benchmarks spring 06 by mmcsx



Upcoming Famous Case: United States v. Gozales
Oregon’s Latest Supreme Court Decision
By John Stephens

O     n May 11 at 4:00 in the Mark O. Hatfield Fed-
      eral Courthouse, the U.S. District Court Soci-
ety will hold its next presentation in its Famous Cases
                                                          tending physician or the consulting physician believes
                                                          a patient may be suffering from a psychiatric or psy-
                                                          chological disorder or depression causing impaired
series on the Oregon Death With Dignity Act case,         judgment, then the physician must refer the patient
United States v. Gonzales, 126 S.Ct. 904 (2006).          for counseling. No medication can be prescribed
The speakers will be U.S. District Judge Robert E.        until the person performing the counseling deter-
Jones; Portland lawyer, Eli Stutsman; Oregon Assis-       mines that the patient is not suffering from a psy-
tant Attorneys General Stephen Bushong and Rob-           chiatric or psychological disorder or depression
ert Atkinson; and Deputy Assistant U.S. Attorney          causing impaired judgment.
General Gregory Katsas. This article provides back-          The attending physician may dispense the medi-
ground information for that presentation.                 cations directly, provided, among other things, the
  In 1994, a measure to enact the Oregon Death            attending physician has a current Drug Enforcement
with Dignity Act (ODWDA) was placed on the No-            Administration certificate and complies with any ap-
vember general election ballot by citizens’ initiative.   plicable administrative rule.
Despite opposition from so-called opinion leaders,           The ODWDA does not authorize a physician or
including elected leaders from both parties, religious    any other person to end a patient’s life by lethal in-
organizations, medical organizations, and newspa-         jection, mercy killing, or active euthanasia. (Al-
per editorial boards, the measure passed 51% to           though ODWDA provides that actions taken in
49%. ODWDA was codified as ORS 127.800 to                 accordance with the Act, do not constitute suicide
127.897.                                                  or assisted suicide under the law, the Oregon De-
                                                          partment of Human Services and the courts quite
Oregon Death With Dignity Act                             consistently refer to the actions as “physician-as-
   The Act provides that a qualified patient may re-      sisted suicide.”) Among other procedures, ODWDA
quest and an attending physician may write prescrip-      requires that upon dispensing medication, a health
tions for medication to enable the patient to end his     care provider must file a copy of the dispensing
or her life “in a humane and dignified manner.” To        record with the Oregon Department of Human Ser-
qualify, a patient must be an adult (18 years of age                                                Continue on page 4
or older), a resident of Oregon, capable of making
and communicating health care decisions, and di-
agnosed with a terminal disease that has been medi-
cally confirmed and will, within reasonable medical
judgment, produce death within six months. Both
the attending physician and a consulting physician
must have determined that the patient is suffering
from a terminal disease. The patient must make two
oral requests and one written request. A prescrip-
tion cannot be written until 15 days have passed
from the initial oral request and 48 hours have
passed from the written request. The attending phy-
sician has a number of other responsibilities includ-     Oregon Assistant Attorneys General Robert Atkinson (left)
ing counseling the patient and verifying that the         and Stephen Bushong will be two of the speakers on Oregon
patient is making an informed decision. If the at-        Death with Dignity Act.

                                                                                                       SPRING 2006
                                                                                     torney Kristine Olson. The U.S. Dis-
    President’s Message                                                              trict Court Historical Society wishes
                                                                                     to thank Ms. Olson and Mr. Rives for
                                                                                     agreeing to let their stories be a part
             I never imagined, when I attended the Sohappy Famous Cases pre-         of our collection and Mr. Long and Mr.
            sentation in 2001, that a few years later I would be President of        Perry for their volunteer efforts to
            the Society. Like many who have attended the series, I was fasci-        record Oregon’s legal history.
            nated by the behind-the-scenes perspective offered by the attor-
            neys and judges involved in a historical event. I enjoyed hearing        We Need Volunteers
            how Judge Belloni called Judge Panner, then an attorney repre-              Volunteers make this oral history
            senting the tribes, back from a camping trip on a Sunday (along          project possible. We need volunteers
            with other litigants) and instructing the parties to resolve a state     willing to go through training and will-
            court injunction before Monday.                                          ing to conduct oral histories. In the
                We have been taping the series since 2002 and receiving CLE          past, volunteers have made it possible
credit for those presentations. We are now able to offer 7 different programs        to collect the histories of many figures
for sale, listed in the insert in your newsletter.                                   in Oregon legal history. The list is ex-
   I am happy to welcome our new officers: Kerry Shepherd, vice president/           tensive and includes people such as
president-elect; Karen Saul, treasurer; and John Kreutzer, corporate/execu-          Rupert Bullivant, Jack Collins, Tho-
tive secretary. I am lucky to have them working with me as officers.                 mas Cooney, Velma Jeremiah, Sidney
   I want to welcome our new board members: Michelle Barton, Amity                   Lezak, and Noreen Kelly Saltveit
Clausen, Jack Collins, Kari Furnanz, Matthew Kalmanson, Susan Marmaduke              McGraw, to name a few.
and Greg Miner. I want to thank them in advance for the contributions they              Many of these interviews are not
will be making in those areas.                                                       transcribed. In order to make them
   I have to extend a heartfelt thank you to Judge Owen Panner and his many          more accessible, we need sponsors for
years of service and friendship to the District Court Historical Society. As         the transcribing project. If you or your
one of our organization’s founding fathers, he has helped to steer the organi-       firm is interested in volunteering to
zation and helped corral many of our stalwart members. As he moves south             transcribe an oral history, to collect an
to take up his duties as Medford’s first Article III judge, we will miss his         interview, or in making transcription
physical presence, but he will always have a place at our meetings. I hope           possible through a donation, please
Medford is ready for things to change! Fortunately, Judge Panner recruited           contact Stephen Brischetto, slb@
Judge Anna Brown several years ago to join the Society. Judge Brown has     or Donna Sinclair,
agreed to step into the role of adviser and supporter for the group.       
   Thanks to Benchmarks chair Heather Van Meter, the society web page has               The following firms or individuals
debuted. Please log onto The web site should make past               have donated transcribing time
Benchmarks and orals histories more accessible.                                         Bullivant Houser Bailey transcribing
                                                   –Jenifer Johnston, President      Rupert Bullivant (ca. 4 hours); Cooney
                                                                                     & Crew transcribing Thomas Cooney
                                                                                     (ca. 5 hours); University of Oregon
                                                                                     (Dave Frohnmayer) transcribing Otto
          The USDCHS Oral History Program                                            Frohnmayer (ca. 4 hours); Jolles &
                    By Steve Brischetto and Donna Sinclair                           Bernstein transcribing Bernard Jolles
                                                                                     (ca. 8 hours); Newcomb, Sabin,
Since 1984, the District Court Historical Society of Oregon’s Oral History           Landsverk transcribing Sidney Lezak
Program has collected biographical interviews of judges, lawyers and lay per-        (ca. 8 hours); Scarborough McNeese
sons who play a significant role in Oregon legal history. These oral histories are   O’Brien & Kilkenny transcribing Gen-
preserved by the Oregon Historical Society library archives and are available to     eral Chester McCarty (ca. 6 hours);
both the public and researchers. At present, the Oral History collection includes    David Rhoten transcribing George
approximately 120 interviews. Some oral histories have been collected by pro-        Rhoten (ca. 2 hours); Schwabe
fessional interviewers, but many were collected by volunteers. All of the inter-     Williamson Wyatt transcribing
views are preserved on tape recordings and many include written transcripts.         Wendell Wyatt (ca. 6 hours); Dunn
The U.S. District Court Historical Society is currently working to transcribe all    Carney Allen Higgins & Tongue LLP
of the oral histories in the collection. Most recently, we have begun adding a       transcribing Hattie Kremen (ca. 4
video interview with judges as a part of the collection.                             hours); Markowitz Herbold transcrib-
   The Oral History Program has added two important histories to our collec-         ing Norm Sepenuk (ca. 9 hours);
tion of the histories of individuals who have had a significant impact upon the      David R. Williams (ca. 2 hours)
law in Oregon.                                                                          Stoel Rives is also sponsoring the
   William Long recently recorded the oral history of George Rives of the Stoel      collection of three professionally col-
Rives law firm. Ken Perry completed oral history interviews of former U.S. At-                                Continue on page 9

