Malcolm Marsh: an Oral History

Malcolm Marsh: An Oral History

i ii Malcolm Marsh An Oral History

FOREWORD BY JUDGE OWEN PANNER

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

PROJECT STAFF Donna Sinclair, Project Manager & Editor Clark Hansen, Interviewer Janice Dilg, Auditor & Designer Dane Bevan & Christopher Wahlgren, Editorial Assistants Barbara Jo Ivey, Transcriber

iv CONTENTS

Foreword...... vi Introduction...... viii

Tape One, January 27, 2005...... 1 Side 1—Family history; Senator Gene Marsh; Family religion & politics; Chores & work Side 2—School recollections; McMinnville; The Great Depression; World War II Tape Two, January 27, 2005...... 17 Side 1—University of Oregon Law School; Orlando Hollis; Influential law professors; Marriage; First law practice Side 2—Being a trial lawyer; Role of Christian faith; Balancing faith & law Tape Three, January 27, 2005...... 33 Side 1—District Court appointment; Judicial activism; Faith & reason in modern society Side 2—Human compassion; Professional ethics; Senior status; Judge Solomon Tape Four January 28, 2005...... 49 Side 1—Becoming a District Court Judge; Court personnel; Judicial collegiality; Magistrate judges Side 2—Clerk of the Court; The Ninth Circuit; Pretrial preparation; Difficult judicial decisions Tape Five, January 28, 2005...... 65 Side 1—Diversion of defendant; Sentencing guidelines; Federal prison system; Salmon cases; Appellate review of rulings Side 2—Rajneesh cases; Patent cases; Judicial philosophy; Capital punishment; Difficult cases; Law clerks & writing opinions; Qualities of good judges Tape Six, January 28, 2005...... 81 Side 1—Qualities of good judges; Appointing or electing judges; Federal Rule Changes; Tort reform; Speedy trials Side 2—Blank Tape Seven, May 10, 2005...... 85 Side 1—Court administration; Streamlining court processes; US A�orneys; Uniform sentencing; Immigration cases; “Baby Judge School“ Side 2—Law clerks; Thoughts on the judiciary; Americans with Disabilities Act; Judicial philosophy Tape Eight, May 10, 2005...... 101 Side 1—Victim’s rights; Sentencing; Judicial rewards; Individualism; Affiliations; Judicial collegiality; Judicial pay Side 2—Awards & honors; Mark Hatfield Courthouse; Role models; Marriage to Shari Long; Schism of faith & reason; Importance of family Endnotes...... 115

v 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

vi 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

vii INTRODUCTION

Malcolm Marsh was born in Portland, Oregon on September 24, 1928. From his mother’s side of the family, Judge Marsh traces his Oregon ancestry to the early 1850s. On her paternal side, Marsh’s Stephenson grandparents traversed the Oregon Trail in a covered wagon from Virginia to Oregon. In 1859, his maternal great-grandparents, the Roberts, sailed out of Boston Harbor bound for Ponape Island in the South Pacific. They founded a Congregational church, and in 1869 se�led in The Dalles where Marsh’s great- grandmother was born. His mother, Elizabeth Myra Stephenson, was born in the Lair Hill neighborhood of Portland, and the family moved to McMinnville, Oregon in 1935. Judge Marsh comes from an Oregonian background, a topic discussed in this oral history, but the practice of law also runs in the family. His father, Francis “Frank” Marsh, practiced law in McMinnville for more than fi�y years, prosecuting bootleggers for the U.S. A�orney’s Office during Prohibition. Frank Marsh’s identical twin brother, Gene, was also a lawyer, and served as president of the Oregon Senate. Both brothers served as presidents of the Oregon State Bar. Gene did not have children and was very close to Frank’s family. As Kelly Zusman, long-term law clerk for Judge Marsh, wrote, “Frequent visits to a rustic cabin in the Steens Mountains and other trips provided a childhood that taught Judge Marsh the intimate details of the geography of the state. Judge Marsh knows the state like most of us know our own homes.” Except for his stint in the Army in Japan in 1946-1947, Malcolm Marsh has spent his entire life in Oregon. He a�ended University of Oregon for three years as an undergraduate then transferred to the School of Law. He met Shari Long in Eugene and they married in 1953. Marsh graduated from law school in 1954, and Shari and Malcolm soon began a family. First came a son, Kevin, followed by daughters Carol and Diane. A�er law school, Marsh briefly went into practice with his father, but soon found his law partner, Ned Clark, with whom he practiced for thirty-three years. Marsh soon became an accomplished trial lawyer specializing in products liability cases and eventually a�racted corporate clients like Volkswagen, the Professional Liability Fund, and many insurance companies. In 1979, he was inducted into the American College of Trial Lawyers.

viii In 1987, when Judge Edward Leavy moved to the Ninth Circuit Court of Appeals, Ronald Reagan appointed Malcolm Marsh to the federal bench. Marsh’s recommendation came from Mark Hatfield, a friend since the 1950s. According to Zusman, Hatfield had become aware of Marsh’s “impeccable reputation in the legal community—both for his skill as an advocate and his high ethical standards. He quickly earned a reputation for his hard work and diligence in deciding cases and issuing opinions…” Judge Marsh’s judicial approach, sense of justice, and integrity, is evident in the interviews he conducted with Clark Hansen between January 27 and May 10, 2005. In these interviews, Marsh—best known for his role as the “salmon judge”—presents himself as a man deeply interested in theology, strongly commi�ed to his family, and steadfast in his dedication to upholding judicial integrity. He recalls family history, childhood in McMinnville, University of Oregon Law School in the 1950s, and practicing law in Salem. Marsh’s oral history reflects a truly Oregonian experience. His time on the federal bench is no less an Oregon tale, as he remembers Judge Gus Solomon, clerks of the court, and his law clerks. The cases he discusses are part of a larger Western story that includes salmon, Indian fishing rights, mandatory drug testing, and multiple cases involving the Rajneesh religious sect. He also discusses the ongoing issues of geographic representation on the bench, and the best method for selecting judges in the state. Judge Marsh’s history connects Oregon to the rest of the nation as he recounts the phone call from President Reagan making him a federal judge, reflects on the federal justice system and judicial activism, and discusses changes in federal practice. Marsh offers his unique perspective on the Mark O. Hatfield Courthouse in Portland, having served as the court representative during its construction. Judge Marsh took senior status in April 1998. Kelly Zusman concludes that the judge “represents the best that this country and, more particularly, the state of Oregon offers. He is, in the finest sense, a true son of the state of Oregon and makes one proud to be an Oregon lawyer.” Donna Sinclair November 27, 2006

ix x until 1918 when my grandfather and grandmother and father and uncle came to Oregon. But their sister stayed in Decorah and she lived in Decorah throughout her life. But they came out in 1918 to Oregon. Compared to my mother’s side they were Family History relative latecomers. There are still Marshes in Decorah, Iowa and I have a cousin in CH: This is an interview with Judge Chicago and a second cousin that still lives Malcolm Marsh at the US District Court- in Decorah. house in downtown Portland, Oregon. My mother’s family started with The interviewer for the Oregon Historical two branches, the Roberts and the Society is Clark Hansen. The date is January Stephensons. The Roberts, we traced back 27, 2005 and this is tape one, side one. to 1825 with the birth of Ephraim Peter I thought we might begin by going Roberts. He married Myra Farrington into your family background, Judge Marsh. and the two of them sailed from Boston How far can you trace back in your family, in 1857, as Congregational missionaries and where did they come from? How did to the Ponape Islands. It strikes me many they get here? times, at that young age they would have been leaving from Boston with the full MM: Well the task was performed by understanding that they would never see my mother and her sister some years ago. their families again and that’s really an Of course they’re both gone now. But incredible thought, the dangers of the trip. they traced back many generations into The thought has struck me what those two Revolutionary time and brought forth young people must have been realizing as both her and my father’s family. The Marsh they sailed out of Boston. family stemmed from the Fugelen in Anyway they came to The Dalles Norway, at Balders, Norway, of all places, in the 1860’s and set up a home in Dry and the Marshes of New England they Hollow, and there’s still a house there. They se�led in Decorah, Iowa, and that’s where started a ranch out of The Dalles, up on the the Marsh line got established before they hills toward the breaks into the Deschutes came to Oregon. River, where they had a big wheat ranch. And that’s where the Roberts were. CH: Do you have another understanding One of their daughters, Anna, met as to why they came to the United States this Stephenson family, which is the other in the ﬁrst place? side, my grandfather’s side, of my mother’s family, her father’s side. The Stephensons MM: No. No. Some of them had already came here in 1853 from Virginia by ox-cart. been in Maine and then the whole bunch They lost one niece out in the Nebraska came over to Iowa, and they were in Iowa somewhere, and my mother had a diary—

Marsh, Tape One, Side One 1 I’ve got it somewhere—that they kept as several other property owners there were they crossed the Plains. When this teenage not paid for their property. Measure 37 girl died, they buried her and then they would have done something considerable built a raging fire over the grave, so that it to that situation. [both laugh] was a mass of ashes. Then they drove all of So I look down on that vacant spot, the ox-carts over the fire pit the next day to which is beautiful, and I like the waterfront obliterate it, so that no Indians would dig of Portland but it came at the cost of the her up and find the body. And that’s how individuals so it’s kind of a historical note. they obliterated the grave that was out in One story that I would like to the middle of Nebraska somewhere along relate is that when the Stephenson train the Pla�e River. or part of the train was ready to leave Anyway, they se�led here at Moss St. Joe, Missouri, why two teenage boys Hill. My grandfather, George Stephenson, approached them wanting to go West and had a hop farm out towards Mountain offered their services to take care of ca�le Park. He also had a warehouse business and assist in anyway they could with downtown that is pictured in a lot of old finding the firewood and other chores. pictures of the early Portland waterfront. So the Stephenson family took one of And the site of his hop farm is now where them. The other boy went to some other the Stephenson Elementary Grade School family and came west to Oregon with is located. His warehouse down on the them. In any event, the one that came waterfront was between Salmon and Main with the Stephenson family, his name was and right on the waterfront, so when I look Henry Pi�ock, of later great fame here in out the window of the office here, why I Portland. My mother can remember the can see where his warehouse was. I know Pi�ock carriage picking them up on Kelly as a three–year-old I fell off the dock into Street once or twice a year to take them the river there, I’m told by my parents, up to the mansion for dinner because Mr. of course. So, I had been there. So when Pi�ock never forgot the Stephensons. So it I looked at the pictures and see the dock I was kind of an interesting li�le interlude can see where I had one of my mishaps of in their trip. youth. [both laugh] George Stephenson and Anna An interesting side story and kind Roberts were married September 22, 1898. of a thorn in the side of family I guess, was that when the city of Portland decided to CH: I guess I should say that we’re build the sea wall and the public market looking at this marvelous photograph was down in that area and they later album. called it the Journal Building and such. They assessed that the abu�ing property MM: Now Anna, my grandmother, had owns 100% of the cost of the sea wall. My graduated in the class of 1896, Phi Beta grandfather felt that was not fair and he Kappa, from the University of Oregon. I’m lost his property as a consequence. He and not sure whether that was one of the first

2 Marsh, Tape One, Side One classes with women, but it certainly was MM: She also climbed Mount Hood in a one of the earliest classes to have a woman long skirt and boots, you know. It was the graduate. Her bothers and other sisters custom of the time. were all educated. They formed a place down in Eugene, which they called Camp CH: Were they living in Portland? One a�er the manner of sheepherders, and one or two at a time would go down and MM: Well, no. At that time her family stay in that house to go to school while the was living in The Dalles. The Stephensons others would support them and get them were here in Portland. I never did know through. A lot of the boys went to MIT, how Anna Roberts got together with but there were one, two, three, four, ﬁve George Stephenson, but they were of them went to the University of Oregon. married and had three children, my Then my mother went there, and then my mother, my Aunt Ruth and my Uncle brother and I were the third generation to Ken Stephenson. graduate from the University of Oregon. So, it’s been a long relationship. CH: What were the various professions of these grandparents? CH: So your grandmother originally went there? MM: Ranchers, up around The Dalles, and merchants, warehouse and farmer, MM: Yes. here for the Stephensons. George was quite successful farming. In fact, you know CH: And she graduated in what year where Helmer Men’s Store [John Helmer again? Haberdasher] is up on Broadway?

MM: Ninety-six. CH: Oh, of course.

CH: Ninety-six. Was she involved in the MM: That building, my granddad built suffrage movement? in the late ‘20s on some poor advice and lost it in the Depression. He wasn’t the MM: I don’t know. I remembered that she greatest businessman because he lost came back to the university in about 1946, the waterfront property and the Helmer I think, or ’48, ’49, somewhere in there. building, otherwise probably I would They celebrated the seventy-fi�h year of have been spending my life in a different the university, and she talked to the young manner than I did. [both laugh] Which co-eds in some dormitory about the walk- was probably for the best. But anyway, it around as the dance that they had when was a good family. she was in college. CH: And the hops farm, what happened CH: Wow. to all the hops?

Marsh, Tape One, Side One 3 MM: There was a period, I think, when where the North Star is. That was their the hops really kind of went out as a crop observatory. around here. It came back years and years Anyway, their daughter Elizabeth, later, like with Ed Leavy’s farm out around my mother, was married to my father on Bu�eville, and so it’s strong now. But I November 27, 1924. This picture is the think there was a period when it was very picture of that wedding with all of the two strong; then I think it kind of waned. families there—my mother and father, and then my father and uncle, who were twins. CH: What happened to the hops in- The Oregon Historical Society, of course, dustry around here during Prohibition knows about Gene Marsh because he was years? very much involved with the history of that.

MM: That might have been why they kind of went away. That could have been Senator Gene Marsh the reason. CH: The president of the Senate? CH: I asked Judge Leavy about that and he said that it was certainly no crime to MM: Right and Speaker of the House. raise and sell hops. CH: A Speaker of the House. MM: Right. MM: Yes, but he was very instrumental CH: And I think that a lot of it was in the Oregon Historical Society and was exported, maybe to Germany. on the Board for many years. He was the longest city a�orney in history in MM: Could have been. Yes. I don’t know McMinnville from let’s look here. though. I keep some of his memorabilia right in the office. Appointed in 1931. CH: Okay. I think he resigned some forty years later. I can’t recall, 1970-something that MM: I remember my mother telling he resigned as city a�orney. But he was me that her father took her to the top [laughs], a character. He was the political of—was that Mountain Park? And I can strength of the family. He was very, very remember as a child that it was bald. enthusiastic about being involved with There were no trees on it at all. It had government and was very successful. been completely logged off and was He entered the legislature when the just a bald hill. But that’s where she was new Capitol Building first opened its taken by her father, with her brother first session, I think in ’38. And then and sister, to learn about directions was president of the Senate in ’53 or and stars and things like that, to learn somewhere like that. But in the meantime

4 Marsh, Tape One, Side One he’d gone up in the House, to Speaker of ninety-two. Charlie Marsh, their father, the House and then to the Senate where always had an adventurous spirit and he he became president of Senate. And he and his younger brother went to Alaska. was in the last hundred-day session. He He decided that was not a life for him, was determined he was not going to have so he came back early to his family. He the session go past a hundred days and didn’t desert his family, but it was kind of he ran it until 11:15 that night to do that. a chase a�er gold. [laughs] His younger brother was our Uncle But here’s another great story. The Joe, a great monster of a man. He wrestled two were identical twins and they o�en in Alaska for a year taking on all comers dressed the same. And so they both had and never lost. He was a soldier of fortune, the same suit and same tie, and they both fought the Maori of New Zealand and lived in McMinnville, but Gene would traveled throughout the world. Whenever stay in Salem during the legislature. My Uncle Joe came to town, why the women dad went over there one day early and were shuddering and the grandchildren they smuggled him in to the Capitol were just thrilled to death [laughs] to see Building, without anybody seeing him. Uncle Joe come. [CH laughs] So when the House was called to order, But Charlie, who was my grand- well my dad walked out on the rostrum father, then came out to Madras and he and pounded on the gavel and said, “The started the Citizen Bank of Madras. They house will come to order and the clerk lived in Metolius, but the bank may have will call the Roll.” been in Madras. And that was a place About that time my uncle burst with nothing but a future, he told my through the door at the back of the grandmother, because there was going to chambers, “That man’s an imposter.” be irrigation coming. And of course the And, everybody that knew the twins knew railroad had fought its way up both sides what was going on, but they didn’t know of the Deschutes River. The anchor point really which one was which. But, people was at Metolius where the train would go who didn’t know them, why it was quite by. At one time Metolius was a town of an uproar. about a thousand people. Then my dad said, “The Sergeant of the Arms will remove that man from the CH: Really? ﬂoor.” So they had this big to-do and then MM: Yes, and so anyway he started everybody laughed. [CH laughs] I don’t his bank, which also went crash in the think that kind of a joke has, before or Depression and le� them all without any since, been played during a session of the funds at all. But my dad met the school- legislature. But they were a pair, for sure. marm up there, who taught in Metolius, Gene lived to be ninety and my and that was Elizabeth Stephenson from dad to ninety-ﬁve, and their father to Portland, a young schoolmarm. They

Marsh, Tape One, Side One 5 got married and then when everything So we bought a farm out of went gunnysack-up there early in the McMinnville on Baker Creek Road with Depression, Central Oregon had it’s twenty-three acres and I think the cost Depression in the late ‘20s rather than was $2,000 for the twenty-three acres and waiting for the early ‘30s. house and barn and the whole thing. That’s where my brother and I, from ages seven CH: What was the cause of that? and nine, grew up. And we were learning about pigs and chickens and horses and MM: Oh, I don’t know. The farming was cows and milking and all the rest and we just terrible. Irrigation didn’t come, you had enormous experiences on that li�le know, and so all the anticipation of that, farm. We went through the late ‘30s and I suppose, was part of it. But he gave the through the war [WWII] with that. My keys to the bank examiner and asked him brother going into the service in 1944 and if he really liked to ﬁsh very much and I went into the service in 1946 and so that [laughs] took him down to the Crooked was— River to ﬁsh. [both laugh] Then my dad came to Portland and CH: Could I go back and ask you a few went to work as an assistant US A�orney. more questions about your predecessors? He was an assistant district a�orney over in Prineville. What county are we in there? MM: Sure.

CH: Crook County? Family Religion & Politics MM: So he came over here and went to work under George Neuner for a while. CH: In terms of religious upbringing, My uncle went to Vernonia and started where did your various family members practicing law in Vernonia, and then fall? he moved to McMinnville with the old Vinton and Tooze firm. My dad le� the MM: Well the Roberts family was US A�orney’s office and went to work for pre�y solid Congregationalist and that Howell Becke� & Oppenheimer , which influence was strong in that family and my later became Mautz Southers Spalding, of grandmother was certainly very steeped. good renown here in Portland. Gene went When we lived in McMinnville, I don’t to McMinnville and the two of them really know what the selection process was, but didn’t like to be apart and McMinnville we were sent to the Presbyterian Church. looked more interesting to my dad than My father never did go, but my mother Portland. So in 1935 they moved the went occasionally. My grandmother would whole bunch of us to McMinnville. My go anytime she could get somebody to take brother was born in ’26 and I was born her. And then she’d take us for Sunday September 24, 1928. School and such, so that’s kind of where

6 Marsh, Tape One, Side One we had church experience. It’s interesting, times. She was the president of the Cancer at the same time, when I was in the Society and president of the Red Cross second grade in Cook Grade School in and then she was involved with all sorts McMinnville, they had Bible courses. They of things. She always had half a dozen had Christian education in the school. And book clubs that she would be reading so we’d learn Bible verses and a Psalm or things with, and she read voraciously. She something like that and that’s why I’m not would o�en use Shakespeare as a means a fan of religious training in the public of discipline with my brother and I. My schools because I thought it was pre�y grandmother was also very literate. It was meagerly done. For instance, I never could a le�er-writing two generations that we figure out in the twenty-third Psalm why don’t see anymore. They wrote le�ers all when I said, “The Lord is my Shepherd. the time. There’d probably be ten or fi�een I shall not want,” why wouldn’t I want le�ers a week that would come from the him? [CH laughs] And the Wise Men see aunts and uncles and in the family you a star in the East and go West and I’d—I know. And then they’d send them on don’t know [both laugh] to somebody else. It was an incredible It was a difficult learning experience experience to watch. I have some of for me. My mother and father later joined those le�ers. One of them goes clear the Episcopal Church and she was pre�y back to Henry Clay, to one of my great- much involved. My mother was a Victorian grandfathers or somebody. But that was intellectual. And I don’t know, we used the way that they communicated. Email to talk about faith sometimes, but she wasn’t around then. was always just kind of politely listening to where I was, rather than commi�ing CH: How did they have the time to do where she was. But I haven’t ever met that? anybody that knew the King James Bible as well. As far as she was concerned there MM: I don’t know. She would write was only one rendition and that was the maybe just a two-page le�er and other King James rendition. She was very, very times she would spend a Sunday when we knowledgeable, but I don’t know where were off hunting or something or fishing, she was faith-wise. By the time I came to why she would write all day long. I’ve got a serious faith, she was in her later years some of her memoirs where she’ll take a and didn’t much talk about it. trip and she’d keep a detailed diary. I mean, what they had for breakfast. [laughs] CH: With such a strong intellectual foundation, how did she express herself CH: Did you have help around the house? on political and social issues? MM: We did at times. We had a man we MM: She was very conservative, very called the hired man—Lou Kelly—obscene conservative, but certainly a woman of the beyond belief. I learned all the things that

Marsh, Tape One, Side One 7 I shouldn’t have learned from Lou, and But all the kids in the summertime I also learned how to drive a Model-T were picking beans or berries or one thing pickup, which he had. As a kid we used to and another and it kept them occupied. drive that to work on the farm, you know, When we were a li�le older, in our teens, picking up bales or one thing or another. school would be going to end on Friday Then we would o�en have a Men- and he’d say, “Where you going to go to nonite gal from down around Sheri- work on Monday?” dan come and work in the house. But “Well we’re going to go to work at it was kind of spasmodic because my Barney McPhillips’ ranch.” grandmother would spend six months of “Okay, that’s ﬁne.” And at the end the year, through the spring and summer, of the summer when school was going with us in McMinnville and then she’d to start, the Tuesday a�er Labor Day go down with her other daughter in San or something, why we could take oﬀ Francisco and spend the other six months. Saturday. [both laugh] But we were told to During that interlude we’d have people or work and we worked. It didn’t hurt us. not have people. We were in a house with an old CH: And what happened with the sawdust furnace and my brother and I had money that you earned from that? our regular chores. MM: Well we bought clothes with it and you know, some frivolity. Bought bicycles Chores & Work because we rode bicycles to our school everyday, three miles and something. CH: What were your chores? There were no buses going by there.

MM: Oh, keeping the fire stoked with CH: What was the school like? the sawdust filled, picking all the apples and cherries, mowing the lawn, feeding MM: Oh it was typical, kind of like the the pigs and chickens, and milking the brick schoolhouse you know, with the cows. I never was a good milker but we’d center entry and three or four classrooms get it done. So, just cu�ing brush and on each side, and a small gymnasium. digging tile ditches and such to drain the There wasn’t much organized sports or field or something. It was everything. anything like that. It was education. Then when I was a li�le older—eleven years old—I went to work at a filling CH: How many kids in the class? station, filling oil bo�les and pumping gas and such, as a part-time job. I also MM: In my graduating class from high worked at Safeway as a bag boy, but we school I think there were eighty— were expected to at that time. Now it’s against the law, you know. [both laugh] [End of Tape One, Side One]

8 Marsh, Tape One, Side One with these brochures about the La Brea Tar School Recollections Pits and all of the findings there. She had also kind of weaned us MM: Discipline was sure and certain on what’s the title, the famous history of and sometimes corporal. It didn’t ma�er the world? Oh, I can’t think of his name if you had thirty kids in the class; it really now, the author. But anyway we took didn’t, because everybody sat in their seat it from Pithecanthropus erectus through and listened and if you were distracted Neanderthal and Cro-Magnon man and you were soon called on it. So, that’s one all of the Darwinian type of movement of of the things I notice with the concern on the human race. And my mother, she was the number of students in classes today. I convinced on that. Not that I’m not, but I have a picture around here somewhere of a mean she was very much involved with class of kids in a school in Zambia with the knowing about that. So she brings home most wretched of conditions and they’re all this stuff with saber toothed tigers and si�ing there just as prim and proper and mammoths and that sort of thing, and so you know that discipline is not a problem for what was a preview of show-and-tell, there. They’re there to get some education. or whatever it was, I took all this to school. Anyway that’s kind of an aside. I was proudly expounding on all these things my mother had learned and so forth CH: What other things do you draw when the teacher stopped me dead still. from in these early formative experiences She says, “Just a minute. We do not talk that you’ve used in your judicial career? about that in this class and you put those away and I don’t want you to mention MM: One teacher—a�er I fre�ed over them again.” something, and I don’t know what it was— So I learned, at a young age. That says, “Your problem, Malcolm, is you was my first introduction to the great worry too much.” I’ve always carried that debate between faith and reason. [both with me to try to keep from ge�ing buried laugh] I was put on notice right then that with details and worrying about things. I even though we’re going to go down the absorbed all the worrying for the family, I hall in a few minutes to Bible class, we’re think, because my brother is the most laid not going to talk about that. So anyway back, easygoing, comfortable person you’d that was kind of an interesting memory. ever meet, while I stress on things and so Anyway, growing up in McMinnville was a I’ve had to keep her lesson before me a lot good, good experience. It was a good place during my life. to grow up. We weren’t very sophisticated, One instance I’d like to tell you about I guess, about urban society and that sort that kind of comes to the fore later. My of thing but going into the service and mother’s brother, Ken, lived in Pasadena. being with everybody from across the And she and my father went down there country, why you kind of get that put into to visit him one time and she came home you pre�y quickly.

Marsh, Tape One, Side Two 9 my growing up days and that’s where McMinnville everything happened. The Elks Club was a fraternal organization, but it was also CH: McMinnville seems, at least by the a very important part of the community appearance of the older part of it, that it and the segregation part of it wasn’t even might have been somewhat idyllic. known, because there wasn’t any black community in McMinnville. It wasn’t a MM: Oh, it was. factor to think about, you know. When the young people were going CH: It was. Did they have problems? to go off to fight the war, why those that were behind, there’s a great story that was, MM: No. And if they did, it had a I think in the historical society, or in the community spirit that I haven’t been able Oregon State Bar, about my uncle and his to find an equal to. You know they started group keeping the KP Lodge. You see, he that McMinnville industrial area pre�y had the wrong lodge name. There was the much with Gene’s vision about it, where KP Lodge that they kept going and it was the steel mill is and the cookie factory the Wednesday night mecca for all of the was there and all those things, because men who were the movers and shakers in the sawmills were leaving. Sawmills were downtown, and the whole purpose was closing down and they said, “We’ve got to to maintain it until those kids could get get something new here.” They didn’t go back and take over their lodge again. It off bemoaning the fact that the sawmills still goes. But the KP Lodge and the Elks were going. They went off and found this Lodge were the social centers [laughs], new industry and it was very successful. but none of them knew the rituals. [both And they took the World War II airfield laugh] that was built like many of them across the They had a tremendous growth country and they turned it into a reputable in membership, which the national or airport, and even for a while had United international organization could never Airlines flying in there. figure out. I’ll tell you a story that I think is a CH: Oh really? classic example of McMinnville. A�er the Depression the bank examiners would MM: Yes. And that of course a�racted come in. The Wortman brothers had the Dell Smith with all of the Evergreen First National Bank of McMinnville. They Helicopters, and ultimately put in a drove the First National Bank of Oregon wonderful museum that they’ve got now crazy because they tried to get that name, with the Spruce Goose. and ultimately did. They couldn’t get Well they did the same internally it as long as the First National Bank of with the society. The Elks Club was McMinnville was there. The Wortman always the anchor of social activity during brothers would say, “Our father told us

10 Marsh, Tape One, Side Two if we take care of the bank, the bank will MM: I don’t know. I haven’t lived there take care of us.” It was right across the for fi�y years. But I know people down street from the US National branch where there and I think there’s still a lot of that Barney McPhillips was vice-president. He flavor. was a real influence in McMinnville and You know, from McMinnville, the did great things for the state and hardly road used to come down Lafaye�e Avenue anybody ever heard of him, you know, from Portland. From Newberg, Lafaye�e but you go down to Pacific City and and then Lafaye�e Avenue into, down to there’s McPhillips Road and McPhillips Third Street and then all the traffic went Beach that he gave to the state. He had down Third Street before it would hit Baker this eleven hundred-acre farm out of Street and go on out toward the coast, or McMinnville where we worked as kids south. 99W went right down Main Street. for him. That could still be the case if it wasn’t for Well, the bank examiners were the fact that McMinnville was willing to coming and the First National Bank was let traffic bypass the main street. The first lending to farmers as it always did, and time they did it was around to the west it was a li�le bit touch and go on these side of town and then later with the cut loans. I don’t know which one but one of off down through Dayton and around the the Wortman brothers went out and he east side of town. But I’ve always admired came to my dad with a $5,000 demand the fact that it didn’t ever try to just stay note and to my uncle with one and he unchanged. That it was open enough in its went to Barney McPhillips who was vice thinking to make two bypasses in my time president of the bank across the street, and around that town, I think speaks highly of Art King and Mr. Stulfier at the bakery it, too. and this guy and that guy and they’d sign Anyway, off to college and off to these $5,000 demand notes. [laughs] Bank the Army, and Japan. It was a fabulous examiner would come: “Gosh, you’re in experience, My timing couldn’t have been great shape. You got all this liquid. Yep, be�er. I was between World War II and you’re fine.” And pass it through. Next the Korean War. I was in the Twenty-fi�h day he’d go back, hand them back their Division, Eighth Field Artillery Ba�alion, notes. [both laugh] and stationed at Nara on Honshu. If you But you know the community was drew a triangle between Osaka and Kyoto not going to lose them and they would and Nara, it would make a triangle. Nara have paid those notes. There’s no question was the old ancient capital of Japan and about it. They were valid notes and I’ve has wonderful big old Buddhist temples, always thought that kind of epitomizes the Daibutsu-den with the biggest Buddha McMinnville’s community spirit to do in the world or something, and all kinds of that. Shinto shrines and such, and the big deer park that’s in the town there. Then the CH: Does it still persist today? capital moved from there to Kyoto where

Marsh, Tape One, Side Two 11 the beautiful gardens and the formal driveway and that was to pay a fee, you palace residence are still. know, with cord wood, or it might be The United States, thank heavens, some other item, but that’s all he had to didn’t bomb either of those cities during pay with. My mother and grandmother the war so they were kept fine. They were great cooks and I can remember fla�ened Osaka. People don’t realize, gleaning for peas. I can remember going Osaka and Kobe and other towns looked out with them and following the pea just like Hiroshima. It just happened with harvester and picking them up off the thousands of bombs instead of one but ground, taking them back and shelling they were just as fla�ened. I can remember peas. We produced our own milk. My coming into Osaka and being amazed brother and I’d sell eggs and we’d make at, in all these blocks of just rubble, the our own bu�er. [laughs] I drink nothing safes, the doors open that had been in the but skim milk now if I drink milk. Then buildings, you know. And here would be it was considered a waste product and six or seven safes in this block and four or we’d feed it to the hogs. [both laugh] five in this block, just si�ing there. It was Of course I grew up on raw milk the safes that got my a�ention. and I survived it, but you had to be self- sufficient. You put up a lot of cherries and CH: And they were open? you made a lot of applesauce and you didn’t buy those things in the grocery MM: Yes, they were open. They’d store. And you cut your firewood. been through a fire, and I suppose they got what they could out of them. But I CH: Was there noticeable poverty in suppose they had to get them open some the community? way. MM: Well, everybody was poor. I mean there were those people who obviously The Great Depression had more but they weren’t very many. The great mass just kind of lived on the CH: Leading up to this period, first of same basis. They drove Ford automobiles all what was it like going through the or Chevrolets and the kids rode bicycles Depression? What experience did you and you didn’t have sixteen pairs of have of the Depression? jeans to wear. To get a new set of jeans was a major expenditure. So you were MM: That was interesting. You didn’t careful about them, I think, very frugal have much. You didn’t eat high on the about how you took care of things and hog. There was a lot of use of le�overs you didn’t waste things. But I never felt and modest means. My dad would like I was hungry, or never felt that I o�en—some guy would come up with a was deprived in any way. It was an pick-up of cord wood and dump it in the interesting time.

