Sid Lezak: From Student Protests to Mediation, 1965-2006; By Adair Law

This is Part Two of an article written in honor of Sid Lezak’s receipt of the first posthumous U.S. District Court of Oregon Historical Society’s Lifetime Service Award. Part Two begins with Lezak four years into his tenure as Oregon’s U.S. Attorney, dealing with student protests. Part One ran in Spring 2013. Both articles are based on the oral history conducted by Jack Gore Collins with Sid Lezak in 1988. Unless otherwise noted, quoted material comes from the oral history.  You can find Part One in Newsletters, 2013 Spring.

Sid Lezak dealt with his first student protest at the Pioneer Courthouse on a Saturday in February 1965. At that time, a U.S. Post Office in the courthouse closed at noon on Saturdays. About 50 people gathering in the building––mostly Reed College students––refused to leave. Lezak called then-U.S. District Judge John Kilkenny, the only available judge, and asked for permission to release the protestors on their own recognizance after having made the arrests. Judge Kilkenny reluctantly agreed. Lezak returned to the protestors: “I advised them that they were now under arrest and asked them to march out in a column out of the courthouse and line up along the side of the street below the lawn in front of the stairway to the courthouse. And they did this singing ‘We shall overcome’ and other songs of the Sixties era, obviously taking some pleasure in their coming martyrdom and, I’m sure, expecting to go to jail and further glory.” After they lined up and Lezak was sure the marshal had closed the door, he announced to them: “By order of John F. Kilkenny, Federal Judge, United States District Judge for the District of Oregon, you are now hereby released upon your own recognizance. That means, don’t call us, we’ll call you.” The group roared in protest but dispersed.

Lezak then contacted Senator Wayne Morse’s office. Senators Morse and Ernest Gruening of Alaska were the only two senators who had refused to vote for the Gulf of Tonkin Resolution, which made both of them heroes of the anti-Vietnam War movement.  Senator Morse sent a telegram, “which we had published, to the effect that actions of this kind were actually deleterious to the peace effort, and that effort should be better and more effectively devoted to protest along peaceful lines, not disruptive of the normal functions of the government.”

Draft Cases

As the war effort escalated in the late Sixties, so did the number of “draft cases” Lezak’s office handled. The standard sentence for draft evasion (except for the most egregious cases) was six months of work at a state forest camp in Tillamook. It was a minimum security state prison facility where the inmates did ecological work preserving the trees. This had the effect of attracting large numbers of young men to Oregon—“and they could come from almost any part of the country and be handled by these Oregon Courts under these circumstances which is another reason for them coming to Oregon.”

A case in Lezak’s office at this time could not go to prosecution until it was thoroughly screened by a law clerk to assure there were no defects and that the correct standards had been applied. Lezak recalled, “Let’s face it: the law clerks who were selected to do this were not people who were sympathetic to leaning on the protestors… I said, ‘Look, remember that we are a government law office and that we have an obligation not to do this frivolously, but if you have a real objection that appears in the file to going ahead with the case, we need to know about it, and it has to be sent back to the Board.’” A high number of cases were sent back to the Selective Service Board for what probably appeared to be hypertechnical defects to members of the board. Not all of Lezak’s assistants agreed with his handling of draft evaders or conscientious objectors.

In 1969, Lezak prosecuted the case of David Gwyther and Kip Morgan. Morgan was president of the University of Oregon student body and both men were leaders in the protest movement at the university. They led a group of students into a draft board meeting, “locked the doors on the draft board—most of whom were elderly people—and told the draft board people that they were on trial for war crimes and proceeded with a trial.” A scuffle ensued with pushing and shoving. Several members of the draft board said they felt intimidated. Lezak made it known that his office was quite tolerant of peaceful protests and of those attempting to take advantage of whatever legal defenses were available to them to avoid the draft. However, “We had to make a stand against draft board people being intimidated or physically abused.” Gwyther and Morgan were tried for hindering and interfering with the draft board. “We gave them an opportunity to plead guilty to a misdemeanor. They refused to take it because those were the days when these folks wanted martyrdom.”

Lezak was asked, during that fraught time, why he stayed on in the U.S. Attorney position.  Why didn’t he quit? “I think the answer was, that you don’t resign from a position of public service just because you disagree with the policy….it was felt that we were effectively responding to the mood of Oregon. We were not getting a lot of pressure from the Justice Department to change our policies….During most of this time we had Senators Morse and Hatfield, both of whom reflected the mood of the anti-Vietnam war elements in the community.”

For the most part Lezak enjoyed his work running a good office in this period. He took pleasure from the “associations and the operations of the duties of the position, maybe enjoying the power and status which I was still getting as a relatively young man. For whatever personal reasons I guess I wasn’t ready to consider leaving in protest.”

