that there were some expense they do, we have to be objective and fair reimbursements that she claimed were not and expeditious to do it. done correctly, as well. What would you say about those kinds of claims. Would MO: I suppose that the characteristics they be a serious matter? that make a good attorney are a somewhat different list? OP: Oh, they’d be very serious. But one of the things that judges are disciplined to OP: I think that’s right. There are many, do is not to make pre-judgments about the many really good lawyers who make good accuracy of charges that are made against judges, but there are some lawyers that other people until they are proven. In this make better attorneys than they would case, because of the way that it came up, judges, and some lawyers that make better it wasn’t necessary for me to make an judges than they do attorneys. evaluation of the truth or falsity of those statements. But, as you say, if they were true they are very serious charges. Memorable Judges & Attorneys MO: I don’t know that I’ve asked you this question before, but what would you MO: I’m wondering if there are some say are the qualities of a good judge? people that stand out in your mind, in the category of either judges or attorneys, OP: I sometimes look over across the that you might like to mention just for the street. You see that sign over there in black historical record? and white? What’s that say? OP: Oh, there are lots of people. I think MO: “Are you listening?” in the judge category that Judge Solomon was a great judge. He didn’t have a OP: I guess one of the main things particularly good judicial temperament, would be to listen. Another thing is to he was a little hasty at times, a little be impartial and objective, and not to get intemperate at times, but he got justice,

Panner, Tape Twenty, Side One 235 and he taught all of us who practiced Oregon to the bench and just was a in front of him and worked with him as great judge. You learn something from a judge to be expeditious. He was very all of those people. efficient. Judge Robert Belloni. I don’t know MO: Is there anybody from that list that if we talked about him or not, but Judge you worked with, or any interpersonal Belloni is probably the most underrated stories between you and them that come judge that I’ve ever known. Judge Belloni to mind? didn’t have an effusive personality. He was very quiet and austere, and the result was OP: Well, I tried a case once as a lawyer that he didn’t have as great a reputation as in front of Judge Kilkenny. he should have. He was really a fine trial judge. MO: Yes, I think we talked about that. The Oregonian did a poll that was rather misguided a number of years OP: Did we talk about that? I tried ago, and they asked all the lawyers in a number of cases in front of Judge three counties here what they thought Solomon. I started a trial once in front of of the judges and how they would rate Judge Solomon, and I may have told you them, and Judge Belloni came out on this. It was a Miller Act case, no jury. the bottom because most of the lawyers I got up and started to make my who were involved in the voting had opening statement, and he said, “Sit never been in front of him. [They] didn’t down.” I wondered what I’d done wrong, know anything about him except that but I sat down. And he said to the other he wasn’t effusive, he was quiet and lawyer, who was Arno Denecke, who austere, and he didn’t have what you’d later became a Supreme Court justice in call an exciting personality, but he was a Oregon, “What do you say about this Mr. great judge. Denecke? Looks to me like you’d better You learn something from all of pay this money.” those people. Judge Skopil, on the other And Arno said, “Well, Judge, we hand, a wonderful, friendly, effusive think –“ person who everybody likes. “I don’t care what you think. What Judge Kilkenny. Maybe a evidence do you have? You know that Mr. combination of Judge Solomon and Panner is going to put on all these figures, Judge Skopil, an Irish judge who was a he’s given them all to you, these hours, so hardworking, good judge. Grew up on much an hour for this Cat and that Cat. a sheep ranch over in Eastern Oregon You’ve got it all there. What’s wrong with and carried that excellent judgment that?” that he acquired in rural Eastern And Arno said, “Well, we think

236 Panner, Tape Twenty, Side One these Cat rentals are too high. They MO: He mentions that you were known charged by the hour instead of by the as “Gus Junior” in this court. Were you month.” aware of that before he told you? And Judge Solomon said, “Mr. Denecke,” he said, “this was a force account OP: Oh, yeah. I’ve been called lots job. Your client could have stopped at any of things. I’ve always had a rule of time they wanted to. I’ve looked at those, having the clerk send out an anonymous those are reasonable. What else have you questionnaire to the lawyers that have got to say?” been in front of me for the last three years. And pretty soon he said to Arno, Every three years the clerk sends it out. It’s “Go call your company and tell them to anonymous, no place for a signature. It’s pay this claim. I haven’t got time to listen got twenty questions on it. The lawyers to it.” And he was right. He would have check off one to five on a scale ona listened for two or three days, and that’s number of things, one being excellent, five just the say it would have come out. being very poor and so forth, and a place That was the way Judge Solomon for comments. And when I first started, was. He’d read the depositions, he’d seen this court was way behind. When I came all the exhibits, and if Mr. Denecke had on the bench, Judge Burns asked me to had anything else to say, he would have take the chair of the counter management listened to him, but he didn’t, and he committee and do something about the wasn’t going to let him muddle around for discipline of the court, that it was in kind two or three days. of bad shape. Since Judge Skopil and You learn from those kind of Judge Burns were such nice gentlemen, things. I’m not quite as brusque as Judge things weren’t moving quite as fast as they Solomon, but I use the same technique should. sometimes: “What have you really got? So I did, and early in the game I What’s in this case? Let’s get it all out on used to get comments, “Does he think he the table.” owns this court? Who does he think he is, anyway?” But the marks on the quality MO: I had occasion to read the transcript and the impartiality and the ability, all of the oral history you did with Dale Ray. those were always pretty good. [Recording stops, then resumes] Anyway, I In recent years those have tapered happened to read this transcript of an oral off, and those comments like that are gone. history that you conducted with Dale Ray Not too long ago, I took one of the results from this court, who was a court reporter? home to my wife and said, “You know, I do this so that I’ll know when it’s time OP: Court reporter. Good one. to retire.” I was in front of a lot of senile

Panner, Tape Twenty, Side One 237 judges, and I don’t want to be that way, behave properly, we don’t stand for any and I’ll know from these questionnaires foolishness, none of the federal judges. when it’s time to retire, and it’s not time There have been some great lawyers yet. in this court, lawyers like Manley Strayer, I think early in the game there Frank Marsh, Judge Marsh’s father. Great was a lot of talk like that, but now—and lawyers. His brother, Gene Marsh. Bruce lawyers have various guides all over the Spaulding. country, and I see those, and they get Now in more modern times, Norm comments from lawyers about all the Wiener, still superb. David Markowitz. judges. In recent years all I’ve had are, There are a lot of top-notch lawyers that “You’d better be ready when you go into practice in this court and do a wonderful the courtroom. He doesn’t stand for any job. foolishness. He knows what he’s talking about. He’s fair, but don’t try him.” Those MO: What are some of the differences in are good comments. I think that’s the way style among the people in this group? a federal judge should be. OP: Unfortunately I think the style has MO: So they’ve gotten used to you it pretty well leveled out. It seems to me that sounds like? in the so-called “good old days,” in quotes, we used to have a little more color. Lawyers OP: Either that, or as I told my wife, were a little more flamboyant, some of I’ve gotten a little softer in my old age. them, some of them weren’t. They were just a lot more colorful. Nowadays most MO: Mellowed a little bit. What about of the lawyers use the same technique: the other side, who are some of the great They’re completely nice and proper and so attorneys that you’ve seen in this court? forth, don’t do much ranting and raving. One of the greatest lawyers that OP: The best attorneys in the area we’ve had came from Eastern Oregon, come into Portland federal district court, over in John Day, Oregon, Roy Kilpatrick. and they come from all over the United Roy was always thinking up bright things States here. I just finished with lawyers to do and keeping things livened up for from Seattle, Chicago. They come from the audience. everywhere, and they’re by and large Frank Pozzi, another great excellent lawyers. We have good lawyers plaintiffs’ lawyer. Lots of good lawyers. I in Oregon, and ethical lawyers. I think couldn’t begin to name all of them. one of the reasons is the state is small enough and the lawyers know that they’re MO: In the Ray transcript I noticed that going to be back before us again, so they there was a lawyer named Erskine Wood,

