Please Join USDCHS and the FBA for a Practical Skills CLE on June 8

FBA CLE Flyer 3

In addition to the practical skills component, this CLE will explore the U.S. Supreme Court’s decision in DeJonge v. Oregon, which addressed the state’s criminal syndicalism law.  On July 27, 1934, the Portland Police “Red Squad” raided a peaceful meeting sponsored by the local Communist Party held at First and Morrison in Portland.  The police arrested Dirk De Jonge, a World War I veteran, longshoreman, former Portland mayoral candidate, and Portland communist. The State charged De Jonge with violating Oregon’s criminal syndicalism statute by speaking in support of the Communist Party at the meeting, which was called in response to a police crackdown on striking longshoremen.  The strike had shut down every West Coast port from southern California to northern Washington.  A Multnomah County jury found him guilty after a month-long trial, and the court sentenced him to seven years in prison. The Oregon Supreme Court affirmed the conviction 5-2.  With the assistance of his counsel, including then-private attorney Gus Solomon, the U.S. Supreme Court reversed.  Chief Justice Charles Evans Hughes, speaking for a unanimous Court, held that Oregon’s criminal syndicalism statute unconstitutionally infringed upon De Jonge’s right to assembly as protected by the First Amendment.

The Building They Shaped – The Hatfield Courthouse at Twenty

By Doug Pahl

Winston Churchill once observed, “We shape our buildings, and afterward our buildings shape us.”  Twenty years ago, Ninth Circuit Court of Appeals Chief Judge Proctor Hug stood in the gleaming green lobby of the Mark O. Hatfield U.S. Courthouse and reminded us of Churchill’s wisdom.  It was November 13, 1997, and an unprecedented group of dignitaries gathered to celebrate and dedicate Portland’s first new courthouse since 1933.

Entrance hall, Mark O. Hatfield U.S. Courthouse. Photo courtesy of Bora Architects and Kohn Pederson Fox.

Judges, court staff, administration officials, designers, and artists, all led by Judge Malcolm F. Marsh, had indeed shaped an impressive building with great care, intention, and respect.  As the Hatfield Courthouse completes its teen years, it is timely to reflect on what inspired it, why its planners shaped it the way they did, and how it shapes those who seek justice and those who work diligently to dispense it.

Skybridge or Tunnel?

Portland’s Federal (future Gus J. Solomon) U.S. Courthouse in 1933. National Archives, RG 121-BS, Box 73, Portland Folder

Initially, let us remember what could have been—in fact, what almost was.  In the late 1980s, the aging Gus J. Solomon U.S. Courthouse required extensive refurbishing, and even then, the structure was inadequate on its own to accommodate the court’s projected space requirements.  By 1990, the court had committed to the so-called annex option, under which it would have stayed put in the Solomon Courthouse, supplemented by a new 12-story annex constructed across the street on a partial lot near the University Club.  A sky-bridge or a pedestrian tunnel would have connected the annex to the Solomon Courthouse.

Although now just an historical could-have-been, the annex option was more than a passing thought.  In 1989 and 1990, Congress appropriated funds for the annex project, including $4.1 million for site acquisition, $4.71 million for design and $33.32 million for construction.

Reversing course at that advanced stage took nerve and wasn’t without risk.  But by late fall 1990, an abrupt but thoughtful change of course was necessary.  It occurred thanks to the foresight of our judges, led by Chief Judge Owen M. Panner, Judge James A. Redden, and Judge Marsh.  It was clear the proposed annex property would not accommodate the court’s minimum space requirements under newly-announced federal courthouse design requirements.  Judge Redden was selected to travel to Washington, D.C. to break the news personally to the annex project’s primary sponsor, Senator Mark O. Hatfield.  To Judge Redden’s relief, Senator Hatfield didn’t flinch: “Let’s do it right the first time, even if it means starting from square one.”

Senator Hatfield staff member Matthew Garrett and Chief Judge Michael Hogan listen to Judge Malcolm Marsh’s update for Senator Hatfield on the building’s progress. Photo courtesy of Judge Marsh.