                    Glancing Backward, Striding Forward:
              Case Management/Electronic Case Filing (CM/ECF)
                                 By Camile S. Hickman, Director of Operational Services

W       hen I began working for the
        Clerk’s Office in 1971, attor-
neys (not the messenger service)
                                          to electronically file their documents
                                          with the court. Analogous to the move
                                          from manual typewriters to personal
                                                                                      ity to download and print documents
                                                                                      directly from the court database, and
                                                                                      concurrent access to case files by mul-
brought their documents to the Clerk’s    desktop computers, snail mail to e-         tiple parties.
Office for filing. The clerk at the       mail and telephones to fax machines,           The Clerk’s Office is ready to assist
counter hand stamped the date filed       it will be necessary for attorneys to       attorneys and their staff in learning
on the front page. Case file dockets      have internet access and e-mail. Adobe      how to navigate in the CM/ECF envi-
were maintained on heavy card stock       Writer software is necessary to con-        ronment. In addition to the on-line
in a rolling tray that sat beside the     vert word processing documents to           User Manual and Tutorial located on
manual typewriter. As documents were      PDF format and attorneys will need          the court’s CM/ECF Project Page,
filed, the docket sheet was pulled and    access to scanning equipment. Benefits      training classes will be offered during
the filing date and style of the docu-    to electronically filing documents in-      the months of April, May and June.
ment entered. An index card for each      clude 24-hour Internet access to elec-      Dates, locations and registration infor-
party in a case was created on 1.5" by    tronically filed documents, automatic       mation may be found by visiting the
2.5" cards; yellow for plaintiffs, blue   e-mail notice of case activity, the abil-   court’s site at
for defendants and pink cards for
criminal defendants. Over the years,
automation began to gain a hold on                       Judge Panner Moves to Medford
the judiciary; moving from a manual                                       By Nancy Moriarty
docketing system, to WANG, to
Courtran, to ICMS and presently to
CM/ECF.                                    E    ffective May 1, 2006, Judge Owen Panner
                                                has moved his chambers to the James A. Red-
                                           den U.S. Courthouse in Medford, becoming the
   Until the advent of CM/ECF, each
of these docketing systems were de-        first Article III Judge permanently working in
signed for use by court staff only.        Medford.
When CM/ECF was first delivered to            The Court has frequently discussed the need
pilot courts in November 1998, it was      for an Article III Judge in Medford. Magistrate
envisioned solely as an application        Judge John Cooney has been headquartered in
which would enable attorneys to file       Medford for a number of years, but cannot try
their documents electronically over the    criminal cases or non-consent civil cases. The case
internet. After a few courts had a         load in Medford has grown substantially — there
chance to work with the software, it       are now over 100 criminal cases pending.            Judge Owen and Nancy
became evident that the primary func-         Judge Panner’s wife, Nancy, got the ball roll- Panner
tion of the application should enable      ing. When visiting her brother and his wife in
the court to manage its case load. At-     Jacksonville, she noticed that the neighboring 25 acres were for sale. The
torney participation became a second-      family connection, the opportunity to buy an adjacent property, and the need
ary goal. The U.S. District Court for      for an Article III Judge in Medford convinced Judge Panner to volunteer to
Oregon was one of four pilot district      embark upon this new adventure.
courts that played a major role in fo-        While Judge Panner’s law clerk Jackie Sanders has relocated to Medford,
cusing development of a viable case        his judicial assistant, Deborah DesJardins, will remain in Portland. Technol-
management system. From the start          ogy has made this transition easier. Daily mail, email, and video conferencing
of this project, our court wished to       keep the court connected. At Chief Judge Haggerty’s insistence, Judge Panner
encourage attorneys to participate         will also maintain Portland chambers on the 8th Floor of the Mark O. Hatfield
voluntarily. As a consequence, attor-      U.S. Courthouse, which he will use when he is needed in Portland.
neys filing their documents electroni-        Judge Panner, his wife Nancy and their three horses are settling in on their
cally with our court today account         25-acre spread in Jacksonville. Home remodeling, landscaping and a new
for over 35% of the entries made to        barn have kept them busy during the transition. They plan to raise some
the system.                                cattle on the three pastures and enjoy riding. While Judge Panner claims that
   Amendments to LR 100, which gov-        he and Nancy are basically “rednecks”, they are very elegant “rednecks”!
erns electronic filing in the U.S. Dis-    Judge Panner is joining the Rogue Valley Country Club, even though he claims
trict Court of Oregon, become              he won’t have time to play golf for a while. While they will miss their friends
effective June 1, 2006. As of Septem-      in the Portland area, the Panners are looking forward renewing friends and
ber 1, 2006, attorneys will be required    acquaintances in Medford.