12 Marsh, Tape One, Side Two CH: And your father always had Kappa, so that was not tolerable. [laughs] enough, in terms of work? But I was okay. I was never in danger but I would say I was a strong “average.” MM: Yes. He was a busy lawyer and a very good trial lawyer. In fact he was CH: What about activities or sports or the trial arm of the firm. Gene was the clubs? political and business arm of the firm and so they greatly complemented MM: Played football. one another. Dad was always in a trial situation and Gene was more in an office CH: Played football. situation or in a political thing. But when he was in the legislature he wasn’t paid MM: Yep and that was an exciting anything in those days. That was pre�y time. much volunteer work, you know. Both were elected president of the Oregon CH: Do you keep up with it, or anybody State Bar Association. that you knew from that period?

CH: Right. MM: Yes. There’s a few couples down there and then of course an old chum MM: So everybody adapted to that, as of mine, Jim McDaniel who now lives you know. over in Dundee. He and I were chums all through school. CH: In high school were you a good student? CH: Did you have any teachers that had any great influence on you? MM: No. I was an average student. I wasn’t, I didn’t catch on fire in high MM: Yes, the one that told me don’t school. worry so much. I think that she was Mrs. Sackler. Somewhere I heard and I CH: Did you have any subjects that you was never able to confirm it when they particularly liked? were investigating me somebody talked to my second grade teacher. This would MM: I liked the math courses, which have been in the late ‘80s, you know. She I’ve never used. [laughs] I liked history. I had to be ancient if she were still alive think the only flunk I got in my life was in and I can’t believe they went to such science and it was partly because I can’t an extreme but that’s what I was told. spell. But I redeemed myself from that So, they went that far to interview. No, quickly because my mother was Phi Beta the real influence of education came in Kappa and my grandmother was Phi Beta college where I started going hard.

Marsh, Tape One, Side Two 13 9-11 kind of happened, but Pearl Harbor World War II kept happening. You know the news was so terrible for days and I can remember CH: Where were you when Pearl Harbor my dad and uncle, and all the people he happened? knew, they’d gather on the courthouse lawn with their deer rifles and were ready MM: I was walking up the stairs. I vividly to go to Tillamook because they were sure remember. I’d been out hunting. Duck that they were going to be coming ashore. hunting. I was walking up the steps to the I mean it was serious. I sat for years in kitchen door of the house and my mother the top of the courthouse as an airplane said, “Pearl Harbor has been a�acked.” observer. You know, I would take my time And I said, “What’s that?” I didn’t twice a week for three hours or something have a clue where Pearl Harbor was. up in the courthouse watching and And she said, “In Hawaii.” So identifying any plane that went by and that’s how I learned of the a�ack. It’s hard calling it in. And then my brother went to describe how the world changed. The into the Navy. whole conscience of the country, from my So then my mother’s focus was very perspective, focused on that. Just bang. much on him and he would have been in There was no detraction, no protest, no, the first wave to hit south of Yokohama. none of that. The whole thing focused. So I can remember coming home from And sacrifice was not questioned. It was somewhere and my mother said, “The just a fact of life. You dug out all the old United States dropped an enormous aluminum pans that you didn’t need. bomb in Japan.” You didn’t have many that you didn’t I think that it was clear that her son need, but you gave them. Gas rationing. was safe, so if you want a proponent of Never questioned. No one, oh you know, atomic warfare, why she would have been there’d be an odd ball here and there but one. She would have said, “You bet, drop everybody played fair with it. So, and the it.” There would have been no question stars started coming in the windows you in her mind. know, and it was a tough time. CH: How did you feel about it? CH: Some people have compared that incident to 9-11. MM: Oh I didn’t realize the impact of it at that time. Of course there was the MM: Yes. a�itude, yes, anything, anything to end this war and stop the bloodshed. We’d CH: Is there a comparison or is it very gone through the newsreels of Tarawa different? and Iwo Jima, Normandy, all of those things my law clerks don’t have a clue MM: There’s a comparison. It’s just that of, you know. One time, I mentioned the

14 Marsh, Tape One, Side Two Bataan Death March and none of them in a diﬀerent kind of situation, so you can’t had ever heard of it. Corregidor? No. So really compare, but patriotism was you things that were just indelibly stamped in know I study about the Revolution and your memory are out of their lives now. I study about the Civil War. There was a That shocks me a li�le. whole lot of people that didn’t agree with either one of those in the country. Not this CH: How was it going through World war. Not this war. War II and living in McMinnville and being in high school? CH: Yep.

MM: Everybody worked a job because MM: Yep. there were a lot of men gone, you know. So you had to. The farmers were just CH: Going on through this period of dying for help. They had been relying on time, did you have an idea of what you Depression-age workers and they were were planning on doing with your life? gone. Sawmills that lost crews, you know. Even though there were exemptions, if MM: Oh yes. I was going to be a forest you were in a critical industry like that, ranger. [laughs] people didn’t take those exemptions. I was talking to somebody the other day. CH: You were going to be a forest ranger. When I graduated from high school every And why was your passion for this? boy in my class went into the service and it wasn’t an issue. I can’t figure that out. MM: I was in the Boy Scouts ever since I [laughs] was twelve years old. Actually I was in the Cub Scouts before that. We had a very, very CH: And you heard a lot of stories, good—one of the first explorer posts in too, about people that were extremely Oregon was McMinnville. And there were depressed and even cases of suicide. five of us that were just as close as glue and we would go camping every weekend we MM: Yes. could. We built an old log cabin up by High Heaven and we’d go way up there, snow, CH: If they were rejected. rain it didn’t ma�er. Some of us became Eagle Scouts and all that. Well that just, MM: Oh yes. Oh, if you were 4F it was you know I just liked the outdoors and I like a scarlet le�er on you. It was just thought I liked the woods and I liked to be unbearable. You’d do anything. [laughs]. in the forest and I thought, well that’s what The way people got into the service by I ought to be doing. lying about this or that or faking this or that was just one story a�er another. So it was CH: And you had that intent, until so different than the feel, of course we’re what point?

Marsh, Tape One, Side Two 15 MM: Till I was lying on a ridge in I was shipped to Japan one month into Japan with artillery shells going over service. I spent a month in Fort Knox, the top of me, and thought, I think that Kentucky and was on my way to Japan. I’m going to go law school instead. And, I knew about as much about warfare as I don’t know, it was just that quick. All a pet dog, you know. [laughs] But they of a sudden it was gone. I think it was just flooded the country with several good to think about when I did and I still divisions and we would move through- think it’s a great calling, but somewhere out the countryside all the time and I’m I just decided, no, I’m going to go to law sure the Japanese people thought there school. were 10 million of us. And I think it was something to And they were all raw recruits. do with what I was doing, just talking to That’s where we got our training, on other soldiers about what they were going the side of Mount Fujiyama, and the old to do and higher education and they Japanese military reserve would be about were almost all high school kids then but like Rhododendron on Mount Hood, you a few of them would have had a year of know. And that’s where the big artillery school or something like that. And then range was and we would go up there, young officers fresh out of ROTC or out spend a week and then come back to of the military academy and they were camp and go out to Lake Biwako to youngsters, you know. They seemed old another artillery range. Then we’d go to me, but I was seventeen when I went back up to Mount Fujiyama with the rest in. of the infantry ba�alions and regiments that were in the divisions, and have big CH: But you had graduated from high maneuvers up there and such. school. So we had gone through every test that the Army had for infantry division, MM: Yes. Graduated from high school including the artillery, every test that had and I was eighteen that following been developed through World War II. We September. had completed all the exercises that were required so we were prime candidates CH: So what did that represent for you, for anything that happened. And so that period of time during—well it was when I came home and Korea started, the a�er World War II when you went over. 25th Division was one of the first right into the middle of that fray and the 8th MM: Yes. What they really did was they Field Artillery Ba�alion. I can remember rushed us in. They’d have the veterans reading the newspaper articles of them in there with the kind of periphery being in the bowling alley— occupation of Japan but they needed to let Japan know it was occupied and so [End of Tape One, Side Two]

16 Marsh, Tape One, Side Two CH: And your intent at that point was to prepare for law?

MM: Yes, I was in pre-law as an undergraduate. One of the huge changes from then to now was that I went into law University of Oregon Law School school at the end of my junior year, three years. Well I was in six years—three years CH: This is an interview with Judge in undergraduate and three years in law Malcolm Marsh in his chambers at the school. Now if you were to go in and look US District Courthouse in downtown up the records of the law students, most Portland, Oregon. The interviewer for the of them have got one or two degrees and District Court of Oregon Historical Society are much more educated as they enter law is Clark Hansen. The date is January 27, school than I was, but I was kind of typical 2005 and this is tape two, side one. You of the time. By then the fervor to go into were talking about the outbreak of the the service had waned and so I was with Korean War. a lot of kids right out of high school. I was kind of an old-timer at twenty. MM: Right. Well, I remember this one article because there were names in the CH: There must have been a lot of article of officers that I knew and had people coming back from the war. served with, and of course the individual units I was very familiar with. My position MM: Yes there were and old Dad Pucke� with the field artillery ba�alion was was in our class in law school. He was a as a forward observer. That would not B-17 pilot over Germany, got shot down, have been a happy time to be a forward captured and spent time in a prison camp. observer. So anyway, as I said, my service So we had everything. There were high in between those two wars was, I hope, school kids and there were Dad Pucke�s. providential. Somewhere along the line—I have to compliment Ray Lung on this—I was CH: Then you were never called into pledged by the Beta house down there. I the Korean War? think probably because my brother was a Beta, and I was assigned, as my upper MM: No. Never. I did not join the classman, to Ray Lung. And he taught me Reserve, which is kind of an ironic thing how to study efficiently, so that I stacked particularly now with reservists. But no, up my courses most of the time on Monday, I was through and I had the GI Bill and Wednesdays and Fridays and then I had I came home and worked until school certain times on Tuesdays and Thursdays, started in the fall of ’48 and went to the that’s when I studied. It lit a fire under me, University of Oregon. because I started ge�ing good grades and

Marsh, Tape Two, Side One 17 when I went into law school I was never the Common Law from 1066 forward and off the Honor Roll. It was just easy for me. there was no question about it. It wasn’t really easy, but it was fun for me. I remember talking at the law It’s hard work, law school. But when you school ten or twelve years ago about enjoy it and you’re doing well at it, why law clerks that I knew, and how much then it was easy. education they had, and how brilliant they were, and just plain smart. They said they CH: What were you enjoying about it? have difficulty moving from a criminal case to an environmental case or from an MM: I didn’t realize how abstract a environmental case to a patent case. They thinker I was and I really like the abstract have to kind of go back to the first floor process. Working with the law and and start all over again. Well, my education understanding the nuances of the law gave me a foundation that allowed me to and being able to extrapolate from one move from one area to another, as foreign area of the law to another with basic as they were, with a certain amount of principles of the law was something ease. The abstract nature of it was possible that just locked into me very early in for me. So I said, “Don’t let those core my first term in law school and that courses get too watered down or become was good. I had been in pre-law and KJ too unimportant.” And of course the bar O’Connell was my faculty advisor and exam surprises some of those kids because he was the law professor. He led me very that does go into the core courses and if well in preparation for law school, with they don’t take them, why—[laughs] accounting and lots of literature and lots of history and philosophy, just drove me into the philosophy building. Orlando Hollis With Aubrey Castell, I was close to having a philosophy degree by the time CH: [laughs] Could you profile Orlando I got through all the courses. [both laugh] Hollis for me? And I loved it. Helen Frye and I were in philosophy classes together with Aubrey MM: Firm, brilliant, could rub you the Castell. Then when I went to law school wrong way, he was not a diplomat and so the curriculum was rigid, very rigid. Core if you were looking for diplomacy from courses were it. You had an option between him there was very li�le. He was a precise administrative law and tax law or one or teacher. Spoke precisely. I wrote an exam two electives in three years. You know, one time and I used the word irregardless. now they’ve got ten a term. The core of the I can remember him saying to Professor law was just absolutely instilled in you, O’Connell, “Have you ever heard of the particularly under Orlando John Hollis word irregardless?” And I just shuddered. as dean. And we understood the roots of I knew what was coming. So he says,

18 Marsh, Tape Two, Side One “Irrespective or regardless but there is no down there and sit as a US District judge word irregardless.” [CH laughs] Now if and sit in the mock trial room in the law you look in the dictionary, it’s there, but it school. Believe me, we almost fell out sure wasn’t there in ’54. [laughs] in dress blues when that was going to happen, to satisfy the dean that we should CH: So you actually studied under him all look properly before a federal judge. as well? [both laugh] And so law school was fun. I had some really close friends and I got MM: Oh, yes. Oh, I took many courses. married at the end of the second year and Common Law Pleading and one course so my wife supported me in the third year. a�er another with him, but he was punctual. You were in your chair, you were there, because he started. He didn’t Influential Law Professors care whether you were. And don’t come in late. CH: Were you involved at the Law Review? CH: Did he ever practice law? MM: Yes. Yes I was Note and Common MM: I don’t think so. No. There’s a picture editor of the Law Review. of him in the album of graduates as a young professor at Oregon and he looked CH: What did that entail? like he just graduated from law school, unfi�ing suit. But, you know, he was MM: Ah, reading the articles that were shrewd. He was an incredibly successful submi�ed and kind of rating them and investor in the stock market, which was an discussing them, discussing whether the anomaly at that time. My dad and uncle, topics merit publication, that sort of thing. they wouldn’t get within a hundred yards It was hardly heavy-duty work. I must say of the stock market. They’d gone through that. the Depression. Well he had certainly lived through the Depression, but he was a seer, CH: Were there any topics or any areas I’ll tell you. And he made a huge amount that you particularly enjoyed or excelled of money in the stock market and le� the in? bulk of it to the University of Oregon Law School when he died. That was a huge gi� MM: The article that I wrote at that time to the school. was how the commercial code affected the But you didn’t ever see that. He was law of negotiable instruments. Now that’s very modest in all of his living expense a thrilling title. [laughs]. And so the thing and that sort of thing, very modest. And that it did for me, it really taught me the law very polite, very formal, extremely formal. of negotiable instruments and the change I remember when Alger Fee would come over to the commercial code, which was

Marsh, Tape Two, Side One 19 really a plus. But Charley Howard, he’s backgrounds and very different callings? one of the professors. Charley Howard Like for instance, Hans Linde being an was a tremendous man and he had it in academic. his mind that there was a lot that needed to be understood to move from the old MM: Yes. Oh I think it’s absolutely commercial law to the new commercial necessary that we have variation. You code and so he encouraged me to write know, there was a time when—Ed Howell, this article, which is what I did. who was a trial judge over in Canyonville, Then I know that you had on the Eastern Oregon’s just good round fellow— list Hans Linde. I was in Hans Linde’s first and Hans Linde and I lived at the top class that he ever taught. Constitutional of Lorida Avenue, kind of a complex of Law. We were in our third year and a�er houses called Bird’s Hill. Ed Howell lived we took the final in Constitutional Law, about halfway up Lorida Avenue and so I’d there was a group of us, about six, we all come home from the office and here would went over to the college side and sat down be Hans and Ed and they were poles apart and decided we had flunked the course. with their philosophy of law, out there None of us had a clue what he was a�er. just arguing ferociously in the middle of So we wrote down everything that came the street, you know. [laughs] And I’d slow into our minds. Well we all passed. It the car down and open the window and was fine. And I still don’t know what the says, “I assume you’ve reached accord?” answers were to any of his questions. But “Rauwh, rauwh, rauwh.” [both Hans Linde’s mind works at such a level laugh] that you have to scrape and scratch and And I’d drive on. They had a great claw your way up to figure out where he time arguing their cases again in the is to really follow him. He’s very deep. middle of La Rita Avenue. You know, O’Connell had a great, great mind. KJ. CH: Is this another part of this abstract O’Connell did things that I don’t think reasoning? anybody ever realized. He determined during the war that there were going to MM: Yes. Well, he really takes that to a be students coming back from the war different power. [both laugh] I don’t always to take the bar and would need to have agree with the things that Hans Linde has refreshers, so he wrote a volume on land wri�en as a Supreme Court judge, but I law and trust law, conveyances, and all do admire him for a great mind and as a that. They were blue-covered volumes friendly, concerned person. He still works about this big. I had them for years. down there at Willame�e Law School and They were the most detailed and perfect is a productive server. outlines of the laws in those fields I’ve ever seen anywhere. He did that so that CH: Do you see value in courts that these guys would be able to pick up the have judges that come from very different ball again and go .

20 Marsh, Tape Two, Side One He was one of the most instrumental tricycle, and he taught criminal law. He people, along with my uncle, in the was a new professor, fairly new. I think he adoption of a replacement of the OCLA, had been there maybe three years when the Oregon Revised Law—ORS, is what I got there. But he was very good. And a we still have today. generation closer than Charley Howard, and who was ge�ing older. Charley CH: Ah. Howard was in the area of contracts, negotiable instruments, and all that sort MM: Yes. OCLA was the predecessor of thing so. and then ORS was what came out of that. O’Connell was involved in ge�ing that CH: What was taking the bar like for done with the legislature and explaining you? why it was necessary to revise this. He was also an avid fisherman. Loved going. MM: Well there was this group, and two He would go ripping out of law school on other fellows particularly, that we would a Friday a�ernoon with his fishing rod meet with before finals and we would in his hand on his way to the McKenzie kind of share the responsibility of detailed River to fish, and so I had some real gems outlines of each course. We all did an for law professors. outline, but somebody would really fine- tune it with everybody’s work and then we CH: And he was a law professor? would sit down and roundtable discuss it, of course. We got in the habit of doing that MM: Yes. Yes. for finals in law school and so we didn’t have a bar review course. There was no CH: What did he teach? such thing, at least that I was aware of. So that was our bar review course, to take MM: Property. All Property and Wills those old outlines and just go over them and Trust, and Real and Personal Property, again. Bill Deatherage from Medford and and that sort of thing. Jim Hershner and Don Dunn and several others, and we would just work in a circle CH: Any other professors that you’ve with them and then go off by ourselves had that had a big impact? and kind of do it. That was before the computer, of course, so you either wrote MM: None like O’Connell. Linde didn’t it or you typed it and I was able to type. have as much impact because he was only The bar exam was held in the Senate and there the last year. House at the Capitol Building in Salem Lacey. Professor Lacey. He had The writers were in the one room the most wonderful sense of allegory and the typists in the other and so the or analogy and such and a bicycle and a writers didn’t have that cla�er going tricycle, not a cycle, but a bicycle and a on. But I remember coming out of there

Marsh, Tape Two, Side One 21 and thinking, I don’t know anything. I’ve like I was going to successfully get out dumped it all out. [both laugh] of law school, because I was doing well. Every bit of knowledge I have It was sort of preordained that I would is gone because it’s all in there on that go to McMinnville and practice with my typewriter. [laughs] But we passed a dad and uncle, so I had a position to go hundred percent. to. She was from San Mateo, California and so she was a California girl. We had CH: Your group? a synergism from the start that has really kept us safe you might say. We’re fi�y-one MM: Our class. And that was—some years married, you know. people are critical of Orlando Hollis, that Not a lot of those around. And so it he decided who was and who was not worked. I had been living the year before going to practice law. Because our class with Jim Hershner and Don Dunn in a started out with sixty-three and thirteen one-bedroom apartment. We had a three- of us graduated. decker bunk in there and we’d take turns cooking and doing the house chores and CH: Wow. such. And we studied together all the time. So then Shari and I moved into a MM: But we all thirteen passed the bar. li�le rental that wasn’t too far away, with That was important. [both laugh] A lot a wood stove in the basement. [laughs] of our comrades of earlier days went to I can’t remember what it cost us but it Willame�e and graduated and did fine. wasn’t very much. She went to work for They were great lawyers. So, his selection the First National Bank in Return Items, process was a li�le too harsh, I think. and I think she was earning $180 a month The only criticism I have of the dean is or something like that, and I worked he really was adamant that his graduates nights in the library at thirty-five cents an were going to pass that bar exam. [laughs] hour and gave blood. [laughs]

CH: As if you didn’t give enough blood Marriage to Orlando Hollis, huh? [laughs]

CH: [laughs] Going back a bit here, you MM: [laughs] Right. I’m O-negative and married a�er the bar? so I am a universal donor. I remember they had a big card down there that was Dr. MM: A�er the second year of law school. Furrers and somebody else and they had Shari [Sharon Long Marsh] graduated all these dates. I’d ﬁlled up the card and from college and we’d met a couple of ﬁlled up the back they’d stapled another years before that. When was it? Fi�ies one to it. They would call me on occasion I guess, 1950 or ’51? Fi�y. And so we’d and say, “How do you feel?” gone together for quite awhile. It looked “Fine.”

22 Marsh, Tape Two, Side One “When did you last give blood?” MM: Yep, for a couple of years. Yes. “A couple of weeks ago.” “You feel okay though?” CH: And the purpose of having the “Yes.” firm in Salem? “Well come on down.” [both laugh] So I’d get twenty dollars, a cookie and a MM: Well, Gene generated so much coke and we would go to Crosstown for business in Salem in the legislature, and dinner and a movie. So that was kind of so the original plan was that he’d spend the high point of our lives. [both laugh] a lot of time over there, but he didn’t. It finally developed that we were doing one area of work. The first couple of years I First Law Practice spent a lot of time in McMinnville and I’d go with my dad, learning trial practice MM: We were married that summer and and learning interviewing witnesses and spent that last school year and then the bar. doing research and writing some briefs I never moved us back to McMinnville. for him and such as that. But slowly it My dad and uncle had a firm office over evolved that we really were doing other in Salem that Gene had established in work. And while my family name was on the old, Congress Hotel, I think. Anyway the door, why neither one of our names they had a li�le hole-in-the-wall office was on the door, see, so we said, “What there and Ned Clark had gone in there would they think of us?” and so Shari, in her wisdom, she thought And they were very supportive, it was good to go to work for my dad both Dad and Gene. You know they just and uncle but she said, “Let’s go to Salem really set us up. He got all the furniture so that you’re not always Frank’s boy in over there and everything like that, so McMinnville,” which was wisdom. And we split off into Clark and Marsh. Then a so that’s what we did and that was clearly few years a�er that we joined with Brian the right move, the right way to do it. Goodenough and it was Goodenough, And Ned and I struck it off in a very, very Clark and Marsh and we moved over to unique partnership that went for thirty- the Pioneer Trust Building and that didn’t two-and–a-half years without a single last very long for reasons that aren’t disagreement. important. Ned and I just had a real connection. CH: Really? This was Ned— We also came to the realization, and we made a pact, that there would never be MM: Ned Clark. Edward L. Clark, Jr. a Clark or a Marsh in Clark and Marsh, except us. We would not bring any children CH: And he had been associated with in. I’ve seen sons go in, daughters go in, your father? with parents who are lawyers and make

Marsh, Tape Two, Side One 23 a success of it, but I think it’s difficult. I think you need to have the autonomy Being a Trial Lawyer and we both realized that. We also had MM: Mentally I guess. Ned and I tried an unwri�en code that if either one of us some cases together, but we’d try a lot didn’t agree to do something different, separate. One time he tried a case and got then it wasn’t done and so we just stayed a mistrial in his final argument and was so the course. A change was a unanimous angry that he sent me down to try it and idea. It was never somebody being talked I tried it the second time and got a hung into it. I think that was the great part of jury. So third time we both went down the success of partners. and tried it and lost. [laughs] So sometimes And then as we grew, with you’re just slow to learn you know. [both Lindauer and McClinton, now we got laugh] up to seven or so. That’s when I went Anyway it evolved out of just plain out of there, in 1987. So we practiced old li�le subrogation cases for insurance together from ’54 to ’87 and that was companies, some fender benders, $300 the most difficult thing in coming here case and the subrogations, which is where was the wrenching of that association. It one insurance company is really suing was a long time to be able to move into the other, but the parties are named. The something else. insurance company pays the claim and I was a successful trial lawyer and so then it’s subrogated to the right to go a�er there was some anxiousness in particular who they feel is the guilty party. And by McClinton who was working with me Bruce and O�o, Bruce Williams and O�o all the time, and who was going to be able Skopil and their firm, they had a whole lot to pick this up. I had a hunch and I was of those cases and we had a lot of them. So right that, that it would really allow him we would sometimes try two on Tuesday to flower, and it did. When I was out of and two on Thursday, one in the morning the way, why then he could become as and one in the a�ernoon. And a lot of them good as he has. He’s an excellent lawyer. were just before judges, sometimes just the And so I think those things all— justice of the peace over in Independence nobody’s indispensable. [laughs] or some place to a JP.

CH: [laughs] But your practice there, CH: Really. I mean the types of law that you were doing changed quite a bit over the years, MM: And sometimes you’d have a jury didn’t it? but we tried them very quickly and we were all familiar with what we had to do. MM: It really just evolved. It really did. But then as the insurance companies got more and more comfortable with you, why then they would give you a larger [End of Tape Two, Side One] personal injury defense and see how you’d

24 Marsh, Tape Two, Side One do with it. Well the amazing thing was, in up here in the federal court and I really those days we tried cases. had luckily found an incredibly talented metallurgist who disproved their theory. CH: What was amazing about that? And we won the case in front of a jury. And not long a�er that, as I understand MM: Compared to today, when ninety- it, somebody in the general counsel of eight percent of them se�le. In those days General Motors called Volkswagen to ninety-eight percent of them tried. So, you ask them—or Volkswagen called General were always trying cases and you did it Motors to ask them if they had a lawyer so quickly. It was also a trial by ambush. who defended products liability cases in Discovery wasn’t part of the program then, Oregon. And he said, “No but we did just so it was, if you had that secret witness have a case where we could recommend [laughs] you never told anybody you had a lawyer.” And they recommended me. them. And of course you didn’t disclose [laughs] policy limits and you didn’t disclose And so Volkswagen calls me on anything. It was just trial by ambush. the phone and these engineers come out and these lawyers and they talked to me CH: Trial by ambush. [laughs] about these cases. So we started defending Volkswagen and all their work here in MM: Right and it was fun. It was hilarious Oregon and I went down to Reno and tried and it was uncertain. But it got as high a case for them once and did work in other as twenty-four and twenty-five cases a states, but I never had to try anything in year that I tried for several years in there. other states. And that was a big, new area Then it kind of started dwindling off, you of law. And we were involved in the case know. But part of that dwindling off was where the rule of products liability was they became much bigger cases and much adopted by the Supreme Court1 more involved and so I wouldn’t say that I We tried several cases, and one could have tried twenty-five Volkswagen thing I had to say about Volkswagen, if cases in a year because that you couldn’t they felt there was something wrong with do it. But anyway it grew up into the mid– their product they would get the case ‘70s with really heavy trial work. se�led. But, if they didn’t there was no And at that time I tried a case where se�lement. You went to the mat and they a wheel came off a brand new Chevrolet would spend whatever they had to. And pickup and the woman was hurt when there were times that I thought, [moans] the truck flew around and tipped over. “We’re on thin ice here,” but no. It worked And some very good lawyers up here out and they’ve been very good. They in Portland sued Chevrolet for a faulty would spend a lot of time. They would product and sued the dealer that they take lawyers from across the country back bought the car from. I represented the to New York and give us training, even to dealer. And we tried it before Judge Burns the point of going out with race car drivers

Marsh, Tape Two, Side Two 25 to a race track to ﬁnd out what the car can this is part of that day when nobody told actually do. We really don’t know how to anybody what insurance limits were. And drive, you know. Those people know how the claimant on the other side thought, to drive and you realize that a car has a lot and maybe had been advised, that there more ability than you’d think it does if it’s was a $25,000 policy on the case. He was handled right. And so it was an exciting represented by an incredibly good lawyer. time and I’d go back to New York a couple And he did too and so I said, “Well I’ll times a year, which I loved to do. pay you $25,000.” Then the PLF was ge�ing started There was a $50,000 policy, and they and we got involved and I got – had authorized me to pay $25,000. And I said, “I’ll pay the $25,000 I’m authorized CH: PLF is? to pay.” Well later, in a funny way, they learned that was not the insurance rate, MM: Professional Liability Fund. So I so he sued his lawyer and he sued me, he started trying cases for them defending sued the company. He sued everybody. lawyers. And I got sued as a lawyer And the lawyer who represented myself and I remember the outrage that him said, “Marsh didn’t deceive me of I felt. You know, a lot of hurt pride and anything. I told him I wanted $25,000 and all that. And so I thought I was a pre�y he said I’ll pay you $25,000.” Now you see, good lawyer, and I came to the conclusion they couldn’t even have it today. Anyway that I was a pre�y good defense lawyer the thing resolved and went away. But it for lawyers and doctors and accountants was a good experience for me. Not at the and such because I had been sued myself. time. I was really upset and I was touchy. So, that would be one of the ﬁrst things I had not reached a point in my maturity I’d tell a new client is, “I’ve been where of—I wasn’t very humble. I needed to you are. So I know what the anger is. You have things knock some nails out of me don’t have to tell me about that. I’ve been and I was pre�y proud and so I was hurt there.” by that.