The Chosen Block

Context view of the Hamilton Hotel block. Photo by John Stamets, Courtesy of Library of Congress HABS OR-159-1

Hamilton Hotel Block, March 1993. Photo by John Stamets, Courtesy of Library of Congress HABS OR-159-4

From that moment, the project advanced deliberately and methodically toward the courthouse we know today.  The court selected the new location, the full block at Third Avenue and Main Street, then the site of the dilapidated Hamilton Hotel.  Construction began in June 1994 and was completed in September 1997.  The court and staff spent countless hours working with architects from Kohn Pedersen Fox Associates of New York, and BOORA Architects (now Bora Architects) of Portland, including critiquing a full size courtroom prototype.

By all accounts, the final product is a masterful combination of design, function, and art.  As the dedication ceremony approached, the Oregonian observed, “The high-rise courthouse is what architects call a ‘new typology’ of building, meaning its form and function have no historical precedents.… [The Hatfield Courthouse] provides an elegant diagram of modern justice—part theater, part machine. With the choreography of a hospital surgery room, the key actors—the defendant, the judge, the jury and the public—move through this building on separate paths, assembling only for the performance of the trial.”

Beaming with Pride

Courtroom in the Hatfield Courthouse. Photo courtesy of Bora Architects and Kohn Pederson Fox.

In the days before and after the November 13, 1997 dedication ceremony, a great move occurred.  Because court functions needed to continue without interruption, the four-block move from the Solomon Courthouse into the new 560,000 square-foot structure occurred with almost military focus over a weekend and even through the dead of night.  By Monday morning, November 17, the phones rang, the computers lit up, security systems functioned, and all public areas were accessible.  Some referred to it as a “logistical nightmare,” but thanks to meticulous planning, the transition was seamless.

The court and staff, local attorneys, city, state, and federal officials from all branches, and many others gathered in the courthouse lobby for the long-awaited dedication.  As Chief Judge Michael R. Hogan and Judge Marsh introduced the building to the Oregon community, the entire court beamed with pride.  Speaker after speaker heaped accolades on those who worked so hard to make the structure possible.  The Hatfield Courthouse is indeed masterful: from its sweeping views to its whimsical artwork; from its inspiring quotations to the comfort and functionality it affords to all who visit.  As Judge Marsh noted, the courthouse was carefully designed to not only function well, but to ease the tensions of litigants and counsel alike.  He says today that the front façade and lobby were intended to evoke openness and welcome—recognizing most visitors are not present by choice—and the lobbies outside courtrooms were designed to provide breathing space to avoid fistfights. He laughs now at the suggestion that the turret is really a secret hot tub for judges, saying he started that rumor.

Exterior view of the Mark O Hatfield U.S. Courthouse, looking to the northeast. Photo courtesy of Bora Architects and Kohn Pederson Fox.

Many speakers directly addressed the future generations who would enter this courthouse in search of justice.  Senator Hatfield concluded his remarks with the following quote from Judge Learned Hand: The rule of law “should be in the spirit of Him who, some 2000 years ago, taught mankind a lesson it has never learned, but has never quite forgotten: that there may be a land where the least shall be heard and considered side by side with the greatest.”  Hatfield continued, “A more fitting aim for this building and its contents and its people, I could not imagine.”

Looking south in February 2016, Mark O. Hatfield Courthouse in February 2016. Photo courtesy of M.O. Stevens.

That challenging conclusion marked the opening of a courthouse now reaching the end of its second decade.  Not just a prominent feature in the Portland skyline, the courthouse is also now woven into the fabric of Oregon’s rich legal tapestry.  With both dignity and function, in thousands of high- and low-profile cases, the Hatfield Courthouse has welcomed and served those seeking justice.  It has hosted solemn ceremonies, including judicial investitures and portrait unveilings, and joyous celebrations, including weddings and those taking the Oath of Allegiance to become citizens of the United States. It has also inspired similar architecture in Seattle and Minneapolis.

Those who work under its curved roof continue to be shaped by this magnificent structure as we all strive to learn the ancient lesson imparted by Senator Hatfield—to provide a forum and process where the least shall be heard and considered side by side with the greatest.

Thanks to Carra Sahler and Judge Malcolm F. Marsh for their assistance with this article. You can find articles on the history of the sitethe opening events, and art in the courthouse.

