Malcolm F. Marsh: A Judicial Philosophy of Kindness–Lifetime Service Award 2020

 

By Kelly A. Zusman

The U.S. District Court of Oregon Historical Society is pleased to honor Judge Malcolm F. Marsh with its 2020 Lifetime Service Award. This article is based on his 2005 oral history and many conversations with Judge Marsh.

He was the “baby” judge in 1987. It had been seven years since President Jimmy Carter had appointed the trio:  Judges Owen Panner, Helen J. Frye, and James A. Redden. Judge Robert Belloni and Jim Burns were the senior judges, and the district of Oregon had just three U.S. Magistrate Judges at that time:  William Dale, George Juba, and Michael Hogan. Judge Malcolm Marsh had been appointed just a little over a year before I began working for him in January 1989 as his law clerk. According to an ill-conceived Oregonian poll published just a few weeks before I arrived, Marsh was the most popular judge among Oregon lawyers. His cohorts ribbed him, suggesting that his honeymoon glow with the bar would not last. They were wrong. Although he no longer maintains chambers, at age 92 he remains an active part of the lives of his children, grandchildren, and great grandchildren who know the judge as “Grandpa Malcolm.”

Prior to taking the bench, Malcolm Marsh had spent 33 years in courtrooms trying cases, defending Volkswagen and various insurance companies. He worked with some of Oregon’s best lawyers who became his partners and lifelong friends:  Ned Clark, Eric Lindauer, and Al Menashe. Marsh was a member of the American College of Trial Lawyers, a prestigious, invitation-only group that required 100 completed trials even to be considered for membership. And he was inducted the year he turned 50.

Unlike other lawyers, however, Marsh paid close attention to the judges in those trials. With the mind of an engineer (and a brilliant wood worker) and accomplished chess player, Marsh studied courtroom dynamics. He knew what a good judge looked like, and he knew what a holy terror a bad judge could be. His desire to become a judge grew from that study:  he wanted to become the judge he wanted to see in the courtroom. He wanted to do the job in the way he saw that it could be done:  with a sensitivity to the stresses faced by trial counsel and their clients, and with a mission to improve the practice and foster the development of young lawyers. Particularly young lawyers of color and women. Kindness to the lawyers, litigants, jurors, and court staff is his enduring legacy.

When cases came into chambers, if they involved insurance law, contracts, or product liability, his staff knew that all we had to do was bring him the briefs. He knew those areas of the law so well – in fact, most of the Oregon cases on those topics listed Marsh “on brief” – he needed no assistance from us. For everything else, he wanted thorough research and analysis. It took some time, but I began to see a pattern in his questions and I became better at preparing him for hearings and trials by predicting what he would ask and what he would need. We’d dig for the facts and work to identify the key case or cases.  Working with him for 14 years, I never once saw him take the bench unprepared. He’d reset a hearing rather than walk out cold. He always had questions, often written out in advance and delivered to counsel beforehand if possible. His questions were never academic; they were crafted with an eye towards ensuring that his rulings were legally correct and logically sound.  And they were never mean-spirited or designed to humiliate a lawyer.

Just like a good parent knows not to raise certain subjects with a child in front of her friends, Judge Marsh knew that lawyers represented clients and that those clients were often in the courtroom observing everything that took place.  Clients expect zealous advocacy and they lose faith in lawyers who are reprimanded by the bench. Judge Marsh knew that dynamic well. And he knew that hearings and trials serve many distinct purposes. When a lawyer became too vitriolic or too harsh with a cross-examination, the judge would take a recess. He’d ask all counsel to join him in chambers (without clients) and he’d gently pull the lawyer aside and tell him to “simmer down.” In one contentious criminal case, he directed the opposing lawyers to shake hands, which prompted them both to laugh as they re-entered the courtroom.

Judge Marsh also knew that senior partners like to take center stage. They still do. But this often meant that the lawyers who had done all of the preparation work for a hearing or trial – often the women or people of color – would have no speaking parts. Instead, they would frantically pass notes (today it would be instant messages). Knowing all of this, Judge Marsh routinely turned to the young associates seated near the senior partner, and he would focus some of his questions directly to those people. He knew that these young lawyers progress would be enhanced by some genuine court time, and he knew that it would not happen without a little judicial intervention.

For his clerks, Judge Marsh loved to talk trial strategy during breaks. He loved a great cross-examination, was vexed by bad ones, and he generally believed that lawyers used too many exhibits and asked far too many questions. Simplify, tailor your case to the jury (not yourself), and tell a captivating story – that was how he liked to try cases, and those were the trials that he really enjoyed. Those and the trade dress case involving the Leatherman Pocket Survival tool; that case had dozens of tools as exhibits and he absolutely loved getting to try them all.

