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


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.

Judges Malcolm Marsh and James Redden enjoy a chat with Senator Mark Hatfield at the annual picnic in 2005. Photo by Owen Schmidt

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.

At an October 2000 Famous Cases presentation (Sohappy and the Columbia River Salmon Wars) Judge Malcolm Marsh, Judge James Redden and Prof. Brian Gray greet Wasco Chief Nelson Wallulatum as Judge Owen Panner looks on.

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).

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