CH: Mm-hmm. CH: Was that due to your having been fairly successful? MM: And then we’d get along be�er and I was able to work with them. So I think MM: Yes. I’m sure, because I was it was good to have a li�le blood on your successful and I was very much involved, own [laughs] cheek. and happily so, in a lot of community activities and so I was known about town. I CH: [laughs] What was the suit against can’t remember if it was before I was made you about? First Citizen of Salem, but I was proud. I didn’t like to be sued—[CH laughs]—my MM: It was about a se�lement that—and name in the paper and that sort of thing.

26 Marsh, Tape Two, Side Two and to the group. And it was the first time Role of Christian Faith that I had ever heard anybody talk about CH: You had mentioned at one point that the love of God instead of the wrath of you eventually, that eventually religion God. And that kind of piqued my curiosity, became more important in your life. And I guess. You know I always held to the Boy I’m wondering when that happened and Scout oath, you know, being reverent and what precipitated that? the belief in God is there. So, I always had that sense that there was God, but religion MM: That happened in 1970 or ’71 when was not an interest. And we’d gone to I was forty-plus. My wife started, she’s church in Salem at a li�le Presbyterian always had a spiritual nature but without Church out in South Salem for awhile. any background to back it up. She’s just And it was okay. I liked that pastor but a spiritual person. She’s just sensitive to there was nothing really growing for me, humanity. She’s got great antennae to pick nothing alive. up on where a person is if they’re hurting Well this night kind of turned me and such. And so she was searching to say, “Well, now look. Are you going to for some kind of an anchor to put that look at this or not?” Because that kind of sensitivity into and she started going to intrigued me, the love of God and concepts a meeting of women that was taught by of grace and kindness and compassion a woman by the name of Marge Lo�is in and that sort of thing, and you know I Salem. was spending each day in full armor. I Marge Lo�is’ brother is Doug Coe, was a warrior, you know. So to come to who is head of the International Founda- these sort of things well it kind of got my tion in Washington, DC. And Marge a�ention. And to jump ahead from now, taught these women and it grew from one of the reasons that this a�racted me is somebody’s front room to a big hall. And I’d decided I’d had enough aggression and Shari was really going regularly to that and conflict. I wanted to mediate and solve was enjoying it but she didn’t ever crowd and quiet. That was the shi�. But I don’t me with it. She would tell me what she think I would have necessarily done that was learning and such and I would look if I hadn’t had this experience with the up. But she finally said, “Well you know, Christian faith. Saturday night,” or Sunday night, I can’t And I am a Christian. And that remember which, some night, “Marge is term is misunderstood by many. going to talk to some couples at So-and- So’s house. “Would you go?” CH: How so? “And I said, “Well tell me what couples.” And so she named them off MM: Oh I think it brings about the and there were some safe ones there and I vision of dogmatic, Right, Right, Right, thought, well I can chance this. Right-winged insensitivity, and I’m far So I went and Marge talked to me from that. I do not believe in that. I think

Marsh, Tape Two, Side Two 27 that dogma in the hands of some is a MM: I can’t tell you what the verse was. very risky business. So you have to be I’ve tried to think of that, but I’ve forgo�en. careful. I really think our society has a lot Christ was talking about something and to learn from true Christianity. That you I caught his meaning. I just knew, and can kind of make a quick comparison to how you do that is something we could the fanatical Islamic against the really talk about for days. I caught his meaning peaceful Muslim. There’s a vast difference and I believed it and it was just as if he’d and you should talk to the peaceful one, said it to me in the room. So, then I really not the crazy one. had a couple of things happen. Do you And so anyway, I went at this like remember Corrie Ten Boon? a lawyer. And everyday, and I started on page one. “In the beginning.” [laughs] My CH: Corrie Ten Boon. wife just shook her head. She was trying to get me over into the New Testament MM: Corrie Ten Boon was a Dutch and I was back in the Hebrew Bible and woman whose family hid Jews at the so I lay that out with a dictionary, Bible beginning of the war and she was caught commentary and Englemeyer’s Children’s doing that and put in the concentration Bible book. I had never heard of it before. camp and she had an incredibly strong It’s a big book, beautifully wri�en in very faith. And she was on in her mid-to-late simple language of just the old classic seventies when she came to America and Old Testament stories. And I just started spoke around the country. And she came on page one and I worked laboriously, to Salem and she stayed in our home while Genesis, Exodus, Numbers, Deuteronomy she was there, for several days, and so I and all the way. Because I just a�acked it really got to know her first hand. like a law book. If you see the spirituality that you But I got in there and at the same do in Mother Teresa and people like that, time I was more and more around people well this is what you found around her. She who were moving in the New Testament reeked with it. It was really quite exciting, and talking then, and I’d be over there and she had some profound things to say. reading, but that was my study, catching She said I reminded her of Moses, that up with things. Then I got into the New he had everything for forty years, and I Testament and I was reading and this is had everything for forty years, and they kind of a confession, if you will, but I was mean nothing for forty years, and so he si�ing there one night and I was reading could use him for forty years. And she in the Book of John and I said, “I believe was anticipating, “You’re going to get the it.” And I did. And I do. wind knocked out of you,” [laughs] “and you’re going to find humility.” And that’s CH: What evoked that response? what really did occur.

28 Marsh, Tape Two, Side Two Then I became more and more involved, handle it. Newton comes on the scene, a and Shari and I become more and more devout believer. Newton wrote a beautiful involved with church and with teaching article in defense of the proof of God by and education and retreats and things like nature, which he was a master of. And at that. And I always had a long and kind of the same time the Empiricists, Empirical nagging interest in the fact that, “Why do philosophers were blossoming in the Age we have so much trouble communicating of Enlightenment and the Church didn’t between the person with faith and the handle that well. Dogmatism resists it. person without faith?” You know, and I You read about the scary time in Puritan was back to my second grade teacher. The New England and scary times in John faith and reason issue. Knox’s Scotland and terrible abuses of So I started really concentrating on the Church. And here was this kind of a that and in order to do that I had to kind poor defense against science, and at the of start where I’m sort of talking to you same time there was something that was about. I had to start reading, what other ringing through that I felt needed to be people who did not believe, what were they communicated. That’s what I set out to do thinking. And I found that very interesting. a few years ago. I’ve been working on it. And you might say that I was testing my faith by doing that, really. I don’t think I CH: In what way? was, but if I was, it tested well, because I became more and more convinced. And MM: Why, I’ve wri�en a long article I adopted the old fides quarem intellectum; on it—not published. This is for family faith seeks understanding. and some people I know, and I’m in the So that’s the course I took on process of ge�ing responses to it from with my study and digging in deep some people, because I’m dragging them theologically to find out what happened. into some thoughts that I don’t think are And it’s an interesting, fascinating story very common. that takes you back to ancient times when words were wri�en in scripture, and CH: Regarding science and faith and brings you into Middle Ages when people reason? were still considering this world flat and finite. God was in his Heaven and Hell was MM: Yes. Right. Right, and what we as down below and all the things that those human beings really think we are. You Ancients and Middle Age people, that’s know the great Professor Hammer who the only way that they could think about says we are a lot of chemical reactions it. That’s the only way they could say it. running around in a bag. [laughs] That’s And so then Galileo comes on the pre�y tough for me to go to. [laughs] I scene and they don’t know quite how to don’t believe that.

Marsh, Tape Two, Side Two 29 that I needed to concentrate on kindly Balancing Faith and Law authority.

CH: How do you balance your life in CH: What did he mean by that? jurisprudence with your life in faith? It seems it has the potential to be somewhat MM: No. This is me. His advice was just schizophrenic. don’t decide it while angry. I came to the other conclusion. It sank into me from some MM: Oh clearly. And I’m tested on it source. I don’t know what the source was, daily. I guess I got some kind of reputation. whether anybody said it or what, but all Well, I was with Hatfield and I was with of a sudden the words “kindly authority” others that are kind of religious. You came to me. I never enter the courtroom know, I’d take part in Governor’s Prayer without asking for that. Not once. I started Breakfasts, things like that. So when I to one time and had to close the door and came on the bench, my reputation was, back up. But I do every time. Wisdom, “Ah we’ve got another kooky Christian kindly authority. up there.” [both laugh] But a lot of them, you know I’ll be trying somebody and am CH: And does that evoke the sense of going to sentence them and I’ll get this the ideal of a judge? sentencing memorandum with all sorts of Biblical references and such, [laughs] MM: It evokes, in me, the feeling that or I’ll get reminded by a lawyer about the everybody out there, no ma�er how cruel compassion of the faith and so – and criminal they may be as a human being—I do have authority over them— CH: These are people who know a li�le and I have to deal with them kindly, but bit about your faith orientation. [laughs] with authority. Sentencing is the most difficult thing that a judge does. Some MM: Oh yes. Right, they know my may disagree with that. Most judges that I orientation and they’re going to try their know would say that is the most difficult best to use it. [laughs] thing you do. I have Mexican illegals appear CH: Does it work? before me all the time. It’s a lot of what I do now in senior status. And particularly MM: No. Well it does sometimes. I think the Mexican Indian, but generally the it does. I think I shouldn’t say no. population, they stand before authority Another confession—when I came with their heads down. They look at the on this job my father gave me one piece floor. And that bothered me. And finally I of advice: “Don’t decide anything when said to one of the, through an interpreter, you’re angry.” That’s the only piece of “You don’t have to look at the floor. You advice he gave me. My other rule was and I ought to be able to just talk to each

30 Marsh, Tape Two, Side Two other.” But I get them now to raise their groups in the House and Senate, and head and look at me and I don’t let them throughout the world. They’re very active. stare at the ﬂoor. Doug is my age and so he’s ge�ing to the point where you wonder how long this CH: They’re doing that out of respect goes and we always have to remember – for you. CH: He’s still based in Virginia isn’t he? MM: Right. And some apprehension, but total submission to the authority. Well, MM: Yes. Yes. I want them to know that I’m thinking that they’re a human being. And it works CH: I was there once at ﬁve o’clock in and they come up and their answers get the morning, interviewing him. [laughs] quicker, they immediately get less timid if they can look you in the face. Anyway, we MM: The Cedars? jumped way up there. CH: The Cedars, that’s right, and wasn’t CH: This all began in the early 1970’s? it President Madison’s house?

MM: Yes. MM: I don’t know whose mansion it was. CH: And, obviously, it’s had a profound aﬀect on your life and your career. CH: I think it was the Madison’s mansion. Yes. MM: Right. MM: Quite a house. CH: Do you keep up contact with the Coe’s? CH: Beautiful place. And then your connection with John Dellenback, how MM: Not as much as I did. I used to did that come about? spend some time with Doug every year. I’ve seen him almost every year, but very MM: That came from there and World brieﬂy. Vision.

CH: He’s in Virginia? CH: And that began during what time?

MM: No he was out here at George Fox MM: We got into World Vision more a�er two years ago, and he was here at another I came here to Portland. We really started thing about a year ago. I saw him for just a ge�ing involved with— brief minute. But he has led a miraculous life with his inﬂuence there with prayer [End of Tape Two, Side Two]

Marsh, Tape Two, Side Two 31 32 Marsh, Tape Two, Side Two at that time. And then the summer of ’86 I received a call. Well one of those two times earlier, is when I was taken back to Washington and had a long day interview with the Justice Department. They run you by about eight different guys who ask District Court Appointment you questions. All come from a different aspect and I’m sure some of that was to CH: This is an interview with Judge find out where’s your political bent. Malcolm Marsh at his chambers in But anyway that kind of went away downtown Portland, Oregon. The and then when I was—I knew that they interviewer for the Oregon Historical had my name there and in the summer, in Society is Clark Hansen. The date is August of ’86 I got the call that they wanted January 27, 2005 and this is tape three, to have me fill out some forms, that I was side one. being considered for nomination. And so You’d just mentioned some of your that’s when the big rash of forms started contact with World Vision and Young and that went through to January. Life. And you had mentioned moving to Portland. When was that and what caused CH: What was causing that to occur at that? the time and who was precipitating it?

MM: Well I moved when I got this MM: Well the thing that was causing it appointment. was that somebody was leaving the Ninth Circuit and there was a spot opening CH: Oh, okay. So when you came on the on the Ninth Circuit. I think O�o went District Court. Senior or something. O�o Skopil, or John Kilkenny, I can’t remember who. So, Leavy MM: Right. Came on the bench. And was being considered to move to the Ninth that started the first time that I was ever Circuit, and that would empty a spot here. considered, if you will, for this bench. I’d An unusual thing that actually happened been asked to serve on a state bench and it is that we were both sworn in on the same just didn’t ever interest me. Can I tell you day. In fact, some people worried if you a story about why I thought it would fit? didn’t have to have a vacancy before you I was considered with a group fill the positions, and so, well we did of other candidates when Ed Leavy for about two seconds. A lot of people came on the bench in ’84. Actually I was wondered if you could do it that quick. considered earlier than that. When Panner Of course usually the gaps are there for and Redden and Frye came on the bench I months and months and sometimes years was also considered at that time. And then before they get filled and this one was Leavy came on and I was considered again filled instantaneously.

Marsh, Tape Three, Side One 33 Anyway, I got this call and I felt it important and would you give my very best to your to memorialize it. And so it was January family?” 29, 1987. I’m just going to read it to you. And I said, “Thank you, and please give my best to Mrs. Reagan, and God CH: Please. bless you.” He responded, “Thank you very MM: “This is a short summary of “the much. Good bye.” phone call, “about nine a.m. on the 29thof I felt that was important enough January 1987. The phone rang and it was to record and I think I dictated this pre�y an operator who said, “Mr. Marsh?” close, I’m sure. Because I did it right a�er And I said, “Yes.” the phone call. She said, “Just a moment please, the President of the United States is CH: Is that common for a president? calling.” The ﬁrst thought that comes to my mind is, what if I’d been out having MM: With him. With him. He called coﬀee? [laughs] everybody he nominated.

CH: Right. [laughs] CH: That is amazing.

MM: “The President of the United States MM: It really is. And I thought, I should is calling.” memorialize that, you know. When I was Then there was a short break and si�ing there I thought, hit the record on the President came on the phone and said, your phone. I’ll cut him off just a sure as “Good morning Mr. Marsh.” anything. [both laugh] I didn’t touch it. And I said, “Good morning, Mr. [laughs] So anyway, that’s how it started. President.” And he said, “I have on my desk, CH: Did you know this was in the a document, which if it meets with your works, though? approval, I would like to sign and submit to the Senate, and that document would MM: I knew it was. The election had to nominate you to sit on the United States go by and things had to normalize. So, District Court for the District of Oregon.” we were the first ones in that term of I responded something to the effect Congress to go before the Senate—Ed that, “It would be an honor to do so, Sir, Leavy, myself—and what was his name, and thank you.” from New Jersey? But we all went back He said, “Well I am very pleased to in March and appeared before the Senate do this and congratulations.” Judiciary Commi�ee and went through I responded, “I appreciate your the process for district judges. That isn’t personal involvement and consideration.” near as big a to-do as it is when you’re Whereupon he said, “Thank you talking about Supreme Court Justice.

34 Marsh, Tape Three, Side One CH: This was in 1986? the District Court of Oregon. Our Chief Judge, James R. Browning is participating MM: Spring of ’87. in and representing the federal judiciary and the Southeast Asia judicial conference CH: Spring of ’87 when you went before so this fell to me under our court policies. the – Nevertheless, he sends his warmest congratulations and best wishes as does MM: Right. Right. This call was January the circuit judge Ted Goodwin, who I am of ’87. sure many of you know. Today we have acquired two new judges, one an appellate CH: And the process is that the senator court judge and one a district court judge. from the state nominates and then the It is truly a significant event in the Ninth president appoints? Circuit, but it is, and it has been, and properly so, an Oregon event. When I was MM: It happens in different ways. You’re headed for the Boise Airport this morning, not going to go anywhere if those senators about to board my flight over here I say no. That’s clear. And I don’t think the stopped at my favorite service station and President ever nominates anybody that the my favorite a�endant, a man I’ve know senators haven’t said they’ll go along with, for quite a few years said, ‘Judge, what’s even though they might not be their choice going on today?’ but they’ve got to say they’ll go along with I said, “Well I’m headed to Portland it otherwise it dies right there. [both laugh] to participate in the ceremony to induct So, you know it’s a choice situation that two new federal judges.” depends upon political contact. There’s no And he said, ”My that’s sounds question about that. And the importance fine. But,” he said, “Judge don’t make the of that is to understand that once done, mistake of telling them what it’s really all that aspect goes out the window. about.” Well this is both a festive and a I’ll read you something. This was serious occasion. Please permit me in when I was sworn in. And this is Judge closing, a few serious and some personal Anderson, who’s now deceased, but he’s thoughts. The language of good behavior. from Idaho and he came to represent Which is over on that certificate. the Ninth Circuit when Ed Leavy and I “The language of good behavior, were sworn in. And this is an interesting a lifetime appointment, an undiminished thought that stuck with me. He says—this salary were designed by our founding is Judge Anderson. Quote: “Judge Panner, fathers to give Article III judges maximum Senator Hatfield, Congressman Smith, freedom from possible coercion and fellow judges, distinguished guests and influence by the executive and legislative all of you. It is a real pleasure and honor branches of government. Article III judges to participate in the Joint Session of the are not subject to control by any superior Court of Appeals in the Ninth Circuit in authority other than the Constitution and

Marsh, Tape Three, Side One 35 the laws of the United States, your oath longer, it will influence every judicial of office and your own integrity. In short, nomination that comes before Congress. I strongly suggest with all due respect, They’re looking at whether I agree with that as of this moment you owe nothing abortion or the death penalty or all the to your senator or to your President of political hot-bu�ons, and so these people the United States, except a thank you, if are being grilled about these ma�ers and indeed you are thankful, [both chuckle] the questioning is made so dominant. My and the commitment to all of us and to fear is that the candidates, the nominees them that you have undertaken by your may start to feel this should control how oath of office today. Now you are a full we look at things. And so, if they weren’t fledge member of the independent federal there, they’re put there and then when judiciary, which is in all probability the they get on the job they feel they be�er most independent body in this nation and practice there. You see, my fear is, I don’t perhaps the world and has been for 200 care how long a senator harangues along. I years.” just don’t want to see that nominee change Now, I keep that close at hand. the reason that he reached the point where [both laugh] So, but I appreciated that from everybody said this guy’s qualified, and Blaine, Blaine Anderson. that would be his independence, and not feel duty bound to be a conservative or a liberal or an activist or whatever. Because Judicial Activism we are ge�ing some. We’re ge�ing some activists and that, I think, is too bad. CH: And all the criticism that people hear about, oh the independent judges CH: What is an activist? and the, what is it, the term that is always used in terms of their rulings, their judicial MM: My job is to follow the Constitution activism. of the laws of the land, not to decide what the laws of the land ought to be. That’s MM: Oh, oh yes. the legislative branch’s job. And so when I say, “Well that’s just great, but that’s CH: And that somehow they’re doing not the way I’m going to hold,” then I’m something wrong. I mean it sort of harkens driving the law. Or if I’m saying, “Oh back to this independence that was built that’s fine. I know I have to go along, but into this system. I’m going to find any niche I can to slide it sideways a li�le bit to make it fit with my MM: And I’ll tell you what my fear is philosophy.” I think I told you yesterday. about that. The polarization of this country That’s why I got off the salmon cases. I that’s prevalent right now is so severe that felt that I was starting to have my own it has, and it is, and it will be for me, not too ideas of where that ought to go. That’s much longer, but I’m afraid quite a while not my job.

36 Marsh, Tape Three, Side One CH: And yet, a judge’s job is interpre- honestly and thoroughly enraptured with tation of the law, right? environmental causes, but that should never invert itself to where you burn up MM: Yes. But on the district level, we log trucks, or the forestry office. You can be look at what the Ninth Circuit said. We critical of the hypocrisy of the temperance look primarily at what the Supremes have union operator who’s found in a saloon or said. If not then we go to Ninth Circuit. If some misguided temptation that’s followed they haven’t said anything, which is almost by somebody who everybody thinks is never, why then we’ll look somewhere holier-than–thou, but that shouldn’t allow else, but we’re supposed to look in—you us then to say let me show how un-holier know when I first came on the bench we than thou I can be with smut and rejoice used to circulate our opinions before we’d in the ability to spread on television or issue any of it. And everybody would through any media outrageous conduct kind of look at it so that nobody got off the when you know full well that it’s really charts with silly opinions that everybody not the right of free speech it’s the desire disagreed with. And we still do, with to make a profit. And that’s inverted this latest ruckus on the guidelines. We hypocrisy. So I think that in this country sat down with Judge Panner’s opinion right now there are a lot of ships without and some of us didn’t agree with all of it. anchors to tie—to let them know that Some of us agreed with parts of it. Well there’s a bo�om somewhere. If they want we discussed that but I think we’re all of a to stop, is there a bo�om anywhere So mind to not just make feminine decisions rather than just dri�ing in any personal or make ecological decisions. We’re to philosophy I think the human race needs make legal decisions. And I feel very, a root. very strongly about that and that’s my I just think we’re becoming un- greatest fear for the judiciary is that the rooted. We’re loose cannons. And we are insidiousness of this polarization is liable such slaves of technology. You can stand to be felt as proper within the judiciary. back and you can look at technology and you can say, “Wow look at what they’ve done in the last fi�y years.” Let alone the Faith & Reason in Modern Society last hundred years. Did you ever read Ambrose’s book CH: What’s causing that? What’s causing on the transcontinental railroad You know, the polarization? here in 1865 and 1868 they had moved from transportation, which was in the Roman MM: Oh boy. [pause] This country suffers days, to the five-day passage across the from an inverse morality, in my opinion. country in a railroad car. Now they do it When you replace classic values with your in minutes. Look at where it’s gone. Well, own idea of what is moral you can justify so technology has kind of taken over as if anything. And so you can be a person it’s the answer to everything and we rely

Marsh, Tape Three, Side One 37 upon technology to solve things for us all when I see such anger from either side. the way along. Everything can’t be solved Believe me, I do not co�on to that person that way. At least not in my philosophy. who thumps away with damnation and And so I think what we need to do is— rage. it’s why I write about communication. I refuse to be polarized. I refuse to be CH: And so what has our society to polarized. I have my own ideas and I have be rooted in then if it is rootless at this strong convictions. My prayer is that I’m point? not dogmatic about it. I like to be able to talk to somebody who comes at me from MM: Yes. Seems to me that ultimate a totally, irreverent place even an atheist, answer is God. if you will. You have to realize the person CH: In a multicultural, multi ethnic who’s an atheist really has a faith. He’s society being rooted in God has, in your got to have a faith. A strong faith. So why view, what kind of parameters How far can’t I talk to him on a faith basis then See does that reach? Now the agnostic, he wants me to prove everything, probably scientifically and MM: Well I’m pre�y broad-minded. I can so I have more trouble with him because say that. I was glad to read in the “Witness I can’t prove God scientifically. But why to Hope,” on John Paul, that he feels that can’t we all communicate And if we’re all God has lots of ways to bring us to him. poles apart and you’re all bad and you’re So, you know I don’t cross off the Muslim. stupid and you’re out of date, all this sort I don’t cross off the Jew. That’s not biblical of thing, you’re irrelevant. even and it’s not good sense. It’s not I was walking one time and I spiritual sense but I do think that there are said to myself—my grandchildren are certain basic concepts that have come to between seven and seventeen. I’ve got us, whether through thought, reason, or seven of them in that category. I’ve got a revelation or what, they’ve come to us and very small window to have any influence they’re sound. They’re not dumb ideas and on their lives like my three grandparents. so to be so self-centered and so radically One of them I lost when I was four but the individualistic, yet the radical individual other three were into my adulthood and has no guidepost. He’s an individual. had great impact on me. And so I swore He’s going to be or she’s going to be that right then, I am going to spend time with individual and not required to answer to these grandchildren and if they feel I’m anything. irrelevant they’re going to have to tell me so because I’m going to push them. [both CH: But radical in what sense? There’s laugh] And we have some wonderful, definitely some radical Christians or wonderful times. And so I just despair other people who believe that they are

38 Marsh, Tape Three, Side One witnessing their faith in a perhaps a CH: Oh not at all, especially in radical way, relative to the rest of society, terms of how you make decisions and but one that is still very consistent with interpretations, and the ethics or the their faith. morality, the basis of our legal system. A lot has been said about the intentions of MM: Yes. When Alexis de Tocqueville the framers of the Constitution but there wrote about the American democracy are a lot of framers and a lot of intentions in 1835, he was talking about the basic and it’s hard to discern what they were. concept of the American, this weird group of people who lived in such a different MM: Absolutely. Yep. Right. philosophy, and it was based upon the principle of individualism rightly CH: And because our society is understood and the pursuit of happiness becoming so much more complex there, it tempered by—I can’t remember all the seems like, it must be very difficult to find things he said. He got the idea of the that common denominator, that common pursuit of happiness from a fellow by the ground that most people can identify with name of Francis Hutcheson who’s a Scot as being their roots. philosopher. And Francis Hutcheson said, “The pursuit of happiness is fulfilled most MM: Yep. And I think that it’s, if we spend when it brings happiness to others.” a lot of time watching kind of mindless You can call that the golden rule television and operating mindless video if you want. Albert Switzer picked that games—don’t get me started on the up and said, “The happiest people in the lo�ery. And, why then we don’t have world are the people who serve.” time for—let’s just take the simplest So it’s the same kind of concept. example—family dinner. Where was the Unfortunately, Thomas Jefferson le� off real instruction to children handed out that last part and if you leave off that last except at the family table during a meal part you’re just le� with the pursuit of and the traditions of Thanksgiving and happiness. You’re le� with individualism Christmas dinner or whatever it is. Those that, if not controlled, leaves you to become who grew up in that kind of a home nihilistic, totally self-centered, greedy, have vivid memories of those times. I down the list you go. Now everybody isn’t remember when my Grandpa Charlie greedy. There are many people who are on told us this or that and they—what is it different poles that are not that way, but I now It’s a quick fix and out the door and think that if they all came to that position such a helter-skelter type of life that we and acted under those precepts then we don’t get an opportunity to do that, to sit wouldn’t have this polarization. That’s around and a�er you’re done eating and where I come from. Now that’s more than sit there for another hour-and-a-half just you wanted to hear. [laughs] talking. Nobody does that.

Marsh, Tape Three, Side One 39 CH: No, there’s not enough time. in Uganda or Mauritania, but Shari and I support them. I doubt I’ll ever see them. MM: No. We get mail from them. But I don’t do that just to be proud of it. I’m driven to do it. CH: So how do you bring society back So is she, more than me. She just kind of into balance or how do you see this drags me along with her enthusiasm, but I polarization being somehow mitigated or think that’s in us all. mended in our society? I don’t care who you are. I’ve talked to person a�er person and somewhere MM: It would be my prayer that it along the line in the conversation they’ll would be done by having a fusion of make a reference, “Oh God, I didn’t think communication between faith and reason. of that,” or something like that, but it’s You know it was amazing to me there. Why use his name? And it’s not to at 9-11, in this country that goes along so swear. It’s not to blaspheme it’s just the cavalierly and with criticism. My word way you express it. Well if that’s in all of there’s a huge segment that would a�ack us, and if at the same time we are given this the Christian faith in this country and yet incredible power of reason, why should 9-11 happens and what have we got the those be anathema? They’re both built into next several days with church services— us and it’s like fighting yourself. So that’s what I think the answer is, is we have to [End of Tape Three, Side One] recognize that they’re both there. Some people flat deny that spiritual one and say we’re a bag of chemical reactions. That’s Human Compassion too bad, but I don’t think that most people are that way. I don’t think most people are MM: —response at 9-11 and then the that way because when something like 9-11 tsunami. When you think of what goes or the tsunami happens the bulk of people on every year with Northwest Medical are driven to do something about it and I Teams, Mercy Corps, Portland’s a hot- don’t think they really understand why.1 bed of wonderful organizations like that. Habitat for Humanity, all this outpouring. CH: And yet there are a lot of people that What drives it? What drives it is not just a are driven to help other people that may lot of do what I can for the Red Cross, what not, at least conscientiously, be thinking of drives it is some kind of a deep, deep down any sense of overt spirituality— spirituality of a command if you will, to be kind to others. You bring your happiness MM: Yes, yes. by bringing happiness to others. I think that Hutcheson was right on. CH: —simply compassion for fellow So, I could live my whole life human beings and compassion for suf- without worrying about five li�le children fering.