                                                                                            members of Congress, concerned about
                                                                                            ODWDA, wrote the director of the
 Supreme Court Decision continued from page 1                                               DEA arguing that the DEA should
                                                                                            prosecute or revoke the CSA registra-
                                                                                            tion of Oregon physicians who pre-
vices. The department, in turn, is re-         Washington v. Glucksberg, 521 U.S.           scribe medications under ODWDA.
quired to collect information regard-          702. While rejecting the argument that       They contended that hastening a
ing compliance with ODWDA and to               the right to assistance in committing        patient’s death was not a “legitimate
make available to the public an annual         suicide was a fundamental liberty in-        medical” practice and that prescribing
statistical report of information col-         terest protected by Due Process Clause,      controlled substances for that purpose
lected. The department’s annual reports        and while holding that Washington’s          violated the CSA. The director agreed,
are available on its website                   ban on assisted suicide was rationally       but seven months later, Attorney Gen- Or-                related to legitimate government inter-      eral Janet Reno disagreed. She deter-
egon was, and is, the only state in the        ests, the Court also noted “the States       mined the DEA could not take the
country with such a law.                       are currently engaged in serious,            proposed action because the CSA did
   ODWDA did not immediately go                thoughtful examinations of physician-        not authorize the DEA to “displace the
into effect. A group of physicians, four       assisted suicide and other similar is-       states as the primary regulators of the
terminally ill patients, and a residen-        sues.” 521 U.S. at 719. This statement       medical profession, or to override a
tial care facility, among others, filed an     has been important to all subsequent         state’s determination as to what con-
action in U.S. District Court seeking to       judicial considerations involving the        stitutes legitimate medical practice.”
enjoin ODWDA from taking effect. In            ODWDA. A few months later, on Oc-            Oregon v. Gonzales, 126 S.Ct. 904,
Lee v. State of Oregon, 869 F. Supp.           tober 14, 1997, the Supreme Court de-        913 (2006).
1491 (D.Or. 1994), Chief U.S. District         nied a petition for certiorari in Lee. Lee      Bills were introduced in 1998 (Le-
Judge Michael Hogan granted                    v. Harcleroad, 522 U.S. 927 (1997).          thal Drug Abuse and Prevention Act
plaintiff’s motion for preliminary in-                                                      of 1998) and again in 1999 (Pain Re-
junction preventing ODWDA from                 The 1997 Oregon Vote                         lief Promotion Act) designed to block
going into effect. Thereafter, the Dis-           The injunction was then lifted on Oc-     ODWDA. The proposed Pain Relief
trict Court held that ODWDA violated           tober 27, 1997, but that was not the         Promotion Act became a leading cause
the Equal Protection Clause because it         end of challenges, non-judicial at least,    of the Senate Majority Leader, Don
did not provide sufficient safeguards to       to ODWDA. Believing voters might be          Nickles. Neither bill passed.
prevent incompetent (i.e. depressed)           of a different mind about the moral,
terminally-ill adults from committing          ethical, and legal choice they had made      The Ashcroft Directive
suicide; ODWDA irrationally deprived           in 1994, the Oregon Legislative Assem-          In 2001, John Ashcroft became At-
terminally-ill adults of safeguards            bly referred a measure to the voters to      torney General. As a U.S. Senator
against suicide that are otherwise pro-        repeal ODWDA in the November 1997            Ashcroft was a proponent of the two
vided to adults who are not terminally         general election. This time, however,        bills and of the DEA taking action. On
ill. Lee v. State of Oregon, 891 F. Supp.      the vote was only more decidedly lop-        November 6, 2001, Attorney General
1429 (D.Or. 1995). The District Court          sided, with 60% to 40% voting not            Ashcroft issued an interpretive rule,
entered judgment permanently enjoin-           repeal ODWDA.                                often referred to as the Ashcroft Di-
ing the enforcement of ODWDA. Lee                 With the second vote, challenges to       rective, that “assisting suicide is not a
v. State of Oregon, 891 F. Supp. 1439          ODWDA switched from the local level          ‘legitimate medical purpose’” within
(D.Or.1995). On appeal, the Ninth Cir-         to the national level. The medications       the meaning of administrative rules
cuit reversed. The court held that plain-      that attending physicians prescribe un-      that had been adopted under the CSA,
tiffs had failed to establish actual injury,   der ODWDA are regulated under the            and that “prescribing, dispensing, or
and therefore had no standing. The             federal Controlled Substances Act            administering federally controlled sub-
Ninth Circuit vacated the District             (CSA), 21 U.S.C. § 801 et seq. In 1971,      stances to assist suicide violates the
Court judgment and remanded with               the Bureau of Narcotics and Danger-          Controlled Substances Act.” He ruled
instructions to dismiss the complaint          ous Drugs (predecessor of the Drug           that such “conduct by a physician reg-
for lack of subject matter jurisdiction.       Enforcement Agency) adopted formal           istered to dispense controlled sub-
Lee v. State of Oregon, 107 F.3d 1382          regulations implementing the CSA, in-        stances may ‘render his registration
(9th Cir. 1997). The Ninth Circuit did         cluding what is now 21 C.F.R. §              ... inconsistent with the public inter-
not reach the equal protection argu-           1306.04. It provides in relevant part:       est’” and therefore subject to possible
ments that were the basis of the Dis-          “A prescription for a controlled sub-        suspension or revocation under the
trict Court’s decision.                        stance to be effective must be issued        CSA. The interpretive rule provided
                                               for a legitimate medical purpose by an       it applied regardless whether state
A 1997 Supreme Court Decision                  individual practitioner acting in the        law authorized or permitted the con-
  In the meantime, in June 1997, the           usual course of his professional prac-       duct. 66 Fed. Reg. 56608 (Nov. 9,
Supreme Court issued its decision in           tice.” [Emphasis added.] In 1997,            2001).
   The      next                                such a practice is legitimate in this       sons, the majority said “it is clear to
day, on No-                                     sovereign state.                            us that controlled substances provide
vember 7th,                                     –192 F. Supp.2d at 1092.                    the best and most reliable means for
the State of Or-                                                                            terminally ill patients to painlessly take
egon       com-                               Ninth Circuit Opinion                         their own lives.” 368 F.3d at 1123 n.5.
menced        an                                 The Ninth Circuit, in an opinion by
action in U.S.                                Judge Tallman, and over a lengthy dis-        The Supreme Court Decision
District Court                                sent by Judge Wallace, affirmed. State           The Supreme Court granted certio-
against the At-                               of Oregon v. Ashcroft, 368 F.3d 1118          rari. Oral argument was heard the first
torney Gen-                                   (9th Cir. 2004). Among other things,          week of the October 2005 term, and
eral, and filed a                             the Ninth Circuit concluded that the          the Court issued its decision on Janu-
motion for a U.S. District Judge              District Court did not have jurisdiction      ary 17, 2006. In an opinion by Justice
temporary re- Robert Jones, who will          of the matter, that review in the first       Anthony Kennedy, and over the dissent
straining order also speak on this            instance lay with the U.S. Circuit            of Chief Justice Roberts and Justices
and a prelimi- Famous Case, issued the        Courts of Appeal. The District Court          Scalia and Thomas, the Court affirmed
nary injunc- first ruling on the              had recognized that it might lack ju-         the Ninth Circuit. Gonzales v. Oregon,
tion “to enjoin Ashcroft Directive            risdiction over the matter and had al-        546 U.S. ___, 126 S.Ct. 904 (2006).
defendants                                    ternatively treated the actions as               The issue, as the Court saw it, was
from enforcing, applying, or otherwise        petitions for review which it ordered         whether the CSA allowed the Attorney
giving any legal effect to the Ashcroft       to be transferred to the Ninth Circuit        General to prohibit doctors from pre-
directive pending further order of the        under 28 U.S.C. § 1631. The Ninth Cir-        scribing regulated drugs for use in phy-
court.” On November 8th, U.S. Dis-            cuit said:                                    sician-assisted suicide, notwithstanding
trict Judge Robert Jones heard the               Although we conclude that the dis-         ODWDA which permits the procedure,
motion and issued a temporary re-                trict court did not have jurisdiction,     and in particular whether the interpre-
straining order. On November 20, the             Judge Jones’ opinion on the merits         tive rule was authorized by, or other-
court heard and issued a preliminary             is well reasoned, and we ultimately        wise consistent with, the CSA. The
injunction. State of Oregon v. Ashcroft,         adopt many of his conclusions.             Court particularly considered what lev-
192 F. Supp.2d 1077, 1084 (D.Or.                 – 368 F.3d at 1120 n. 1.                   els of deference were or were not avail-
2002). Thereafter, the court granted             Presumably because the parties had         able to the Attorney General’s
motions for summary judgment filed            shifted their arguments on review, the        interpretive rule under the Court’s ad-
by plaintiffs and denied a motion to          Ninth Circuit focused more on the At-         ministrative law jurisprudence. The
dismiss and a motion for summary              torney General’s authority under the          Court held the interpretive rule was not
judgment filed by defendants. The Dis-        CSA to revoke a practitioner’s registra-      entitled to Auer deference, because the
trict Court held that the determination       tion to dispense a controlled substance,      administrative rule that was the sub-
of what constitutes a “legitimate medi-       21 U.S.C. § 824. The Ninth Circuit            ject of the interpretive rule, was little
cal purpose” or practice had been tra-        held that while the Attorney General          more than a restatement of the terms
ditionally left to the states, that nothing   had the authority to revoke a registra-       of the CSA, that the “language the In-
in the CSA delegated to the Attorney          tion because a practitioner has “com-         terpretive Rule addresses comes from
General or the DEA the authority to           mitted such acts as would render his          Congress, not the Attorney General.”
decide as a matter of national policy         registration under section 823...incon-       The question then was not the mean-
whether physician-assisted suicide con-       sistent with the public interest as de-       ing of the regulation but the meaning
stitutes a “legitimate medical purpose”       termined under such section” (§               of the statute. “An agency does not
or practice, and that in enacting the         824(a)(f)), § 823(f) required the Attor-      acquire special authority to interpret
CSA, the intent of Congress was to ad-        ney General to consider five factors          its own words when, instead of using
dress problems of drug abuse, drug            including the recommendation of the           its expertise and experience to formu-
trafficking, and diversion of drugs from      appropriate State licensing board or          late a regulation, it has elected merely
legitimate channels to illegitimate           professional disciplinary authority, the      to paraphrase the statutory language.”
channels. The court said:                     individual practitioner’s experience in       The Court held that the interpretive
   Without doubt there is tremen-             dispensing controlled substances, and         rule was not entitled to Chevron def-
   dous disagreement among highly             the individual practitioner’s criminal his-   erence either because, although the
   respected medical practitioners as         tory. The Attorney General, the court         statutory language was sufficiently
   to whether assisted suicide or has-        found, had considered none of these.          ambiguous for Chevron deference to
   tened death is a legitimate medi-             The majority rejected the argument         apply, the Attorney General had not
   cal practice, but opponents have           of Judge Wallace in his dissent that the      promulgated the rule pursuant to au-
   been heard and, absent a specific          Ashcroft Directive does not ban physi-        thority Congress delegated to the At-
   prohibitive federal statute, the Or-       cian assisted suicide outright, but only      torney General. The Court found that
   egon voters have made the legal,           bars the use of controlled substances         while certain matters had been del-
   albeit controversial, decision that        for assisting suicide. Among other rea-                               Continue on page 12