238 Panner, Tape Twenty, Side One who tried a case before you at a very at first I didn’t believe he was near 100, advanced age, 98 or 99 years of age? because I knew him, and I looked in the book, and he was ninety-nine years old, he OP: That was before Judge Solomon. wasn’t exaggerating. So I wrote him back Dale had undoubtedly heard the story, and said, “You’re absolutely right, you but Erskine Wood was ninety-nine when don’t have to put up with this anymore. he tried his last case in front of Judge You don’t have to pay the assessment. Solomon. Judge Solomon told me the story. We’re proud to have you a member, and It was an admiralty case, so there was no you can’t resign, you’re a member.” jury, and Judge Solomon said, “Come So he wrote me back in hand- on, gentlemen, come into chambers, and writing, and I’ll never forget it: “Dear Erskine, sit down there in that comfortable Owen, I have taken your letter home to chair, nobody needs to stand up, and I’ll show my wife in what high regard my hear this case,” and he tried it. fellow lawyers hold me.” That told me that he’d been at the MO: That’s got to be a record-breaker in office, and he went home, and by this time terms of a long career. he was 100 or right at it. Great man, and a great trial lawyer. You know, to get into OP: One thing about Erskine Wood, the American College of Trial Lawyers, and you have the history of his family a state can only have not more than one over in the Oregon Historical Society. His percent of the lawyers in the whole state father, C.E.S. Wood, was one of the great in the College. He had to be in the top one pioneers of this city, an Indian fighter, an percent of lawyers to be in the American Indian lover. Lots of history in the Oregon College of Trial Lawyers, and elected by Historical Society about C.E.S. Wood. the other members. Well, Erskine was his son, and Erskine was a member of the American MO: You were talking about color in the College of Trial Lawyers. We have a courtroom in the good old days. A footnote chapter here in Oregon, and it was my from the Dale Ray oral history—I think it duty one year to write the members a was your comment in the oral history, that letter asking for their contribution of Frank Pozzi was a good actor. $400 to our scholarship fund that we give annually. This one year Erskine wrote me OP: Oh, yeah. Frank was marvelous. back, “Dear Owen, I am almost 100 years Any good trial lawyer is part old and I don’t have to put up with this actor. You’ve got to feel the part and nonsense anymore, so strike me off the play the part. You’re not representing membership rolls.” yourself, you’re representing your Well, I wrote him back and said— client, and you have to put yourself in

Panner, Tape Twenty, Side One 239 your client’s shoes and do a good job, MO: Did you know Jerry Harris, who and Frank was superb at that. He always was identified in the Ray interview as the had wonderful vigilance about what the first black person to work for the court? jury was thinking, how they felt, what the judge was thinking. I think if I had any OP: One of the finest people I ever suggestions to make of younger lawyers knew. Just an absolutely marvelous man. I these days, and I do it regularly, is be don’t know anybody that didn’t just think careful that you don’t get caught up with the world of Jerry Harris. He developed your computer at the counsel table, or cancer, and he fought it off, fortunately, your note pad, and miss what’s happening and I hope he’s all right now. He retired in the courtroom. You wouldn’t catch to do a little fishing and traveling. Always Frank Pozzi making any notes or messing willing to help out—like everybody else around with a computer in a trial. He’d around here, too. be fascinated by the testimony, what was going on, and what reaction the jurors MO: I know you’ve told me some pretty were having to it. good stories, spanning your whole career, but I was wondering if you have any MO: What about some of the other examples of humor in the courtroom. people here at the court, apart from the attorneys and the judges? We’ve talked OP: There’s not enough humor that already about Magistrate judges, but I’m goes on in federal court. It’s a little bad wondering about how the other folks, the for judges to be humorous. I think we law clerks and everybody else, support instinctively know that. When you get a the work that you do. judge that tries to be too humorous or be too active and call attention to himself or OP: We’re very fortunate in the federal herself, that’s not too good. court to have the very best people. We For the most part we don’t do get the best people from the state clerk’s that. Judge Ashmanskas is a wonderful offices. We get the number one students exception to that. He has the ability to be out of law school for our law clerks. They humorous and not be obtrusive or disrupt want to come here because it’s such a good the proceedings, but most of us are pretty experience and it’s good for them to learn careful about that. It’s serious business in trial practice. It’s good to have it on their federal court, and the lawyers for the most vitae that they served a year or two as a part don’t demonstrate that. [In] state federal court clerk. Law firms are anxious court I saw a lot more of that, a lot more to hire those kind of people. color. I remember an incident when I was [End of Tape Twenty, Side One] trying a case with Roy Kilpatrick over in

240 Panner, Tape Twenty, Side Two the Wheeler County Courthouse in Fossil, Judge Frye had an interesting Oregon. Have you ever been to Fossil? experience. A criminal defendant didn’t like one of her rulings, and so he dropped MO: No, I haven’t. his pants and turned around and mooned her while she was on the bench. So we OP: Fossil’s quite a town, and the have a little color. Wheeler County Courthouse is a big three-story frame structure, wood. It was MO: Moving on to a somewhat more built in the late 1800s, and it had one pot- serious subject, we did talk a while back bellied stove, and it had one light fixture about the politicization of appointments hanging from the ceiling in the circuit to the bench, and in fact you told me that courtroom. We had a jury, and the court very interesting story about your own reporter had his machine plugged into the potential appointment to the Ninth Circuit socket hanging from the ceiling, and we during the Reagan years. But we have an had plug-ins for lights on the exhibits and example nowadays of, it seems to me, a lot all kinds of things. of politics in federal court, too, with respect And at one point our expert to all of the controversy surrounding the engineer was being cross-examined by Clinton administration. Is this an example the state’s lawyer, Leonard Lindas, who of the politicization of the judiciary, and was the chief counsel for the Highway do you think it’s becoming increasingly Department then. Leonard was a great so, or has this always gone on? cross-examiner, and he had this guy all mixed up, and he was confusing him badly OP: It’s always gone on. It’s probably and hurting our case. So Roy walked up more pronounced now because of the and said, “Here, let me adjust this light,” media. The media gets into these things and for some reason the whole thing came more now than in the earlier years. The down. media blows things up a lot. But it’s always And Judge Howell was presiding, been a slow, tough process, as it probably and he said, “We’ll take a recess. Mr. should be. Kilpatrick. Come in my chambers. You The Senate, which has to confirm did that on purpose.” federal appointees, recognizes that they’re And Roy said, “Who, me, Your appointing judges for life, and they’re Honor? I wouldn’t do a thing like that.” going to have a strong influence over But after about an hour they had it what happens for many years. So they’re all fixed, and by then our engineer was all naturally very cautious about it. The rehabilitated and— conservatives don’t like to see a liberal But we don’t have things like that appointed and vice versa. going on in federal court. For the most part, with few

Panner, Tape Twenty, Side Two 241 exceptions, the Presidents have not gone promptly and very quickly because both to extremes one way or another. When of them are superb people, no controversy they do go to extremes, they get into about either of them, neither one of them trouble. Some of Clinton’s attempts have “ultras” in either direction. been pretty extreme, and by the same Those kind move all right. It’s when token, that causes the more conservative you get nominees that are extreme one members of the Senate to say, “No, way or another that you get into trouble. we’re not going to go along with that.” It’s worked the other way, also. When MO: You mentioned that you thought you have a Republican President and a the Clinton administration had made Democratic Congress, why, it’s just the some extreme appointments. Which same in reverse. examples are you thinking of?