When is a Postmaster Like the Man in the Moon? The Tumultuous Presidential Election of 1876

by Stephen Raher

The presidential election of 1876 was a contentious battle over the future of the post-Civil War United States.  Students of history will recall that Louisiana, Florida, and South Carolina each submitted dueling vote tallies after the election, thus requiring Congressional action to decide the disputed results in those states.  Less well-remembered, however, was an electoral controversy in a fourth state: Oregon.

Setting the Stage

In the years leading up to November 1876, political observers knew the election to replace President Ulysses S. Grant would be hotly contested.  The policy of Reconstruction was under increasing attack, and while Republicans still controlled the Senate, anti-Reconstruction Democrats had regained a majority in the House.  The Republican party named Rutherford B. Hayes as its presidential candidate, while Democrats nominated Samuel J. Tilden.  On Election Day evening, early returns indicated that Tilden had 203 electoral votes, comfortably in excess of the 185 needed to win.

New York Governor Samuel Tilden and Indiana Governor Thomas Hendricks. Courtesy of Library of Congress.

Ohio Governor Rutherford B. Hayes and the New York Congressman William Wheeler. Courtesy Library of Congress.

Yet Republican leaders saw a path to victory: if Hayes could win South Carolina, Florida, Louisiana, and Oregon, he would beat Tilden by one electoral vote, 185 to 184.  When Republican operatives learned that Hayes had won the Oregon vote, their attention turned to the three Southern states. Although early returns indicated that Tilden had won all three, there was evidence of fraud and violence (especially in Florida) meant to suppress black Republican voters. Under Reconstruction policies, the popular votes in these three states were subject to review by returning boards (an official body designated by law to canvass election returns), which could invalidate votes upon finding fraud or voter intimidation. Those returning boards were controlled by Republicans who were likely to favor Hayes.  And so, the country awaited a final vote count.

The Oregon Controversy

Oregon Secretary of State 1870-78, Stephen Chadwick. Photo courtesy Library of Congress, cph.3c34814.jpg

No one really disputed the outcome of the popular vote in Oregon.  Democratic Secretary of State Stephen F. Chadwick certified the vote totals: Hayes won with approximately 15,200 votes, Tilden trailed with roughly 14,150 votes, and third-party candidate Peter Cooper snagged around 500 votes.  At the time, the Oregon ballot listed the electors whom the respective parties had nominated to vote for the presidential candidate, and voters cast ballots for each individual elector.  The Republicans had run William H. Odell, John W. Watts, and John C. Cartwright as the electors pledged to vote for Hayes.

Republican elector John Watts was the acting postmaster of Lafayette, Oregon (in Yamhill County).  But article II of the U.S. Constitution provides that no “Person holding an Office of Trust or Profit under the United States” can serve as a presidential elector.  Watts resigned his postmaster position prior to the December 6 meeting of the electoral college, but Democrats realized that there could be a strategic advantage in challenging Watts’ vote.

Oregon Gov. LaFayette Grover (1870-77). Courtesy Library of Congress cwpbh 05188

At noon on December 6, Oregon’s Republican slate of electors assembled at the capitol building in Salem; but Democratic Governor LaFayette Grover (allegedly acting at the behest of Democratic National Committee Chair Abram S. Hewitt) declared that Watts was ineligible to serve.  Accordingly, Grover and Secretary of State Chadwick prepared a certificate of election stating that the winning electors were Odell, Cartwright, and Democrat E.A. Cronin, who had received the fourth greatest number of votes of any of the electors.

Chadwick delivered all three certificates of election to Cronin.  Cronin, in turn, refused to share the papers with Odell and Cartwright, who—out of frustration—reassembled with Watts and prepared their own certificate to send to Washington, D.C.  Cronin then declared that the Republican electors had refused to act, and he named two replacement electors—J.N.T. Miller and John Parker, both Republicans, although the Oregonian (a reliable Republican mouthpiece) called them “tools in carrying out the plot.”  The two newly appointed Republican electors proceeded to cast votes for Hayes, while Cronin voted for Tilden.

Oregon Republicans were predictably outraged.  The Oregonian reported on an “immense indignation meeting” in Salem, where Republicans condemned the electoral trickery and “fair minded Democrats” admitted to being “chagrined at the situation of their party leaders.”  In his defense, Governor Grover published a written explanation that set forth detailed legal arguments supporting his decision.  Framing the issue as one of obeying his oath to uphold the Constitution, Grover stressed that the popular vote was void due to Watts’ ineligibility.  “It is the same in principle, as though by mistake, or otherwise, the highest number of votes should have been given to an alien, a woman, a person insane, a non-resident, the ‘man in the moon,’ or a dead man,” he wrote.