T    he Hon. Mercedes Lopez Deiz, the
     first African-American woman ad-
mitted to the practice in Oregon and                 Remembering
                                                                                              demic and professional success. They
                                                                                              provided an education “superior to
                                                                                              what the children are getting today.”
nationally known trial judge and                                                              The Lopez children enjoyed the free
champion of civil rights, was 87 at the              Mercedes Deiz                            museums, libraries, and concerts avail-
time of her death on October 5, 2005.1                                                        able in New York City. Harlem’s
Appointed to the Multnomah County                                                             Wadleigh High School was the forum
District Court bench by Governor Tom                                                          for her first political campaign, the
McCall in November 1969, Deiz was                                                             race for lunchroom director. On the
the first African-American woman                                                              morning that student campaign
judge in the Pacific Northwest. 2                                                             speeches were delivered, Eleanor
   Nationally, Justice Sandra Day                                                             Roosevelt came to address the student
O’Connor included her in the group                                                            body. Deiz remembered sitting next to
of women judges who gathered in Los                                                           the First Lady, who gathered the stu-
Angeles in 1979 to organize the Na-                                                           dent candidates around her after the
tional Association of Women Judges,                                                           program, complimenting them on run-
an organization Deiz later served as a                                                        ning for office. The First Lady told
director. She chaired Oregon’s Advi-                                                          them, “I want you to know that you
sory Committee to the U.S. Civil                                                              can become anything you want to be-
Rights Commission, the ABA Juvenile                                                           come, but you have to be prepared and
Justice Commission, was director and                                                          ready for it.” The message resonated
instructor for the National Center for                   By Katherine H. O’Neil               with those Mercedes’ parents gave her
State Courts, the Association of Fam-                                                         and her siblings. This was the first of
ily Conciliation Courts and was a fac-                                                        many elections that she won.
ulty member at the National Judicial              Reform. She had wide ranging and               A high school graduate at 16, she
College. She taught trial advocacy at             eclectic interests as shown in her board    worked briefly as a maid at a Fifth
Harvard Law School as a Woodrow                   service in organizations ranging from       Avenue boutique before beginning a
Wilson Visiting Fellow.                           Lewis and Clark College, OMSI, and          four-year stint at the WPA’s Lafayette
   In Oregon, Deiz served on several              Portland Community College to Good          Theatre in Harlem. It was just open-
Oregon State Bar committees chairing              Samaritan Hospital and Pacific Ballet       ing with Orson Welles as director and
three including the Civil Rights com-             Theatre.                                    John Houseman as producer. Deiz’s
mittee. She was an early secretary-trea-             She was born Mercedes Frances            father insisted that she keep away from
surer of the Multnomah Bar                        Lopez in New York City in 1917, the         backstage “where they talk so badly,”
Association (the only position open to            oldest of ten children of a Czechoslo-      so she worked at the switchboard and
women at the time) and president of               vakian mother and Cuban father of           in the box office. Deiz returned to
the Owen Panner Inns of Court. She                African descent. Her parents migrated       Wadleigh High in the evening for
chaired the Metropolitan Youth Com-               to New York as children. Her father         French lessons to obtain the second
mission, was vice chair of the Urban              was a former vaudevillian and after         foreign language required for admis-
League, and a member of the                       his fourth child was born, he began         sion to Hunter College. She entered
Governor’s Commission on Judicial                 working as a valet “in those very pres-     Hunter College in 1938. In all of her
                                                  tigious hotels throughout downtown          jobs, Deiz was “very active with trade
                                                  Manhattan.” Like many in their              unions,” organizing women within her
1 Beatrice Cannady, a 1922 graduate of            Harlem immigrant community, the             union of office workers.
  Northwestern College of Law, has been er-
  roneously reported by several sources in-
                                                  Great Depression plunged the family            Her brother, Paul Lopez, encour-
  cluding the Oregon Historical Society to        into chronic economic insecurity.           aged her to come to Oregon, estab-
  be the first African-American woman to          Deiz’s father abruptly lost his job. Deiz   lish residency and end a troubled
  be admitted to practice in Oregon. In spite     drew strength and determination from
  of having failed the bar exam five times,
                                                                                              marriage. With $12 in her pocket,
  Cannady held herself out as an attorney         her Harlem community. “We were liv-         she and her four-year-old son, Bill,
  and was admonished by the OSB board of          ing in a wonderful polyglot neighbor-       got on the train in 1948. The Afri-
  governors to desist. Serving Justice: A His-    hood of Italians and Jews and French        can-American railroad porters and
  tory of the Oregon State Bar. Pp. 54-56.
                                                  and Germans and Polish people and           waiters were the first Portlanders
2 Sources for this article include the author’s   Russian people.” Children ate in each       they met. After evaluating her situa-
   almost 30-year friendship with Judge Deiz;
   the author’s November 22, 1999 video-          other’s homes sharing as food was           tion, the porters came to her coach
   taped interview of Judge Deiz; Oregon          available. Deiz remembered eating a         seat bearing “a great big stack of
   Women Lawyers’ AdvanceSheet, fall 1989;        lot of spaghetti, homemade and dried        sandwiches with the crusts all cut off,
   OSB Judicial Candidate Statement of Judge      on racks on tenement roofs.
   Deiz, March, 1990; Images of Oregon                                                        chicken sandwiches” for Bill and in-
   Women by Ellen Nichols; Judges’ Profile,          The neighborhood public schools          structed her to bring Bill and come
   Multnomah Lawyer, January 1987.                were the foundation for her later aca-      to the dining car every day. These
men and their relatives became life-                                                   went on to become an administrative
long friends.                                                                          law judge with Workman’s Compen-
   Deiz worked a series of jobs in Port-                                               sation.
land until she found work at the                                                          Deiz submitted her name to the
Bonneville Power Administration in the                                                 Multnomah Bar Association for a ju-
library. Fairly quickly she met “that                                                  dicial appointment but the MBA did
wonderful Carl Deiz,” a Portland na-                                                   not forward her name to then Gover-
tive, World War II vet, and a Tuskegee                                                 nor Tom McCall. Governor McCall
Airman, on the staff of the Internal                                                   was aware of Deiz’s prodigious talents
Revenue Service. They married in Oc-                                                   (from their years of friendship since
tober 1949 and had two children,                                                       before he entered politics) and he ap-
Karen and Gilbert. Deiz often credited                                                 pointed her to the District Court bench
Carl Deiz with making her success pos-                                                 in November 1969. Thus the first Af-
sible. “I could not have done the things                                               rican-American woman to pass the
I did without Carl. Especially with re-                                                Oregon bar became the first African-
spect to raising our children.”                                                        American woman on the bench in the
   Returning to the BPA after the birth                                                Pacific Northwest.
of her son Gilbert, Deiz was encour-         The Hon. Mercedes Deiz (left) and Betty      State senator and attorney, Don
aged to challenge the BPA policy that        Roberts                                   Willner became her campaign director
closed jobs above her grade level to                                                   for the May 1970 primary election and
anyone not a World War II veteran. In        dazzling smile and fancy black glasses”   she handily defeated her male oppo-
her civil service exam she scored the        and gave Deiz’s age (42) as well as       nent. Two years later she ran in the
highest possible grade but BPA stood         height, weight and home address, not-     May primary for a newly created Cir-
firm and refused to allow her to ad-         ing that she “was trim and pretty in a    cuit Court position against seven male
vance from GS-3 to GS-4. Deiz quit.          black dress with a striped black and      opponents. In the fall run-off election
   In 1954, a friend introduced her to       white top trimmed with red roses peek-    she defeated Ron Gervurtz by a wide
attorney Graham Walker who hired her         ing out of the jacket.” Deiz’s office     margin. She was re-elected to her Cir-
as his legal secretary. Walker recog-        address was also given but not the out-   cuit Court position for four six-year
nized her obvious talent and offered to      come of the trial.                        terms until she was forced into man-
pay her first semester’s tuition at            After a year on her own, Nels           datory retirement at age 72. She con-
Northwestern School of Law. She ac-          Petersen invited her to join his firm     tinued as a senior judge and then as a
cepted and enrolled in night law school.     which later included Donald Londer        mediator.
Continuing work as a legal secretary         (who also became Deiz’s colleague on         Deiz was a special advocate for ju-
by day, she attended night law school        the Multnomah County bench) and,          venile justice with a concern for the
and excelled. She was the only woman         briefly, Bob Packwood. After 15           many children that passed through her
in her class. While in law school she        months in this setting, being “in court   courtroom. She said that termination
worked as a legal secretary at Ander-        every single day, without exception”      of parental rights was the most diffi-
son, Franklin, Jones and Olson. Two          and “liv[ing] in the law library,” Deiz   cult action that she had to take as a
of the partners, Robert E. Jones and                                                   judge, yet noted that many parents
Cliff Olson, were later her colleagues                                                 came into her court wanting their chil-
on the bench.                                                                          dren removed from their home. Recall-
   After graduating fourth in her class,                                               ing her own parents’ nurture, Deiz
she couldn’t get hired, a fact she attrib-                                             firmly believed that the failure of par-
uted to gender rather than racial bias.                                                ents to impress on their children that
She opened her own office and found                                                    they are special and loved was the cause
that she “always had lots of work,”                                                    of much juvenile delinquency. Security
bankruptcies, dissolutions, child cus-                                                 at Multnomah County Courthouse was
todies, a wide range of trial practice                                                 tightened in 1978 after a murder in her
and that the “overwhelming majority”                                                   courtroom when the husband in a dis-
of her clients were white men.                                                         solution proceeding killed attorney
   On October 12, 1960, the Orego-                                                     Candice Duboff Jones with a bullet in-
nian noted that yesterday Oregon’s                                                     tended for his wife.
“first Negro woman lawyer” had tried                                                      Deiz’s activism with community or-
her first case, a land sale foreclosure,                                               ganizations such as the Urban League
in room 540 of Multnomah County                                                        and the NAACP was kept apart from
Courthouse. In line with the sensibili-                                                her profession. She noted that she had
ties of the time, the reporter described     The “wonderful” Carl Deiz and Judge       “always [been] fighting, advocating for
Deiz as a “light-skinned Negro with a        Mercedes Deiz                                                     Continue on page 9