MO: Your own case seemed a little OP: I don’t want to mention any extreme, too. particular names. You’ve seen some of the controversy, and that’s what happens. OP: It was, but that’s to be expected. There was one nomination of a Judge Aiken was feeling bad because judge who was the son of an existing Ninth hers took three years. Judge Redden Circuit Court of Appeals judge. The Ninth and I reminded her that from the time Circuit Court of Appeals judge was Betty it started until it finished, that’s how Fletcher. She had a wonderful reputation long it took. It’s just not a fast process, as a scholar, but quite liberal, and liberal ordinarily. There are some exceptions. philosophies, and her son was a professor You get a Senate from the same party [William A. Fletcher taught at the Boalt as the President, and you get a non- School of Law]. All I know is what I read controversial person nominated, usually in the paper, but if I remember, the Senate with the consent initially of the Senate, it Judiciary Committee said they weren’t can go very fast. going to approve him until she resigned, For example, II can’t remember they weren’t going to have two liberals if it was Bush, but it was a Republican on the court. They compromised by her President that appointed Judge Marsh. taking senior status. She’s a very capable Judge Leavy was on the court already, and judge, good friend of mine. She is quite Senator Hatfield and Senator Packwood, liberal and very proud of it. And he came who was in good graces in those days, on finally, but that took several years, too, agreed with the President on the switch. to do. In other words, Leavy would go to the Court of Appeals, and Marsh would take MO: The other thing that I was Leavy’s place. That went through very thinking about with this question, too,

242 Panner, Tape Twenty, Side Two was that it seems like during the Clinton what you think are the strengths and the administration, especially in these recent weaknesses of the federal judiciary today? Monica Lewinsky years, that real political battles are being fought in the court, and OP: Sure. I’m very proud of the federal that to some extent the outcome seems judiciary. I think while there are criticisms, to be determined by who appointed of course, the fact is that the federal which judge. I’m just wondering if that is judiciary has done a wonderful job over anything unusual? the years ever since it started. It’s been a balance. It’s been a leveling influence. OP: No, I don’t think it’s unusual. The Supreme Court right now is quite Most of those battles, ultra-liberal versus balanced. You’re getting all the arguments ultra-conservative, or liberal versus on one side and on the other. Many, many conservative, most of those don’t have decisions five to four or six to three, you much to do with us trial judges. They’re know, which shows those things are being more involved with the appeals judges thought out very carefully. and the Supreme Court. For the most part I think maybe I mentioned that I our duty is to follow the law, whatever it was on the budget committee to present is, and we don’t exercise a lot of political the budget for the federal judiciary to the influence at the trial bench. Congress, and when I would go back to There have been some exceptions testify on the budget before the Congress. to that. Every so often you’ll get a judge Invariably members of both the House who conscientiously is more of an and the Senate committees would have environmentalist than a judge who’s more some criticism of some isolated case a non-environmentalist, whatever those they’d picked up that they thought was terms mean. But it’s pretty rare at the trial bad and they didn’t see any way the level. federal judiciary was not being properly managed. And while we couldn’t do it, MO: What do you think about this most it was always a great temptation, and I recent announcement that the special used to think that if the Congress would prosecutor might seek to prosecute Bill just run their business as efficiently as the Clinton once he leaves office? federal judiciary does its business, we’d all be a lot better off. OP: That’s way beyond my jurisdiction. I think between the three branches I don’t have anything to add to that. now there’s no question that the public has a lot more confidence, and justifiably, MO: The next question is a wwide-open in the federal judiciary than they do in the one, but I wonder if you can comment on executive branch or the legislative branch.

Panner, Tape Twenty, Side Two 243 I mean that’s my opinion, and I think it telephone lines and separate cables. would be borne out. It has been borne out AT&T said, “No, we’re not going to in some polls that have been taken. do that. We’ll sue.” They filed a lawsuit, and that came to me, and I ruled that since MO: In fact we probably have a local the Federal Communications Commission example here. It’s maybe not the public had not regulated it that the city and the per se, but we have a prominent activist for county had the right to. They shouldn’t be various causes in this town, Lloyd Marbet, allowed to require every cable company to and he’s certainly taken things through dig up all the streets in Portland and put the political process, such as some of his in new cables under the circumstances. ballot initiatives on Trojan18 and other That case is now on appeal to the matters. I know that he’s also been very Ninth Circuit. That’s an example of some active in court, and perhaps felt that the situations where the courts can resolve courts provided a better opportunity to political problems to some extent, but decide questions than to try to do it in the ultimately that’s something the Federal political arena. Communications Commission, which is the Executive. Or, the Congress is going to OP: I don’t know about that. We decide have to deal with, and they haven’t done just what’s presented to us. it. Along those lines, I had occasion to handle the case where American MO: Looking to the future, do you see Telephone & Telegraph sued the city and any possible improvements in the way the Mt. Hood Cable Commission to get the federal judiciary does business, or any their franchise in Portland. AT&T bought clouds on the horizon, pitfalls or threats to out TCI, and TCI had a cable franchise the judiciary? in Portland. AT&T had to go to the city and the Mt. Hood Cable Commission to OP: We are very rapidly becoming get permission to take over that franchise modern. We have e-mail back and forth from TCI. between the administrative office and all The city and the county said, “No, the courts in the country. We have the latest we’re not going to grant it, unless you technologies in the courtroom for showing agree to share your cables with other exhibits to juries. Three of our courtrooms cable companies,” requiring them to pay now have individual television screens for a reasonable share. The city had a plan of the jurors, so they can see the exhibits that sharing and appeals if somebody didn’t the lawyers put up instantly, and they can like it, similar to the Telecommunications even look at the testimony. As the court Act that Congress passed, where we reporter takes it down, it’s immediately don’t have everybody building separate written out, called real-time reporting.

244 Panner, Tape Twenty, Side Two We are handling witnesses and has been abusing can sue them in federal hearings by telephone. I’ve had three court. Well, that’s silly, those are things today, lawyers in Pendleton, Salem, that are state court matters. handling arguments on the telephone instead of having to travel. We have MO: With respect to the modernization television screens so that a witness can of the court that you just mentioned, appear on the screen testifying in trials with e-mail, we’re becoming more and with juries from anywhere. more dependent on computers, I think, I think the courts are moving very for our sources of information. Do you well, and I don’t see any downside. The see any problems in the validity of tendency of the Congress is to make cyber-information as opposed to paper more and more federal crimes and documents? federal civil remedies, which is tending to clog us up, and I’m hoping that they’ll OP: We’re just beginning to deal with ease off on that. Many of the functions that, whether you have to have a signature that have always been historically state on a contract or not. Right now what’s functions, Congress is getting into happening is that wherever signatures more and more. It’s a sign of the times. are required, generally people are trying It’s not just in the courts. The federal to back it up with an overnight mail government, just by virtue of its power, signature to confirm what’s on e-mail. I is dominating everything, education and suppose there will always be a question of everything, by saying, “If you want any did somebody do this, or did they agree federal money, you have to do this,” and to it, or did they sign it or approve it, or so forth. We’re getting that same thing did they expect that it would be signed happening, but I’m hoping that will ease before it was final. Those things are minor. off one of these days. They’ll all be worked out.