Vortex

On April 30, 1970 President Richard Nixon ordered the invasion of Cambodia. Protest marchers at the University of Oregon became violent, Portland State University professors blocked downtown streets at rush hour, and the Oregon State University the ROTC headquarters were firebombed. At Ohio’s Kent State University, 15 students were shot by National Guard troops of whom four died. The American Legion had planned to hold its national convention in Portland in late August 1970.  Its headquarters were at the Hilton Hotel, where President Nixon was scheduled to give the keynote address. In late June, the FBI “had intelligence” that a group of up to 50,000 young people, calling themselves the People’s Army Jamboree, were planning to come to protest the convention. Lezak recalled, “The wonderful lesson is how wrong intelligence can be. The law enforcement people bought hook, line, and sinker the advertisements that were taken out in and promoted by the alternative press.” There were visions that the whole of alternative America was going to descend on Portland and the National Guard might be called out. “And for that purpose you needed to have people on the scene who could function and who could actually be familiar with the kinds of problems that there were in the local community, familiar with the geography, had already made their contacts with the local officials, law enforcement officials, and federal people if the Guard was going to be called out and federalized.”

Oregon Governor Tom McCall faced the possibility of large numbers of young people carousing in the streets of downtown Portland while thousands of Legionnaires drank, palavered, and cast a cold eye over “the long hairs and the hippie types.” The situation seemed made for confrontation. Governor McCall redirected the possible explosion of youthful energy to an event called Vortex I, at McIver Park, with enough facilities and rock bands to attract potential protesters. It was also made known “that there wasn’t going to be all that much surveillance for marijuana use, if not for harder drugs….It was called, euphemistically, ‘the Governor’s drug festival.’”

Command Central for Vortex was the penthouse at the top of the Hilton Hotel. “We had state of the art equipment, and there were also some other incidents. I was in touch with Jeff Bakely, Jan Hoshimoto, Susan Sunflower, Bob Wollheim [judge on the Oregon Court of Appeals since 1998], all leaders of a nonviolent group in Portland, who wanted to protest but were attempting to maintain some discipline and some control” over those who were marching during the Legion convention.

Lezak found himself in the role of middleman. The parties involved were willing to talk with him to work out logistical problems and parade routes. At the same time, they received some assurance “that they weren’t going to be attacked by the police and that the police would protect them against attack by others.” Lezak served as a kind of mediator between federal government officials, the police, and the protest groups. “The upshot was that only one window was broken during the whole time of the American Legion Convention.”

Longevity

Because Lezak was not running for any public office “I wasn’t looking over my shoulder to see whether or not what I was doing was pleasing the public or particular senators.  And you know something ought to be said about the remarkable fact that never, in the 20 years that I was U.S. Attorney, did anybody come hat in hand saying ‘Senator Hatfield or Representative Duncan, sent me to apply for a job in this office.’” He made a point of running a nonpartisan office which, he thought, was one of the reasons he was retained.

After Richard Nixon became president, Lezak sent in his resignation as did all other U.S. Attorneys. He was told that his putting up a fight with Bobby Kennedy over his former Assistant U.S. Attorney David Robinson came to the attention of Hatfield and other Republicans, which gained him respect in terms of his operating a nonpolitical office. “I did not let my ideological views—except to the extent that we were not tough on draft cases—the office did not reflect my ideological viewpoint to any extent. I was certainly hiring people who did not agree with many of the views that I held.” Lezak acknowledged that, “notwithstanding that I’m not a low–key personality, I ran the office on a low–key basis in terms of the public confrontation.”

Work-study Law Clerks

In 1972, the Higher Education Act of 1965 was revised. The act provided funding for work-study college students from low income families to work parttime. Until this time, Lezak could hire only one law clerk a year on Justice Department funds. In a discussion with the Lewis & Clark College Law School Placement Officer, Ann Kendrick (a former nun), she came up with the idea “that if the colleges were getting work-study funding for their students to get summer jobs in government offices, why couldn’t the Law School get some of those funds?” Lewis & Clark Law School may have been the first school in the nation to get funding for law school interns to work in U.S. Attorneys offices. Lezak ran with the idea. “Once we found that door was open we went to many other law schools and I remember we had the highest percentage of law clerks of any office that I ever heard about. At one time—I remember one summer we had about 18 assistants and about 24 law clerks, jammed into every nook and cranny that we could find in the courthouse.” He took pride in helping work-study students find their niche in the profession after graduation. “I would just have to say the law clerk program was 99.44 hundredths successful.”