                    Active Liberty: Interpreting Our Democratic Constitution
                    By Justice Stephen Breyer
                    Knopf, 2005
                    Reviewed by Mary Ellen Farr
                     Active Liberty began      of any particular interpretation. In this   He acknowledges that those critics
                     as a series of Tanner     sense, Justice Breyer acknowledges that     (including textualists, originalists,
                     Lectures on Human         the Constitution must apply to new          and literalists) believe that focus on
                     Values given by Jus-      matters, thereby necessitating an analy-    text, history, tradition, and precedent
                     tice    Breyer       at   sis of the consequences of a proposed       will safeguard against judges usurp-
                     Harvard University in     interpretation, and a realization that      ing the democratic will of the people.
                     late 2004. Justice        the original Constitution was insuffi-      Nonetheless, he asserts that focusing
                     Breyer used these lec-    cient, requiring occasional amendment       on active liberty is more in keeping
    tures to discuss how differences in ju-    and interpretation. However, the Con-       with the Constitution because no
    dicial philosophy affect statutory and     stitution established a system through      judge can actually know what the
    Constitutional interpretation, and in      which citizens may share in the             Framers might have thought about
    some part, to defend his own judi-         government’s authority, and that sys-       any modern issue. Furthermore, Jus-
    cial philosophy. Although this vol-        tem, Justice Breyer suggests, should be     tice Breyer notes that while literalists
    ume is small, the concepts are not.        the ultimate goal of interpretation of      eschew analysis of consequences in
       Justice Breyer’s philosophy begins      statutes and the Constitution.              case by case study, their entire theory
    with the principle that the United            Justice Breyer applies his theme of      is focused upon the consequences
    States is built on liberty. This liberty   active liberty in interpretation to         they foresee in the potential for judges
    includes freedom from government           speech, federalism, privacy, affirmative    substituting their reasoning for the
    coercion as well as freedom to par-        action, statutory interpretation, and       reasoning of the government. Finally,
    ticipate in government. Justice Breyer     administrative law. In each of these        he argues that an analysis of conse-
    calls the latter “active liberty.” His     examples, he seeks to demonstrate how       quences does not necessitate a choice
    thesis states that “courts should take     application of laws to modern situa-        of the right consequence, but rather
    greater account of the Constitution’s      tions can be improved by attention to       an analysis and understanding of
    democratic nature when they inter-         the basic concepts of democracy. In his     what those consequences might be.
    pret constitutional and statutory          discussion of privacy, he notes that           Justice Breyer provides perhaps too
    texts.” Noting that all judges have        cases coming before the Supreme Court       few concrete examples, and particu-
    essentially the same interpretive tools    often arise from changes in technology      larly too few concrete examples for
    for statutes and the Constitution-lan-     that allow the government to know           those not focused on the Supreme
    guage, history, tradition, precedent,      more about the individual than was          Court’s case load. Furthermore, these
    purpose, and consequence-he ob-            possible to know in the past. Justice       are not simple concepts. However, in
    serves that judges differ in the em-       Breyer acknowledges that Americans          light of the recent attention to the ju-
    phasis they put on those tools.            will search for pragmatic laws allow-       dicial philosophies of Supreme Court
       Justice Breyer argues that active       ing them to use technology, including       justices, Justice Breyer’s book brings
    liberty (the sharing of power among        adopting laws that allow or forbid cer-     out many of the basic disagreements
    the people) should drive judges’ se-       tain intrusions. He cautions against the    facing the nation and the judiciary.
    lection of purpose and consequence         courts intruding too much into the          For that reason, alone, the book is
    as the bases for interpretation of stat-   democratic discussion occurring in the      well worth reading.
    utes and the Constitution. This theme      face of technological change. On the
    falls within an interpretive tradition     other hand, the need for the democratic     Correction:
    encompassing a view of democracy           discussion also warns against adopting      In our Fall ’05 issue, Judge Helen Frye was
    as including both the rights and the       an overly rigid method of interpreting      reported to be the first female judge of a
    duties of the people and calling for       the Constitution.                           general jurisdiction court in Oregon. To
    judicial restraint. He writes that            Justice Breyer defends his analysis      clarify, Judge Frye was the first female
    judges are ill-equipped to determine       against those objecting to an interpre-     judge in Lane County Circuit Court and
    whether a law is or isn’t desirable.       tation primarily based on purpose and       the first female judge able to hear crimi-
    Therefore, courts should seek to de-       consequence, and those who prefer fo-       nal cases. Judge Jean Lewis was the first
    termine what the purpose of the law        cusing on text, the Framers’ original       female judge of a general jurisdiction court
    was and the attendant consequences         expectations, and historical tradition.     in Oregon. We apologize for the error.