40 Marsh, Tape Three, Side One MM: And that’s why I say it is a latent existence within them that they don’t even Professional Ethics realize. They don’t realize the source of it, CH: So. [laughs] I’m going back here but there isn’t an animal in the world that in my notes and trying to think of where I’m aware of that sees things other than in we are in the chronology of your career, shades of gray, dark and light. They don’t where you’ve talked about coming onto see rainbows and they don’t other color the court and actually, just to look back for spectrums. Why are we given that gi� a minute, are there other things There are I think we ought to think about things a few other questions I wanted to ask you like that. We have this huge capacity to in terms of your years approaching the minimize all, you know. court. In terms of the bar, when you were Think of the computers in a trial lawyer, what was your impression existence in the 1950’s, the size of block of the Oregon Bar and who impressed buildings and now you carry them you and what lawyer did you work with around, every kid carries around one in or around that you most admired? his hand listening to 5,000 songs. This miniaturization ability has—whew. You MM: I saw that on your outline. What have to but think, where’s it taking us did I do with that [paper shuffling] I See you have to always look and see. made a couple of notes on that. These Do we have a down side to the fact that are professionals. I give this speech we’ve got technology, well yes. I go on sometimes. Do you know how many the Web. When I go on the Web, I always professions there are There are five have in the back of my mind that some classic professions. The law, medicine, nut is trying to find my identity and so ministry, teaching and the surprise is we’ve created the source of great evil foreign service or military. And those are in the minds of some, with tremendous the profession. In the English squire’s technological advances. And we have family one went into the business and to find, I think, some way to realize and one went into the ministry and one went understand that technology itself can’t be into law and the guy that went into our sole answer. business was supposed to support all the We’ve got to slow things down rest of them. That was kind of a system. a little bit maybe, and I don’t mean to And the reason they were professions is stop progress. But technology’s not that people professed to do something. I going to answer the whole question. profess to practice law. And if I profess to You know, we’re still fighting wars. We do something that means I can fake it. haven’t solved a thing. In fact we’ve got a worse kind of war now than I think the CH: You can fake it. world’s ever had. Where did we bring that about? MM: I can fake it. I can counterfeit. [CH

Marsh, Tape Three, Side Two 41 laughs] And we have great and funny There’s one lawyer by the name of Parker stories of guys who practice medicine Geise who died when he was probably for years before they’re finally found out. about fi�y-five, but he was the absolute Try and fake being an electrician. You icon of take–it-easy. Don’t get too caught get zapped somewhere. [CH laughs] But up in your cause. He used to say lawyers you can fake those, which means that should never represent friends, family, they must be controlled by some kind of doctors, or those who ride motorcycles. a standard and we call that ethics. That’s [both laugh] And so I just remembered what keeps the faking from ge�ing out of him for the short time that I knew him control. When I came into the Bar it was before he died and he was a small town a disbarring offense to put your name in lawyer, was Parker Geise. Great guy. an ad, you know. You couldn’t advertise. So those are a few. O�o Skopil If you did you were disbarred. And now and I are very close. O�o Skopil has a the phone book is full of them. Well, what deep faith, very deep faith and we can was right See, what was right There’s a have marvelous discussions, and do. You great book wri�en about that. know there’s a ten-year gap between us My upbringing by my father and but we’re very, very close, so it’s good to uncle was very much ethically oriented have him. and very much employee sensitive. Have a good happy staff. You’re not God. Act like a human being with everybody. Well Senior Status these are lawyers who epitomized that. First of all my partner, Ned Clark. There CH: Is he still in senior status? was a great lawyer in Salem by the name of Roy Harlan. Roy Harlan was known by MM: Yes he is and he’s trying to go everybody and liked by everybody and through the throes that I’m going through, was respected from every aspect and he that we’re irrelevant. Where can you do was a mentor to every lawyer, young or something that is helpful and not just in old who ever talked to him. He just exuded the way, you know. I do not intend to be professionalism. Roy Shields up here in around that long, God willing I’m here at Portland, fantastic person, affected me. all. But no, I didn’t dream that I would still Burl Green, a close friend of Ned Clark’s be doing anything at age seventy-six. I have who became a friend of mine, and Burl so many interests that lead me astray—but was, if there’s such a thing as an activist you know, it’s kind of back to what we lawyer, he was. He was out for the li�le were talking about. When you come on guy and he had learned that from his this job there’s an infection you get and you father. In Eugene, Windsor Calkins, O�o have to really watch it because it can go to Skopil and Bruce Williams in Salem, and your head because [whispers] you got a lot Asa Lewelling down there. Yes I could of power. It’s got to be carefully handled. go on naming more and more lawyers. And so, just as it’s easy that it comes, it’s

42 Marsh, Tape Three, Side Two hard to shed that. You don’t like to give up “Hi Judge,” and I don’t. [both laugh] So that role, you don’t like to give up going yes to that extent, and when you come out there and si�ing there. So it’s kind of a through the door and the CSO’s all greet lifetime infection I think you take on. you, “Your Honor,” and things like that, But I think it’s our responsibility to why it does represent your life to some consider our productivity. It is certainly. extent. I’m commi�ed to the fact that I’m not that important. I humble myself a li�le bit. You CH: But more than that, just the raison can do other things. You don’t have to drag d’etre, the reason for being, the sense this out. of belonging, of accomplishing things, I drove my poor wife crazy the of spending your time constructively, I first few years we were up here. I was into mean how much does that occupy your this so heavy. Oh, every day, every night, mind when you consider these other pulls every weekend. We had a case load that that you have That maybe you might was frightening at that time. And so she’s not have as much influence on things as rooted out of her home in Salem and she’s you do right here, but your ability to do brought up here and she knows a few things constructively, or just your sense of people, but she’s not part of Portland, you purpose here. know. And the friends she does have are very gracious but she’s really trying at the MM: Yes. I do think it is valuable from the same time to re-anchor herself faith-wise standpoint of education, going to schools, with new friends and I’m off doing my duty talking to kids. I try to talk to a lot of kids. for King and Country you know. I wasn’t And I think that you do have this status sensitive to that. I was not good about that that they listen. They haven’t seen a federal and finally we had a really good session— judge before and so they want answers, we just had to talk that out. I’m sometimes and they’ve got marvelous questions so, I a slow learner but I do. [laughs] think that it’s a benefit. The way I operate, though, is I’m probably at my most CH: How much does your job define comfortable moment, not in research and who you are? in writing but in a trial situation, which I don’t do much anymore. But there was MM: Gosh, I hope very li�le. I hope very nothing about the courtroom that threw li�le. I wouldn’t want to have anybody say me when I moved up and sat on the bench. that he’s this and that because he was a I knew what the lawyers were doing. I judge or is a judge. But it certainly affects knew exactly what they were doing and your life and I walk down the street and I was very comfortable knowing. And I I see somebody coming toward me and could rule quickly—that part I did well. I I’m like, “Oh, what’s his name, what’s his don’t say I’m the smartest judge up there name?” I can’t remember, you know. but I was so used to trial practice that there And he has the privilege of saying, was nobody that brought anything new to

Marsh, Tape Three, Side Two 43 my mind, that really kind of, “Oh, he got CH: [laughs] Well what is that point away with that one.” How do you determine what the point is when a judge should retire? CH: Do you think there is a time when judges should retire? MM: Well I don’t think Owen Panner ever ought to retire. So it depends on the MM: Oh yes. Absolutely. I think there’s individual. a time when lawyers ought to retire and I think judges, too. What I’ve tried to do CH: Mm-hmm. is pull back from things where I feel it would just bring too much stress on me, or MM: He’s just gung-ho all the way. A- too much discomfort. I’m not going to go type personality and you know ready to into a whole new area, and do the things, leap into the most complicated of things, which I should not do. so certainly not now for Owen. For me, I I have a rule. Somebody was laugh- have these other interests that I’ve intruded ing the other day. His rule is he’ll do any- upon just being a judge and those kind of thing you can do in forty-five minutes and were flags that told me, okay you had a that’s basically about right. And I’ve just reason that you came here. Now can you cut it back like that. Now part of this is have a reason for fulfilling yourself, the health. Part of this is health. I had bypass rest of life, whatever that is. And that’s surgery in 1993, which was a wake-up where my a�ention is more and more call. That really gets your a�ention. And it going, but it is difficult for me yet to get changed my life in a lot of ways, dietary, up on a morning and say, “Well I’m not exercise and all that sort of thing. going down there today,” and plan not to And unrelated to that—but also go down there, you know. I’ll have a blank in the heart—I suffer now and then from day or two, or week, on the calendar and atrial fibrillation and so I can’t be si�ing on I always feel like I’m playing hooky or a bench and go into a fibrillation. [laughs] something [laughs]. So I’ve had to tailor my work here in a way that I can do it, not just to hang around, but CH: Do you have a sense of panic? I still think it’s valuable for me to keep my mind active, to be around the collegiality of MM: Yes, gosh sakes I’m supposed to be the situation and to know the lawyers and down there. Well, no, you don’t have to to do something that off loads the other be down there, and that’s why the system judges, that they don’t have time for that allows us to pull back. It’s a gracious system. forty-five minute thing. That’s why I try to Almost a third of the judicial work in this take things to relieve them. You know I’m country is done by senior judges, see, so about to leave for two months for Hawaii so it’s a service. But it shouldn’t—you know, that’s hardly something that’s just nailing I go into courthouses, and I talked to you me to the wall. [laughs] about being on the Facilities Commi�ee.

44 Marsh, Tape Three, Side Two I go in and here are all of these pictures tried to copy this year, and it was fine but of these judges on the wall and so many it didn’t have that same familiarity with of them died with their boots on. I don’t everybody knowing everybody that it think that’s necessary. For some it is. For used to have. some that’s the way it ought to be but not for everybody so you shouldn’t just say, CH: You were admi�ed to practice in well you’re appointed for life. Serve for federal courts when? life. So that’s my philosophy. [laughs] MM: In ’54. CH: [laughs] Well was there anything else in terms of your impressions of the CH: In ’54. legal community? MM: Yes. MM: Well it was small when I started, you know. And it was very collegial. You’d go CH: Quite early. And did you actually to a bar convention and all the lawyers— start taking cases to – my wife was amazed at how the lawyers got along. You know, we’d be trying cases MM: I came here a few times with my all week long then go to a bar convention dad and then later on—I wasn’t in here a or a CLE meeting or something and go lot until the ‘70’s. Then I started coming out to dinner and regale one another with more to federal court on several different stories and that, with the size of the bar cases. now, is impossible. And at that time you would try cases with probably twenty- CH: Was that ever the asbestos cases? five lawyers that you tried cases with all the time and you knew them very closely. MM: Asbestos and Volkswagen and PLF Now a trial lawyer might run into the and there was some contract work, big same lawyer on the other side once every contract cases that I had out of California. six years or something. So you don’t have So that’s kind of where I got going more that constancy that really led to a collegial with the federal system and I enjoyed it. association. The bar conventions were There is a difference. And I hate to say town hall meetings. it’s an important difference, but there’s Now they’re delegates and something about going to federal court probably necessary. I wouldn’t say that that is different and so maybe that’s what is all good but it takes away the ability, enamored me about being a federal judge. the importance of saying, “By gosh we’ve There’s a certain dignity, which I think got this issue coming up,” let everybody needs to be maintained, not only in the turn out and go there. That’s when they structures, but in the people and in the used to have the tent shows, which they practice that is still here.

Marsh, Tape Three, Side Two 45 bench. A shower of papers and this poor Judge Solomon guy’s grabbing at these papers and all of us CH: Did you ever go before Judge in the back of the room almost got up and Solomon? went out of the room because [laughs] we didn’t want to appear before him. So that MM: Oh yes. was my introduction to him. I had a case out of California and CH: What were those experiences like? the court had jurisdiction over my client’s property up here but they didn’t have MM: The first time I met Judge Solomon, jurisdiction over my client who was in other than hearing about him from my California, and she was not about to come dad, was when I came to be admi�ed to Oregon. Fred Starkweather, from Gold to the court. Gus Solomon ran what he Beach or Brookings, was on the other side called a thirty-day call, a-nd he called the and we had a thirty-day calling come up whole book of cases. I don’t mean that and Solomon just dressed me up one side derogatorily. He had the whole book of and down the other about, “How am I cases so that he knew where every case supposed to decide these cases when you was. Then he’d sign it out to Belloni or won’t even get your client in here?” I was East, or somebody, but he ran the show. just shocked and demoralized. I felt, my And so this thirty-day call would be a gosh, should I go in and apologize to him Monday morning, and every lawyer who How have I so offended him So he sets it for had a case pending was to be there to the next thirty-day call. And so my client answer what’s going on. And the amazing won’t come up. I go up. I’m ready with a thing was that Gus Solomon knew what toothbrush to go to jail. I don’t know what was going on. And so you didn’t go there was going to happen. He didn’t pay any unprepared. a�ention to me. Many of the larger firms would send He turned to Fred Starkweather some younger fellow over who would not and said, “Why would you file a case when know quite all about the case. The next thing somebody doesn’t have to show up? Why to occur would be that somebody would don’t you go to California and file your be summoned to his court to explain what case if that’s where the other client is?” was going on and, “Why did you send him He takes off on him. So [laughs] he evens it over here? You’re the one in charge of this out. [CH laughs] He evened it out. case,” and that sort of thing. My closest association with him Well it was going on this day and occurred when I was associated with the we “kids,” were wide-eyed watching this Governor’s Prayer Breakfast. I wanted to go on, and so a lawyer presented a paper, have Rabbi Rose speak, so I went to Gus which I don’t know what it was about. But about having the Jewish faith represented it didn’t fit the rules and it certainly didn’t there. I’m an Old Testament scholar. I fit Gus Solomon and he just tossed it off the have a lot of interest there. Prior to that

46 Marsh, Tape Three, Side Two I served as chairman of the Continuing Legal Education Commi�ee to the bar. We decided we ought to have federal practice be the topic. It had never been done. And so I came up to ask Judge Solomon what he thought. Well, Gus Solomon thought that the Messiah had arrived. He was overjoyed with the thought of having federal practice be the main topic of the CLE of the year. We held it down in Eugene. Judge Belloni was new on the bench, and he talked. We had all the big federal practitioners talk, and Gus Solomon talked and it was just marvelous. We put out a great book on it and it was it was used for years. I’ll never forget at the end, we were having lunch the Saturday a�er the board session and Gus says, “And next year what we’re going to do is more on federal practice.” [both laugh] Every year from now on it’s going to be federal practice—[both laugh]—enough with this other stuﬀ. Unfortunately, he died the month before I came on the bench.

CH: Ah.

MM: You know one of his stories was with clerks. Somebody should get a book made from the stories of his clerks and how he would edit their work, you know, with lines such as, “I didn’t know English was your second language.” [laughs]

CH: [laughs] You have to wonder, who in their right mind would want to clerk with Judge Solomon?

MM: Oh yes.

[End of Tape Three, Side Two]

Marsh, Tape Three, Side Two 47 48 Marsh, Tape Three, Side Two couple of weeks a�er I arrived and with the arrangement with the other active judges I said, “Let me kind of work into this. I want a few days to just read through these files and find out what they’re about Becoming a District Court Judge and kind of get my sea legs if you will,” which they were very gracious to do. CH: This is an interview with US And I immediately ran into the fact that District Court Judge Malcolm Marsh in I was going to be doing more reading his chambers in downtown Portland, than I’d ever done in my life. The volume Oregon at the US District Courthouse. of papers really kind of surprised me. I The interviewer for the US District Court just hadn’t had that experience with the Historical Society is Clark Hansen. The practice of law. date is January 28, 2005 and this is tape The other thing that—it wasn’t a four, side one. surprise necessarily—but the extent of it So Judge Marsh, I was wondering was, that it would deal with such diverse what it was like when you first got issues. I was used to trying intersection appointed to the court, what you found collisions or things like that, all of which unusual about the experience, in se�ing you could put in a bucket. Or products up your staff or ge�ing used to the job. liability cases that you could really What was that like? categorize quite easily. But to move from admiralty and patent to something else MM: Well, it was a new experience. I was really new. So it took a lot of my think I told you yesterday that I took time to get, as I say, my sea legs. The Judge Leavy’s place. So, when he went collegiality with the judges was fantastic. on the circuit, why rather than having Judge Belloni, who I had practiced different judges assigning too many cases, before, and had a passing acquaintance as is the normal course with a new judge with, immediately sent to me one of his that’s an additional position, each judge seasoned clerks and said, “You might will kind of pick some things to start him want to have some clerk that has the out with. But I started out with a full load knowledge of how the courthouse works right from the start because I got all the and that sort of thing and if you’d like to things that Judge Leavy had. And it isn’t hire her, why that would be fine.” Which something that you look at like a pile of I did, and she worked for me for two years files. You really can’t quite get the feel of and was really instrumental in breaking how big it is because so much of it is in the ground and le�ing me know, this other rooms in the courthouse. is what you do next and this is how we So I had a box of pending motions prepare minute orders and opinions and that were due to be argued in the next everything else, all the li�le details.

Marsh, Tape Four, Side One 49 MM: Yes, litigation that’s brought by Court Personnel individuals without lawyers. And so they serve themselves and she knows the sort MM: My secretary, I brought from the of things from a due process standpoint law office and she had worked for me for as well as the law of how to handle Pro years. She didn’t have any experience in the se cases. They’re usually prisoners who federal court, but she was an exceptionally are contesting their convictions, time, qualified secretary and she served as and so forth. So she still works here in the my secretary until 1997 when Connie courthouse. came to work for me. Connie Armstrong. One thing about Jackie, she’d been And although they’re different they are trained by her mother who worked at the both the epitome of being dog loyal and [Oregon] State Supreme Court and she dependable and so each of those—they was a true authority on what we called the call them judicial assistants—were really blue book of how you cite cases and make prime and very valuable to me. references and things in opinions. And she I was also assigned a court deputy, just knew that backwards and forward, Diane Blake, who had experience with and still does. So that was a big a help several judges and was very easy to get to me. But the two of them worked very along with and start, and she and I figured well together and slowly I started ge�ing out pre�y quickly how to handle the a routine. And of course at that time we case load and the controls and keep the were trying more cases than we do now, inventory up. so as I said, the actual trial part was not Then I had an experience with a difficult for me. I wasn’t used to being an young woman who had worked for us arbiter, so to speak, on the preparation of in the law firm when she was fourteen, instructions because I had always been an as kind of a gopher, and then she went to advocate in preparing instructions, so I had law school and clerked for the law firm to modify my thinking there to make sure while she was in law school. Then she that I was even-handed with instructions, went as a clerk to the [Oregon] State Court but I developed, I think, good rapport of Appeals and I kind of pirated her away with jurors and hopefully with a�orneys. from the court of appeals and she came to I found that the quality of a�orneys work for me as the other law clerk. Her in Oregon was very good. I had known name is Jackie Holly and Jackie worked many of them but I wasn’t familiar with for me for two years and then she went out the criminal a�orneys either defense into private practice for a period of time or from the federal defender or private and then came back. And she still works defense a�orneys. Nor was I familiar with as the Pro se clerk for the court here. those in the US A�orney’s Office so I had a kind of new cadre to learn there. And CH: Pro se clerk? I soon was incredibly impressed about

50 Marsh, Tape Four, Side One how open the US A�orney’s Office was in but it was really hard work. Ed Leavy told discovery ma�ers and how dedicated the me, “This is going to be harder than you federal defenders and private defenders think.” And he was right, absolutely right. were to protect the rights of those accused. I’ll never forget one of the first days I was And, as I think I’ve said, the government’s here. Somebody from the US A�orney’s got enough good cases. It doesn’t have to Office presented me with a request to bring bad cases. And so most of the time arrest a vessel. If he had come in and asked the defense lawyers ultimately lose the me to explain nuclear physics, it wouldn’t case. Their client is convicted and then have been any further away: “What do sentenced and yet that doesn’t seem to you mean arrest a vessel?” ever blunt their enthusiasm to take the And so that is the way I was just next one and do whatever needs to be kind of dumped off in the deep end with done for it. I have come to a tremendous things and had to learn to swim with respect for the Federal Public Defender’s it. But as I look back on it now it was a Office and these other defense a�orneys cherished time. It was really wonderful. in town. And I’ve also a great respect for All the judges, as I say, assisted me in any those in the US A�orney’s Office, because way they could and were very supportive. I think they’re absolutely fair in the way It was a time of renewal, kind of, with my they handle discovery and bring cases. old acquaintanceship with Owen Panner, When you have an outside prosecutor because I had known him for years but it from the Justice Department or somebody gave me an opportunity to be around him comes with a kind of a different hard ball on a day-to-day basis and see his unique a�itude you immediately see how well the wisdom and energy. He does things a�orneys in Portland or in Oregon really, different than I do in certain situations but really get along on different sides. And, I have to admire the sincere definiteness it’s admirable. I think it’s wonderful. with which he deals with ma�ers. I knew Jim Redden only slightly. I had met him a couple of times, but really just knew Judicial Collegiality him by reputation. Jim was a life long Democrat and I was a life long Republican MM: The reading just kept increasing and we were always, I suppose, canceling and I thought, I have to learn to speed read. one another at the poles. [both laugh] I have to learn to really be able to adapt But we started to get closer and to hundreds and hundreds and hundreds closer in just talking about things and of pages of reading a week. And so until I periodically going to lunch and over got be�er at it, it took an awful lot of time. the years that grew into a significant I think I mentioned that was a tough time friendship. Weekly we’d generally go to for my wife because I was buried in this lunch at least once, and we’d talk about new venture, which was so exciting to me. anything and everything. And we both are And it was exciting. I was thrilled about it, able to express our views without either

Marsh, Tape Four, Side One 51 one of us polarizing, if you will. I guess as a magistrate when I practiced and he that’s one of the things that got me started; was a magistrate a�er I got here for a while. here are two people who politically really Then he became a judge and I’ve known have different philosophies and yet we him and known of his talents. Mike King have wonderful discussions about things. and Mike Mossman, and then I cannot just Last June I said to him, “You’ve got include within the same paragraph, Ancer so many months to convince me to vote Haggerty. for Kerry, and he took the challenge. He Ancer Haggerty is an amazing didn’t win, by the way, but [laughs] anyway person. He has a calmness in confronting it was a fun time and we really get along troubled situations and a deliberateness marvelously. and a resolve that just speaks of a deeper I’ll meet with him this noon to wisdom than perhaps many think of with kind of let him know what things I’m Ancer. He has been our chief judge here in leaving at loose ends and he’ll pick them the last few years, during a time of really up while I’m gone and we’ll be in touch heavy transition and I think he’s done an with one another. I have great admiration amazing job. Jim Redden before him and for Jim. I think he’s one of the deepest in Owen before him, they really restructured understanding the political scene and this whole system in the District Court what’s going on from that standpoint. I because it had been under the kind of really admire his knowledge there. monopolistic rule of Judge Solomon. And, Jim Burns was very helpful. He so there were a lot of things that were kind was the one that led me into the first of hanging to wait for him to decide where sentencings and showed me how he did it should go. that sort of thing. Helen Frye was always When Owen Panner became chief, available and always ready to talk out they started individual assignment of cases any case with me. So it was a very close so that each of the judges were given their group. own bucketful, if you will, to deal with. And it taught everybody case management instead of just having one person in case Magistrate Judges management. It was a great step forward. Of course they cleaned up a somewhat slow MM: And the magistrates—that’s docket and really moved cases along and something else I need to talk about are got us into a situation where cases pre�y the magistrates in the Oregon system. It’s much get resolved within a year instead of ge�ing bigger now so that you can’t have years like it had been. as much close collegiality when you have As great a judge as Judge Solomon sixteen people as when you have eight, but was, I think the three, Panner, Redden, and it’s still the desire of everybody to have a Frye, when they came on here in ’80, I think really collegial and good court. And as new it was or ’81. When they came on, why judges have come on, Mike Hogan I knew the court took a real swing in a different

52 Marsh, Tape Four, Side One direction. And of course Ed Leavy came But anyway it was quite a roller on a�er being a magistrate, and he was a coaster ride on occasions, but very good. tremendous and still is a tremendous asset I would like to spend a li�le time on the to the court. Then there’s Anna Brown and magistrates. On my service on national Ann Aiken and all of them have come on commi�ees across the country, on the board, why it’s been an interesting kind of Facilities and the Securities [commi�ees], I parade for me to watch. meet judges from every circuit and every geographical region of the country. And as CH: How many are there now? you’re talking about just how they operate and case management and such, you realize MM: Well there are six active judges and that very few of them come close to the right now there are four, well, I forgot to system that Oregon uses with magistrates. mention Bobby Jones. A tremendous legal In some districts magistrates are really mind that had developed his sense of flunkies. I hate to use that word, but they evidence that I don’t think anybody else are there to do menial li�le tasks and never had ever amassed and served well on the have the opportunity to really do a finality Supreme Court. I think he always had a on anything—they’re chore runners. dream of being on this court and it was Here we look at them on the same fulfilled and he’s been an exceptionally plane as an Article III or district judge, productive member of the court. And because we assign them cases. We can’t you know his wisdom in evidence, he can assign them criminal cases. They can’t try answer the questions right off the cuff and criminal cases. They do the preliminary he’s very, very good at trial situations and hearings and arraignments and such in such huge experience in the State Circuit criminal cases and whether or not there’s Court in Multnomah County to the State going to be bail or release pending trial. Supreme Court and then here. They can do that but they can’t try criminal We were talking one day. We were cases. They can try civil cases. The only having one of those sessions on some thing is they need to have the consent of historical case, and I was si�ing there with the parties for them to try a civil case. Owen Panner and Jim Redden and Bob Well, this started before I got here Jones and myself. And in the four of us, there when they were kind of rearranging. They was over 200 years of legal experience. assign a pool of cases to the magistrates there on the calendar just like a district CH: Wow. judge. So when their turn’s up they get that case no ma�er what it is, so long as MM: And that’s a lot of experience. it isn’t a criminal case. Then if the parties [laughs] Helen Frye, unfortunately, had consent they can take it all the way through to pull back and we all miss her. She was trial. If the parties don’t consent, why then the first woman on the court. She was the rulings along the way on summary wonderful, levelheaded, and we miss her. judgment or other motions are by findings

Marsh, Tape Four, Side One 53 and recommendations, and then those can Denny Hubel was one of the prime lawyers be appealed to a district judge who is the in all the asbestos litigation. And so when backup judge on their files. And then the he came on as a magistrate, why there district judge looks at the whole thing over were dozens and dozens of lawyers that again de novo, or from the beginning, and knew he was a good lawyer. And Jelderks decides whether or not the right findings had been a judge in Hood River for years and recommendations are correct. and years and Ashmanskas in Washington So I’ve done a lot of those. I’ve County, and Janice had been in practice reversed a few but very, very few. And with one of the be�er firms and I hope I’m generally they’re well thought out. Their not forge�ing somebody. But it really is a legal minds are very quick and they’re very system that works and continues to work. qualified. Now the benefit of that isn’t just in the courthouse. In fact, I think the biggest CH: Thomas Coffin? benefit of that is to the public because we in effect enlarge the numbers of the court in MM: He’s in Eugene. I should mention the civil case load by the use of magistrates. Tom. And Jack Cooney, in Medford. And once the magistrates realize that they’re not just going to be running errands, CH: Let’s see. Now there have been some then highly qualified people apply for the changes here over time, but George Juba job. And we, unfortunately for the state’s was the first magistrate. system, drain off some of the best circuit judges and appellate judges that have come MM: George Juba was here for a long on this court as magistrates, and of course, time—most efficient judge in the world. He their reputation is far and wide so they in could get more done in a day than anybody. almost all cases get consents, because the And Bill Dale of course was really a strong lawyers have as much trust in them and one. perhaps more, you know, to try their cases. So the pool of judges swells immediately CH: And Diarmuid O’Scannlain, of and litigation moves much quicker. Trials course, is up in the court of appeals, right? are spread out with all the different magistrates and judges and I think that’s MM: Yep. one of the most important adoptions of procedure. CH: Do you have much contact with the It came out of Belloni’s mind appeal court judges? basically. I don’t think that the society, so to speak, really understands the significance MM: Not as much as I used to, but we of that. The lawyers do. The lawyers see see Diarmuid now and then. the quality of John Jelderks and Donald Ashmanskas and Jan Stewart and all of CH: Why did you used to have more the magistrates, Denny Hubel, you know. contact with them?