Relations with the Press

When asked to characterize his relations with the press Lezak said, “Twenty years without a serious problem….we gave the reporters pretty much the run of the place. They didn’t have to clear with me to talk to assistants.” It was a common practice in many prosecutors’ offices to clear every press communication through the head of the office. Despite some occasional minor difficulties, Lezak was able to work things out.  He believed that another of the reasons he was reappointed during the Nixon Administration was that he didn’t hold press conferences. His office released only “information that was available to the public record, and eventually we established a relationship of trust and confidence with reporters covering us regularly so that we could release information that would enable them to do a good job without having to be pressed on deadlines such as indictments coming out or briefs that had been filed or things that were coming in, on one condition—that nothing be published until it was on the public record. That condition was never violated by any professional journalist in all the years that I was there.”

Broadcast media was different. “I discovered, for one thing, if it’s important enough to be on television, the issue is one that is usually fairly complex. So the problem is that all you’re given is about a 22-second sound bite.” Lezak was not interested in making sound bites. “I said, ‘Look, you can have the same information for television that we’ll give the newspapers, but I don’t think you’re entitled to have me on camera….You can have the information, you can make the statement, you can state whatever you want in quoting. I expect I can trust you to quote me, but if it comes out idiotic because the whole quote hasn’t been done, at least it comes out of your mouth rather than out of mine.’”

Lezak found this to have an interesting effect. “The fact that I wasn’t in show business probably gave me more credibility in terms of my relationship with the whole press…it sort of sent a signal that I wasn’t there to run for office…. So I wasn’t a threat to others who would be running for office, I suppose.”  He recalled a TV reporter saying to him, “‘I think we’re entitled to see you on camera so that the public can tell whether you’re lying,’ which I thought was somewhat offensive and I expect he was joking.”

Saturday Night Massacre

Lezak recalled where he was on October 20, 1973, when he learned that Attorney General Elliot Richardson had quit rather than fire the special Watergate prosecutor, Archibald Cox. Richardson’s deputy, William Ruckelshaus, was also fired because he would not fire Cox. “We had a group of people down at the Congress Hotel watching the television and saying, ‘Oh shucks’ or something close thereto when we could see what was coming. And I think it was right after that…we came back on Monday and turned [the portrait of] President Nixon to the wall. We were not a particularly loyal group of devotees out in the U.S. Attorney’s office in Portland at that time.”

After President Nixon’s resignation in 1974, Lezak was impressed when President Gerald Ford appointed Edward Levi as Attorney General. Levi was Lezak’s first law professor at the University of Chicago. “While I didn’t have any especially close relationship with him, I had enough knowledge of him and the people around him to have a good deal of respect for him. And he also was wise enough…to bring in Judge Harold Tyler, who had been a federal judge. Ace Tyler, as he was nicknamed, turned out to be a wonderful deputy Attorney General in charge of the day-to-day operations of the Department….Levi and Tyler, I think it’s fair to say, got it back on track and we were very proud to serve under them.”

Reagan Administration

When President Ronald Reagan took office in 1981, his first Attorney General was William French Smith, who had been Reagan’s personal lawyer. Lezak recalled that the Justice Department felt the impact of the change in administration almost immediately. Edwin Meese, who had been Governor Reagan’s chief of staff in California, was now in charge of the transition.

During this time Lezak was part of the Attorney General’s Advisory Committee, traveling to Washington, D.C. every few months. The Advisory Committee of U.S. Attorneys was established during Attorney General Edward Levi’s term in the post-Watergate years “so that there would be some feeling that U.S. Attorneys were able to get some feedback into the Department and get some feedback from Department officials. There had been too much of the feeling that we were just viewed as lackeys out in the field and that our views on policies were not being properly considered.” As a member of this committee, he interviewed the new head of the Criminal Division, D. Lowell Jensen, when he was known to be a potential candidate for Attorney General. Lezak was also encouraged when New Yorker Ed Schmaltz was named as Deputy Attorney General.  “He seemed to be relatively nonideological, as did Jensen. So for a while I sort of, I said, ‘Well maybe it’s possible to stick around.’”

The beginning of the Reagan years saw a short-lived attempt to replace Lezak with Pat Horton, the District Attorney in Eugene. Many influential people in the bar and editorials from a number of newspapers in the state rose to Lezak’s defense. “That kind of support perhaps conspired, or contrived, to get me to feel, well maybe I should stay awhile.”

Yet things were changing. There were reductions in his department and he was being told that his department’s role in the drug scene would need to increase without added staff. He would have to take people off white-collar crime—which he felt was “the most important and significant work that the federal government does in the criminal justice field”—and work more closely with local District Attorneys as well as pick up cases from the District Attorneys in areas where there were shortages of state personnel and facilities. Drugs were this administration’s number one priority. “We were not going to be limited to the major operations but [prosecute] what I consider to be essentially street drug crimes.” There was little interest in Lezak’s priorities.