                                             character included excellence, a humble      For her many achievements, Oregon
                                             spirit, and tireless commitment to         Women Lawyers established the
                                             achieve a truly inclusive society where    Mercedes Deiz award to be given to
                                             equality of opportunity is real....her     an individual who has advanced
                                             marvelous sense of humor, so that she      women and minorities within the legal
                                             did not take herself quite so seriously,   profession, a fitting memorial to a
                                             although she was very serious about the    woman who achieved so much and for
                                             issues that were important to her.”        so many.
                                                Mandatory retirement kept Deiz
                                             from realizing her oft-stated goal of
                                             continuing on the bench until another      The USDCHS
                                             African-American woman succeeded           Oral History Program
Long-time friends and colleagues, Mercedes   her. The goal was realized March 23,       continued from page 2
Deiz (left) and Katherine O’Neil in 1999.    2006 with the investiture of Adrienne      lected interviews, including Caroline
                                             Nelson. Nelson wrote, “Judge Deiz          Stoel and supplements to the histories
                                             was a wonderful role model and men-
Mercedes Deiz continued                      tor to me. When I first moved to Port-
                                                                                        of Tom Stoel and George Frasier
civil rights and human rights and            land and began to meet attorneys,            We need transcribing sponsors for
against any kind of prejudice and dis-       meeting Judge Deiz had a profound          the following interviews:
crimination.” Deiz was a founding di-        effect on me. As a female attorney of
rector of Oregon Women Lawyers, a                                                       Ten hours or less
                                             color who had accomplished so much
continuation of her battle against dis-                                                    C. Girard Davidson (ca. 9 hours);
                                             and broken many barriers, Judge Deiz
crimination. She wrote, “We must re-                                                    Patrick Dooley (ca. 10 hours); Alice
                                             was so warm, encouraging and open
member that one voice crying alone                                                      Tomkins Fee (ca. 8 hours); William
                                             that I felt an immediate connection to
frequently is ignored, whereas many                                                     Hedlund (ca. 6 hours); Carol Hewitt
                                             her. Throughout the years, she took
voices loudly speaking through a                                                        (ca. 1 hour); Richard Maizels (ca. 4
                                             time to check on me, both personally
spokesperson shielded by an organiza-                                                   hours); Kristine Olsen (ca. 3 hours);
                                             and professionally....She was the first
tional framework will be heard and                                                      George Rives (ca. 4 hours); Noreen
                                             person to tell me that I should be a
heeded.”                                                                                Kelly Saltveit McGraw (ca. 8 hours);
                                             judge. What she did for me she did for
   She had the gift of relating to indi-                                                Robert Smith (ca. 8 hours); James
                                             countless others but it touched my life
viduals of any status or ethnicity. Deiz                                                Weatherford (ca. 9 hours); David Wil-
                                             in a very special way.”
said that “the way I know how to talk                                                   liams (ca. 2 hours)
                                                Reflecting back on the words of
to people, it has helped a great deal in,    Eleanor Roosevelt, Deiz said that          Ten hours or more
in alleviating some of the terrible stu-     achievement, not success, is critical.       Jack Collins (ca. 16 hours); John
pid ways that this country of ours can       “Achievement is the knowledge that         Dellenback (ca. 19 hours); Robert
act.” That talent coupled with her com-      you have studied and worked hard and       Duncan (ca. 31 hours); Orlando Hollis
mitment to social justice led her to         you have done the very best that is in     (ca. 20 hours); Lee Johnson (ca. 21
mentor dozens of minority attorneys,         you.” She said, “I think that there’s a    hours); John F. Kilkenny (ca. 16 hours;
male and female, as well as many             big distinction between achievement        partially transcribed); Berkeley Lent
woman lawyers. The Hon. Ellen                and success because with success other     (ca. 22 hours); Roger Martin (ca. 11
Rosenblum of the Oregon Court of Ap-         people are praising you.”                  hours); Lynn Newbry (ca. 10 hours)
peals, remembers Deiz fondly “as a
friend and colleague” from their over-
lapping years on the Multnomah
County Circuit court bench. “I remem-
                                             C    ALENDAR
ber her as a very friendly and proud           May 11: Famous Cases: United States v. Gonzales
person. I also know that she was a                     Mark O. Hatfield Federal Courthouse, 4:00 – 5:45 p.m.
wonderful mentor to just about every
minority lawyer she could get her              May 25: Book signing for Gus J. Solomon: Liberal Politics, Jews, and
hands on.”                                             the Federal Courts by Harry Stein, Oregon Historical
   Okianer Christian Dark met Deiz                     Society, 5:30 – 7:00 p.m.
when Dark was an assistant U.S. at-
torney for Oregon. Dark, now associ-           June 29: Summer Associate Program, location, 12 – 4:30 p.m.
ate dean of academic affairs and
                                               June 29: Bench and Bar Social, location, 4:30– 6:30 p.m.
professor of law at Howard Law
School, describes Deiz. “She was who
                                               Reserve the dates!
I wanted to be when I grew up. Her                       August 20: Annual Picnic & October 26: Annual Meeting
qualities as a person and her personal
                          Oral History with Stephen Bloom
                                                       By Donna Sinclair

This article is based on an oral history                                working he         Bloom said, “I’m not a policy wonk....
of Magistrate Judge Stephen Bloom                                       was at home        I didn’t know what a lawyer did, other
conducted by Donna Sinclair. The oral                                   with the family.   than Perry Mason on TV. I had no
history was completed for the U.S. Dis-                                 He didn’t golf,    clue.” But law appealed to him and “I
trict Court of Oregon Historical Soci-                                  he didn’t hunt,    decided that being a lawyer looked
ety, and is accessible to the public at                                 he didn’t fly      more interesting than the
the Oregon Historical Society.                                          airplanes into     Department of Education” and so he
                                                                        the sides of       headed to Willamette Law School in