54 Marsh, Tape Four, Side One MM: Oh because I would sit on the Ninth as we could when we were practicing. Circuit now and then. We all couldn’t We’ve got to be the circumspect in those be assigned to—you can make yourself things. available to go and sit on the Circuit for a week or three days or something. So then CH: Do you have any contact, a you do meet the circuit judges more and I friendships with lawyers? don’t do that anymore and so you kind of get removed from the circuit judges. They’re MM: Yes. Of course, I’ve always had the all in the building here now, because they’re rule that anybody connected with my old redoing the Pioneer Courthouse so we see ﬁrm I would not sit on any of their cases, them more here in this courthouse. O�o even though it’s been eighteen years almost. Skopil will stay here until he quits. I just felt that was the site of a possible impropriety. Just as the lay public doesn’t CH: [laughs] What is your best understand that lawyers can be friends opportunity for contact with the other and they’re supposed to be advocates at judges? all times. But there are lawyers in town— there’s one lawyer that I have a regular MM: Well, we have a regular Monday meeting with every week, with a group of lunch and we have a Friday more informal men. I wouldn’t handle any of his work, lunch that is just kind of who wants to be because I do know him closely. He and his there. And that one is, you know, ending wife socialize with Shari and myself. So the week and fellowship and a good time you have to decide that that’s oﬀ limits. and for laughing and thinking about things. The Monday one is the business CH: When you do meet socially do you meeting and it’s important to be there. I try discuss theoretical issues of the nature of to make those Monday morning meetings the court, problems facing the court and – and Friday when I’m around. MM: No, hardly ever. You know we go CH: Is that when you have your best to the Pops [Symphony] together and we’ll chance for collegiality? usually have dinner over at Higgins before we go to the Pops, but it’s just a social time. MM: Yes, that and just going to lunch, He doesn’t talk about his law business and and then I think there’s a good opportunity I don’t talk about the court business. at the Ninth Circuit conventions to have a lot of contact, not only with your own CH: Who was the administrator of the judges, but with the lawyer representatives Court when you came on? from Oregon, and then judges from other jurisdictions. So that’s a good time. It is MM: Bob Christ was the clerk. somewhat of a monastic life you know. We can’t be out “hail fellow” with the lawyers [End of Tape Four, Side One]

Marsh, Tape Four, Side One 55 MM: Yes. Yes, but most of them are, well Clerk of the Court I’m sure he has experience that I don’t even MM: And it was easy to call on Robert know about, you know, internal ma�ers in Christ. You could call in and get advice the clerk’s office that are probably handled from him and if you weren’t used to be�er, and personnel changes that have federal practice and such, well he was a happened, which are his bailiwick. But source of comfort. He still shows up at the more substantive changes generally some court functions when they occur, come out of some kind of conference of the so he’s never lost his zeal for the court, judges, an idea of the chief judge. but I think he’s enjoying retirement. I didn’t realize it until this last fall that he CH: Let’s see. And then some of the and I were both entered into the practice other judges that have gone on to the Court here in 1954, so that was our fi�ieth of Appeals that I was wondering whether year commemoration with the bar and I you’d had much contact with. I know don’t know why I didn’t know we were you mentioned John Kilkenny and Ted admi�ed at the same time. He didn’t go Goodwin, and of course you’ve mentioned to Oregon law school. I went to Oregon O�o Skopil. and I don’t know whether he was at Lewis & Clark or Northwestern then or what it MM: And Susan Graber. was. Anyway. CH: And Susan Graber, that’s right. CH: Mm-hmm. And the administrator now is – MM: I knew her has an a�orney and on the Supreme Court. Again, federal court kind MM: Is Don Cinnamond. of drains these highly qualified people, you know. But it’s a great opportunity. And so CH: Alright. she was a great addition I felt to the court.

MM: Don has a vast experience. His CH: Mm-hmm. Mm-hmm. efforts in the building of this courthouse and the efforts in Eugene that have been MM: John Kilkenny was my dad’s going on, he really understands how GSA generation. He was a li�le younger than my and the Administrative Office works in dad, but kind of that school, and my father construction projects. And he gets the and mother were real good friends of he most mileage out of those things. He’s and his wife. So I kind of grew up knowing very competent. John Kilkenny. When I came on the bench he was in senior status on the circuit court CH: Would he be involved in stream- but he was very gracious and welcoming to lining efforts as well? me and so that was kind of fun.

56 Marsh, Tape Four, Side Two and I don’t think there’s any question that The Ninth Circuit it needs to be done. CH: The district courts were one of the first governmental bodies organized on a CH: Could you explain your reasoning regional basis and I was wondering if you for that? see your job as a sort of an intermediary between local and federal interests, or more MM: It’s just too big. I think it is awk- as an arm of the federal government? ward in the way that it operates and I think it has inefficiencies. I think it drains MM: Well, I think it is clearly an arm away the very thing we were just talking of the federal government. It is the third about, of regional perspective. You have branch. But I really feel that it is important to remember that it is so dominated, just that the a�itude, the community a�itude, numerically, by Southern California, Los the culture of the district has to play in Angeles and San Diego. And that’s not to effect. I think it would be very difficult be critical of them. You go down there and for somebody from South Carolina to try cases or work with those lawyers, they come into Portland and sit suddenly as a work with a li�le different, genre if you district judge in Portland, because we have will, of ideas that come out of that area such different things that we deal with, and they probably should. But I think they any more than if I was to go with South don’t understand the same sort of thing Carolina. I’d be lost probably. So I think that comes out of Alaska or Washington, we should mirror an unbiased, but kind or Oregon, Idaho. And so I think to cure of general, flow of where the community the very thing we were just last talking spirit is. But, always subjecting it to what about in the Ninth Circuit, it ought to be our real authority is. Somebody asked split up. Whether it should be split into me, who do I answer to, and I said, “The two or three pieces, I don’t get into that Constitution and the laws.” They were debate, although I have my leanings, but a li�le bit surprised that I didn’t have I’m not sure that I could explain them somebody that could kind of read over very well. My leaning is that Oregon, my shoulder and critique what I do. A Washington, Idaho and Alaska ought to circuit can reverse me, but nobody can tell be in one circuit. Many put Idaho with me how I am to do it in this room, except Montana and with Nevada and Arizona, those two pieces of paper and they speak but I always look at Idaho as more like very loud to me. Oregon and Washington. I just think it would be be�er. CH: What do you think of the efforts then of spli�ing the – CH: And California off by itself?

MM: I’m in favor of spli�ing. I’m inter- MM: No. California would have Hawaii rupting you, but I am, I have been, I am and all the Paciﬁc Islands. It would still

Marsh, Tape Four, Side Two 57 be the largest circuit in the whole country, theory of that Constitution is that all these even with all that drained off. But it’s issues can get to that one court so that we been an interesting debate and of course have uniformity. Now when the Supreme whoever was the chief of the circuit didn’t Court takes a hundred to a hundred and want it to happen in their watch, so [laughs] fi�y cases a year and the Ninth Circuit so it kind of perpetuates itself. I’ve put it has 3,000 or more that it’s deciding, the down several times. Well it’s just not going possibility of a case that you sit on in to happen. But this last run seems to really the Ninth Circuit being appealed to the have a head of steam and I think that if it’s Supreme Court is so remote that there going to be split it’s going to be split by really is no threat of appeal. And when this Congress. you crank into that formula the fact that there are twenty-eight active positions on CH: And who’s opposed to it? the court, plus heaven knows how many senior judges, the makeup of a three-judge MM: I don’t know. I have my own analysis. panel is so diverse that the odds of you When it comes to a vote, as I say, there’s being appealed are remote. Now when I this huge block in Southern California. decide a case—fi�y percent of the cases Now if you are a judge in Arizona or in a district judge decides go to the court of San Francisco and you think this is going appeals. That’s the last statistic, but it may to be split off and all those influences that not be the right one now but the last time you’re in line with that come out of the I heard— Northwest are gone from you and you’re le� with Southern California you vote CH: Is that a lot? against it. And if you’re in the Northwest you vote for it because you feel kind of MM: Yes, that seems a lot to me, but it safe that you’re not going to be stuck with sure tells me I be�er do my best because California. [both laugh] half the cases are going to go up there and And I think that dynamic has have somebody else look at them. It gets played in the polls where people really your a�ention to follow the rules but if think it probably ought to be split, but you don’t have that threat, now that’s one it’s not leaving me here. That sort of, of the dangers of a huge circuit that I think “not-in-my-neighborhood”mentality. needs to be addressed. Well let me tell you the reason, and I’m somewhat criticized for this, but when CH: For the Supreme Court, if they hear a circuit is as big as this one is, when it a hundred and fi�y cases a year, does it hears 3,000 or more cases a year—you make any difference how many are—they know the Constitution says we’re going don’t apportion them out according to to have one court, one Supreme Court districts? and such minor courts as Congress from time to time decides is necessary. But the MM: No, they look at the hundreds

58 Marsh, Tape Four, Side Two that come to them. They pick them out Angeles and San Diego and Arizona and and allow certiorari or not. Very few are Hawaii. I have them all over that I just automatic appeals to the Supreme Court. think the world of. They’re great people, They get to pick and choose, and should. they work hard and are very sincere and But you see that dwindles down to so dedicated. And if you take time with an small a bunch. individual circuit judge you know, it’s a really good time. You have a good time CH: Mm-hmm. talking to him and such. There’s something about collectivity that spoils it somewhat. MM: I think every judge, except the [laughs] Supreme Court justices, should have some threat over their head that they can CH: [laughs] You ever have the chance be reviewed. I don’t say I shouldn’t be to talk to them about this issue? reviewed. I take great comfort in the fact when I have a hard decision that somebody MM: Yes. Well I’ve talked to Diarmuid, else in a more calm climate, with time and of course, he’s a good listener. But no, I’ve with research, can take a look at what I said that I think that they’re too big and do and see whether I did it right in two they’re unwieldy and so. seconds. CH: It seems like they would welcome CH: Has there ever been a case of the the opportunity to be able to reduce Supreme Court reaching down to take a their territory that they would have to case that has not been appealed to it? Can administer and – it do that? MM: I don’t know what the source of MM: Yes. In fact, I’m trying to think of that turfdom is, but it’s sure there. what it was, but they did something and it automatically was a reverse of a Ninth CH: I mean I’ve certainly heard, partic- Circuit case. I can’t remember what it was ularly because of environmental issues that about. Certainly they don’t do it o�en, but there are a lot of people that are concerned I remember there was one instance of that, that if Oregon and Washington or Idaho where they just said no and wrote a very were to split off that there might be a short per curium opinion that reversed it. much more conservative stance that the court would take that people in California CH: What is the relationship between might object to, or even in Oregon. the various district court judges within the Ninth Circuit, outside of this district? MM: Yes. If that’s true, I don’t see it. I know within this court there are different MM: I think it’s very good. Yes. I don’t philosophies on environmental issues, find any problem there. I’ve friends in Los more liberal, more conservative, however

Marsh, Tape Four, Side Two 59 you want to put it. That’s not going to going to look at it and that’s very helpful. change. That’s the way they’re deciding I think that every district judge, at least them now, you know. So I don’t look at until they get to be senior, should do that that as a problem. regularly.

CH: Would spli�ing the Ninth Circuit diminish the influence of the remaining Pretrial Preparation Ninth Circuit, the California court. I mean it has a reputation for being on the very CH: In your work, when you came on liberal end of the spectrum. Would that this court, how would you describe what somehow change? kind of pretrial preparation you did? You had weekly conferences and petitions for MM: I doubt it. I doubt it. I think that review and, I mean did you – would remain in that because I think that’s where that’s centered. And it’s just MM: You mean on my own? a flat fact that the incredible mass of the judiciary’s business in the Ninth Circuit is CH: Yes, in your own court. centered in California. That’s where it is. MM: I work very close with my law CH: Mm-hmm. Have you traveled clerks and we have a system where they much into other districts? keep a book and a running commentary on everything that’s happening. So I’ll MM: I haven’t been a great one to do that have something like three or four pages but I used to do it every year and go to—I that look like this, with li�le paragraphs sat at least once a year on the Ninth Circuit, on it that say in September we did this and but I did go and sit in San Francisco on November we did that, and so forth. And a case and one in Tucson, Arizona. I was this summary judgment was heard and going to go to Hawaii, or to Alaska and this was the ruling, kind of summarized. didn’t, so, but I’ve not done a lot of that. So when something else comes up I can I’ve always had plenty to do right here. take that and I just kind of quickly bring the history of the case back into my mind CH: Does that give you a different and have it there. And so one of the perspective? responsibilities of the clerks is to keep that pre�y detailed. Then we’ll sit down MM: Yes, it does. It does. The experience and we’ll talk about things. Summary on the circuit is a good experience because judgments, of course as the briefing you see how circuit judges think and comes in you look at it and then your what they’re looking for, so it kind of clerks do their own research and you do tells you how to keep your record from your research that you have to and you the standpoint of how the Ninth Circuit’s review all the research of your clerks and

60 Marsh, Tape Four, Side Two my practice was to then come down with do you need this one,” or “Why don’t you a series of questions so that I didn’t go need it?” out there for an argument to just hear the And the same with instructions briefs I had already read. I went out there and so by the time a trial would start the to have specific questions answered and exhibits, they knew the exhibits that were I would sometimes write those questions going in. They knew the instructions I was out for them and hand them to them going to be given. I probably had given and give them twenty minutes to look them a first dra� of the instructions to only at them before we have them respond. be modified as I listen to the evidence. And It’s sometimes hard to try and hold them so I try cases very quickly because of that. within that box, but I got pre�y efficient There’s not a lot of time standing around. at it because—and if I didn’t have any questions then I would say oral arguments CH: Do you have a particular approach are unnecessary. If their briefs answered to hearing cases? everything I didn’t want to just have them regurgitate the same information for me. MM: Well, that I should know what [CH laughs] I’m going out there to hear so that I’m And I think the lawyers kind of not surprised by any evidence, and I worry about that sometimes. They feel understand what the purpose of every that oral argument is very important and exhibit is going to be. If you’ve got a case I understand that feeling, but I also think with thousands of exhibits, why you can’t that if they see that I know what they’ve deal with the minutiae of everything, but given to me and they know that I’ve gone you at least know this notebook of exhibits over it and they know that we’ve given it a deals with this issue and so if they haven’t careful review, then I think they’re satisfied had an objection to it, why then I’m not with it. I don’t think they need to have an going to. I say to myself, you’ll have argument every time. And then when you notebook a�er notebook a�er notebook get to trial I’m very sincere to look at all the of exhibits coming in and I’ll o�en say to exhibits and we go over it with the clerks a�orneys, “Okay, you’re going to put all and I ask for objections to exhibits so that those into the record but I want you to I know if there’s a question and I look at realize the jurors are probably going to the two sides of that. I ask them to give look at about fi�een papers when they get parallel requested instructions explaining in there. Why don’t you really concentrate why theirs is be�er than the other one and on the ones that you want to make sure such. And so many pretrial conferences they look at and see where that is.” that I have are really quite short in duration And they do. They’re not naive because I will say, “These exhibits are about that. They realize it. Now some admi�ed. These I reserve ruling on until jurors, I swear, go through every notebook I know what the evidence is,” and “Tell and what that does for them, I don’t know me a li�le bit more about this one. Why but, and I trust them. One of your questions

Marsh, Tape Four, Side Two 61 was whether I ever disagreed with jurors. I I can’t remember, there were a couple of can’t think of a time that I didn’t think they others but out of eight of them, I couldn’t had a reason for doing what they did. I’ve think of one of them that would have sometimes said I wouldn’t have done that existed in a 1954 jury. [CH laughs] but I can’t be critical of them and I have Now demographics had moved enormous faith and I think that generally that far, you know. That’s really exciting they are very accurate. because that tells me that the jury system is keeping up with the society. It’s not CH: You don’t have any qualms about lagging back there in some old black knit the competence of juries. stockings. It really keeps its head right current. That was fascinating to me. MM: No. CH: Have the rules for selecting juries CH: Why? Some of these complex, quick changed at all? cases, they just involve so much detail. MM: No. Here the judge does the voir MM: The perfect example is, I had a dire. We will give a�orneys an opportunity patent case on compound bows. And to kind of pick up loose ends but I’ve the science of a compound bow I didn’t restricted them to ten minutes of voir dire. know until I tried that case, why that generates such accuracy and strength, but it was really technical. And this jury just Difficult Judicial Decisions sat there and just soaked it up and when they came down with their decision they CH: Mm-hmm. Do you ever have any hit everything right on the head and I just difficulty making decisions? thought, you couldn’t have put a group of judges together and have them come MM: Oh yes. Yes. that close to the mark, I think. It was just incredible. And I think they do that o�en. CH: What have been some of the hardest They’re great at sizing up human beings. decisions or circumstances, areas, topics, or They really are. They can smell out the specific cases that have been most difficult truth. And you know I was fascinated for you to decide one way or the other? one time. I selected a jury. This was about three or four years ago as I remember. MM: Well I’ve had difficulty with some And I was comparing it with fi�y years really tough patent and trade-dress, ago when I started practicing law. And trademark issues. I didn’t feel that I had here I had a female police officer, two that the scientific knowledge to be comfortable had significant others in the same sex, one and those have been hard and I’ve had a male nurse, a Vietnamese person and to just take my time with them. But the

62 Marsh, Tape Four, Side Two most difficult is in sentencing. I’m not in favor of the guidelines, and I think that it’s going to be interesting over the next year- and-a-half or two what the impact of the Blakely and Booker and Fen-Phen cases are going to have on sentencing because it’s a li�le chaotic.3 It’s been really chaotic the last year. But I was never a champion of the guidelines. I had a period of time a�er the old system of sentencing before the guidelines came on so I could make the comparison. And I found myself very jealous of the discretion that district judges have. I didn’t want to lose anymore of that discretion and that was being drained away by the sentencing guidelines. But, I took an oath. And that said you’re going to follow them so I followed them religiously. I didn’t ever—I can’t think of a time that I just thought, “No that’s just nonsense here and I’m not going to do this.” But I have had individuals that for some reason or another, I was led to see something very different in them that made me really do something different in the area of sentencing. I had one seventeen year-old girl in North Portland, black girl. Picked up with her boyfriend, or ruler I should say, selling crack. And she was just a ball of fire. Angry, uncontrollable, put her in the halfway house and she got in a fight with the administration within two minutes. It was just—and she was always face down and angry—

[End of Tape Four, Side Two]

Marsh, Tape Four, Side Two 63 64 Marsh, Tape Four, Side Two courthouse. And I said, “If I put you on a program of education and preparation for work, will you promise to follow my rules?” And she said, “Yes.” And the lawyer who was repre- Diversion of Defendant senting her was ge�ing a li�le excited, because they didn’t want me to be in- CH: This is an interview with Judge terfering with what her decisions were, Malcolm Marsh in his chambers in down- and the US A�orney was upset because he town Portland, Oregon. The interviewer was thinking I was going sideways on this. for the Oregon Historical Society is Clark And I was. And I said, “Well, this is going Hansen. The date is January 28, 2005 and to start next Monday.” this is tape five, side one. And she said, “Well, can I ask you a You were talking about a case. favor?’ And I said, “Go ahead.” MM: Well, I just was watching her and And she says, “Can I go up and she was staring at the floor, and I said, visit my grandmother in Sea�le over the “Somewhere we’ve got to think about weekend?” what’s best for Angie.” And just for a Everybody in the room went, flicker, she looked up at me and I thought, “Oh for crying out loud!” You know, just oops, we’re about to miss something here. appalled at it. And so I recessed until, I can’t remember And I said, “Well, we’ve got to start the chronology, the next morning or trust somewhere, so will you be back at something, and I called a couple of people eight o’clock Monday morning?” out in North Portland that work with “I will be back.” youngsters out there and some other She was back at seven-thirty. She folks and what was discovered—she went through high school; she was given was arrested as an adult and then they a job out at the Bonneville Administration. discovered she was seventeen. That’s it. She called me one day and said, “Judge And so where she was headed was for Marsh, I have my own phone here and the California Youth Authority and I was I can call you anytime I want to.” [both thinking, no, when I saw this reaction from laugh] And my wife and I would go over her, I thought, we’ve got to do something and meet her in the Lloyd Center and have different here. So I called this meeting lunch with her. and I had some people that knew about education and knew about the mentality CH: Really. of kids in North/Northeast Portland and I was si�ing across the table from her, MM: And finally she moved up to Sea�le a big conference table over in the old to be near her grandmother and got work

Marsh, Tape Five, Side One 65 up there and she’s been straight as a string those issues. The most obvious example of ever since. that is when somebody is being tried for bank robbery you can ask him if he’s ever CH: Wow. been convicted of a felony before, but you can’t go and tell the jury about eight other MM: Just a glance. bank robberies. Of course, the danger of that is, well if he did it once he surely did CH: That must have made you feel it again this time, see. But that shouldn’t really happy. have an impact on the sentencing, without the jury deciding beyond a reasonable MM: Yes. But that doesn’t happen o�en. doubt that he was guilty of the previous That’s far and few between. I had one that eight. He’s been tried on them. I let go against my be�er judgment for a Well that’s the easiest one to deal while and to report on a sentence and the with, but if somebody carries a gun and night before he was to report he was shot doesn’t use it, but has it there and that’s and killed. If I had kept him in he might an enhancing factor, I don’t see why a be alive today. Things work out good and judge shouldn’t be able to consider those things work out bad sometimes, but it’s things. The fear that drove the guidelines in that area that it’s the hardest decisions to begin with, and I think the fear that still to make. You have to look for those is a problem, is that judges are going to opportunities to be a li�le more humane. go off on wild goose chases. Well I don’t know that they did before but if they did they did it because departures were so Sentencing Guidelines varied across the country. I think there should be diversity CH: Do you think that the Blakely and in sentencing because you’re sentencing Booker decisions, and maybe you could an individual, not a mass and they’re not explain a li�le bit about their impact on all the same. Some of them you can deal this process, do you think that it is a step in with and some of them you can’t. Some the right direction to changing sentencing of them are really responsive to things guidelines? you say and some of them are just hard as rocks when they come in and when they MM: I think it’s a step in the right go out. direction to make them advisory and I was just looking at a document that should have been that way in the that came from the Administrative Office. beginning, but I don’t think there was Today the Bureau of Prisons is doing anything invalid in their giving judges away with its boot camp program, which the authority to look at the differences was for first offenders. It could reduce a between people and reaching sentences thirty-month sentence to six months by without the jury looking at every one of serving in this intense program, literally a

66 Marsh, Tape Five, Side One boot camp. Up at six or at five o’clock and white collar—to send them to a camp the whole kind of military regiment. Well rather than the tougher prisons. But, they’re qui�ing and the reason was their anyway, if those programs are not doing statistics showed there was no difference it, who’s best qualified to look at the whole in recidivism with those that went through case, have two competent lawyers tell that or those that didn’t. Well that was them what’s going on and then say what a surprise to me. I would have thought I think is the right way to do this, within anybody that went through that might certain controls, you know. You’ve got change, but—so we’re not finding all the maximums, you’ve got some minimums answers. and I’m not for minimums, but you’ve got some maximums and you’ve got CH: It’s interesting in talking with comparisons to make with other cases, Janice Stewart’s brother, he ran a program particularly a�er years of doing it. I think through the Deschutes National Forest that person si�ing there in the black robe over in the Bend area and he had touted is probably the best person to say this for a number of times how successful it this and that for that. was because the recidivism was like five percent or something like that, or less than five percent and how much be�er Federal Prison System that was than the other rates. CH: How much leeway does a judge MM: Yes. have in terms of sentencing as to where the convicted person is placed? CH: So maybe there’s a variation in programs or types of people who go into MM: We can recommend, but the Bureau them. of Prisons has absolute authority to decide that. MM: I don’t know. CH: And why is that? CH: Yes. MM: I don’t know. I don’t know that I’m MM: But that surprised me. qualified to say where somebody ought to go, but they are. If you go into the prison CH: I bet. system, the federal prison system and you talk to the wardens and you see how MM: Because I do think that the camp they run those institutions, they are good program has proved successful, because at their work. They are really efficient and those people, if they repeat they never can good and they know, they can read these get in the camp again and so I think that— people be�er than most. And so there’s and there’s a lot of requests, particularly a lot of shuffling around just to avoid

Marsh, Tape Five, Side One 67 conflicts that they can see developing and Police or the Bureau of Prisons, or the things like that. And I think they should State Prison Bureau, but it’s never been a be able to do that. directive of the judge that I’m aware of. Now some of it, if you’re here, why there’s an institution up in Sheridan CH: One of the most interesting cases [Oregon] and that’s a very good one so we that I’ve heard of recently is the—and o�en get requests for Sheridan. And in we’ve talked a li�le bit about Indians, but the immigration cases, for instance, like this was off tape in our first meeting—the if the whole family lives in Woodburn a�empts by some of the tribes to actually and that sort of thing, and so how about impose their own sentences on tribal Sheridan so there’s visitation. He goes to members, that it would have a be�er Texas. And that one goes to Texas because impact on them than if they went through in their matrix system or something, why the state or federal system. Have you ever he doesn’t qualify as this level of prisoner been involved in a case like that? and so forth and so maybe one out of a hundred of those recommendations hap- MM: I have. Where they carried out pens. It’s very rare. their own thing and the government just kind of pulled back and let them handle CH: Really. it and I think they handled it well. The government has the trump. It’s got the MM: Yes. trump card and it can play it anytime it wants to but I think they try to encourage CH: Really, it’s that solemn? the Indian courts to be respected and have some authorities. If they don’t have MM: Yes. authority from the federal government how are they going to have authority CH: Boy. Because it seems like if from the Indians, the tribal members? you’re limited in sentencing, you have a minimum that you have to follow and you see that you send a kid to some high Salmon Cases security or medium security prison in Texas, that it’s going to have a huge impact CH: Well maybe we could talk about on him that may be negative, that if you some of the cases that you have handled had some choice in being able to send him that you would like to describe for the to Sheridan that it might be be�er for him purposes of this history. to have that family contact and all the rest of the stuff. MM: Of course, the salmon cases were the predominate case that I had for fourteen MM: I think traditionally that’s always years. It was a wonderfully ex-citing been le� up to the sheriff or the State scenario of case a�er case a�er case. It

68 Marsh, Tape Five, Side One was an educational process for me to learn the top, or I can’t remember which, the salt what I could about anadromous fish and water on the top, one or the other. But it be able to talk to people and experts. By was also at that point where the smolt were the way, from Judge Belloni’s day and then making those phenomenal transitions from Judge Leavy, I had a mentor on the case. I needing salt out of the water, to keeping used Howard Horton who was a professor salt from coming into their system, which emeritus from Oregon State and learned in allows them to go into saltwater and they— fisheries and such. And he was, with the I think it was the freshwater—and so they agreement of the parties, he was here as would kind of keep up on the top. Well a dictionary for me. And I could just have the island had become the favorite nesting him educate me on a what happens to a place for the birds. fish when it goes over the spillway, what happens when it goes through the turbine, CH: I believe the Arctic Tern. what happens when it’s pumped around or when it’s bussed or barged or trucked, MM: Right. The Arctic Tern. And they what happens to the fish? It was a real were just scooping up the smolts. educational process to find out about that. What, you know, the average person thinks CH: The Arctic Tern was an endangered of migrating fish as salmon leaping up over species. waterfalls as adults and I guess the downfall of it is where all the real hard work has to MM: An endangered species, and the be done of ge�ing a smolt into rivers. And Audubon Society says, “Don’t touch those when they go downstream backwards, as birds.” I understand, and so when you turn the And everybody with the fish is river into a series of lakes, there’s very li�le saying, “Kill all the birds,” and send them current. They have had to work harder to back down to some island they used to get to a dam to go over it or around it or nest on at the mouth of the Columbia. whatever than they would as a natural fish And everyday the protected sea lion is but they’re incredibly, resourceful I guess scarfing up every salmon and steelhead is the word, because they get around it and and smolt that they can get and so you’ve by the millions. got all these things and mankind fussing You know bizarre things would with nature and it’s really quite an exciting happen in a case. One was when they, a�er thing to be involved with and try and pick Mt. St. Helens, they created a new island your way through it and say, this is fair in the middle of the Columbia, down—I and this isn’t. can’t remember the name of it but several miles up and it really was where the CH: Did they eventually, I don’t know if brackish ocean water, and the tides and the it was the final solution or not, but wasn’t freshwater were kind of in a meeting place, one of their solutions, se�ing off charges which would drive the fresh water up on to scare the birds away?

Marsh, Tape Five, Side One 69 MM: It was turning dogs loose to just they migrate, but so what? [laughs] They’re keep them off there and also planting on their own you know and you could say, grass, was what did it. They had to nest well don’t fish them as much off Alaska on bare sand, and with all this dredged or something but is there an upwelling of material from St. Helens a big sand bar nutrients? Is there not, you know? Are we was created there but once they planted it in an El Niňo or what season are we in, I think that’s when the solution worked. because they all affect it. [both laugh] But that was a hot a�ernoon. I tell you they were really at one another’s CH: Right. throats. [both laugh] But the whole thing, though, was an MM: And so nobody can say, well it’s education that I don’t think many people fi�y percent in the river and fi�y percent in the Northwest have [understanding] the out or any other division, you know. It’s significance not only of the fish industry, just very complicated. but Indian rights. You know my wife and I took one of those li�le cruise ships up the CH: I think one of the arguments, Columbia to Lewiston and Clarkston, up though, was that, whether than try to de- the Snake River, and so you go through cide who gets the remaining fish, and I all the dams and you go up into the Snake think it was a Boldt decision that decided River. And I remember ge�ing up one the Indians would get half of the catch. morning and we were up in the Snake River area and here for miles and miles and MM: Fi�y-fi�y. miles are these fabulous apple orchards, and all this agriculture along the river, CH: Yes. But to focus then more on which is all supported by the irrigation enlarging the pie, rather than just how it’s of these dams. And so when somebody divided. says tear out the dam, you can’t just say that. You’ve got to say, okay then tear out MM: Yes. 10,000 apple trees, you know. It’s a really complicated issue and there’s not an easy CH: Are those issues that you had to answer. Then as much as you deal with it deal with at all? within the stretch of the Columbia River from Coulee down—actually above from MM: Yes. And another thing that isn’t the standpoint of supplying water—once realized is that all the commercial and you deal with it, what happens for three sports fishermen are not just standing on years out in the ocean? And you have no the same bank with the tribal interests. control over that. They’re fishing from just inside the bar all the way up the river, and so most people MM: And you can put a li�le pin in their don’t realize the positive agreements that nose and follow where they go and see how were reached by the tribes and the other

70 Marsh, Tape Five, Side One interests in dividing the zones of the river. CH: Yes. So that the Indian fisheries are within a certain tribal fishery area, commercial MM: Yes, and so that’s a shame, but it fishing is in it, and sports fishing is in its should be a lesson that we always keep in own area. Now that’s great, but how do our minds. you know then that the gill nets down at the mouth of the Columbia are not le�ing CH: Mm-hmm. enough go through so that fi�y percent of the available fishery goes through that MM: And the narrow escape that we tribal area? had at Bonneville, I mean it’s beginning.