As Lezak saw a scaling back of the programs he thought government ought to engage in, he felt that as a presidential appointee he could not defend those policies. His current four-year appointment as Oregon’s U.S. Attorney would be up in August 1982. In August 1981 he announced that he did not expect to be a candidate for reappointment since his views were not in harmony with the current administration. On October 14, 1981 he sent a letter of resignation to President Ronald Reagan telling him that he hoped his replacement could be found by spring 1982.  He noted in his resignation letter, “My commitment to the Justice Department as an institution transcends the occasional differences of opinion I have had on specific issues with administrations in which I have served.”  He agreed to stay on until his successor was appointed. Charles Turner, who had worked with Lezak for 14 years, was appointed to take his place.

As someone who had been appointed U.S. Attorney at the age of 36, Lezak considered the possibility of becoming a judge. It took him about a year to realize that he would be lonely as a federal judge. “People ought to be willing, in taking the robe, to take the veil, and restrict themselves in their social life and their acquaintanceship among the lawyers who are trying cases before them. In a relatively small town like Portland, I felt that I would be lonelier than I wanted.”

Lezak also recognized he did not have the temperament to be a judge, nor did he love the law as an academic pursuit enough to enjoy the kind of fine-tuned conceptual reasoning that characterizes the best judges. “I think it was helpful to decide rather quickly that I did not want to be a federal judge because then I just stopped looking over my shoulder.”

Mediation

During his years as U.S. Attorney, Lezak realized that when he participated actively in trials, his perspective on working things out changed. He saw that when he “withdrew from day-to-day participation in the trial of the cases, I was able to be the middleman between the private bar, the agencies, the courts frequently, in trying to get things settled.”

In 1980, Lezak heard about a group at the University of Washington funded by the Ford Foundation to do environmental mediation. “I remember almost feeling like ‘Eureka!’ because of my frustration, the frustration that we all had with how difficult [it was] to get those damned environmental cases resolved that we’d put in. And that no matter how many expert witnesses that you had, the other side had just as many….The solutions to the problems were beyond the courts. The courts were only supposed to determine whether or not the agencies had touched all the bases necessary, but that it was impossible for a court to limit its views in that way and it was also impossible for the agencies to do everything that they were supposed to do.” Lezak saw it as an opportunity to see if there was a better way to resolve some of those problems. In 1981, he took one of the first courses in mediation at the University of Maryland “given by one of the gurus—Bill Lincoln.”  It was a developing field and Lezak experienced “a feeling of just almost, almost revelation.” He became interested in the movement. Before he left the U.S. Attorney’s Office he became a member of the Metropolitan Human Relations Commission which had jurisdiction over neighborhood mediation. He started reading the literature of which there was not much at that time.

On April 9, 1982 Lezak gave what he called a “swan song” speech to the Portland City Club entitled “Let the Forum Fit the Fuss.” In it he explored a variety of ways to resolve disputes. He became the first chair of the Committee on Dispute Resolution of the Oregon State Bar.  “I think it’s fair to say that I helped nag the state bar into creating the committee. There were a lot of people opposed. Lawyers are still very leery about how this new movement is going to affect what they do and their income and the rights of the parties.”

Lezak was asked by then Governor Neil Goldschmidt to chair the Oregon Dispute Resolution Advisory Council. This resulted in legislation creating the Oregon Dispute Resolution Commission in 1989, which provided funding for neighborhood dispute resolution. After long periods of urging people to let him do mediation without charge, Lezak was eventually paid for his skills. He recalled what a pleasure it was “to see people for whom I have mediated cases coming back…and to see the growth of the [mediation] group, including groups of retired judges who are now doing this, getting trained to do it. I take some pleasure in feeling that I was among those who helped pioneer this movement. You know, I tend to be somebody who is off on something which a lot of people regard as eccentricity and frequently more advanced in terms of where the public is than I ought to be in order to maintain respectability. Some of the things that I’ve done have undoubtedly not worked out and have been crazy schemes, but enough, enough of the stuff that I’ve done has worked out….I really feel proud that at least as to that, I don’t really feel that I’m seen as a kook.”

Lezak became known in Oregon as the Johnny Appleseed of alternative dispute resolution as he fostered and mentored many new practitioners in the area. He lived a fulfilling professional and personal life until his death in 2006.  The U.S. District Court of Oregon Historical Society extends its thanks to the Sid Lezak family for his many contributions to our state’s legal history.