A major problem for Grover’s legal analysis was that Oregon statute provided a mechanism for filling a vacancy in the office of presidential elector: the remaining electors were to select a replacement.  To prevent this outcome, Grover argued that the vacancy provision did not apply because there was not a vacancy “unless there has been an incumbent and that incumbent has gone out of the office.”  Because Watt never assumed the office of elector, Grover concluded there was no vacancy and that he must award the seat to Cronin, who was the candidate with the next highest number of “legal votes” cast for the office of presidential elector.

Even though Grover’s actions only increased Tilden’s vote count by one, it was strategically significant for two reasons.  First, the margin of victory could be (and, ultimately, was) one electoral vote.  Second, the 12th amendment to the U.S. Constitution provides that electoral votes are to be sent to Washington, D.C., where the president of the Senate shall “open” the votes during a joint session of Congress, and “the votes shall then be counted.”  But there was considerable legal uncertainty about how Congress could address disputes over the validity of votes.  In particular, it was unclear whether Congress could look beyond the official certificates of election submitted by the states.  Democrats figured that if Congressional Republicans looked beyond Governor Grover’s certificate naming Cronin as an elector, then they would have strong grounds to challenge the certificates from South Carolina, Florida, and Louisiana, all of which awarded electoral votes to Hayes.

“Cronin ‘Organized Himself'” by Cartoonist: Thomas Nast, Harper’s Weekly, January 13, 1877. Courtesy of HarpWeek. E.A. Cronin began advertising his services as an attorney in the Portland Oregonian in May 1865.  He died in 1878.

The Aftermath

As the disputed votes made their way to the national capital, the ambiguity inherent in the 12th amendment came into focus.  With each house of Congress under the control of a different political party, the potential for crisis was high.  The compromise that emerged was the creation of a 15-member commission, composed of five senators, five representatives, and five Supreme Court justices.

The commission took up the Oregon case on February 21, 1877.  By this time, the commission had already decided the Florida and Louisiana elections in favor of Hayes, and most observers were comfortable that Hayes would prevail in the end.  Nonetheless, the commission had to rule on the disputed electoral ballots received from Salem.  Oregon’s senior senator, Democrat James H. Kelly, argued in favor of upholding Grover’s decision, urging that the governor had merely adjudicated a controversy that he was legally empowered to decide.  The counter argument was delivered by Republican John Hipple Mitchell, the state’s other senator.  Mitchell—an icon of Gilded Age Oregon, who would eventually be dragged down in land scandals—spared no rhetorical excess.  “So momentous” were the issues at stake, Mitchell told the commission, “that to their final determination by this high tribunal the whole people of this nation, and may I not say of all Christendom, are with bated breath looking forward with ever-increasing and intense anxiety.”  Mitchell concluded by alleging rampant corruption in the opposition party (“a changeless palsied plague spot upon the record of the democratic party, that time cannot obscure, or repentance obliterate”), heaping praise on the commission, and reading a quote from Shakespeare.

After an entire day of closing arguments—which were interrupted to allow witness testimony, including from John Watts himself—the commission took a series of votes.  First, the body voted unanimously that the Cronin/Parker/Miller ballots were not valid.  The commission then voted, 8 to 7, to accept the Odell/Watts/Cartwright ballots as the valid constitutional votes.  In a brief written report, the commission concluded that Watts was eligible because he had resigned his postmaster position prior to December 4, and that Governor Grover lacked the authority to name Cronin as an elector in defiance of the popular vote.