MO: So you think it’s going a little too MO: Do you think that an electronic far? document can be relied upon in the same way as an actual physical document? OP: Oh, it’s way too far right now. A good example is they make a federal civil OP: Well, it’s just a question of proving rights remedy for a spouse against another that it’s valid, and that proof will have to spouse for spousal abuse. Well, that’s be there, if there’s objection to it. getting us into domestic relations, and You know, about 100 times out everybody will choose to bring that federal of 100, or maybe ninety-nine and-three- remedy because they add on attorney fees fourths times out of a hundred, there’s not for it. Somebody who feels their spouse a dispute over the validity of a document.

Panner, Tape Twenty, Side Two 245 In that one case where there is, it will OP: I did. Not at the court, but after have to be proved some way that it was a I came on the bench. I met her on legitimate document. horseback. We were both riding horses on a bitter cold winter day, and I thought she was a boy, riding bareback. She was Life Outside the Court all wrapped up, as I was. It was real cold. We were both riding pretty wild horses MO: I want to conclude our interview out in the country out in the Hillsboro by asking about your life outside the area, Cornelius Pass. I said, “Hey, kid, court these last years. But before we do you want to ride together?” And this move on to that, is there any other nice young female voice comes back, and topic with respect to the court or any I looked under that stocking cap, and it comment you’d like to make about the was love at first sight. Anyway, that’s how court’s business as part of the history? we met. We’ve had a great relationship. She has a wonderful daughter, now OP: I don’t think of anything, Michael. seventeen, that I’m proud of, as well as You’ve done a comprehensive job. It’s she is. been a great experience. When I came on the bench, I MO: And you obviously ride horses? wasn’t particularly happy about it. I left Bend and a good law practice, but I’d OP: We continue to do that. She’s riding complained about court delays so long as very seriously, dressage riding. Our a trial lawyer, that if I wasn’t willing to daughter won national championships get in and try to do something about it, in the Arabian show world, and my wife I couldn’t complain anymore. I’ve been did, also. Not national championships, very happy with it. I’ve been twenty years but regional championships. She never now on the bench, a little over, and I have competed nationally, by choice. It’s quite thoroughly enjoyed it. I like lawyers. I a task to do that, but she loves horses, as I understand how hard a job it is to be a do. We’re going to have a new young foal trial lawyer. I like the system. I’m proud next month on our farm. We have six acres of the country. It’s been a great job. It’s and an indoor arena for winter work. always interesting, busy, but not boring. I try to play golf a couple times a week to stay in shape. I walk and carry MO: How about your family and my bag, have some good friends that I personal life during the years you’ve been play with. on the court? I guess you met your wife We have a simple life. We don’t here at the court, is that right? socialize a lot. We clean our own stalls

246 Panner, Tape Twenty, Side Two and take care of our own horses, for the MO: I know that you’ve been on the most part, and take care of our little six board at the Oregon Historical Society, acres. I’ve got a little Ford tractor, twenty- the president just a couple of years ago. I horse tractor that helps me take care of guess that would indicate that you have the place. And that’s about it. some interest in history?

MO: Do you grow anything out there? OP: I do. I’ve been active in the Oregon Historical Society since even before I OP: Just grass, pasture for the horses. came to Portland, from Bend. Same with We buy some hay. Lewis & Clark, I’ve been on their Board I have a wonderful son and two of Trustees for a lot of years, and on the wonderful daughters from a former Board of Visitors at the law school. marriage. My wife and I were divorced. She’s a very fine woman. She’s still here in [End of Tape Twenty, Side Two] Portland and doing well. My son is an M.D., and my two OP: They have a series of hearings daughters raise sheep and cattle. and appeals, intermediate and then final appeals to the ultimate appeals court in MO: Are they living here in Oregon? the church. I’ve served on that court for the church, and I’ve been active. OP: Yes, in Oregon. One is over in Umatilla County, and one is down south MO: Is that at the national level? of Roseburg in Josephine County. OP: Yes. I’ve also been active in the local MO: Any other things you do for government of the church, not so much enjoyment besides golf and horseback here in Portland, but in Bend. riding? MO: Any other board memberships or OP: No, I like to study and visit with civic involvements? lawyers. I give a lot of CLEs [Continuing Legal Education]. I talk to lawyers a lot OP: I served on the Board of Governors about the law and the practice in federal of the Oregon State Bar, and I’m on the court. We’re active in the Federal Bar board of the High Desert Museum, and the Association, trying to help them stimulate board of the Museum at Warm Springs, more understanding and study about things like that, so it’s an active life. how to be good lawyers in federal court, Oregon State Bar, things of that nature. MO: It sounds pretty active. I want to

Panner, Tape Twenty, Side Two 247 thank you for all the time you’ve put into MO: It was an investment that in the end this, and it’s just been a great history. worked out for the state.

OP: It’s been great for me to visit with OP: Yes. you, Michael. As you can tell, I enjoy talking about it. Thank you. MO: But they didn’t get the industrial part going.

[End Tape Twenty-one, Side One] OP: No, that’s right.

OP: Frank was the chair of that group. Bill Swindell, Sr. was on the group. Glenn Origins of Mt. Bacheolorr Ski Area Jackson from Medford. Ira Kraft. Some wonderful contributors to Oregon. I was MO: [pause] Actually, back when we very fortunate to be associated with them. were talking about your early golfing, I had another note here that you ski. MO: What issues did that committee deal with at that time? OP: I started skiing after I came to Portland. I represented Mt. Bachelor when OP: We were attempting to bring more it started, I was their lawyer. Bill Healy, who industry into Oregon, basically. Made a was really the founder of Mt. Bachelor, used trip to New York, and visited with the to say, “Why don’t you ski?” New York financiers under [Senator Mark’ And I always said, “I don’t have any Hatfield’s guidance. Probably the most time for skiing. I’m too busy with your legal controversial thing we did was talk Boeing affairs.” into coming in and buying the Boardman So I never really skied. A few times Tract on the theory that they were going in Bend, but very minor. When I came to put some installations there, which they down here I got to skiing a little bit more never did. at Mt. Hood and over at Mt. Bachelor. I still have one share of Mt. Bachelor stocks, so MO: I was wondering if you were I followed with interest the efforts to get involved with that. control of Mt. Bachelor by Pape and the Utah Corporation. OP: It did turn out to be a good tract of land for something someday. I notice now MO Did anybody approach you to buy they’re growing trees, and lots of farmland your share? there.

248 Panner, Tape Twenty-One, Side One OP: Yes, they did, but I had just decided We were friends from the time I went mine wasn’t significant enough and I’d to Bend. Brilliant man. A great talent. wait and see what happened. He was the founder of it. He started the skiing in Bend at Tumalo Creek, the old MO: Did you get approached by both Skyliner’s rope tow, and then moved up groups? to where Bachelor is now.