I n spring 2005, Oregon water lawyer
  and part-time Article I Magistrate
Stephen Bloom agreed to record his
                                             Stephen Bloom, 2006
                                                                        and he didn’t
                                                                        gamble. He
                                                                                           August 1974. “I decided that I wanted
                                                                                           to live in Oregon. I didn’t like Califor-
                                                                                           nia, thought there were way too many
oral history for the District Court His-     was just basically, like I was, either with   people....There was just too much traf-
torical Society. A series of three inter-    the family or working. In his days, a         fic and too much pollution. And that
views took place in the Portland             great role model.” Bloom graduated            was when they had no traffic and no
chambers       of    Judge      Donald       from Taft High School in 1966, at-            pollution.”
Ashmanskas. The surroundings pro-            tended Dartmouth College for two                 Almost to the day he arrived, he met
vided the right note of austerity to un-     years and finished at Stanford in June        his future wife Becky Nelson, a Min-
derline the seriousness Judge Bloom          1970 with a degree in English.                nesota graduate of St. Olaf College,
brought to his work with the District                                                      and a member of his class. “I didn’t
Court, despite his good humor and            The Vietnam War and Law School                want to get involved. I wanted to be a
tongue-in-cheek wit. Judge Bloom is a          Coming of age during the Vietnam            serious student...she was much smarter
younger subject than many for an oral        War shaped Bloom’s social conscience.         than me and she was much more re-
history, but time was of the essence         “There were a lot of protests on the          laxed about it and she thought we
since he would soon be leaving for           Stanford campus. And I had joined the         should have a social life, which we
work as a Peace Corps volunteer in           Navy ROTC because my best friend in           did.” Theirs was “one of the first
Armenia at the Constitutional Rights         high school was writing me from Viet-         classes to let women in, significantly. I
Protective Centre.                           nam saying, ‘You don’t want to be here        mean, Norma Paulus was like one of
                                             in the Army.’...I lived with a whole          two [women] in her class...the mid-70s
California Youth                             house of radical people, SDS [Students        is when they were actually recruiting
  Stephen Michael Bloom was born             for a Democratic Society]. Everyone,          women law I’m sure the
June 10, 1948 in San Francisco, Cali-        including me, hated the war.” Bloom           men and women are more used to each
fornia, to Dr. Allan Bloom and Natalie       did ROTC weekly drill marching at five        other at that kind of level, but back in
Claire Levee. He grew up in the San          a.m. on Monday mornings to avoid              the mid-’70s it was more unusual for
Fernando Valley, where his father was        protesters. “We’d have protests on the        women to go to law school.”
a general practice physician. The old-       campus and the Santa Clara Sheriff’s             During law school Bloom made the
est of three children, he begins his story   Office would come on campus. It was           dean’s list and was on the Law Review.
in 1958: “My mother died when I was          a disconcerting time to be in college.        Both he and his wife got their first jobs
ten of aplastic anemia.” A year after        Interesting,        exciting,        but      in Corvallis and stayed there for about
her death, his father married Wilma          disconcerting....I wasn’t radical but I       a year. “My wife didn’t like Corvallis
Morgan, a UCLA graduate with two             thought the war was stupid. Even my           because it had too many people and
children. She and Stephen’s father had       folks, who were kind of Eisenhower            too much rain. So we went to
three children. Bloom described her as       Republicans, thought the war was stu-
“a mom and housewife all of her life”        pid. And this best friend of mine, a guy
who stayed home with eight children.         I played football with in high school,
  Bloom described the marriage as a          he had been killed. It just seemed stu-
turning point for the entire family, not-    pid. It wasn’t going anywhere....I was
ing that “[Mom] saved us from being          very resentful of having to go into the
juvenile delinquents.” The household         service because of the war.”
was “hectic” at dinner time. Visitors          After two years of service, he left the
were common and meals often inter-           Navy in 1972 and got a job with the
rupted by phone calls from patients.         California Department of Education
Growing up he remembered only one            working with the Equal Educational
family vacation and that his father          Opportunities Commission. When                Stephen Bloom, a veteran traveler, in Kew
“worked very hard and when he wasn’t         asked why he became a lawyer, Judge           Garden. Photos courtesy of Dr. Dan Marier.
Pendleton and I got a job in a DA’s of-        eight-year term, except part-times, for
fice and she got a job in the East Cen-        four year terms and we handle misde-                  New Website
tral Oregon Association of Counties            meanor and civil cases....The magis-
writing an economic analysis of East-          trates can’t get felonies, but all the civil    The U.S. District Court Historical
ern Oregon, which they’re still using.         trials are parceled out equally. In other       Society is proud to announce that
She was a home economist.” She later           states they have full-time magistrates          we have launched a website,
worked for the District Attorney’s Of-         just do Social Security hearings, writs You can find
fice and on the Umatilla Indian Reser-         of habeas corpus, arraignments. It’s            out more about the organization,
vation. “After four months in the DA’s         really boring stuff. It would drive you         read past issues of Benchmarks,
office I got three job offers and I was        crazy....Owen and the other judges in           become a member or make a do-
neurotic enough to think I’d never get         this district have been very, very sup-         nation to support our work.
another job offer, so I took one with          portive of the magistrates. They want
the only attorney that was my age,             magistrates that the lawyers all respect       land in a part of the state near the bor-
Garry Reynolds, who is now a circuit           and will allow to try the cases. I tried a     der between two states, and in a place
judge in Pendleton. I practiced with           lot of cases in Pendleton.”                    surrounded by federal land.
Don Morrison and Garry Reynolds in                He described the way he operated as
Hermiston, Oregon, for about eighteen          a part-time magistrate in Pendleton and        New Challenges
months... [then] a job opened up at            the benefits he experienced from being            As we started the spring 2005 inter-
Kottkamp & O’Rourke, where I have              in the position. When he began, the            views, Judge Bloom provided a two-
been since 1981.”                              position paid $3,000 per year and there        minute overview of his life and ended
                                               was a good family health insurance             by saying, “And that’s it. It didn’t take
Starting a Practice                            plan. Other judges loaned staff for the        five hours.” Although I convinced him
   The practice was small, only the            trials and it was the friendship of the        otherwise, we barely scratched the sur-
three of them: “John Kottkamp, one             judges (as well as the ability to make a       face of the issues he has been involved
of the best trial lawyers in Oregon. He        difference in society) that seemed the         in, many significant to the state of Or-
was just incredibly bright. He was like        greatest benefit. Throughout the series        egon. We did not delve into the per-
six-foot-two, slim, with silver hair and       of oral history interviews, Judge              sonal tragedies that have touched him
incredibly charming...Bob O’Rourke             Bloom’s admiration for the judges of           in recent years, such as the loss of his
who was incredible on water law, great         the District Court shone through. He           partner John Kottkamp in 2000 and
business lawyer, does great probate            explained, “I like all the judges. I re-       his wife Becky, in a car accident, in
work. And me.” In 1988, Bob                    ally do....They’re all good people.            January 2003. He spoke warmly of his
O’Rourke was negotiating with the              There’s really not a jerk among them.          pride in his three children (Benjamin,
Confederated Tribes of the Umatilla            Seriously, I can say that. I’m leaving, I      Molly, and John) and his admiration
Indian Reservation on the exchange of          don’t care. I’m not trying to butter any-      for his wife and stepmother. He noted
Columbia River water for Umatilla              body up.”                                      how ineffectual politics can be and
River waters, a very complicated, long,           Judge Bloom spent seventeen years           commented on the rationality of the
drawn-out process, the Umatilla Basin          as a part-time magistrate, trying four         law as well as its cumbersome nature.
Project. “He got very tired of it...[and]      or five cases a year and managing the          He didn’t regale me with tales about
suggested I take over and become a             court’s monthly CVB [Central Viola-            his many civic activities, his ethical
water lawyer, which was fine because           tions Bureau] calendar in Eastern Or-          views, or his commitment to social jus-
I was getting tired of litigating. That’s      egon. During that time he developed a          tice, but the stories he told reflect his
when the magistrate job opened up, in          water law specialty and represented            values.
1988.... I was appointed in October of         irrigators in some of the most signifi-           As does his work in Armenia. In
’88 and then reappointed in ’92, ’96,          cant deals in Columbia Basin history.          March 2004, Judge Bloom began the
2000 and 2004.”                                The Kottkamp & O’Rourke practice               application process to join the Peace
   “Art Barrows had been the magis-            combined with Corey Byler Rew                  Corps. In November 2004 he got news
trate before me for about eighteen             Lorenzen & Hojem in February 2005              that he would be going to Armenia, a
years. And Owen Panner was the chief           to become the largest law firm regu-           part of the former Soviet Republic, in
judge. Owen...couldn’t talk Art into           larly practicing in Eastern Oregon. He         June 2005. As of January 2006, he is
trying cases, but he wanted the new            also filled in for other magistrates in        currently serving as the Rule of Law
magistrate to try cases....[He] wanted         Portland, ruled on sex bias and exces-         Liaison to Armenia for the American
to make the part-time magistrate in            sive force cases, diversity issues, and        Bar Association’s Central European
Pendleton like a regular magistrate.           worked with the FBI and the U.S. At-           and Eurasian Legal Institute. Through
Oregon is unique. They treat the mag-          torneys Office. As a lawyer, he got one        recent emails, he reports he is working
istrates like regular judges....Article IIIs   of the last water rights for a client from     on “amendments to the Armenian con-
are appointed for life, but handle             the Columbia River around 1990. As             stitution, judicial reform, a code of eth-
mostly criminal, felony stuff. Article I,      a Pendleton-based magistrate, he pro-          ics for judges, anti-corruption, and a
the magistrates, are appointed for an          vided the federal connection to Port-          whole lot more.”
                                                                                        DIRECTORS OF THE SOCIETY
 Supreme Court Decision continued from page 5                                           OFFICERS: Hon. Ancer L. Haggerty, Board, Chair-
                                                                                        man, Ex-Officio; *Jenifer Johnston, President; *Kerry
                                                                                        Shepherd, Vice President/President-Elect; *Karen
egated to the Attorney General, the subject of the interpretive rule was not one        Saul, Treasurer; * John Dunbar, Immediate Past Presi-
of them. The Court noted that the interpretive rule purported to declare that           dent; *John Kreutzer, Corporate/Executive Secretary