CH: Right. CH: Boy.

MM: And that’s a great balancing act that MM: So. a lot of the effort goes into how to do that and how not to do that. So it’s a fascinating CH: And then the issue of anadromous thing. But you know it’s providential. My fish and whether to include hatchery understanding is that Harold Ickes, when fish in the formula and the very odd, they were designing Bonneville Dam seemingly, from my point of view, the and somebody mentioned a fish ladder, conflicts between environmentalists and he said, “We’re not nursemaids to fish.” Indians on issues such as hatchery fish. Thank heavens somebody had the wisdom But, what about the underlining issue of to put, as primitive as it was, the first fish Native Americans being able to fish in all ladder at Bonneville Dam because if they the usual and accustomed places that was hadn’t— guaranteed to them in the 1855 treaty?

CH: Everything else would have been— MM: And they’ve kind of agreed—we’re not going to enforce it. They could come MM: Everything else is moot. back and, you know, Sohappy—you just go up to Oregon City and fish there. Well CH: Right. I think the tribes said, “Okay we could go anywhere, but to make this work you give MM: Because on your example is Coulee, us this area and don’t you come into it.” of course. [Grand Coulee Dam] So, I think they’ve wisely kind of modified that, if you will, without it being CH: Right. totally binding. They could back off and say no that’s what we did last year but not MM: Because the big June hogs got up next year, because they have to come up there and bu�ed their heads against the with these fish management agreements. Coulee Dam that race is gone. [laughs] I had a deal with one and it would

Marsh, Tape Five, Side One 71 get appealed to the circuit and the circuit MM: That was a high school student would reverse me on something or affirm who was asked to do a drug test. They something and send it back, and by then had a random drug-testing program I had the next one so it was moot. [both and—you have to back up. They had laugh] And so I would go and—but it was a really significant drug problem a real fun time. developing, and in Vernonia the kids are just like everybody else. That’s a pretty independent bunch of people up Appellate Review of Rulings there. But the one thing they all liked was sports and it was very important CH: Would you resent being reversed by to be on the high school team for any the court of appeals? sport, and so the best discipline would be you can’t be on the team if you drug MM: Not if I thought they were wrong. test positive, see. That put a damper on [both laugh] But no, as I said, I really feel that drug use, in my opinion, that was really the right of review of the appellate court significant. and the Supreme Court is a very important So the issue is of reasonableness element within our system, and I’m not or unreasonableness of search in taking infallible. I think that there were times it that test. And I said in this situation, I would take us too long, but I could take you think it is reasonable and I upheld their through a case where they reversed me on drug testing. The Ninth Circuit said, something and only about two cases later “Oh no, no, no, no, no, that’s totally said, whoops, we were wrong, and kind of unreasonable.” Well the Supreme Court backed off from what they had said. So you went way past me. They opened the door get vindicated sometimes. [laughs] to drug testing in high schools without it being the important community issue or CH: [laughs] Is your rate of reversal high- anything like that. They just opened the er or lower than other judges? door wide. But I did have my moment of redemption, I guess, when they reversed MM: I haven’t ever looked at it. I don’t the Ninth Circuit. know. I do have one high point; that was the Vernonia case where I held that the CH: So the Supreme Court reversal of drug testing of the football players, the the appeal’s decision, was on your case sports players, was justified. And the Ninth specifically? Circuit just slapped me down and said I was all wrong and they got slapped down MM: Yes. Right. Yes. by the Supreme Court. [laughs]

CH: What were the issues in the CH: Mm. Have you ever had any other Vernonia case? cases go to the Supreme Court?

72 Marsh, Tape Five, Side One MM: No, that’s the only one. I’ve had their own testimony, they did not testify, others go to the Supreme Court, I can’t but by their own position they were in the remember what, but that’s the only one higher echelon of the Rajneesh situation, that comes to my mind. I’ve had patent and in the inner circle of Ma Sheela and cases go to the Court of Claims that—this would a�end her morning conferences. is kind of an odd system but they’d take They were very intelligent women, had those rather than the Ninth Circuit. But no a lot of human interest in them, cause- that was a good one to go on to. [laughs] oriented human situations and such. For some reason the Rajneesh program became CH: [laughs] And you also had some very important to them and they got under cases involving Rajneesh, going back into the delusion that was the right way to go. the 1980’s. So the evidence was their connection with the conspiracy, in that they knew about MM: Right. Judge Leavy had them in it. I sentenced each of them to five years the beginning and I picked up all his files and they were pre-guideline sentences. I and so most of the charges were for the said that they had to serve a third of the wiretap situation out there. Then there sentence before becoming eligible for were some state claims that I think Judge parole, even though they were tried a�er Jelderks handled as a circuit judge in the guidelines came in. The indictment Hood River on the food poisoning, so— was pre-guideline. Later on, when they went to [End of Tape Five, Side One] prison, I think it was in California, they both became involved in the educational program in the prison and the prison Rajneesh Cases authorities were astounded how they could take other prison women and MM: Then there was the conspiracy to get them educated and motivated to murder Chuck Turner, the US A�orney. have education. They ran a successful There were a number of the Rajneesh that program in prison. Well, then one of were indicted in that case and many of them, her father or some relative, I can’t them fled the scene. [Ma Anand] Sheela remember, became very ill and was dying was the prime defendant named and she in England and I reduced their sentence was in Switzerland. There were a couple to time served and that came in ’98. So in Germany, and a couple in South Africa, they had been in jail from ’95 to ’98, some and some in Asia. Some of them appeared three years. And I brought them in and and plead to lesser charges or were of reduced their sentence. assistance in the investigation, and so a lot They’ve been model citizens in of them were taken care of by pleas. England ever since. They’re prohibited But two women, [Sally-Ann] Cro� from coming back into this country and and [Susan] Hagan, went to trial and by that sort of thing but they went home.

Marsh, Tape Five, Side Two 73 I think they had come out from under MM: No. But you know, it’s a garden the anesthesia of the Rajneesh program. place now, beautiful green expanses of I think they understood what—but you lawn. Have you ever been over there? know it was, yesterday I was talking about inverted morality. That’s a classic case of CH: No, well I haven’t. it. Very, very sincere people who took on their own standards of what’s going to MM: You should go. rule the day and that’s a very dangerous thing to have around. So, anyway— CH: I would like to. One of my favorite stories, and this happened just a couple of years ago, MM: Yes, you should go. one of the two that was in South Africa, she was a Jewish lady and when she CH: Do you have to have an joined the Rajneesh her parents were appointment to visit? understandably distressed. And her brother risked life and limb by trying to MM: You let me know if you want to go, get her out of there once, but he couldn’t and I could call somebody over there. do it. But he stuck by her and he kept working with her and ﬁnally he talked CH: Okay. her into coming back and voluntarily surrendering. South Africa wouldn’t MM: Yes. It’s an exciting place and you extradite them and so she came back and know in the summer time it handles above submi�ed voluntarily to me and I gave 500 kids a week in that program over there. her a sentence. I can’t remember, a couple It’s amazing. It’s amazing. of years or so. There’s a book being wri�en by But the high point and the reason I Jane Kirkpatrick. She’s just coming out tell you that story is a�er I sentenced her with a book on the ranch. You’ll have to and a�er the press le� I asked her a�orney read it. Anyway, there’s a thousand stories if he would mind bringing her back to the about the Big Muddy, but that’s not what jury room. And when I got her back there we’re talking about right now. I laid in front of her all the brochures of Young Life’s Reestablishment of the camp to let her know what was happening Patent Cases there. She was incredibly impressed. Really thrilled to see that the Rajneesh CH: [laughs] What other cases would Compound was being used for youth. you like to talk about that you feel have been notable in your career? CH: Did she ever have any kind of relationship with the Young Life Program MM: Well I really thought that, as odd at any point? as that may seem, I did like patent cases

74 Marsh, Tape Five, Side Two and I had a really exciting one that started issue. I wasn’t looking for that issue. me out with the Gunderson’s centerbeam lumber-carrying flat cars and the ba�le CH: Could you have turned it down with others that design centerbeam cars. had it come your way? Tried it in one of the big courtrooms over in the old courthouse and we had all these MM: I don’t think so. No. That would model trains and things in the room. have been a tough time, I tell you. And Then the one on the compound bows was when I went on senior status—and they interesting. And then Leatherman, the do have these capital cases coming in trade dress of the Leatherman Tool and we now—I said no. I couldn’t take that. had the courtroom full of tools. And those were just really good trials and I just enjoy CH: Because on senior status you can them all the time. then? I had one very large drug conspiracy case. It’s the only time in my history that I MM: I can. But that would have been the gave life sentences and I gave two of them most difficult stretch of my principles I in that case. Later one was reduced. They think. were very, very dangerous people and it was a large conspiracy and I think it had CH: But you do believe in capital an impact on the price of heroin in this punishment? town for awhile when they went down. But to try a really big case, and Chuck MM: No. Turner prosecuted that case, and I tell you he did an excellent job. There were appeals CH: You don’t believe in it. by the dozens of issues and I thought, my gosh how can you try a case for weeks and MM: No. But I think I would have not have some error in it? But the Ninth enforced it. Circuit, bless their heart, they affirmed me on all of the issues in that case. CH: Has that been an opinion you’ve held your entire life?

Judicial Philosophy MM: No.

CH: Have you had any capital cases? CH: How has that changed then? Why did it change? MM: No. You know, I always kind of had a knot in my stomach about ge�ing one, MM: I don’t know. I could put a whole because I don’t know, I’m not for the death lot of reasons on it. I just, I don’t like the penalty, but that doesn’t mean I wouldn’t thought of killing people and I don’t—but enforce it. But I didn’t want to have that you can be more mercenary than that and

Marsh, Tape Five, Side Two 75 just say it’s hardly worth the expense we going to be redistricted. I don’t know go through. You know, the millions we why that was en banc but it was. spend on appeals and hearings and court time and all of that on people. I don’t think CH: And who made that decision then, it deters anything. I think that murder still the chief judge? goes on, from way back. MM: No I think it was assigned because CH: Mm-hmm. Judge Fletcher from Sea�le on the circuit court and Judge Redden and I sat on that MM: So— [laughs] case. I don’t know. I was just told, “You’re assigned,” so away we went. CH: You were saying that sometimes when the briefs are filed that if they’re complete enough then it’s not necessary Difficult Cases for an oral argument, but do you think there’s a real place for oral arguments in CH: Of the cases that you’ve talked the court? about are there other cases that you consider to be the most difficult that MM: Clearly, as I said, I might just you’ve had? have a question. I really, either I don’t understand the position or I don’t MM: I’ve had a lot of difficult cases. The understand the facts or something, and employment/civil rights kinds of cases. I’ve got to have somebody explain it to I think most of those try—well, most of me so I can feel comfortable in making them se�le, but most of those that do a decision. And so that’s where I feel try, try because there is such heat in the it’s very important. I also think it’s very situation. Something really insulting or important in a jury trial to have argument bad happened and it’s more than a smok- to the jury. But that shouldn’t be in ing gun. It’s really some bad activity and voir dire and opening statements. That sometimes it takes a trial to just put that should be in final state-ments, but then to rest. But they are not my favorite case the lawyers ought to be really given the by a long ways, but they’re interesting. open door to advocacy and that’s where The employment discrimination cases, it works the best. I just, I have more difficulty with those. Not because I don’t think they’re valid CH: Are there any en banc cases in a but I just think they’re harder to deal district court? with. It’s harder to get the parties in any kind of a mode of cooperation. MM: We had one with the redistricting Civil Rights cases I find quite of Oregon where three of us sat on the interesting. I did have a great case out here decision of how the State of Oregon was with longshoremen and the stevedores

76 Marsh, Tape Five, Side Two and the loading and the unloading of Law Clerks & Writing Opinions ships out here where the unions and the shipping companies really got into it. And I couldn’t see where we were ever CH: Do you have any particular going to get any kind of a consensus approach towards writing opinions? on it. And I called my old partner, Eric Lindauer and I said, “Eric, if I can get MM: Yes. This one clerk, Kelly Zusman, these people to a settlement table will who was with me for fourteen years, she you do it?” And he said he would, so was my clerk on all the salmon cases. I they came and he spent days with them, think of all the human beings walking the but he got it. Finally it cracked and they earth, she probably knows more about settled it. But, boy there was a lot of heat that issue than anybody because she really in that one. It was interesting. dove into it and made great big charts for me and we would sit down and she would CH: Do you have a feeling about go through these kind of comical charts. I’ll decisions that you’ve made that will show you one in a li�le while. And kind of have a lasting impact? walk me through the different things that I would have to be dealing with just to get MM: Well I know that Judge Redden it organized. It was such a massive issue said to me one time not too long ago, with so many internal issues. So I learned when he was working on a different in doing that I would sit down in any case aspect of the salmon problem, he took and start just discussing and see where out my ’88 opinion, or whatever it was. they were. My original one where I said in my One time, I said, “Well why don’t enthusiasm, I made some statement you give me an opinion this way and to the effect that it needs a complete this way and this way—three different overhaul. [laughs] And so that opinion opinions.” And so she went off and wrote is still working its way along through three different dra�s and came back, and the salmon case. I looked at them. In the meantime, I’d been thinking about it and working on CH: What was the decision in that case? it myself so that I could pick one or the other. But my order to clerks is to read the MM: I ultimately approved their fish briefs carefully and check all the citations management plan, but I was telling them, in the briefs and then you do your own “You can do be�er and please do.” And independent research. In other words, they’ve been working ever since. I’m not you don’t just stop with what they give sure they’re doing any be�er, but it was my you. You go in then like a new advocate first real examination and education on the and decide what really is the law here. thing. Gosh it was long, about an eighty- And I find that that’s very productive. page opinion. I was exhausted by it.5 And of course they all rejoice when they

Marsh, Tape Five, Side Two 77 find some miscitation or something and MM: Too many judges took too long can bounce that back. [both laugh] and it was too big a burden on the other But anyway, I work very closely judges. Instead of ge�ing three opinions with my clerks and I think they’re very a week you’d get thirty so you just didn’t important to judges. I would hate to have the time. see any tinkering with the clerk system because there’s just too much volume for CH: Would you ever run opinions by? one person to keep track of. MM: Oh yes. Yes. Not really run it by, but CH: How many dra�s do you go through just kind of at lunch say, “What do you before you get to a final opinion would you think about this issue?” You know, and say? kind of get a feel. I think it’s very important that we keep our own autonomy and they MM: With many, none. realize that. It’s my name that goes on the paper and so it’s not their decision. CH: Really? CH: Are there judges that specialize in MM: Yes, because we’ve talked it out. I certain areas that you think is— know where it’s going. And some of them, like you’ve read a lot of Social Security MM: No. I do now. I do now because I opinions and it goes through certain steps take these hundreds of, well not hundreds, that are kind of rote and then you come but dozens of immigration illegal reentry into an examination of particular facts cases and handle them. It’s one of the there. Well we’ve talked that out before, efforts I do to try and off load judges. we’ve looked at those facts and said, They’re not long and involved, but they “Well, he was okay?“ In Social Security interrupt their days. And they’ve got to it’s not my job to decide whether the do them and there’s a lot of them. person’s disabled or entitled to benefits. It’s whether or not the administrative CH: What are the issues in the immi- judge did it right. And I don’t second- gration cases? guess their opinions if they did what they were supposed to do, but they o�en don’t MM: Whether or not they were correctly so I’ve reversed a lot of those. deported before and whether they were, they may have a felony background CH: You said yesterday that you used and where that was and was the record to circulate more opinions. clear. You don’t retry those issues but the federal defenders are pre�y careful to MM: Yes. make sure that if he’s on an illegal reentry that the last shipment out was valid. Once CH: Why has that changed? those things are found to be valid, why

78 Marsh, Tape Five, Side Two then there’s really hardly much defense tendency to cite Constitutional issues? from the person standing here. He’s not MM: No. I think if there’s a Constitutional in Mexico or in Columbia anymore. He’s issue it ought to be there. That doesn’t here and so most of them, almost all of bother me. I’ve never thought about them end up in a plea. They have kind that. of a matrix that the US A�orney and the Federal Defender have agreed on that CH: How would you describe the kind of spreads it out over from six month influence you’ve had on clerks? sentences to two-year sentences to thirty- month sentences, and thirty is the top for MM: I hope very good. They seem to the worst ones, I guess. I don’t fault that like my style. I’m very close to them. I system. I think it’s okay. want them to feel free to talk to me about anything, personal problems or anything CH: Have you followed the careers else. I want to have a happy situation. If of the clerks that have worked for you? somebody’s mind is off on some family Have you kept in touch with them? tragedy or something, move on it or go spend time on it. So they’re very free to MM: Yes. Yes. One of them went from come in anytime. It’s an open door policy. here to the County Defender’s Office. They can come in and they can sit down Now she’s with the federal defenders and and say, “I’m having trouble with this or she’s one of their good, working federal my baby’s sick.” I’ve changed believe defenders. And there are some people that me, because when Kelly Zusman had her might think that my conservative nature baby Grace, why Grace was in here in a is that I’m kind of hard on defendants, but bassinet in the other room [laughs] and believe me, when she was a clerk nobody I just didn’t think there would ever be a could say that because she was quick to day I’d allow somebody to bring a baby pick up on the Constitutional rights, and in. [both laugh] I think that kind of advocacy is necessary You have to change with the times. in a federal or state public defender. They really have to get that sense. I can handle CH: Do you feel that you are training it when they’re clerking for me because your clerks? Do you feel that you are I don’t let them decide the cases but it’s preparing them for their own careers? interesting to see the different philosophy of clerks on different issues. I’ve had some MM: I hope so. And I prepare them to that were very, very environmentally think about other things, too. I don’t come conscious and wonderful clerks. And I’ve at them with religion. I mean, if they bring had some that were kind of slow on that, up religion I’ll talk to them about it, but so it’s interesting. I do prepare them for the philosophy of practice of law, and how to get along. And CH: Do you think that there’s too much I’m very conscious of where they go and

Marsh, Tape Five, Side Two 79 so they’re an integral part of the system. MM: Humility. I don’t think there’s When you have one as long as I had Kelly, any other credential more important well then you don’t have a batch of them than humility. You’re clothed with such all the time. And I staggered them for enormous authority that if you’re proud awhile, one new one each year, so that about it, it could be very dangerous. I think you always had somebody that kind of you have to constantly dress yourself knew what they were doing but you’re with unbiased thinking. You have to be spending an awful lot time interviewing ready to get the most obnoxious lawyer and then for the first six months they’re you’ve ever met in front of you and still here they’re learning. The last six months not lose it with them in front of the jury. they’re here they’re ge�ing ready to go You cannot humiliate somebody out and so you really got about—so I went to there, and you have the power to. It’s permanent clerks and that worked be�er. devastating in front of a jury. It can change a whole case, and it may be a valid case CH: Is there more of a tendency toward and the lawyer makes a terrible mistake permanent clerks? so you have to be able to stop. Let it se�le down and if it doesn’t se�le down right MM: Oh yes. Much more. In a way that’s away, why you just call recess and then too bad because so many thousands of law you might have to have a pre�y tough students apply for these jobs and they’re heart-to-heart discussion, so you have plums when they get them. But more and to have the ability to maintain control of more judges are just saying, “No I’m going the courtroom and not do it in a manner to stick with this one.” They may have that jeopardizes either party’s case. You one that rotates but a lot of them lock onto can’t. You have to be very sensitive. You one permanent clerk. can’t overrule with a snarl, you know. And, “Well I told you not to do that or CH: Right. Right. And that probably that.” You have to be very quick to catch provides a certain amount of consistency yourself on that. And you can bring them among the other staff as well. in here and you can set them down and have a real good discussion with them MM: Right. and then it usually works. Some of them are just going to be obstreperous and that hurts their case but I didn’t hurt it. They Qualities of Good Judges hurt it themselves. And so, anyway, you have to be unbiased— CH: In your view on the qualities that make up a good judge, what are the factors [End of Tape five, Side Two] that you consider to be most important?

80 Marsh, Tape Five, Side Two MM: Well I don’t think that gray hair hurts you in this trade and I think you do have to be—well I told you yesterday, kindly authority. That’s my hallmark of what goes on. And I try to instill that completely in the staﬀ and the clerks and Qualities of Good Judges all the assistants that that’s what our job is here, to be the monitor of the process of CH: I am here with Judge Marsh in justice and le�ing it happen as it should. his chambers in downtown Portland, Oregon at the US District Courthouse. The interviewer for the US District Court Appointing or Electing Judges Historical Society is Clark Hansen. The date is January 28, 2005 and this is tape CH: What is your view on the Judicial six, side one. We were talking about the Tenure Act? qualities of a good judge. MM: Which one? MM: Now those are kind of personality aspects, but then you’ve got to be willing CH: Well there have been some revisions to dig out and understand the law. If you haven’t there in judicial tenure? don’t know what the law is, how do you make a ruling on anything? So you’ve got MM: Yes. to spend a lot of time learning the law and ge�ing used to it. O�entimes, I’ll go back CH: Is it recent years that there have to an old outline where I’ve gone through been revisions or—? all the steps of a certain legal issue and reacquaint myself with it, because I MM: In the state. don’t have the kind of mentality to hold thousands of cases forever. You know, CH: In the state. you just have to go back and reinvent the wheel sometimes, but you have to MM: Well, I don’t think you can, with be willing to do that. And lawyers have good sense, just do it geographically. Like to sense that you know what the law is. it or not the bulk of humanity in the state of I think it gives them great conﬁdence. Oregon lives in the tri-county area up here While if you’re woolgathering, why they and a huge talent pool is up here too. I wish don’t know where to go, they kind of lose it were more spread out, but it’s not, and their direction too. so you can’t just say, “Well we’re always going to have two from Eastern Oregon,” CH: What about areas like expertise, or something like that. But when there is leadership, and seniority. Are those factors? an opportunity with a John Kilkenny out

Marsh, Tape Six, Side One 81 of Pendleton or Owen Panner out of Bend, head was the fact that the Supreme Court well then make sure you don’t miss those of Oregon had held that if you are burning opportunities by ge�ing too focused on a field and your fire gets loose onto other just Portland and the Portland area. people’s property, you’re absolutely liable. Well this wasn’t fire, this was smoke. And CH: Right. the question was, if you allow smoke to go across the highway, are you absolutely MM: But I don’t think you can do that liable? Now between the judge si�ing in with a mandate. I think you’ve got to let Linn County and a judge si�ing on the the talent surface and people know about federal court, which one would you think the Owen Panners and the Kilkennys and ought to decide that issue? You see? the O�o Skopils. They know where the real talent is in all these areas. And so I’m not CH: Mm-hmm. for that. Now as far as election of judges, there’s a whole bunch of arguments for it MM: So there’s clearly times when it is but I think that really the finest selection the best system. It’s not the only system, system is the federal system. You’re but it’s the best system. scrutinized, you’ve got to have some credentials, you’ve got to have some CH: Mm-hmm. So, in other words, support from people in the political area you’re not in favor of election of judges. and you’ve got to have the willingness of the president to get you there. MM: I’m not against election of state But you can decide things judges, but I sure don’t want them ever to independently. You really can. I never felt think about electing federal judges. political pressure on me on the salmon cases. And I think that if I had been a CH: Mm-hmm. Because of keeping their judge on the river somewhere, elected by independence. the people on the river, I would have been in danger of feeling the political pressure. MM: Yes. Right. Right. I never had that feeling. There was a case of a grass fire next to the freeway down around Albany and a whole bunch of Federal Rule Changes people were injured and several killed, including two people who were French. CH: Right. We’ve talked a li�le bit about And there were a number of cases filed in streamlining the court here and there, but the state court, but the French claims were I was wondering whether you had other brought here and they were assigned to thoughts about it. I mean the nature of me. One of the issues that started to raise its cases coming into court has varied so head—these things all eventually se�led, much over the years or a�er World War but one of the things that was raising its II all the Constitutional cases, civil rights,

82 Marsh, Tape Six, Side One etcetera. And then in more recent years, instead of bringing in the common sense all the drug-oriented cases that came that of the juror. And so I think I said to you, just kind of overwhelmed the system. Are we used to have trial by ambush. There’s you satisfied with the efforts being made no ambush anymore. to streamline the court and make it more Owen Panner, I know, feels abso- efficient? lutely dedicated to the fact that we ought to be trying more cases. There are a couple MM: I’m not a favorite of the Federal of books out about the loss of the jury Rules of Procedure. I follow them, apply trial and I kind of lay that at the feet of them all the time, but I think that what the way that Federal Rules of Procedure happened over the decades of the’70s and have required a different kind of process. ‘80s in the development of the current It removes advocacy. It makes everybody Federal Rules of Civil Procedure has led just kind of delivery women and men of to a phenomenon that we wouldn’t have whatever I’ve got. And if I don’t give it to understood thirty or forty years ago, and you, I can’t use it, no ma�er if I found it that is that practically everything se�les. yesterday, I can’t use it, you know. Now Trial practice is almost a thing of the past you have to say, “No go ahead and use and that means that the jury system is it,” and you have to adapt to it. But the almost a thing of the past. outflow, the general outflow is the jury system is disappearing and I think that’s CH: Mm-hmm. terrible.

MM: Now that’s a real danger point. CH: And the Civil Procedures, they And there’s so much emphasis on were established I think in 1966 originally alternative dispute resolution, se�lement, weren’t they? mediation, arbitration and all those things that we’ve moved away from the classic MM: Oh yes. They’ve been growing but jury trial. And I know there are judges the real discovery part came as late as the that don’t try a case a year, or two cases early ’90s, this open total discovery. It was a year. Sometimes you get a rash of them developing through the ‘80s with more all of a sudden but there are many, many and more emphasis on discovery but the times that—and that’s because there’s so rule that you tell everything came in the much emphasis on se�lement. One of the early ‘90s. things that brings that about is total open discovery, which you’ll ﬁnd advocates for CH: And this increased, then, security all over the country, that you’ve got to tell litigation, securities litigation and product me everything. Well then when you know liability litigation. everything, then you get the sense that you ought to be able to decide it yourself MM: Oh yes. Oh yes. Yes.

Marsh, Tape Six, Side One 83 to get through their dockets and it must Tort Reform be— CH: And there are eﬀorts now in Congress to try and limit some of that MM: Some judges think that every case liability litigation. should have a se�lement conference. I was in one jurisdiction where within MM: Right. thirty days a�er ﬁling you had to have a se�lement conference. Well, you wouldn’t CH: And the current Congress— even know what the case was about in actually, isn’t this one of the main thrusts thirty days, so it didn’t work. of President Bush?