OP: By both groups, yes. MO: Looking back on your life and career, you’ve certainly accomplished a MO: [laughs] lot. If you could tell me a little bit about what your career has meant to you OP: And I said, “Well, I think I better personally, and what some of the things stay neutral. I don’t want to get into this.” are that maybe you’re the most proud of. If you have any regrets, the things that you MO: Are you still skiing? maybe would have liked to have done, if you hadn’t done what you did. [laughs] OP: I ski a little bit, not as much as I used to. I play golf more. My wife used OP: I don’t have any regrets. I’ve been to ski, we skied a lot together. She doesn’t very fortunate, very, very fortunate. When ski much anymore. She’s busy horseback I came to Oregon in 1949, I really didn’t riding. I’m playing golf and working with know anybody here. I had a law degree, the horses a little bit. and by having played golf competitively, when I went to Bend, I was able to join MO: You skied the local mountains, but that country club. I think the dues were not Mt. Bachelor, or did you? four dollars a month or something. It cost a hundred dollars to join, and a hundred OP: We always tried to ski a time or dollars was big. I think I had to borrow it two at Mt. Bachelor each year. Beautiful to join. But, I made a lot of friends through resort, great place. golf, both there and then I played in a few tournaments after I came here and met MO: Yes, it is a nice mountain. If you people around the state. represented Bachelor, then you must I think I might have said—I sold have seen the whole complex develop cars for a while. I was really very fortunate. over the years. How well did you know I got acquainted with a lot of people. I Bill Healy? always practiced law like a lot of lawyers do, my real goal was to help people solve OP: He was one of my best friends. problems. I don’t think any of my law firm

Panner, Tape Twenty-One, Side Two 249 members or myself ever turned down when I took one home not too long ago, somebody who had a good cause because “I must be doing something wrong. The they didn’t have the money. I make that reports are entirely too favorable.” [MO speech to young lawyers these days—if laughs] you try to help people, you’ll have a good “I must be getting soft in my old career. I’ve been very fortunate. age.” I think that the thing I’m proudest The world has been very kind to of, on the court, is that when I came on the me, the Lord has. The people that I have court, my goal was to try to speed things met, Bill Healy, for example. Wilfred up and make them a little less expensive. Josey, the owner of Trans-Western Express In fact, when I first got word that I could who I represented for years. Mark have the job I wasn’t really going to Hatfield. Gerry Frank, people that have probably take it. My wife said, “Well, been wonderful role models. To have the you’ve complained all your life about the chance to serve with wonderful men like slowness of the courts and the delay, and Judge Belloni, Bob Belloni, it’s just been if you don’t take this job and try to do a great privilege. Gus Solomon, Judge something about it, I don’t want to hear Solomon, a wonderful, wonderful man. you complain anymore.” My present associates on the court, all just I thought, well that’s pretty good such fine men and women. I am very, very advice. So my role on the courts has been fortunate. I don’t have any regrets. I am to try to simplify things as best I can. To very pleased with where I’ve been. speed things up, because time is expense, I worry a little bit about not staying delay is expense. People need to have their too long. At my age you have to be a little problems solved quickly. I think I have a cautious. I was a lawyer in front of some reputation for that. That’s probably the senile judges who stayed too long, and I thing I’m most proud of. don’t want to do that. As a result I have the clerk’s office send out an anonymous MO: When you say that you think there’s questionnaire to every lawyer that’s been a danger you might stay too long, I guess in front of me the last three years. Every that means that you aren’t in any hurry to three years we send it out. It’s anonymous, quit. got twenty questions on it. They don’t sign it, they sent it back to the clerk’s OP: No, I’m not, as long as I can help my office so I can’t possibly know who did it. fellow judges. If I were to quit, it would And the clerk makes a composite of those increase their load, and so, as long as I responses. And from that I will know can help them, and help other districts. I when it’s time to quit. In fact, they’ve spent two weeks in San Diego, working gotten better all the time. I said to my wife from eight to five-thirty or six, five days a

250 Panner, Tape Twenty-One, Side Two week, trying criminal cases, to help them Mandatory Sentences out. I take a heavy load from Arizona, of cases that are assigned to me that I handle MO: Owen, it’s good to see you again. mostly by mail, telephone. Each year I take fifteen, twenty, twenty-five cases for them, OP: Thank you. and wind up trying maybe one or two or three each year, that’s all. And those in a MO: I thought we would talk for about fairly short time. an hour today about a couple of subjects I tell them, “I’ll take the cases that that might bring your earlier oral history are the most troublesome to you, the up to date, starting with the specific topic oldest ones, the ones that nobody wants of your strong stand a little over a year ago to do.” I enjoy doing that and helping out. against mandatory sentences. From some Judge Belloni and I saw four thousand of the coverage I read, you were trying to asbestos cases for the District of Hawaii, get the federal judiciary’s attention on this when they only had one judge and they issue. Can you tell me how that unfolded were overloaded a number of years ago. and what feedback you got once you took Those things are satisfying. that stand?

MO: I think you’ve obviously been very OP: I think it’s fair to say that most successful in your career, and it’s been federal judges do not favor mandatory quite an impressive career, and I’m really sentences. And most of them, also, are pleased that we’ve had the opportunity to fully aware that the Congress is not going document it. to change it. There’s nothing you can do about it, because it’s too bad politically for [End of Tape Twenty-one, Side them to appear to be soft on crime, so they Two, End of Interview] continue to make bad mistakes by creating mandatory sentences.

MO: Did you get any feedback from any quarter, either in the judiciary or political circles or anywhere else after you made that stand last year? OP: I had all kinds of support from other federal judges, but there’s literally no chance with the Congress. I mean, anytime you talk to any of them on that subject, they just close it off.

Panner, Videotaped Session, Side One 251 MO: [chuckles] That includes Oregon’s OP: I’m not as much as some of the Congressional delegation too, I assume? judges are. I believe that it is appropriate for the president to use every legal tool OP: All members of the House and the under the Constitution, to find out what Senate have taken that view. Offhand, I the terrorists are doing. We’ve never don’t know any members of the House been in a war like this before. This one is or Senate who would have the courage to a very bad war, and I think people who suggest eliminating mandatory sentences. talk about being so careful about the civil rights, don’t really realize the nature of the war that we are in. They should have Civil Liberties after 9/11, but they don’t.

MO: Maybe this is part of a larger topic MO: What about illegal actions on the and that is the influence that politics has part of the Executive [branch], in support on the judiciary. Obviously there is an of the War on Terrorism? influence there that’s probably been there forever. But maybe especially in recent OP: I may have to rule on that times, given our post 9/1119 revision of sometime, so I don’t want to suggest some of the laws that guaranteed civil in any way that what the president did liberties, et cetera. I’m wondering if you was illegal, because I doubt it. I certainly might comment on the role of politics in haven’t studied it that carefully, but I terms of changing the judiciary’s stance have heard various positions expressed or putting pressure on the judiciary, in the media and both sides make pretty especially in light of recent events. convincing cases.