N.Y. Daily Graphic June 26, 1877. “Alas, the Woes of Childhood.” Sammy Tilden– “Boo-Hoo! Ruthy Hayes’s got my presidency, and won’t give it to me.” Courtesy of the Rutherford B. Hayes Presidential Library & Museums collections

While the commission had been sifting through evidence and legal arguments, members of Congress and political bosses had engaged in political horse-trading.  After all, the commission’s findings were not the final word—the actual electoral votes had to be counted in a joint session of Congress, and Democrats in the House threatened filibusters and other dilatory tactics to prevent a final count by the expiration of Grant’s term.  In a series of political trades touching upon Southern “home rule” (i.e., government controlled by white, former Confederate, leaders), railroad subsidies, and cabinet appointments, a compromise eventually emerged.  The Congress would agree to the commission’s findings, thereby handing the election to Hayes, who in return would allow white governments in Louisiana and South Carolina to assume control, displacing the Reconstruction governors who remained in office only through the protection of U.S. Army troops.  The compromise effectively ended Reconstruction throughout the South, and Congress declared Hayes the winner of the election at 4:10 a.m. on March 2, 1877.

Hayes’s presidency was inevitably tarnished as a result of the electoral dispute, but he pursued a platform (rhetorically, at least) of promoting unification of the country.  In furtherance of this goal, Hayes took an interest in Western affairs, and the election dispute was not Hayes’s last involvement with Oregon.  In 1880, he took a lengthy tour of the west, during which he became the first sitting U.S. President to visit Oregon.

Oregon’s Federal Judges 2017

 

Front row, l to r: Judges Dennis J. Hubel, Robert E. Jones, Malcolm F. Marsh, James A. Redden, Garr M. King, John P. Cooney, Edward Leavy, and Thomas M Coffin. Middle row, l to r: Judges Randall L. Dunn, Jolie A Russo, Youlee Yim You, Stacie F. Beckerman, Anna J. Brown, Paul Papak, David W. Hercher, Peter C. McKittrick, Diarmuid F. O’Scannlain, Ann L. Aiken, and Chief Judge Michael W. Mosman. Back row, l to r: Judges Thomas M. Renn, Michael H. Simon, Elizabeth L. Perris, Trish M. Brown, John V. Acosta, Patricia Sullivan, Marco Hernández, Michael J. McShane, Janice M. Stewart, John Jelderks, Mark D. Clarke, and Owen M. Panner. January 2017

Many thanks to Gosia Fonberg for coordinating the photography session that took place in January 2017.  Keene Studio took the photos.

Judge Robert E. Jones Turns 90

By Adair Law

Friends, family members, and colleagues gathered with Judge Robert E. Jones and his wife Pearl in his chambers in the Mark O. Hatfield Courthouse to celebrate his 90th birthday on July 5, 2017.  A full courtroom shared good wishes with Judge Jones, his wife Pearl and his staff while enjoying a large 90th birthday cake, sparkling cider, and other refreshments.

Attorney Jonathan Hoffman serenades Pearl and Robert Jones. Photo by Becky Peer

Attorney and guitar-playing balladeer Jonathan Hoffman regaled the crowd with verses on the life of Judge Jones.  Below are some excerpts of his work:

Did you ever hear of Judge Robert E. Jones?
He knows evidence law, it’s deep in his bones.
He grew up in Portland, mostly stayed out of fights,
Aspired to Upper Multnomah County Jail Heights.

 

***
In court every day, and then after dark,
He went to teach classes at Lewis & Clark.
His classes on mortgages were truly sublime
They learned the Eighth Amendment at the same time.
***
We must tell the truth of his case of renown
The polygraph saga of State v. Brown
Which predated Daubert by ten years or more
And is found at 297 Or. 404.
***

By now we all know of Judge Robert E. Jones
A judge for whom justice resides in his bones.
Other folks’ praises should augment the din,
But Judge Jones says it’s hearsay and won’t let it in.

After the song, Judge Jones shared home movies taken by his father Howard Jones, an early adopter of the home motion picture camera.  The movies showed young Bobby Jones as a cowboy, dentist, baseball player, and surgeon in skits with his brother and sister.  On a more historical note, there was also film of the marriage of Robert E. Jones to Pearl Jensen.  They celebrated their 69th anniversary in May.

 

Judges Jones invites his guests to share in a special cake. Photo by Becky Peer

With the completion of the home movies, the crowd shared good cheer and memories of working with Judge Jones.  In honor of this auspicious birthday people brought cards, photographs and special memories of working with Judge Jones.  Judge John Jelderks recalled that he had first met Judge Jones 50 years ago in the Navy reserve as his commanding officer.  It was a wonderful afternoon to acknowledge a great creator and preserver of Oregon legal history.  If you would like to find out more about Judge Jones, you can find his oral history here.