MM: Yes. That’s directed more to the Speedy Trials medical malpractice cases. But that’s an issue you sure can debate on both sides. CH: And what about the Speedy Trial You know I had an interesting experience. Act that required all defendants in custody I had a case that involved a side impact on to go to trial within a hundred days of a General Motors pickup and the problem their arrest. Is that something that you with the sidesaddle gas tanks that would supported or not? explode and result in terrible burn injuries and a death. And so they were suing MM: I think that we should move cases General Motors, and, gosh it was right along. That’s an artiﬁcial date, which is back in my old bailiwick and I was feeling hardly ever followed. Not because the so comfortable with that case. And good court moves it, but because the defendants lawyers, they were from clear across the are still investigating, or the government. country on those GM cases. We came up The government can’t move them without to the time of trial and we picked a jury the defense going along with it. But time and I was all ready to be there for a couple and time and time again we get requests of weeks and I came back from lunch a�er from the defendant to set it over and I picking a jury and they’d se�led and I was have to get the poor fellow in and say, “Do heartbroken. [both laugh] you realize you have the right to have this They had se�led and, “Oh no, case tried within this month or whenever we’ve gone through all this hard work.” the date is and that I will have to extend But of course that was the thing to do. that time?” [both laugh] Here was a case in which I “Oh yes, I understand that.” was totally familiar with the law, totally It’s artiﬁcial. I’ve used it. I’ve said, familiar with how you go. “That’s not a good enough excuse so let’s go to trial,” but that’s very seldom. CH: But the pressure to se�le is also part of the load on the court that, they’re trying [End of Tape Six, Side One]

84 Marsh, Tape Six, Side One tenure he kept the whole calendar himself and then as things got ready for trial, why he would sign it out to another judge or to a magistrate if there was a consent to a magistrate. 6 Through the efforts of Judge Court Administration Panner, Redden and Frye and kind of as a carryover from Judge Skopil and Ed CH: This is an interview with US Leavy, they changed that procedure where District Court Judge Malcolm Marsh in his instead of a single calendar, each judge had chambers at the US District Courthouse their own case assignments so a random in downtown Portland, Oregon. The assignment system was developed in that interviewer for the US District Court time in the ‘80s, so that instead of waiting Historical Society is Clark Hansen. The for a single chief judge to say, “Go do date is May 10, 2005 and this is tape seven, this,” each judge and each magistrate had side one. specific assigned cases that were just done In our last session we were talking on a wheel. And that’s still the system, so about some aspects of streamlining the that the chief judge wouldn’t know where court and I wanted to ask you a few more a particular case was. He could always questions about that subject. One had to find out of course, but every single judge do with Judge Solomon, which was before was responsible for his or her calendaring you came onto the court, I believe. and discovery and also it gave room for kind of individual form, if you will, so that MM: Yes. a particular judge could move without it binding every other judge to do it the same CH: But he had scheduled time, certain way. It proved to be an extremely efficient appointments for lawyers and reduced system and it’s still used in the court today. discovery time before trials, and lawyers So that was the biggest change that I was had to prepare all of their direct testimony aware of when I came on the bench. of expert witnesses in writing, which went I just sat down in Judge Leavy’s to the opposing lawyers. Have there been chair and had Judge Leavy’s files and that other streamlining efforts that you know was the way I started. And he, of course, of since his time that have gone beyond had a few things under advisement, which that? he finished up, but basically I didn’t receive cases from other judges. I just had what MM: Well I think the major change, and Judge Leavy had and it was bang! It was he passed away just a month before I was off in the deep end right at the beginning. entering the court, but I did practice in front So that was kind of a cultural shock for me, of him during my years of practice. The but that was a good learning experience. biggest change was the fact that during his I think that with Judge Panner and

Marsh, Tape Seven, Side One 85 Judge Redden and Judge Frye, to some Try and work through any obvious things extent—she’d been on the bench, on the that are hanging things up and then I State bench before she came here. But, always use that to set a trial date, because there was a long career of a�orney work I’ve got the a�orneys to commit that this by Panner and Redden and so they knew is going to be long enough. We can do it in what could happen from the lawyer’s this time frame and we’ll give this much standpoint, and I think they were very time for motions and so forth and then efficient at bringing that vast experience here’s the trial date: “Now, look at your into how we looked upon discovery and calendars. Is that date open for you?” scheduling and things like that. Judge And then I have each side say Panner, for instance, his emphasis is just, yes, “I can try it on that day.” Then they give me a trial date and we hold it. The can’t come to me later and say to me, pressure then made the a�orneys comply “Well I have a conflict I didn’t realize.” with that and he always was working for And we really started a rule here in the very high efficiency, so he tried cases much courthouse, because at the same time these quicker than many judges. And so it was a same lawyers would be appearing in state good learning experience for me to come court, or perhaps in front of some other on the bench with a lot of lawyering in my judge here. So the rule we developed was background, but no judging, to see how that whoever set the case first had priority, other lawyers did it on the bench and that whether it was a state judge or in-house, was a great help to me. but we all started moving and I certainly did, to try and have a definite trial date. CH: Did you make any contributions on I found that there’s nothing that resolves streamlining yourself? cases more than two competent sets of a�orneys and a set trial date. That’s what MM: Oh, I don’t know. Maybe sub- gets cases out of here and it worked. consciously, but I kind of picked up the idea that, well we have a certain system called CH: Were there any streamlining efforts a Rule 16 conference, which is supposed that were used in this court that then to happen quite early in the case’s history. got adopted by other courts? Or do you While most of the rules are requirements know? to the lawyers to do things within a certain time frame, the Rule 16 conference is MM: I’m not positive, although I think directed toward the judge, to kind of say so. The one big streamline, of course that to the judge, it’s your responsibility to get I omi�ed to talk about was the magistrate this thing scheduled and get it terminated. system. And so the Rule 16 conference was to bring the lawyers together early, find out CH: Oh yes. what reasonable times for discovery were, what are their problems if they have any. MM: We assigned civil cases to mag-

86 Marsh, Tape Seven, Side One istrates from the beginning just as we did MM: Yes and I really don’t think that we to Article III judges. That was innovative had a whole lot of impact on legislation in across the country and was the brainchild the civil procedure or criminal procedure, of Judge Belloni. And that was really and I’ll tell you why from my standpoint. innovative and I’ve talked to some judges I don’t think that basically we agreed with in other jurisdictions who can’t figure out the Rules of Civil Procedure. I think we how that could possibly work. And the thought they were too demanding and charm of it, of course, was when we ever reached too deep into areas that should be had an opening for a magistrate we had le� for the lawyers to work out. You know some of the great talent of the state apply it wasn’t a ma�er of open discovery, it was for the job because they knew it was not more a ma�er of trying your case without just going to be doing routine li�le ma�ers, a jury. So, lawyers that were exceptionally it was going to be a significant part of the skilled in discovery over perhaps a new court system and that was truly innovative lawyer or one that is not in the court as and truly successful and it still is today. much, I felt there was an imbalance. And you kind of had to try and level that out and say, “Well you’ve got to do the same, Streamlining Court Processes you’ve talked them into giving you all their e-mail, now what are you going to CH: What about AWOPS and footnotes do about yours?” I think it pushed us and page limits and elements like that as into a position more of being mediators of far as streamlining goes? discovery rather than really ge�ing a case set for trial. It was a far cry from what I MM: Well I think we all kind of let it be grew up with, with the trial by ambush. known we don’t like footnotes and that And I think I’ve mentioned that before, we would give a limit on pages, thirty that nobody knew what the other side pages. And I remember Judge Leavy had had until you were in the courtroom. Well somebody hand in a paper that was fi�y there was a certain kind of charm and pages instead of thirty and he handed it excitement about it, but maybe not always back and said, “I’ll let you resubmit this or to the ends of justice, so I think limited I’ll just pick the thirty pages I want to read discovery is meritorious. I think that just and ignore the rest.” [both laugh] So that total discovery or regurgitating everything was kind of a humorous way to kind of you know because then you really don’t have the lawyers realize that we did think know what you know. they could say it more concisely than they You don’t know whether you’ve o�en did. given it all or not, and if you are sanctioned by holding back something, everybody CH: What about legislative efforts for will accuse you of holding it back whether streamlining? I think de novo review was it was totally innocent or not. So, I just one effort? think they went too far.

Marsh, Tape Seven, Side One 87 he still does and I don’t blame him. But US A�orneys it kind of made me pull back from any CH: We’ve talked about some of the contact with him because he was clearly court personnel who played major roles a principal in a case that I was involved in the US District Court here, but we with, so that was kind of a heart rend. haven’t talked about the US A�orneys. By the time that was over, why he was Sid Lezak was US A�orney from 1961 to moving out and a new administration 1982, and then Charles Turner from 1982. was in and a new US A�orney.8 So that Were you familiar with them? was kind of a limited experience I had. I still see him occasionally and I still think MM: More with Sid Lezak than with he’s an excellent lawyer. Chuck Turner. My experience with Chuck Sid Lezak is a classic. You just Turner was to try a very significant drug don’t find US A�orneys that can survive case where he took the lead chair. For the changes in administration like he did, US A�orney to really sit in the first chair without a ripple in the water. And it was not all that usual because they had so was just his personality. He’s still deeply many administrative duties to carry out. involved in the progress of the legal But he was in charge of that case from profession and a character if there ever the beginning to the end; did a masterful was one. So he was an exciting guy to be job with it. It was a very complicated around. I appreciated him even though I case, which he had to really finesse his didn’t ever try a case against him. way through the minefield of a whole lot of objections. There were several CH: He just won an award recently, defendants and so several very talented didn’t he? defense lawyers were always working to make sure it was done exactly right. MM: Yes he did. I can’t remember what When it went up on appeal there were—I it was. He had a big celebration for his can’t remember how many assignments career. of error—and we were affirmed on all of them. Now I don’t say that I was affirmed CH: Didn’t the federal courts get over- on all of them. I think it’s the way Chuck whelmed with drug cases at a certain Turner put it in and got it done right so point? that the rulings I made just kind of said this is the way it’s going to go. MM: Oh yes, still are. I tried the case with the Rajneesh where their conspiracy was to kill Chuck CH: What brought that about? Was it Turner, and that necessarily kind of just the amount of drugs being used or distanced us because I couldn’t—he felt was it a change in the law that brought very strongly about that case and I think more of the cases into the court?

88 Marsh, Tape Seven, Side One MM: Well I think certainly, the guide- MM: Right. Huge impact. lines and the enhanced penalties for drugs, which at that time you counted up CH: And what did you feel? How did the drugs a�er the trial, and that’s what you feel about uniform sentencing or determined—this is what the Blakely indeterminate sentencing? case dealt with from the Supreme Court. If there were a lot of drugs, why it was a MM: Well I had a couple of years lot of time in prison. The a�orney general experience under the old system and I started out with the idea that we were felt comfortable with it. And then when going to go a�er these drug dealers and I had guidelines come along, that really I think that’s correct. It was rampant and weren’t guidelines, they were mandatory, it’s a terrible scourge on the population I felt like I thought a couple of mistakes and now Oregon is witnessing the meth had been made and I became convinced epidemic. And it’s just a new drug, not that I’d lost a lot of my discretion. And, really that new but it’s a new kind where unfortunately, a lot of that discretion the concentration for a while was on didn’t just disappear it ended up in the US cocaine and crack and then before that on A�orney’s Oﬃce. Not that they asked for marĳuana and such. it and that they mismanaged that, but it I think the US government just just doesn’t belong there. kind of took over that phase of criminal The other thing was that I became law because I think it was too much for a very jealous of the discretion I still had single state to really have any impact on and would buck any a�empts to erode it it. And so I think they made a deal that if any more than it had been eroded. it was a certain level of drugs, why then the US A�orney would take the case and CH: What was that? What discretion prosecute it, even though the whole thing did you still have le� that you used? happened within the State of Oregon. It was always a commerce connection to get MM: Well I still had the power within it here so there was just an emphasis, like the guideline range so there was a lot of in the last few years the emphasis shi�ed pressure to always drive us to the bo�om more to guns. of the range and I remember saying to the public defender one time, “My discretion is in that range. I’m not going to promise Uniform Sentencing you I’m going to always sentence at the bo�om, because every case isn’t the same. CH: Right. Well then the uniform Some ought to be in the middle, some sentencing guidelines that came out, that ought to be at the top and where merited must have had a big impact then on the they ought to be at the bo�om, but that’s courts and obviously the prisons. my discretion.”

Marsh, Tape Seven, Side One 89 And I didn’t want to give it to the color and you can’t—we’re not fungible. government to agree with the defendant that this ought to be at the middle or bo�om CH: Wasn’t part of the criticism against because it always ended up at the bo�om, the liberal judges who were le�ing and I just didn’t think that was correct. I criminals off for sentences, some light also felt, and this is my conservative side, sentences? I thought that the guidelines were an infringement on the separation of powers. MM: Yes. Right. And you see the pressure I did not look at them as Constitutional. is on a judge always when you see the So when—what is it—Restrepo became the instance where you think it’s not going law that it was constitutional, why then— to do any good to lock this person up. It’s That was a lesson for me to learn going to do a lot of good to put them out that, well my philosophy isn’t in command under some kind of structure and bring here. I’m to follow the law, so I learned the them back into the community. And when guidelines and I followed them religiously you do that and it works and they’re a and applied them as they were wri�en. total success and you really are thrilled And I didn’t fight the fact that I felt about it, why you know that should be uneasy about their existence underneath. in the mix somewhere. And it’s perhaps And when it started to go back and it was not enough. I think I was probably more looked at that from what it did, why they tough on crime when I came on the bench looked at its unconstitutionality in a very, than, well I’m sure, than I am now. very different place than I would have looked, so it was kind of a surprise to me. Immigration Cases CH: You mentioned conservative and yet wasn’t it the conservative forces that CH: And what changed that? actually were driving uniform sentencing and mandatory sentencing? MM: I guess just watching a whole lot of humanity and realizing it’s different. MM: Well I don’t know. I always get You know I do many, many of confused. these immigration cases and why is the fellow here from Nicaragua or Mexico CH: Get tough on crime and— or Columbia? And where’s his family and what’s going on here? Of course MM: Yes. Well that’s true. And there it’s a tremendous public debate now— was the perception that there was a great immigration—fueled mainly by 9-11, but disparity across the country in sentencing. we had the issue way before that. The answer to that, of course, is there’s a great disparity between individuals and CH: Yes. And do you see any of those so you can’t just paint everybody the same immigration cases?

90 Marsh, Tape Seven, Side One MM: Yes. I see a lot of them. on the farms, picking things, why you know, go up to the Hood River Valley and CH: Do you have views that you would who’s picking all those apples and pears? express on what you think should happen to immigration laws, or reform? “Baby Judge School” MM: I don’t have a fix for that one. I really don’t. I think it’s a real problem. CH: Right. How do you feel about It’s a real problem partly because there’s special training for appointed judges in such a discrepancy between the wealth areas like admiralty cases or patent law of the average person in this country and cases, security, antitrust, things like that. the wealth in Mexico. You can see why Do you feel that judges should have special they try and come North. And the bulk training for those areas? of them—think of the thousands and thousands of Hispanics in the State of MM: Definitely. And they don’t. The Oregon and so we have hundreds in the Baby Judge School, as we call it when criminal system but—there’s an awful lot we’re first inducted, or sworn in, was very out there that are doing work that nobody important, very good. I thought it was else in our society wants to do. And so I excellent training. One session pre�y much think there must be a way. I hate quotas basically on civil law and one on criminal and that sort of thing, but there must be law and the two sessions together were some way to share the wealth, if you will. extremely valuable. Not to mention just There’s clearly a difference between the the books that you got that you could go worker in Mexico and the worker in the back and reference from. But patent law— United States, and so you can get excited maybe I told you one of the first things about the millions and millions of dollars that happened to me as a judge was when that are shipped out of this country to US Marshals came in with a request for a Mexico. Well maybe that’s in place of this warrant to arrest a vessel. That was way government doing something positive far remote from an intersection collision from a social standpoint to even the for me to understand what they were situation. talking about. [both laugh] I don’t worry about the money And so, arrest a vessel? It didn’t going out. I worry about individuals and mean anything. So the admiralty field how they act here. If they misbehave was completely new to me. I had to just themselves, if they come here to sell drugs dig into the books and learn it. Patent was and things like that then the hammer the same. I hadn’t ever been near a patent will come down on them, but if they’re and some of the first major cases I tried out here doing all the lawn mowing and were patent cases regarding Gunderson landscaping and stoop work, if you will, Railroad Cars and Browning Bows and

Marsh, Tape Seven, Side One 91 Leatherman Tools and things such as that, commi�ed to this work and I think it’s a and really significant cases that I just—I huge learning experience for them. They had to learn all about railroad cars. I had are invaluable and I think that the State to learn all about bows. I had to learn all system without clerks really, really puts a about Leatherman Tools. I liked the cases terrible load on judges to be doing all their but I sure had to admit I was in the first own research. grade when I started with them. Luckily, I had some very good CH: What do they bring to the court patent lawyers practice before me, and the aside from this dynamic energy that they first case that I tried by the time we worked have coming out of law school? out the jury instructions in that case, I decided I could use those jury instructions MM: They bring a very strong sense of in almost any patent case. And from then social welfare. I don’t mean that in use of the on out on with a patent case I would just word welfare in that sense, but just for the copy those instructions. I’d hand them to good of society. I notice in the generation counsel on both sides and say, “Tell me of clerks that I’ve had in the ‘90s and up till why you shouldn’t use that in this case.” now, they’re very interested in social issues Most of the time there were very few and so they bring—I don’t know, you have li�le nits picked with those instructions, to watch them because you might have one so I was very lucky there. that’s incredibly environmentally oriented and you might have an environmental CH: Areas like admiralty and maybe case and they have to be able to put down even patent cases, does that begin to their driving philosophy and follow the intersect with international law then? law. That’s o�en difficult for them because they feel so strongly about it. So it’s part MM: Oh you bet. Yes. Yes. And the of the training session to let them kind of damage issues run globally, you know, cool off on that for the time being. of whether the sales would have been the same in India or England or where ever [End of Tape Seven, Side One] you go. So, yes, it does carry globally.

CH: Do you think that there is too Law Clerks much emphasis placed on bright clerks and expert witnesses in dealing CH: How o�en do you use them [law with some of these specialty issues? clerks] in the writing of your opinions?

MM: Well, you can’t have too much MM: Almost universally. Now I edit a emphasis on bright clerks. [laughs] You lot. I had one clerk, Kelly Zusman, who know we’d go beneath the water if we worked with me for fourteen years. didn’t have really bright clerks that were And when she ﬁrst came to work she

92 Marsh, Tape Seven, Side One had a style of writing and I had a style of writing but it got so you couldn’t tell Thoughts on the Judiciary whether she’d wri�en it or I’d wri�en it. I CH: Have you ever felt compelled to think we both moved; probably more me decide in one way by your conscience but than her. But she knew how I thought. the law was actually pushing you in another And there was one instance where we direction? would discuss a case and she wrote four diﬀerent opinions and laid all four in MM: Yes. Yes. front of me at the same time and I went through them. We worked from one of CH: How would things end up under them and came to a decision. those circumstances?

CH: How persuasive have your clerks MM: I followed the law. That was my been on you? oath. And that’s not easy. When you’re really confronted with your feelings about it, but MM: Well they’re persuasive, but it’s I don’t think anybody’s going to accuse me not their name on the bo�om of the page, of being an activist judge because I didn’t go it’s mine. So I have to be content that I’m oﬀ, I don’t think, on my own tangents with not— decisions.

CH: But can they change your opinion CH: What do you think about the so- about something? called trend towards judicial activism or as critics put it, judicial legislation? MM: Yes. I remember one time I changed my own opinion because I did follow the MM: Yes. Shouldn’t be done. I’m against lead of a clerk. Got to thinking about it and judicial activism. pulled the opinion back and said, “No that wasn’t right” and changed it. CH: What do you mean by that? What is There was an article in the news- judicial activism? paper about that. One of the lawyers said, “I’d never seen a federal judge do a thing MM: Judicial activism is when you go on like that before.” But my conscience just—I your own philosophy and your own feelings was sleeping and I missed a point and I and you do not follow the law. You try and just—I wasn’t sleeping in court—I was just change the law. You try and ﬁnd something sleeping at the switch on this one issue, and about this particular case that gives you an when I realized that I’d le� that out of the excuse not to follow the rules. computation, why I had to change it. It was not a good verdict from good judgment so CH: But aren’t many laws suﬃciently I pulled it back and changed it. vague so that they need to be interpreted?

Marsh, Tape Seven, Side Two 93 MM: Yes, that’s interpretation, that’s not suggest, there should be an election eight activism. There’s a big difference. I don’t years later or some kind of review or re- believe a judge should have an agenda. appointment or something other then an And you might if you’re on the Supreme appointment for life? Court, but certainly not on the trial bench and certainly not in the court of appeals. MM: No. [pauses] Did I tell you the story And I don’t know if I mentioned this about the fire case down in Albany? There to you, but the tragedy of this whole was a field burning down there and the emphasis on activist judges, which may smoke ran across I-5. not be activism. Some people call me an activist judge because I don’t do that. The CH: Oh yes. I remember that case. whole point is that to have an independent judiciary what you should be looking for MM: Okay. Tragedy, you know. Many are people who are skilled in the law, are people injured and a French family, two of fair minded, are humble in spirit and who them lost their lives in that. really want to bring about justice. Now if you tell them that their qualifications for CH: Yes. appointment or confirmation particularly, are bent on their philosophical ideas about MM: So those who represented the this and that and this rule and that rule, French family filed here in federal court whether it’s a social issue or what. When and everything else was filed down in that becomes the whole conversation Linn County. And I met with the judge about whether they are confirmed or not, from Linn County, Jim Good; wonderful or appointed or not, then they start to guy, wonderful judge. And Oregon at that think maybe that is important. And then time had a case that said if fire escapes so when they are confirmed they think, in your burning, there’s absolute liability well I’m confirmed to do that. You see? but never had decided whether smoke escaping brought absolute liability. Now CH: Mm-hmm. then, what judge should decide that issue? One who has lifetime appointment or one MM: Instead of, as I was advised on who’s elected by grass farmers? the day I was sworn in, you don’t owe anything to Congress now. You are an CH: I think you’ve answered the independent judiciary. All you owe them question. is your thanks. MM: So, I am sure there are times. And CH: Do you have an opinion about the one of the issues—you know age can really process by which, well not necessarily debilitate a person. I don’t feel competent the way the judges are selected, although at my age to try really complicated cases. that too, but do you think, as some people They just tire me out too much. So age is

94 Marsh, Tape Seven, Side Two a factor, but that’s one of the reasons that feel out of sorts, you’re playing hooky in they put in the idea of senior judges, so some way. And part of it, I think, is, and I that the senior judge who doesn’t have that hope this is not a factor in my life, is pride. physical capacity can kind of pull back You don’t want to give up the position. and hopefully when they don’t have the And I really think I can give it up. But that mental capacity they have enough sense causes you some soul searching along the to quit. But the physical capacity, you can way. really adjust your time back more and I also think that we all feel a more and more. That’s what I do. I know responsibility, an unwri�en responsibility some senior judges that work as hard as to the rest of the court. The things I do, I they ever worked and bless their hearts. try and pick things that take away from That’s not me. the active judges, the things that bother them like a fly in the room, but are not CH: You feel that there’s a time that a very important. Well they’re important but judge should retire? they’re not time consuming and they’re not worrisome, but they bother your docket MM: Individual, you know. I look at O�o and that sort of thing. Well I think that I Skopil in his mid-eighties, and I think, why can help the active judges in that manner. should he retire? He’s contributing. Owen And if I don’t use my clerks to full time I Panner’s eighty. Redden and I are ge�ing let those clerks work for other judges and close. I will be seventy-seven in September. do chores for them and I think that’s good I had no idea that I would be doing any experience for them. It broadens their type of work this late in my life. And I still experience as clerks but it also helps the think that I contribute something here, but other judges to have more resources. I don’t pretend to anybody that I’m going So, there are reasons to stay. But to carry the full load of an active judge. I don’t have a die-with-your-boots-on syndrome that I walk around with. I will CH: In that book, First Duty, about this not be denying the time I have le�, God court that said, to quote, “One might willing, I’m a mortal. But if He gives me wonder why a federal judge would time I will not be around here very many continue pursuing a difficult job at an more years. I’ve got other things to do. advanced age when full pay would accompany a more relaxed life.” Why is CH: What led to your taking senior it that at age seventy-seven you would be status? Is there a mandatory age on that? still si�ing on the bench? MM: No, it’s not mandatory. In fact, there MM: My wife’s been asking me that [both are some that literally go to their graves on laugh] for a few years now. Part of it is active status. Senior status has some real what I call the hooky syndrome. You work financial benefits. There’s a huge swing fi�y years and you don’t go to work you you know in stopping contributing to

Marsh, Tape Seven, Side Two 95 social security and receiving it. But I guess get new appointments to the court, it’s to I felt that I had put in what I promised to really recognize that there’s been long- do and I still felt, and I carried a regular term service and so it a marvelous system. load for quite awhile. But I just wanted I can’t complain about it at all, at all. to have a li�le more freedom to pick and choose. There were some things that I CH: Do you regret not having go�en really didn’t like. Some things that I didn’t an appointment to the appeals court? want to have the chance of being faced with. I would not have wanted a death MM: No, never wanted it. penalty case. Graciously I was not subject to that in the time I was an active judge but CH: You never wanted it. that would have been a very, very diﬃcult thing for me to deal with. MM: I like the trial court. I was a trial lawyer. I liked being a trial judge. I had no CH: Would you have been able to turn desire to be on the court of appeals. I was that down? never asked, so. [laughs]

MM: I think I would have gone to the CH: [laughs] How has federal legislation chief judge and said this is really a moral affected the court over the years, would problem with me and see if he would you say? [pause] In general? change it but I didn’t want to have to do that and luckily I didn’t have to do that. MM: I think it mirrored the American But now, I can just say don’t put me down society—to find a remedy for everything on any death penalty case. It’s part of the and so here’s where you come to get a benefit of a senior judge. remedy. So it’s overloaded in lots of areas but maybe that’s okay. Certainly it’s become CH: And the system, the way it works, the forum for some social issues that might are you happy with it? Are most people well have been dealt with elsewhere. I’m happy with it? Are there any changes that not in favor of the courts being involved you’d like to see in it? in moral issues. I think that’s society’s role and they do it through legislative bodies, MM: I don’t know how you can be not through some fiat from a court but I do unhappy with it. I think it’s one of the think that a lot of legislation—my word, best systems. You know, initially I think when I went through law school, and I Franklin Roosevelt started the idea of compare the curriculum to what students senior judges in order to get newer blood in law school now have for curriculum, we on the court and give the old curmudgeons didn’t have a tenth of the classes. Well that that were around that were going into just signifies this huge growth in remedies their nineties a way to relax. The benefit in all kinds of areas, and maybe they’re now is much broader than that. It isn’t to right. Certainly a lot of the social issues that

96 Marsh, Tape Seven, Side Two for the disabled people for discrimination, mean that somebody else ought to have to we didn’t have any courses on that in law pay for it. school. We probably had the problems in That’s my philosophy. So I’m slow society but we certainly didn’t have it in to open the door. I’ve had things in my the courtroom. life that say to me—I get a notice that I And so that has just ballooned, the could be part of a class action. I never jurisdiction of federal court particularly. return them. I made my own decisions. I And of course there’s been an inroad on didn’t rely upon somebody else. So I think state’s rights by the federal legislation, those can go too far but I think there are which brings more things here. And I other times class actions are the only way think some real revamping could be done you can address a big problem, a really there. I think that the rule of diversity big problem. More clearly there was some jurisdiction is pre�y much a fiction now. fault in there and so there’s a place for But I don’t see any tendency to try and class actions but just not for everything go in and redesign the system. I think it’s that just happened to go awry with a stuck where it is and it’s going to get bigger certain industry. and bigger and more complicated. CH: Are there certain laws that you CH: There’s a lot of talk about tort have a problem with that you would like reform. Where do you see that headed? to see addressed? And how do you feel about it? MM: I hadn’t thought about it that way. MM: I think it will be very slow and I don’t There must be. [both laugh] There must be, know which way is reform. I think that we but I can’t bring one to mind right now. do encourage, to some extent, our society to be a litigious society. I think that it is part of individualism in our society, where Americans with Disabilities Act if you’re hurt the whole thing you look at is the effect on you as an individual and CH: Are there specific laws that have somebody ought to pay for it. That doesn’t given you problems in your court, that necessarily mean that’s the common good. have made things difficult for you in your And certainly there are areas where there career? always have been remedies and there always should be remedies, but there are a MM: Yes. Let me take one. [pause] I have lot of places where I think a remedy takes a niece who was born with a significant the place of common sense that we all walk cerebral injury. She has never been able to with some danger in our lives. We all walk walk or talk and she cannot feed herself. with some risk in anything we do and if She is totally dependent on total care. something happens that we didn’t foresee She is disabled, if I ever saw anybody or didn’t even intend, why that doesn’t disabled.

Marsh, Tape Seven, Side Two 97 CH: Is she aware? I’m talking about li�s in the jury boxes and things like that, and all other aspects MM: Oh yes. She’ll write you a le�er with of access to the building with ramps, her computer that she runs by touching elevators or whatever. Here we have two a switch with her head as the computer courtrooms that have witness chairs, cycles through. She’s graduated from high which can raise a witness in a wheelchair, school and she’s taking college courses. and another ramp can raise a judge in a While she has 24-hour care, she wants to wheelchair to get to the bench and ramps have her own life in her own apartment. to the jury boxes. The present rules today She has a huge sense of humor. But for the would require every single courtroom fact that she was born to this incredible has to be fi�ed that way. In my eighteen family, she probably would have been years on this bench I had one witness institutionalized and never listened to, that was in a wheelchair and I haven’t heard, or anything else. any question but what I could have asked I also had a cousin who had TB of the another judge if I could borrow his or her spine as a young teenager and he was le� courtroom because I’ve got someone in a with one leg about six inches shorter than wheelchair. That’s the way we designed it, the other before they stopped the growth with the understanding that everybody in that leg. He was one of the first civilians would find out ahead of time if they had to receive penicillin, which knocked out somebody that was disabled whether the TB but it le� him terribly crippled. party, witness, juror or judges and then we For years he walked with this decided would accommodate that by exchanging limp with a riser in his shoe about three courtrooms. It really made very li�le sense inches high. Then he walked slowly, with to require that every single courtroom be a walker and then finally in a wheelchair. so equipped and for the government to He’s passed away now. And so I listened spend over $50,000.00 for each courtroom to him because in his later years, his adult to do that, nationwide. years, he was severely disabled. But the kicker was when my cousin And I don’t want to be insensitive was here and I said, “What do you think about this and I don’t think I am, because of that?” I have had an awful lot of compassion He said, “You couldn’t get me in for those two people—he’s gone now, but that. That’s the most demeaning thing I for Laura still, and empathy, although, I can think of. I don’t want to be li�ed up can’t put myself in their place. And so we that way. I’ll testify right from here on the passed a law, the Disability Act.7 And I ground floor.” think there are really good things about Well, that probably doesn’t speak that law but to what extent? In designing for every disabled person but it did say this courthouse, for instance, we made that some of them are thinking differently disabled access in two courtrooms. That’s about that issue than one might think. And what we were required to do at that time. so you asked me if there was a law that I

98 Marsh, Tape Seven, Side Two think is wrong. I don’t think it is wrong, I the war. I didn’t have any experience or think it goes too far and I think maybe it contact or knowledge or anything else, doesn’t even represent a lot of those who and then I came up here to Portland are disabled. But I don’t think we looked and I started having association with at that very carefully. So, enough said wonderful, wonderful black community about that. in Northeast Portland and meeting people there and that was an eye-opener for me. CH: What do you think the court’s It was an education. I really needed that inﬂuence has been on public policy? education, too. You know you might say I was born without ears because I didn’t MM: I don’t know. I don’t know. In that hear anything about it. It wasn’t an issue area we were never asked, we were told. that I ever was faced with until I came to So, I was on that commi�ee for nearly this job. And both my wife and I felt very seven years and when those things came conscious of the fact that we were in a up, nobody asked. And I thought, no, there diﬀerent community here than we were should be a�ention paid to the issues of used to. We had to learn about that. So, the disabled person. We shouldn’t build I’ve been very much more involved than I things without any thought of them at ever thought I would be with that, trying all. And I think that’s a good part of that to have contact there. law. It’s really very constructive that way but it’s just, the extent of it that I think is CH: Do you feel that there is really an problematic. urban/rural divide in this state?