OP: We have our role as the third MO: Have you ever, in your previous branch [of government] and they have legal career, seen changes like we’ve their role as the second branch, and those seen in the last few years in terms of the really haven’t changed much over many way we view civil rights and the need to years, and they’re not likely to change. curtail them in special circumstances? They will continue to make political speeches and do what they think the OP: History is full of them. Historically, people want, and we’re in an era where all the presidents, during wartime, people are a little angry about crime. have exercised the same type of things that President Bush has exercised. MO: Are you concerned about some Even Clinton, when we weren’t at war, of the trends as a result of the War on exercised exactly the same rights. It was Terrorism in this country? presented by Bush, as I understand it, and

252 Panner, Videotaped Session, Side One Clinton, to key members of the Congress and they’ve been approved. People talk OP: We’re sad to leave also. We’ve about being afraid that their personal loved Portland, but it’s a combination of affairs are going to be violated. There’s court needs, plus I’m eighty-one now, nothing that has been done that would and my wife is very concerned about me violate anybody’s personal rights. So I traveling the freeway between our home don’t see it as being a lot different than and Portland in all kinds of weather and what’s happened for many generations. in the dark. She thinks that it will ease the workload a little bit on me. I’m not sure about that. Moving to Medford MO: [laughs] I guess today would be an MO: Okay. [pause] Another topic we example of that. You had to encounter the were going to talk about today is that icy roads to come in to work today. you are anticipating a move to Southern Another topic, which I didn’t talk Oregon? to you about on the phone, but I was told that the District Court Historical Society OP: Yes, for a number of years we’ve was interested in pursuing this topic, and had a Magistrate only in Medford. that was the changes in the federal court’s Magistrates can only do preliminary practice in recent years, not having to do hearings in criminal cases, and they with what we talked about earlier, but rule cannot try civil cases unless both sides changes. Six-person juries versus twelve- agree, which has left Medford pretty person juries. well out of the loop. There are many prosecutions going on down there. There are over a hundred-and-some criminal Federal Court Practices cases pending, so we need an Article III judge in Medford. My wife and I OP: Actually, Michael, twelve-person are fortunate enough to believe that we juries have been the rule since I came would enjoy living in Medford, even on the court, shortly after. In the early though we’ve enjoyed living here. We 1980s, we went to six-person juries will be moving to Medford and taking up in civil cases. Five or six years ago a official duties in the Medford Courthouse change was made to allow us, instead on May 1. of having alternates to a six-person civil jury, we can now make a few extra jurors MO: We’ll be sad to see you leave available, depending on the type of case Portland. it is and how long it will take, as regular

Panner, Videotaped Session, Side One 253 jurors. Consistently, I think most of us, Do you see any drawbacks to the modern in the average cases have seven or eight ways of doing things? regular jurors and no alternates. There are no alternates in civil cases anymore OP: There’s no question it’s harder in federal court. for the lawyers. We are set to go strictly I don’t think that’s had any real email and on the Web in the clerk’s effect on anything. office. Papers will be filed by email, and responses will be given by email, MO: What about technology? Has it had so there’s some difficulties with it. We an impact on the courts since you’ve been judges, especially us older judges, are a on? little bit slow, but you may have seen as I came in that I had a lot of things on my OP: It definitely has. There’s no email screen that I was attending to and question that the ability to have telephone responding to. conferencing, video conferencing, to take witnesses testimony both during motions MO: You say it’s harder because of and during actual jury trials, from long adapting to the technology, or because of distance, has been most helpful. The not being able to see people face-to-face? computers and the ability to have the clerk’s office and our secretaries handling OP: I think it’s just a change mostly, things by email and on-line has simplified filing complaints by email. It’s a little bit things and helped greatly. hard to be sure that it’s filed right and on time. It’s a little bit hard to make sure that MO: Any examples in a case before you the other lawyers involved—sometimes where technology really helped out quite you know, we’ll have ten or twelve lawyers a bit? involved—it’s a harder to guarantee that everybody knows what’s going on. There OP: Yes, just last week I tried a case are some lawyers still who simply don’t in which two doctors were testifying use computers, and for that purpose we’ll in front of a jury from Bend by have a computer in the clerk’s office so teleconferencing, and it saved them they can bring their papers down and having to come to Portland. They were transmit them. busy, both surgeons, so they were most appreciative. The jury, I think, heard and MO: That’s surprising that in this day evaluated their testimony just the same and age there would still be lawyers who as if they’d been there. don’t use them.

MO: Obviously the efficiencies are there. OP: Not too many.

254 Panner, Videotaped Session, Side One MO: Would this tend to be more rural? mediations and more settlements, that timetable has been brought back a little OP: No, I don’t think so. I think there’s closer to filing a case, sometimes even probably just as many percentage-wise in before filing. Portland as there are anywhere else. MO: You think this is a result of the MO: Now, the Oregon Court for years rising costs of litigation and a general has used Magistrates for years in ways trend, but it wasn’t something that the that other districts didn’t, and we’ve federal judiciary tried to emphasize or talked about that before. But, there’s a bring about? change nationally afoot in that regard? OP: It’s going on in all areas, state OP: Not as fast as it should happen. courts, federal courts, everywhere. There are a few courts that are using Magistrates the same way we do, but MO: Any other examples that you can there are an awful lot of courts that still think of, of changes in practices that might use Magistrates in the old style. be worth mentioning at this point?

MO: I have a note here that there is a OP: I think we’re always working to greater use today of settlement conferences be more efficient, and here in Oregon we and summary judgments in district courts. are particularly efficient. As soon as the What do you think explains that trend, if it lawyers on all sides are known, we have is a trend? a telephone conference call, on the record, and set schedules that everybody’s in OP: Litigation is so expensive that the agreement with at the time, and we hold parties and lawyers try as best they can to those schedules. We generally start with a resolve cases, and any help they can get in trial date and work backward from there. that regard is good. We do have probably I think that’s an improvement from when more and more mediation and settlements I first came on the court. I think some of us than we did before. started doing that shortly after I came on. Though, when I came on the court, ninety-five percent of our cases in MO: Another thing I want to ask you a federal court were settling before trial. about, because I know you were involved That percentage hasn’t increased, but it at the inception, and that’s the creation of probably has occurred a little bit earlier the U.S. District Court Historical Society. in the process in order to save expense. Talk a little bit about your involvement Before, it had to get right up to trial before over the years too. I guess Oregon was the it settled. Probably with the help of more second district to create such a body.

Panner, Videotaped Session, Side One 255 District Court Historical Society about what happened in certain cases and how the law changed with those cases and OP: I think that’s right. I’ve never so forth. checked that by any official statistics, but I’ve heard that. MO: Do you know how that series began? What the impetus or original idea MO: The first meeting where this subject was there? was broached was at Judge Burns’ house. OP: I think several of us suggested that at OP: That’s correct. Judge Burns was the outset. I think the executive committee, really the instigator at the very beginning. which is very active, discussed something He was the one who started the District about it, and it started. Everybody was in Court Historical Society. favor of it.

MO: Did you attend that first meeting at MO: Was the California District doing his house? something similar, or was this something that Oregon came up with? OP: I did, and it was primarily a social meeting, with discussions generally about OP: I’m not sure that any court has the advantages of it. done anything like that. The California courts and the Ninth Circuit have done a MO: What were the advantages then? very good job of having a publication with famous cases, but I’m not aware that they OP: I think history, whether it’s the have a regular educational series like that. United States District Court in Oregon, or whether it’s general history, is most MO: Now the famous cases are used by important, because you can’t really law students in some cases and they can improve a lot unless you understand get credit in law school, for either being the history. The District Court Historical there, or viewing a video and taking Society in Oregon maintains a pretty advantage of that information. good history of investitures of judges, Magistrates, ceremonies of all kinds, OP: Yes, and lawyers can too. They can dedications of courthouses. Plus, one of get Continuing Legal Education credits by the most important things they do is three attending those. or four times a year they have a Famous Case, a series where experts who were MO: To what extent do you, or other involved or who have studied it carefully, judges, benefit from these kinds of put on a panel program for a couple hours presentations?