Only once did I see him lose his temper. [That’s not entirely true. He hates staples. He loved three-ring notebooks and tabs on everything, but nothing went into a notebook with a staple or he would rip it out (with prejudice). In my entire 14 years with him, I never refilled my stapler. When I joined the U.S. Attorney’s Office, I bought the best stapler I could find and then stapled documents with abandon. I still enjoy a good staple!] The circumstances were egregious. A company that owned a 747 leased to a cruise line wanted its plane back because the cruise line had defaulted on its payments. The cruise line admitted as much, and Judge Marsh granted a temporary restraining order directing the plane’s return to its owner. The cruise line read the order liberally, deciding that it could return the plane a few days later. When the plaintiff reported the contempt, Judge Marsh was not pleased. He directed me to call the U.S. Marshal’s Office and to send “that big guy.” I knew who he meant. It was Big Wayne. Big Wayne was a regular in the weight room and he filled a doorway. When Judge Marsh took the bench, he told defense counsel that if the plane wasn’t returned by day’s end, Big Wayne would be slapping handcuffs on defense counsel and he’d be spending the night in a Marshal’s holding cell. Plaintiff got the plane back.

Anything short of bald-faced contempt was generally met with Judge Marsh’s gentle guidance. For example, a young, uncooperative Black woman was facing significant charges for distributing drugs with her boyfriend. She would fold her arms and lay her head on counsel table, as if she were bored with the proceedings. One day, defense counsel asked for a status conference because she believed that her client had been misidentified; her father drove down from Seattle and confirmed that the young woman had been using her older sister’s identification and that our defendant was in fact her 16-year old sister. Defense counsel asked that the case be dismissed. Judge Marsh declined – not because he wanted to see the girl prosecuted, but because he wanted to help her within the federal system.  He made some calls, lined up some counseling, and after she resolved her federal case, she eventually enrolled in community college. Judge Marsh helped pay for her education and he gave me $200 to take her shopping for clothes. And she was just one of many recipients of his quiet grace; Judge Marsh and his late wife Shari financed college educations for a number of young, promising members of Portland’s minority communities.

Judge Marsh’s largest gift to Oregon’s legal community is the Mark O. Hatfield U.S. Courthouse. The sixteen floors of glass, cherry wood, and marble, the artwork, and the courtrooms designed to maximize line of sight and sound are all the product of his vision for the court.  It was a lengthy process that involved fund raising, acquiring the land, levelling the old fleabag Hamilton Hotel, an archeological dig, construction, and a 1997 move-in date. Judge Marsh was the courthouse’s advocate and champion. He worked tirelessly to see it through to completion all while maintaining a full district court caseload, and building shelves, doll houses, and bunk beds for his grandchildren.

 

Judge Marsh loves the law. He loves lawyers. And he loves God. But there was never anyone he loved as much as his late wife Shari. In his oral history, Marsh described their early relationship was one in which they were “unevenly yoked.” He explained that she was spiritual and calm while he was headstrong and quick-tempered. She was a calming influence and the strength of her faith convinced him to adopt a more spiritual and thoughtful approach to life. Over time, and with her seemingly infinite patience, he grew to share her faith, eventually evening out the yoke.

Their relationship was also endearing. He used to delight in walking over to the old Saks Fifth Avenue to pick out gifts for her – he had his own shopper and he refused my repeated entreaties to take me with him to help pick out her gifts. He also loved to walk down to Mrs. Fields and buy her one – just one – of her favorite cookies (white chocolate macadamia). She, in turn, would add little notes into his lunch bag.  We once had a working lunch and when I saw a note, I asked him about it. He clutched the note to his chest, telling me “it’s a love note from my bride – and no, you can’t see it!” They vacationed at the same condo in Maui every year and loved spending time together. As the product of a couple who had been married and divorced eight times between them, I marveled at their relationship. There really is such a thing as lasting love and devotion, and Malcolm and Shari Marsh embodied it. Shari passed away in 2009.

A True Son of Oregon

Malcolm F. Marsh was born in Portland in 1928 and moved with his family to McMinnville in 1935. From his mother’s side of the family, Marsh traces his Oregon ancestry to the early 1850s. On his mother’s paternal side, Marsh’s Stephenson grandparents arrived in Oregon from Vermont in the early 1850s via a covered wagon on the Oregon Trail. Stephenson Road, near Mountain Park, was the original site of George Stephenson’s hop farm. Marsh’s great-grandparents (the Roberts) sailed out of Boston Harbor in 1859 bound for Ponape Island in the South Pacific. They founded a Congregational church (which survives to this day), and later settled in The Dalles in 1868. Marsh’s grandmother Anna was born in The Dalles in 1869. Malcolm’s mother was born in a Victorian-style house that still stands in the Lair Hill neighborhood in Southwest Portland.