MM: Yes. Judicial Philosophy CH: And do you feel that the court is CH: You had mentioned earlier that in sensitive to those issues? some ways you weren’t quite as tough on crime just because you’d seen the MM: I think so. I think so. Luckily this humanity in certain cases. How else court has got a pre�y broad background, would you say your judicial philosophy a diverse background. You know, we’ve has evolved over the years, if it has? got East Coast, like Ashmanskas and Redden from Massachuse�s. We’ve got MM: Well, I’m sure it has. I think I’m Eastern Oregon represented, we’ve got much more socially conscious. I think I Southern Oregon represented, we’ve got have a much greater understanding of the Valley represented, we’ve got Portland other ethnic groups than my own. I grew represented— up in McMinnville. There wasn’t a Black in town. The only Asians were a couple of Japanese maids that were interned during [End of Tape Seven, Side Two]

Marsh, Tape Seven, Side Two 99 100 Marsh, Tape Seven, Side Two You’re a victim of rape and you’ve been terribly violated, it’s a heinous, miserable, insulting crime. I don’t think there’s anybody in the room that doesn’t already know that. They would have to be awfully crass to not know that. I hope this is done Victim’s Rights very artfully with these opportunities to confront and speak, and I hope there’s no CH: This is an interview with Malcolm danger that arises out of it. I’m just going Marsh in his chambers in downtown to be watching and waiting to see how I Portland, Oregon. The interviewer is Clark come down on that one. Hansen. The date is May 10, 2005 and this is tape eight, side one. CH: How do you feel about the I’ll ask about some of the other tendency that some judges have of finding issues that come up in the courts these Constitutional implications in cases? Do days. You hear a lot about safeguards for you think there’s too much of that going the rights of criminals and also victim’s on? rights. Has that been much of an issue in your court? MM: I don’t think so. I rely entirely upon Constitutional issues and criminal cases MM: Not in mine. The victim’s rights being raised by very, very competent rules that are new, I haven’t had them defense lawyers. If it’s there, they’re applied in any case that I’ve had. I hope going to bring it up and I don’t have to that works out well. There have been a go looking for it. I think I’m quick to deal few occasions, usually it’s sentencing, that with a Constitutional issue. I don’t have I would have some. Maybe it was just a trouble understanding it, but I don’t have finance officer of a bank that had just been to go around looking for it, because it’s robbed or maybe it was the teller that brought to me. had been robbed. I’ve had others, family members of course. And you know, the CH: So you’ve never been in a case families of the convicted person, they’re where you’ve actually had to—are judges victims, too. They pay an awful price to ever in a situation where if a lawyer is not see their son or daughter sentenced and bringing up a certain issue? sent away. A lot of soul searching. What did I do wrong, or what could I have done? MM: Oh yes. I think that judges that That sort of thing. So they’re victims too. were trial lawyers are perhaps more adroit What is the point of having at that. I think we have a be�er reading of somebody come in and say what what’s going on between the lawyers and everybody in the room already knows? what’s happening, where’s he or she going

Marsh, Tape Eight, Side One 101 with this, and being able to either cut it off CH: Mm-hmm. or undo the harm by leveling the field in some manner. But you have to be awfully MM: Yes. There was a lot of action in that careful how you do that to keep from being case instigated by the parents who were read as favoring to one side or the other. offended by what was going on there and they had a very new and a very good issue CH: Do you feel that a judgeship should to raise and it went all the way up, so it be the terminating point in a lawyer’s was hardly something that had already career? been decided or they were trying to twist around to something novel. No, they MM: Not for everybody. No. I think I were just confronting a very, very new told you that I just kind of burned out of institution there. That’s how it got all the advocacy and the fire-fights, if you will, way to the Supreme Court. that I was going through and I just wanted my life to be more reconciling of things, rather than arguing about things. So it was Sentencing a natural for me and I hope I’ve carried that out. CH: Right. What would you say the You were asking about consti- hardest part of your job has been? tutional issues and in one case—did we talk about the Vernonia drug-testing case? MM: Sentencing.

CH: Yes, we did. CH: Sentencing. Yes.

MM: That was as deep as I think I ever MM: You deprive somebody of their examined constitutional issues to really right to walk around the streets here, figure out where to go with that case, so you’re really ge�ing personal, and yes. That wasn’t brought to my fore. That particularly if you don’t really see a was the whole thing. physical danger to society. If there’s a physical danger, why then that’s different. CH: As I recall, it was a rather young It’s not easy, but it’s different. But a lot student that was standing up for his of people in the federal penitentiaries rights. When you think about all the peer are not physically hurtful to others. The pressure that people go through when answer to that quickly is, no, but le� to they’re adolescents and being able to go their own proclivities they would cause through something like that must be— a lot of indirect and monetary harm to a lot of individuals, so you have to remove MM: Well, parents were clearly in that them from the opportunity to carry that mix. out. That’s true.

102 Marsh, Tape Eight, Side One CH: In light of that, would uniform sen- know, the old lawyer jokes are rampant. tencing, be a relief in some ways? But just meeting the diverse people, in the building, dedicated federal employees MM: Well, you bet it’s a relief. Oh, it sure that, you know, will just do anything is. Yes. I just did what that book said I had you ask of them. The marshals serve to do. But that really tears at me. [laughs] as security oﬃcers, you know, they’re I don’t like that. It’s not what I pictured as dedicated people. Everybody that comes the manner of justice. I don’t think that’s in front of me teaches me something new being judicious. That’s just rote, almost about the human race and so that’s good. compared to following a game. You’ve got certain rules and you— Individualism

Judicial Rewards CH: How do you feel about the relationship between punishment and CH: On the opposite end of the reform? spectrum, what would you say the best part of having been a judge is? MM: Okay, I’ll tell you. I think until this nation philosophically comes off its MM: Oh the education I’ve received rampant individualism that it will be of the human race, just the diversity, very difficult to reform a person who is the wonderful people that have come in brought up in a society that teaches them front of me, the jurors that I just think so to do their own thing. If we’re going to be highly of, who are so dedicated. There’s in a society, then there’s got to be some just hardly an instance when I’ve felt a limits. And one of the greatest singers jury was influenced by somebody who of all time has as his theme song, “I Did wasn’t quite ge�ing the job of a juror. It My Way.” Pre�y hard to reform that And the lawyers—I’ve had just kind of a mind set. a couple of occasions where I had to do something about the lawyers. Usually CH: And yet isn’t so much of our they understand that I’m prompt, that I Constitution based on that? don’t want to hear long arguments, that I want them to be polite. I don’t want MM: I had no idea so much of it was based them coddling up to the jury. So I think on that very thought of individualism. that they learn about me and where my limits are pre�y quickly; but I admire CH: Right. their skill and I admire their hard work. I think they’ve got a tough job and in a MM: Did I talk to you about that? About profession that is o�en maligned; you Francis Hutcheson?

Marsh, Tape Eight, Side One 103 CH: We talked a li�le bit about some of I can see somebody who has no faith base the early Constitutional framers. I’m not at all who feels the same way I do about it. sure if we talked about Hutcheson or not. CH: Well the Communist system is MM: Francis Hutcheson was a li�le based on one for all. known Scot philosopher. And he said that the great mission of the human being is MM: Yes. Right. the pursuit of happiness, comma, which is best fulﬁlled by bringing happiness CH: So— [laughs] to others. The la�er half was le� out of our Declaration of Independence. It just MM: [laughs] But it didn’t work. It was was the “pursuit of happiness.” And at supposed to solve all that. Karl Marx that same time the Enlightenment was thought that his utopia where we do away bringing all of the empirical thought that with private property and we do away we decide everything by what our senses with all those capitalistic things, which tell us and then we rationally consider put people under the thumb, brought without thinking about some innate about the most tyranny the world has standards. ever seen. So it didn’t work. Why didn’t it And so innate standards become work? What was the fault? Well, it didn’t vague and they start to drop out of the deal with that second half of Hutcheson’s picture and individualism then becomes statement. It just shi�ed who’s pursuit of self-centeredness and nihilism. I admire happiness was in control. So power just the strong individual but I don’t admire moved from one phase to another phase the person who runs roughshod over other and somewhere you have to get that people for their own delight. Now I think second aspect in. that is a major, maybe not predominate, Really the happiest times I have are but a major inﬂuence in the philosophy when I’ve made somebody else happy. of our society as a whole. And as long as When I go over there to Big Muddy and that’s there we’re going to be frustrated work over there I’m making kids happy enough to lock people up until we have and that’s a pursuit of happiness for me, far too many people in jail, but we’re not so. I’m not always that pure. [both laugh] very successful in changing that mind set because we believe it. CH: There are those golf trips to Hawaii. [laughs] CH: Is there a religious component? MM: Oh yes. That’s right. I pursue a lot MM: Oh there can be, yes. I think that my of happiness that’s pre�y self-centered. foundation of those things certainly comes from a religious standpoint. But, you know, CH: Well, it seems like you’re certainly

104 Marsh, Tape Eight, Side One justified in having that with as much time Affiliations as you’ve put in on the job here. What effect did being a judge have on your rela- tionships with friends and other people CH: [laughs] What about civic and around you? professional affiliations, things like that?

MM: Well it diminished my ability to be MM: Well I’ve kept the professionals, close friends with lawyers I knew, because you know, the ABA, College of Trial I o�en had them bring cases before me Lawyers and I just went inactive on the so I couldn’t be in that fellowship with bar because I had ﬁ�y years and I wasn’t lawyers like I like to be. With my friends taking part anymore in bar functions and in Salem it’s been very strong. We’ve kept such. Oh, but not like I used to be where a very good relationship. Particularly at I was on commi�ees all the time and the behest of my wife who thought—I dealing with it. uprooted her out of her life of thirty years in Salem to bring her up here where she CH: What were you doing on the bar? I knew very few people. She had some old mean what kinds of activities? school chums and such that she still sees here and enjoys, but the main block of her MM: I was on the Legal Education friends was centered in Salem and even Commi�ee. down to Eugene. I was thrown in with a new cadre, CH: ABA or Oregon Bar? so to speak, and I had my fellowship with all the judges. We ate lunches twice MM: Oregon Bar. a week together and we talked all the time and so within the monastery here. CH: Oregon Bar. Mm-hmm. [laughs] Why, I had my own group and so I didn’t need it as much as she did and MM: And I was on some commi�ees so that was something I had to become for the College of Trial Lawyers, and a lot sensitive about. She really paid a price. of CLE—Continuing Legal Education— throughout my whole career as a lawyer. CH: What about your family? Did they I always went to bar conventions and I pay a price at all? had positive ideas about where the bar should go. I took a great interest, and MM: No. They were all gone out of still do, in ethics. But, oh, the change the house, and so they were in their own from the old town hall system in the families by then. They have just kind of sat bar to House of Delegates, it just kind of back and watched with amusement [laughs] shi�ed all that. all that’s gone on.

Marsh, Tape Eight, Side One 105 CH: Was that educational? Judicial Collegiality MM: Oh yes. Right. Yes. CH: You mentioned the congeniality or collegiality that you have with the CH: I bet it would be very interesting. judges. How important is it to have that informal contact between judges in terms MM: It was. It was very interesting. I of understanding your role and your wish we could do it’s just not practical to function in the court and what goes on, do it anymore. the issues of the day? CH: What would you say the biggest MM: I think it’s mandatory. problem facing the court today is?

CH: Mm-hmm. MM: I think the same old problem. There are such varied areas of law, and so much MM: I think we’re very quick to, in a to read, and so much to work into your kidding manner, bring somebody up thinking that it wears you down. It really short, you know. We’re pre�y frank with does. I had no idea that I’d be reading a one another and I think that’s good. We’re thousand pages a week or something very close. It’s been incredibly collegial like that. And I don’t know of any way to and so I can walk down the hall and avoid that or get out of it. I just think that Redden and I are on the same floor here you have to realize that’s what it’s going to and I can walk down the hall and talk to be and face it. But that’s going back to the him about anything and he feels the same help of clerks; without them it would be about coming down this way. And every very difficult. week we usually go to lunch one noon and just kind of chat about everything, CH: Yes. including politics. MM: They’ve got to sort through to a CH: Do you ever circulate decisions? certain extent and say, you should look at this, this, this, and this. And you hope they MM: We used to, but it got too onerous haven’t missed that. But, you know, if you because it got too many to read. You had look at Social Security transcripts that are enough to read yourself without reading a foot deep and you’ve got fi�y of them to everybody else’s work. But we did when do, how do you do it? I first got here, for the first year or two, why we passed around everything we CH: You had said that you had a clerk wrote before it went out. that was here for fourteen years, and I’m

106 Marsh, Tape Eight, Side One wondering, is that a new trend, to have lot. But there’s also something about the clerks that are pre�y much professional really good clerks that I’m not sure they’re clerks? meant for that rough and tumble area.

MM: Yes. Originally—and still some CH: How do you mean? judges do—some judges only kept them for a year and I don’t see how they ever MM: Well, first of all, they’re highly got them to the point that they were principled to the law so that doesn’t really productive. I always felt it took necessarily make them good advocates. six months to kind of train them and if you kept them two years, why then the CH: Really. first six months you were training and the last six months they were thinking MM: They might be on the wrong side, about where they were going, you had you know. [laughs] a year’s good productivity out of them. So I tried to stagger them, overlap them CH: What is the conflict between being but I learned in a hurry that when I really highly principled towards the law and— got a clerk that just was meant for the job like she was, why then I thought I’m not MM: Well, because if you are an advocate going to go through that when she wants you can’t have the exactly the same look to stay. And about that same time across at what the law ought to be from two the country, it got more and more to the advocates that are fighting over it and career clerk concept. they’re on one side or they’re on the other side and they might not be on the side CH: Mm. And why do you think, what they wanted to be on, and so it happens caused that trend? in debating all the time in college. I wish I had that point of view instead of the one MM: Just so that the judges didn’t have I got. to go through so much training and revamping and starting out a new with CH: [laughs] Right. somebody they didn’t know really. But unfortunately—you know it’s a huge step MM: Well, some people just can’t handle for a fresh-out-of–law-school person to that. have a couple of years experience right next to the bench. And then they go out CH: Mm-hmm. into a firm and they know more about federal practice than the old partners in MM: And so, my clerks, I always taught the firm know, and so it’s really worth a them, well read those memorandums but

Marsh, Tape Eight, Side One 107 then you make your own independent research. We’re not just going to be Judicial Pay convinced by this one or that one. We’re going to make sure that there isn’t a third CH: Are the salaries in those fields position that we really should be on. And sufficient enough to be able to a�ract the so they had to have their own research, good talent? every issue and then we’d sit down and we’d talk about the different things and MM: Yes, they are. They go up over a I’d read the memorandums and I’d read hundred thousand but they’re not, they’re their notes and then it would start to kind of stuck there. They’ve hit the glass formulate. And, this is really where the roof, not the glass roof, but the real roof. issue is and this is really where the law Because they hit the top of the wage scale is and then you can go ahead and make a that they can be in and then all they can look decision. forward to is cost of living or something like that. So they’re kind of locked in. CH: Why would a clerk want to stay around for so many years? CH: As far as that goes, what about judges? Are the salaries for judges sufficient MM: Oh a lot of them don’t, but you enough to justify their maintaining the know there are several in this courthouse course? that have been here longer than fourteen years and they’ll retire probably in that MM: For me, absolutely. But if I had position. It’s just, it fits their personality three kids in college and I could have been be�er, I think. And there’s a certain making three times that much down the personality. You can say they won’t go out street, that’s different. So it’s an age factor and face the real world, but I don’t think again. I think that if I lived in New York or that’s true. Some of them are bent to not San Francisco where the cost of living was have their performance based on billable sky high and you couldn’t afford to buy hours, but on the quality of their work. a house, not that you can buy one here, And so it’s a personality difference. Where but I think in some measure the federal Kelly is now, she’s wonderful. She’s with judiciary is underpaid but not as senior the U.S. A�orney’s Office and doing very judge like myself. The state judges are well and she’s in litigation and she’s in a grossly underpaid. new career and that’s wonderful. And so I think it was really, probably providential CH: In that case too you also do have that I wasn’t doing enough to really keep state judges that do leave the court even that kind of a mind busy and so it was chief justices who leave the court and go time for her to move on. back to their practice.

108 Marsh, Tape Eight, Side One MM: Right. Awards & Honors CH: And it’s probably a good salary MM: Being able to bring people into an diﬀerence there when they leave. accord is a real gi� and it’s not universal to judges. Some judges are good se�lement MM: Right. judges; others are kind of so-so.

CH: And also it seems to be a trend CH: What honors have you received towards judges ge�ing involved in over the years in your profession, or even arbitration and mediation. outside of your profession?

MM: Yes. There’s a whole book of them. MM: Well in my younger days I was very active in civic works in Salem and so I had CH: Yes. several accolades there, ending up with the First Citizen’s Award in Salem in 1982. MM: It’s really amazing how many are in that business. And a lot of them are kind CH: What was that based on? of retired but they like to keep something going. MM: Well, the primary thing, I think, Some of them, you know, like my was the redevelopment program in old partner Eric Lindauer that’s all he downtown Salem that I took a major part does is mediations and arbitrations and in. For establishing Nordstrom’s and the he’s known internationally for that. shopping center downtown, to try and keep the core from just going to seed and CH: Wow. having things outside, surrounding the city. And it’s really been quite successful MM: So that’s what his business is. and that was twenty-ﬁve years ago, no, thirty years ago. So there was a lot of that CH: I would imagine that judges would that I liked. I was involved with Scouting be well suited for that, having had so to some extent down there, and I was much experience in the courtroom. involved in my church in the later years, not that those were awards but those were MM: Some would and some aren’t. my interests. In the law, I suppose, the biggest CH: Ah— honor was being elected to the College of Trial Lawyers. I was chairman of the State Bar Continuing Education Commi�ee. [End of Tape Eight, Side One] I also felt that service on the National

Marsh, Tape Eight, Side Two 109 Commi�ee on Security and Facilities was being pulled in, which is not all bad. We an honor. I served on the Executive Board have a big conference room in there that’s of the Ninth Circuit Conference. in each chambers and it’s the library. We’ll you don’t use books like you used to. And you don’t use conference tables like you Mark Hatﬁeld Courthouse used to. And if you needed a conference table you’ve got one in the jury room, if CH: Didn’t we talk about a li�le bit about not the court room itself, or the arbitration that? You had a lot to do with the security room down the hall. design for this courthouse. As I say, the court space is going to be smaller in the future because they MM: Yes. I was a liaison, if you will, are conscious of the rent cost and that between the Court, the General Services sort of thing, which they should be. You Agency, and the architects and engineers won’t see another Minneapolis. You and the construction companies. I spent I won’t see another Sea�le, or Portland, or don’t know how many hours. But almost Sacramento—courthouses like this—that everyday I had some time concerned about were in the right time and were built for this building in its design and construction the right length of time. You can’t design stages. a courthouse for ten years. It takes you And it was a valuable storehouse of ten years to design it and build it. By then information when I went to the national if it’s a design for ten years it’s obsolete. commi�ee. I think it was in ’94, and by then This courthouse will last a hundred years. we had designed this place and we were You know. We can expand from sixteen starting the construction and so I’d had courtrooms to twenty-one. It moves the enough experience about that, that I could people around in the building but the ﬂoor speak with some knowledge about design space is there and the height of the ceilings and facilities for courthouses. So they gave are there and so it’s planned to grow and me a second term of that. I really liked that. I so if this court was twice as big as it is right went to forty-some courthouses across this now, this building could handle it. country, and it was not a boondoggle. It was really thinking out what are we doing CH: Really. right or wrong with these things. Some of them were pre�y incidental. Some of them MM: And I think that’s foresight. I’d been into when I was a trial lawyer, but I did learn an awful lot about courthouses. CH: Do you regret that the federal—well, This courthouse is unfortunately I don’t know if it was actually a prison— a dinosaur. You’ll never get another one. that was going to be built across the street Already they’re pulling in the horns. They was not built? stopped courthouse construction for this biennium at least and the design guides are MM: Yes, I think that was a mistake.

110 Marsh, Tape Eight, Side Two In the first place it makes no sense for the federal marshals to be housing prisoners Role Models in Multnomah County when they can’t CH: You mentioned Senator Hatfield, hold their own prisoners. And to have a but I mean you’ve met so many wonderful jail down in Sheridan, which is fine, but people in your career and are there certain how do defense lawyers have access to people that really stand out as being just their clients when they’re—you know extraordinary human beings? that’s one of the slowest drives in Oregon to go through Newberg and Dundee and MM: Yes, I’m sure I’ve mentioned them. McMinnville. So that doesn’t make any Senator Hatfield, John Dellenback, ooh, sense and it was all there. Unfortunately, such premier human beings. And O�o unfortunately that was the end of Senator Skopil and Ed Leavy and all the judges Hatfield’s time, otherwise it would be you know. I just think they’re great, great there. people. The wonderful, wonderful people, Rich Stearns, Doug Coe and Marge, his CH: Because didn’t it have the money sister, and LuAnn Yocky and [pause]—the for it? list goes on and on. Kathy Williams, who we lost this last winter to cancer and they MM: It had the money and GSA went had an auction in her memory to raise elsewhere with it. They had their own funds for Mongolia. Her legacy goes on reasons, but it should have been over there. way past her death, you know. People like Then all you had to do is tunnel. that. You know I met a young lawyer CH: Mm-hmm. today for the first time. A young, thirty-six year-old Black from Wisconsin. “How did MM: You’d never have anybody, you you get out here?” You know? We went on know, a van coming down the street. a kind of a tour of Portland State University You’d have them all going—you could this morning and went around and saw have even tunneled into the Justice Center different phases of the curriculum there and cooperated with the county. It had all and he was in a small group, about a dozen pluses. There was a vacant parking lot, of us. But I just thought his principles are there wasn’t a building—it wasn’t like you so strong. He’s so with it and so capable were tearing down low-cost housing or and so unabashed by the coming into a something like that. It was there. That was totally new environment and community a tragedy; really a tragedy. and picking up his work as a lawyer. I expect to spend some time with him and CH: I couldn’t believe it when it I don’t know anything more that I could happened. It was amazing to me. learn from talking to him for about a half an hour, but I just sensed something was MM: Yes. Well. really strong in him. So there are those of

Marsh, Tape Eight, Side Two 111 great, political clout and I’ve le� many as the scripture says, “unevenly yoked.” out. So, I guess if I come back to Mark and [laughing] I just thought that was— John Dellenback, why those are pre�y tough people to beat. CH: “Unevenly yoked”?

CH: Well I know that we’ve covered a MM: Yes. “Unevenly yoked,” and I just lot of territory in this but there’s I’m sure picture the oxen with the big yoke on one a lot of other things that we haven’t talked and a li�le goat or something, you know. about. Are there issues, other topics, things Unevenly yoked. And so to walk the same that you would like to discuss? and have the same discussions, to drive over like we did Friday and talk about spiritual ma�ers on the way to Big Muddy Marriage to Shari Long and drive home Sunday talking about those same things and being on the same MM: Yes, I would like to say that, you page, I think that’s a blessing. Whether that were asking about honors. The biggest would be the page anybody else would be honor of my life was the marriage to Shari. on or not, that’s not the point. Our growth together, it will be fi�y-two years the end of August, and like any CH: Mm-hmm. marriage we’ve had [laughs] rough roads at times but we’re closer together now MM: When you can see a couple that than ever. And she is so supportive and is that tuned at this time, well that’s a patient that she has to go to the top of blessing. the list of the human beings I know that I really admire. It’s tough to get along with CH: And the “joint faith walk” that me. Particularly thirty-five years ago, you’re referring to, is that a metaphoric I was a different person. I was a pre�y phrase that you use of your walking your judgmental, harsh individual and I just faith together? had to get all of that knocked out of me and she was patient through the whole MM: Yes. Yes. We both feel very time. strongly about our, I use this advisedly, Christian walk, because I think that is so CH: She wasn’t the one that was misunderstood and so abused and I don’t knocking it out of you? [laughs] identify with the right or the le� of that at all. I’m not a fundamentalist, but I am very MM: No, she wouldn’t tolerate it but she strong in my faith. just, with her quiet spirit she just eventually got my a�ention too. And we have a joint CH: Well you mentioned about John faith walk which is pre�y difficult to be, Dellenback. When you see John Dell-

112 Marsh, Tape Eight, Side Two enback’s faith as it’s manifested through I think faith and reason are very good World Vision, it’s hard for anybody to partners to walk together. argue the benefits to humanity. CH: Well are there others? Is there MM: Yes. Well, that’s why we’re involved anything else that you would like to add? with World Vision, is partly John. Well, and look at the principles of Mark Hatfield, how his faith has kept him from falling Importance of Family into the usual traps. MM: No, I think if I had any other advice, CH: There must be difficult times in life and maybe I said this all earlier—I think when your faith is in conflict with either there’s a great strength in a family. And social norms or other decisions that you the more that family can be cherished and have to make. understood in kind of a classic sense, the be�er off the family is. I just think of the time when I realized the short, very small Schism of Faith & Reason window that you have to do anything influential with your grandchildren. It’s MM: My biggest conflict is I just hate to got to be in the few years between when see the tension between this fierce debate they really start to listen to you at all and of faith versus reason. That’s a dichotomy understand you’re talking about things that should not exist at all. There’s no important and when they move out and reason you can’t be reasoned in your faith go on their own and then you’re kind of and there’s no reason that someone who’s something they see maybe once a year and deep into trying to figure out the essence love and appreciate but this is the time of of everything can’t have a faith element influence. in their life. I would do anything I could And so when you can have to break down that division, which when discussions with them about all sorts of somebody goes off and figures—I don’t things, careers and sports and faith, and think the scientists did this. I blame the you name it, anything. Why it surprises philosophers not the scientists. But when me when a year later they’ll say, well I they go off and think that everything has to remember you talked to me about such have a scientific proof or it can’t be, that’s and such. Then you realize that it did too bad. And when somebody thinks that have some impact. They might have been the only way that you can look at this is quiet at the time, but they were listening, totally spiritual without realizing that the and so I think it’s very important for world is round, well neither one of those generations to not isolate themselves, but courses take us anywhere. They take us mix with not only your children, but your to this division of faith versus reason and grandchildren. And children ought to be

Marsh, Tape Eight, Side Two 113 mixing with their grandparents. And so CH: Well, thank you, Judge Marsh, for that’s family, and it’s very, very important your time. to this country I think. We’re not all irrelevant. We’ve still MM: Oh, Malcolm is a be�er way to do got some sense to speak to issues, but if it. we’re looked upon as just irrelevant old people, why that’s the way we’ll come CH: Malcolm. Malcolm, thank you across. so much for your time on this. It’s a big chunk out of your schedule to sit down CH: Family is being more broadly and to do this and just to give you fair interpreted these days. warning it’s going to be even a bigger chunk when you have sit down and MM: Yes. review the transcript. [laughs]

CH: And is that okay too? MM: And think, oh my gosh, did I say that? MM: Yep. I think that anything that brings human beings together, I like CH: And here you had all these to—you know there’s a group of young complaints about all the stuﬀ you had to families out here around, gosh I don’t read. [laughs] know, Lloyd Center somewhere. And there must be ten families and those MM: You hit my vulnerable spots, well parents and kids all get together. The particularly I don’t want to come across— kids look on all the other mothers and like on talking about the Disability Act, fathers as if they were aunts and uncles while I have criticisms of it, I don’t want and you know, it’s the strongest cadre of to come across as if I’m a bigot on the young couples that I’ve been around in a point—but I think we have to face things long time. And they all know each other’s like that. names. Everybody knows the names of all CH: We will be back to you with the the other kids, so there’s a family there. transcript in due time. And it’s just a larger family. We were, last weekend, with a MM: All right. young girl, not young anymore but in her low forties that was a high school friend CH: And, again, I’d like to thank you for of our daughters. We hadn’t seen her in this contribution. years, but we still remember her well and were thrilled to death to see her and she MM: You’re welcome. was thrilled to see us. So these things do carry on. They don’t just dissolve. [End of Interview]

114 Marsh, Tape Eight, Side Two Endnotes

1. McMullen v. Volkswagen, 274 Or 83 (1976). 2. The first reference is to the series of suicide a�acks by terrorists on the United States, September 11, 2001 when four planes were crashed, two into the two tallest towers of New York’s World Trade Center, and one into the U.S. Department of Defense Headquarters at the Pentagon in Washington DC. The fourth plane crashed in Somerset, Pennsylvania, following passenger resistance. The official death count was 2,986, including the hĳackers. The second reference is to the December 26, 2004 Indian Ocean earthquake that caused the deadliest natural disaster in recorded history, a tsunami that killed between 170,000 – 275,000 people across South and Southeast Asia. 3. The three cases noted above are: Blakely v. Washington, 542 U.S. 296 (2004) was based on the case of Ralph Blakely, Jr. that ultimately overturned the federal sentencing guidelines, which granted a judge the power to increase sentences based on facts not confessed to nor found by a jury. In United States v. Booker, 125 S. Ct. 738 (2005) the court held the federal sentencing guidelines unconstitutional in the case of George Booker. Fen-Phen (short for a combination of fenfluramine and phentermine) were prescription diet suppressants that were eventually withdrawn from the market in 1997. Medical studies indicated that people using the two drugs in combination experienced increased risks of developing valvular heart disease that can lead to heart a�acks and lung disease. 4. Vernonia School District 47J v. Acton. 515 US 646 (1995). 5. Idaho v. National marine Fisheries Service 850 F. SuPP 886. 6. One of the guidelines in the magistrate system requires that defendants sign a consent form that indicates they have agreed to have a magistrate (versus an Article III judge) try their case. The explanation given by several magistrate judges assigned to distant regions of Oregon is that most defendants, and their lawyers, prefer a magistrate located in or near their community rather than have to incur the expense of traveling to Portland for their trial. 7. Kristine Olson served as United States A�orney for the District of Oregon from 1994 to 2001. 8. Americans with Disabilities Act of 1990 [July 26, 1990. 104 STAT. 327].

Marsh, Endnotes 115