256 Panner, Videotaped Session, Side One OP: I think we all benefit from it. The a membership of maybe about 190 now. judges are busy enough that they don’t Who are the members, and in what way always show up at four [o’clock] in the have the members participated over the afternoon when those series are taking years? place. The more we learn about history, the better we are able to adapt to the present. OP: I think most of the members are lawyers who are interested, or actually MO: Some of these cases, I suppose, pre- practicing, in federal court. There is a date the peoples’ individual association membership given to all new admittees with the court too. to federal court, so they have a year’s free membership, and then it’s very modest OP: Oh, absolutely, they go way back. and it’s a graduated scale based on how We’ve had cases that go back into the long they’ve been practicing. 1800s. MO: I guess there’s the annual meeting MO: The recent one is an example of and dinner, where usually there’s an that, the Whitman Massacre case. I’ve interesting speaker too. We had the fellow noticed, Owen, that you are almost always from Guantanamo this year [Jan Kitchel there for those presentations. of Schwabe, Williamson and Wyatt]. Has that been part of this from the beginning? OP: I benefit from them greatly. I think they are very helpful. OP: It has been. There has always been an annual meeting and a dinner. The MO: Now, you became the chair of the annual meeting probably takes about five District Court Historical Society in ’84, minutes, because the executive committee was it? makes nominations for the various positions in the society, and new members. OP: I don’t think I ever was the chair. It’s kind of self-perpetuating, not by any I’ve been to most of the meetings, and great desire, but to keep it going, basically. have been very active helping them. We welcome anybody who wants to be They need a judge there, to help them active in it to come on board. coordinate with other judges and with the MO: I guess another component of the chief judge, and with the lawyers. I don’t District Court Historical Society’s activities know that I’ve ever had any official status, include oral histories, such as this one. In but I am at about ninety-nine percent of some cases you encourage members to the meetings to help them out. learn a little bit about oral history and go out and do some. Can you tell me about MO: I know the historical society has that program?

Panner, Videotaped Session, Side One 257 OP: Yes, that’s a program that’s been the District Court Historical Society? going on for a long time. Jim Strassmaier has helped a lot. He’s conducted some OP: You’ve covered it pretty well. sessions to train lawyers how to take oral histories. We want oral histories of MO: I would like to return to something lawyers that have been active in the court. we talked about earlier, because I didn’t We want oral histories of [Article III] ask you enough about your contemplated judges and Magistrates in the court. It’s move to Medford. First off, I imagine the a great program, and it’s a real honor and type of cases that you’ll be handling down privilege for a lawyer to be able to sit down there will be somewhat different, or is that and take the oral history of somebody the case? that he or she has always admired as an outstanding lawyer, for example. OP: I don’t think it will make a lot of We have tried to get pro- difference. There are a lot of criminal cases fessional histories of the [Article down there that need attention. There III] judges and Magistrates. So it’s a are all kinds of civil cases down there. good program and those histories are The Congress has passed so many laws kept by the Oregon Historical Society creating rights in federal court that there and indexed, so they will always be are a great number of them, of all kinds. available to people that want to read I think they happen there, just like they them or study with them. happen here. I may not have quite the heavy-weight cases, the anti-trust cases, MO: Were all of these things envisioned the intellectual property cases, that I’ve by the people that got together that first had here. time in ’83? MO: To what extent have you and your OP: Oh no, I’d say none of them wife done your planning for your move? probably. It was pretty general. Those Where are you at in that process? things have all developed over the years. OP: We have bought twenty-five acres MO: Do you remember any specifics with a house on it down there, and we’ve about that, who brought forth which ideas sold our house. So we’re ready to go. Our over the years? sale is closing February 1, the one down there March , so it’s coming together. OP: No, I don’t, Michael, I really don’t. I think we’ve all had a hand in it. MO: When will you actually hit the road? MO: [phone ringing in background] Anything else that you want to say about OP: Probably about the middle of

258 Panner, Videotaped Session, Side One March. We have a barn to build for our OP: We are. three horses, and we’ll start on that probably the first of March. MO: What’s the daily routine in terms of caring for your horses? MO: I think I’ve been out to your place during one of the District Court picnics. OP: You feed them in the morning and How does it compare with your new place turn them out on pasture usually, and in Medford? What acreage do you have? bring them in at night and feed them again, and clean the stalls after you turn OP: We have six acres here in Portland. them out in the morning. It’s pretty simple. We have twenty-five acres down there, but the twenty-five acres won’t all be in MO: Yes, it doesn’t sound too bad. You pastures. We plan to have about sixteen have horses—do you still ride? acres in pasture, just pasture, and probably a few cattle, and that’s about the story. OP: Oh yes, we love it. I haven’t ridden as much as I’d like to lately. I plan to do a little bit more. [End of Videotape Side One] MO: Maybe your larger spread down there in a more rural area will give you Caring for Land & Animals more opportunities.

MO: I assume you’ll have some help OP: Yes and we’ll be moving cattle. managing that then. We’ve got three pastures down there, separate pastures. We’ll enjoy moving OP: Nancy and I will do it ourselves, them from one pasture to another. pretty much. We’ll hire help from time to time on specific jobs, but we’ll do it MO: You do that on horseback too? ourselves. We’ll contract out the building of the barn. OP: Yes, yes. And there are good trails around where we are, to ride out. MO: But you’ll take care of the cows and the horses. MO: When did you become a horseman?

OP: Oh yes. OP: I started when I was about eleven years old. MO: I guess you’re doing that to some extent now. MO: Did you pick up experience as a

Panner, Videotaped Session, Side One 259 young man, in terms of managing cattle MO: Will you keep these very chambers, on horseback? the ones we’re sitting in now?

OP: Yes, a little bit, not a lot. Most of that OP: No, I’ll be moving to the south side came after I was a lawyer over in Central of Eleven [11th Floor]. Oregon. MO: There was one other thing that I MO: The Bend area. And you’re still at it was going to follow up on from a remark years later. you made earlier. You mentioned it in the context of your move to Medford, that you OP: A little different scale now. thought you would be pretty busy down there and that Congress continues to MO: A smaller scale. Will you be raising pass laws that give people more rights in the cattle for your own use? federal court. That’s a trend that’s maybe not recent, maybe it’s been continuous, I OP: No, no, we’ll be buying some in don’t know— the spring and selling them in the fall probably, when we’ve got good pasture OP: The last twenty years it’s been grass. steady.

MO: We’ll definitely miss you here in MO: What do you think accounts for Portland. Will you be able to participate that change, if it is a change? in the District Court Historical Society’s functions? OP: Here in the United States we’ve developed a philosophy that we’re going OP: I hope to. I’m going to keep some to have a remedy for everybody and a right chambers here, because they aren’t for everybody and we’re going to take care needed by another judge at this minute. of everybody. It’s all part of that approach. So the Chief has insisted that I keep the I’m not saying it’s wrong or right, but it’s chambers here. I’m even going to keep certainly a fact. We are determined to see a couple of law clerks here to finish up that everybody has all kinds of rights. the things I’ve got to do, and to handle We’ve been teaching rights for more than other cases here in Portland, if I run out 200 years, and we’re still teaching them of work down there, that can be handled and people are learning them, and that’s by telephone, on a trial date. I expect to be why we’re in a growth industry. to Portland once a month, maybe a couple times a month. It just depends. MO: [laughs] You mentioned that figure

260 Panner, Videotaped Session, Side Two of twenty years a minute ago. Do you OP: I think everybody involved tried think it’s accelerated in the recent past? to do the best they could under the circumstances. They felt strongly about OP: Yes, I think the last twenty years it. I thought it was handled about as have seen more and more of it all the time. efficiently as the system could handle it.

MO: Why do you think that is? MO: Did you think Congress was right?