using controlled substances for physician-assisted suicide is a crime, “an author-      BOARD MEMBERS: *Michelle Barton; The Belloni
ity that goes well beyond the Attorney General’s statutory power.” The Court            Family, Honorary; Ernest Bonyhadi, Honorary;
                                                                                        *Stephen L. Brischetto; *Hon. Anna J. Brown; The
rejected the argument that Congress gave the Attorney General “such broad and
                                                                                        Burns Family, Honorary; Hon. Wallace P. Carson,
unusual authority” by “implicit delegation”: “‘Congress, we have held, does not         Jr., Ex-Officio; William G. Carter, Ex-Officio; *Tho-
alter the fundamental details of a regulatory scheme in vague terms or ancillary        mas M. Christ, *Amity Clausen, *Jack Collins; Mr.
                                                                                        George Fraser, Honorary; *Kari Furnanz; *Kristin
provisions-it does not, one might say, hide elephants in mouseholes.’” 126 S.Ct.        Hazard Hamilton; *Matthew Kalmanson, Dennis C.
at 921. Having concluded the Attorney General’s interpretive rule was not en-           Karnopp; Randall B. Kester, Honorary; *John
titled to deference, the Court went on and considered whether the interpretive          Kretuzer, *David Landrum; *Hon. Edward Leavy;
                                                                                        *Susan Marmaduke, *Greg Miner; *Nancy
rule was, even in the absence of deference, otherwise consistent with the CSA.          Moriarty; Katherine OíNeil, Honorary; Hon. Owen
The Court’s analysis was similar to the Ninth Circuit’s and the District Court’s.       M. Panner, Honorary; *Ken Perry; Dr. John Pierce,
The Court rejected the argument that the requirement in 21 U.S.C. § 829 that            Ex-Officio; Dennis Rawlinson, Ex-Officio; Hon.
                                                                                        James A. Redden, Honorary; *Peter C. Richter;
controlled substances cannot be dispensed without the “written prescription of          *Karen E. Saul; *Donna Sinclair; *Vicki Smith; Eliza-
a practitioner” implies that the substance can only be made available to a pa-          beth Solomon, Honorary; Richard B. Solomon, Hon-
tient for a “legitimate medical purpose.” The Court concluded that the prescrip-        orary; *John Stephens; Caroline Stoel, Honorary;
                                                                                        *Heather Van Meter; Richard Vangelisti, Ex-Offi-
tion requirement does not delegate “to a single Executive officer the power to          cio; *Steven Wax; *Kelly Zusman
effect a radical shift of authority from the States to the Federal Government to
                                                                                        *Executive Committee members
define general standards of medical practice in every locality.” 126 S.Ct. at 925.
   Oregon Department of Human Services’ recent report notes:                            2006 LIFETIME MEMBERS: Jeffery Batchelor,
                                                                                        Owen Blank, Donald Cinnamond, Paul Fortino,
   In 2005, 39 physicians wrote a total of 64 prescriptions for lethal doses of         George Fraser, Edwin Harnden, Cynthia Harrison,
   medication. In 1998, 24 prescriptions were written, followed by 33 in 1999,          Douglas Houser, Robert Jones, Randall Kester,
   39 in 2000, 44 in 2001, 58 in 2002, 68 in 2003, and 60 in 2004. Thirty-two           Nancy Moriarty, Jeffrey Mutnick, Elisabthe
                                                                                        Newcomb, Daniel OíLeary, Hon. Owen Panner, Hon.
   of the 2005 prescription recipients died after ingesting the medication. Of          Edwin Peterson, Dian Rubanoff, Sarah Ryan, Arlene
   the 32 recipients who did not ingest the prescribed medication in 2005, 15           Schnitzer, John L. Schwabe, Norman Sepenuk, Arden
   died from their illnesses, and 17 were alive on December 31, 2005. In addi-          Shenk, Richard Solomon, Gayle Troutwine, William
                                                                                        White, Donald Wilson, Kelly Zusman
   tion, six patients who received prescriptions during 2004 died in 2005 as a
   result of ingesting the prescribed medication, giving a total of 38 PAS deaths       2006 IN MEMORIAM:
   during 2005. One 2004 prescription recipient, who ingested the prescribed            Hon. Robert C. Belloni, Hon. James Burns, Raymond
                                                                                        Conboy, George D. Dysart, Wayne Hilliard, Chester
   medication in 2005, became unconscious 25 minutes after ingestion, then              E. McCarty, and Frank Pozzi
   regained consciousness 65 hours later. This person did not obtain a subse-
   quent prescription and died 14 days later of the underlying illness (17 days         Newsletter Editor: Adair Law (503) 240-0993;
                                                                                        Design: Jeanne E. Galick
   after ingesting the medication). —Eighth Annual Report on Oregon’s Death
   with Dignity Act, at 4 (2006).

                                                                                                 Death with Dignity Act
                                                                                                 highlights Oregon’s
                                                                                                 United States v. Gonzales
                                                                                                 Upcoming Famous Case
                                                                                                 May 11

                                                                                     Portland, OR 97204
                                                                                     1000 S.W. Third Avenue
                                                                                     740 U. S. Courthouse
                                                                                     of Oregon Historical Society
                                                                                     The U. S. District Court

To top