Marsh’s father Francis practiced law in McMinnville for more than 50 years. Briefly, during the prohibition years, Francis prosecuted bootleggers for the U.S. attorney’s office. Francis had an identical twin brother named Gene who was also a lawyer and who served as president of the Oregon Senate in 1953. Both brothers served a term as president of the Oregon State Bar. Frank and Gene went to law school together and told stories about taking tests for one another and sharing train tickets because they looked so much alike. A mutual friend once claimed that he could tell the two apart because Gene’s nose had been broken in a fight and angled slightly to one side. Gene never had children, but he and his wife were so close to Frank and his family, that Marsh and his brother Roger felt like they grew up with two fathers.

Marsh served in the Army in Japan (1946-47) and returned to Eugene for law school. It was there that he met Shari Long. They married in 1953.  Son Kevin arrived in 1958, followed by daughters Carol and Diane.

After graduating from the University of Oregon in 1954, Malcolm went into private practice with his father – briefly. The monthly pay of $300 was a bit tough on the young couple, and Malcolm soon found in Salem the man who would be his partner for the next 33 years: Ned Clark. Clark, Marsh and Eric Lindauer formed a formidable team and were close friends.

In the late 1950s, Malcolm struck up a friendship with then Secretary of State, future Governor and U.S. Senator Mark Hatfield. When an opening came up for a federal district judgeship in Oregon (due to the ascendancy of Judge Edward Leavy to the Ninth Circuit Court of Appeals), Senator Hatfield was by then well aware of his impeccable reputation in the legal community — both for his skill as an advocate and his high ethical standards. Marsh was an obvious choice for the position and his confirmation was swift and without controversy.

Appointed in 1987 by President Ronald Reagan, Judge Marsh took the bench and adapted to a caseload that included everything from arresting vessels to deciphering the reverse doctrine of equivalents in patent cases. He very quickly earned a reputation for his hard work and diligence in deciding cases and issuing opinions. Litigants were not always happy with the results, but Judge Marsh consistently won praise for the clarity of his reasoning and the promptness with which he made his decisions.

In his tenure on the bench, Judge Marsh is probably best known as the “salmon judge,” because he presided over state and tribal fisheries management in United States v. Oregon, and oversaw the first cases filed under the Endangered Species Act that challenged operation of the Columbia River Power System after several salmon species were listed as endangered in 1992. His other notable cases include: high school drug testing in Vernonia, a case that ultimately ended up in the U.S. Supreme Court; the criminal prosecution of the followers of the Bhagwan Shree Rajneesh; prosecution of the principals of the Ecclesia Athletic Association child abuse case; and trade dress and punitive damage claims involving the Leatherman Pocket Survival Tool.  Jurors are also particularly fond of the judge who routinely held informal contests during voir dire to see who had the most grandchildren.  Marsh was always delighted when he won (he has seven grandchildren, including a set of triplets).

With his fellow judges, Marsh has been a true friend.  He and the late Judge James A. Redden were regular lunch buddies at the bar in Higgins. Judge Anna J. Brown, his seat’s successor, tried a case to a jury in his courtroom; when she was hit by a car in a crosswalk during a break, Marsh summoned then medical examiner Dr. Brady to make sure she was alright. And he contributed significantly to the court by continuing to manage a caseload as a senior judge past his 91st birthday. He fully retired in May 2020.

A Personal Note

In 1989, I was 23 years old, fresh out of law school. I had stumbled into a federal clerkship without any real grasp on what I wanted to do with my law degree. My first bench memo was a disaster. Produced with my own dot matrix printer, it was handed back to me with so much red ink there was little white left on the page. [Marsh was never a line editor.  His longtime law clerk Jackie Bartfuff Holley was my incredibly helpful editor. Instead, Marsh had a sense for when something was incongruent; he would point it out, shake his head, and say something along the lines of “it just doesn’t read right.” Or my favorite:  “I think you got a phone call on page 12.” ] I dissected the edits, created a checklist, and vowed to produce something better the next time. He referred to me as FILO, for “first-in-last-out.” He seemed to genuinely enjoy my efforts; he gave me a lot of feedback, and I soaked in everything in an effort to improve. He made me feel like I was contributing something meaningful to his decision-making process, and I was hooked. He instilled an enthusiasm for digging for information in an effort to ensure that he was fully apprised and well-prepared for court. He also inspired a career in public service that extends to this day. Other law clerks like Karen O’Connor, Dana Sullivan, and Kjersten Turpen have followed in his footsteps and become some of the state’s best trial attorneys.

Every year since I left his chambers for the U.S. Attorney’s Office, the “Marsh clerks” hold a reunion lunch with the judge. Along with the building, we are part of his legacy and each one of us carries just a little bit of Malcolm with us every time we enter a courtroom.  On behalf of everyone who has worked for him or with him, congratulations Malcolm on this Lifetime Service Award.