OP: Just what I said, a desire by the OP: No, I think it’s pretty strong when second branch to take care of everybody you start legislating about an existing and to see that everybody has all kinds of case that’s going on. That’s not too good. rights. MO: Owen, you’ve been very efficient, MO: That has just been going at a faster so I’m starting to run out of questions. pace, would you say in the last twenty years, as opposed to before that? OP: That’s good, I’m glad to finish. I’ve got stacks of work here. OP: Well, the media attention to it. Every time members of Congress can MO: We’ll call it a day then, but thank introduce a bill that seems to solve you very much for taking this time. As more problems: “We’ve made a federal a last question: I can see the advantages statute out of this. We’re going to correct of moving to Medford. Do you have any this situation. We’re going to stop this misgivings about leaving Portland? domestic violence. We’re going to stop these gangs!” They’re going to do all this, OP: It’s bittersweet. We like the country it’s just very productive. and we like the people in Medford. I know a lot of them, a lot of the lawyers, so we look MO: A growth industry, as you said. forward to it. But we also will look with This conversation reminds me of one a lot of pleasantness on what’s happened other recent a political phenomena more in Portland. It’s been great! We’ll certainly than anything else, and that was last year’s have some things we’ll miss. case where all of a sudden one of the That’s just the way life is. It goes on. district courts was forced to get involved Both Nancy and I are very adventuresome. the Terri Schiavo case, and probably not I might say that we are really rednecks, based on any actual written legislation both of us. She drives a big old truck and prior to the emergency legislation that carries a rifle in the back of it. And I was was passed at the time. What did you born in Whizbang, Oklahoma, and both of think of that whole affair? us are basically rednecks! Panner, Videotaped Session, Side Two 261 MO: [chuckles] Okay, then you’ll be somewhat more in your element down there in Medford?

OP: [laughs] Yes, but we felt very comfortable [here] too. We like it all. I think one of the major factors is Nancy’s desire to ease me down a little and get me off the highways on a steady basis. Michael, it’s been a great pleasure. I’ve enjoyed working with you on the numerous interviews we’ve had. I wish you lots of good luck in the future.

MO: Good luck to you too, Owen. Thank you.

[End of Interview]

262 Panner, Videotaped Session, Side Two Endnotes

1. Joseph E. Buley worked as a land condemnation attorney for the U.S. Attorney’s office until 1980. 2. There are three Native languages of the Confederated Tribes of Warm Springs Oregon. The Kiksht (Wasco), the Numu (Paiute), and the Ichishkiin (Sahaptin). 3. According to the Oregon History Project: “In 1935, F. B. Freeland, a physician from Portland purchased the 320 acres surrounding the mineral springs for $35,000 and quickly developed a small-scale resort. In 1959, a special act of Congress was passed to allow the tribe to buy back the hot springs, and in 1961 the original 320 acres were purchased for $165,000.” www.ohs.org 4. Also spelled Menomini, and known as Mamaceqtaw, “the people” in their language. 5. United States v. Oregon, originally a combination of two cases, Sohappy v. Smith and U.S. v. Oregon (302 F. Supp. 899), legally upheld the Columbia River treaty tribes reserved fishing rights. Although the Sohappy case was closed in 1978, U.S. v. Oregon remains under the federal court’s continuing jurisdiction serving to protect the tribes treaty reserved fishing rights. Judge Robert C. Belloni ruled in 1969 that state regulatory power over Indian fishing is limited because, in 1855 treaties between the United States and the Nez Perce, Umatilla, Warm Springs and Yakama tribes, these tribes had reserved rights to fish at “all usual and accustomed” places whether on or off reservation. 6. The U.S. Congress approved the Klamath Termination Act of August 13, 1954, c. 732, § 1, 68 Stat. 718 (codified at 25 U.S.C. § 564-564w (1976)).United States Code Title 25 - Indians, Chapter 14. Miscellaneous, subchapter XIII, Klamath Tribe. From the Act: “Sec.564. Purpose. The purpose of this subchapter is to provide for the termina- tion of Federal supervision over the trust and restricted property of the Klamath Tribe of Indians consisting of the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians, and of the individual members thereof, for the disposition of federally owned property acquired or withdrawn for the administration of the affairs of said Indians, and for a termination of Federal services furnished such Indians because of their status as Indians.” 7. Public Law 280, an Act of August 15, 1953, ch. 505, 67 Stat. 588-590 (now codified as 18 U.S.C. 1162, 28 U.S.C. 1360 and other scattered sections in 18 and 28 U.S.C.). Tribes excluded from State jurisdiction by PL 280 were Confederated Tribes of the Warm Springs Reservation in Oregon and the Red Lake Band of Chippewa Indians in Minnesota.

Panner, Endnotes 263 8. Illinois v. Nathan Leopold and Richard Loeb, was the case of two intelligent, wealthy University of Chicago students who murdered 14-year-old Bobby Franks in 1924. 9. The murder occurred in 1977 and is covered in A Peculiar Piece of Paradise by Terri Jentz. 10. Far West Federal Bank, S.B. v. Director, Office of Thrift Supervision and others 738 F. Supp. 1559, 1563-64 (D. Ore. 1990), Far West Federal Bank, S.B. v. Office of Thrift Supervision and others 119 F.3d 1358, 1997 U.S. App. 11. The O. J. Simpson 1994 murder case (officially called thePeople v. Simpson) was a criminal trial held in the Los Angeles County, California, Superior Court. The case has been described as the most publicized criminal trial in American history. Simpson was acquitted after a lengthy trial that lasted over nine months—the longest jury trial in California history. 12. Paula Jones, a former Arkansas state employee, sued U.S. President Bill Clinton for sexual harassment. The lawsuit was dismissed before trial on the grounds that Jones failed to demonstrate any damages. However, while the dismissal was being appealed, Clinton entered into an out-of-court settlement by agreeing to pay Jones $850,000. 13. Monica Lewinsky was a White House intern with whom then President Bill Clinton admitted to having an improper affair in 1995 and 1996. 14. Kenneth Starr is a lawyer, a former federal Court of Appeals judge and one time Solicitor General, Starr is most well known the Independent Counsel who led a multi-year investigation into various allegations of improper conduct and activities during Bill Clinton presidency. 15. In 1961, Jeannace Freeman convinced her lover Gertrude Jackson that Jackson’s son and daughter were an impediment to their relationship. The children were thrown into Crooked River Canyon. 16. On May 20 1998 16-year-old Kipland “Kip” Kinkel killed his parents, William and Faith Kinkel, at their home. The next morning, May 21, he shot and killed Benjamin A. “Ben” Walker and Mikael E. Nickolauson at Thurston High School in Springfield. Oregon, and injured twenty-five others at the school. Kinkel is currently serving a 111- year sentence at the Oregon State Correctional Institution (OSCI) in Salem, Oregon. 17. Edwin Meese was Attorney General from 1985-88. 18. Trojan Nuclear Power Plant, sited in St. Helens, Oregon along the Columbia River, was an energy generating facility owned and operated by Portland General Electric from 1976 to 1992. 19. The September 11, 2001 attacks (also referred to as 9/11) were a set of coordinated terrorist attacks that took place on Tuesday, September 11, 2001 in three U.S. cities. Hijackers crashed two planes into Towers 1 and 2 of the World Trade Center

264 Panner, Endnotes in Manhattan, New York, and a third aircraft into the Pentagon, in Arlington County, Virginia. Following passenger resistance, a fourth plane crashed into a rural field in Somerset County, Pennsylvania.

Panner, Endnotes 265