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Oregon Bankruptcy Court: From 1978 to the Present

by Stephen Raher

The Fall 1999 issue of Oregon Benchmarks featured an informative overview of Oregon’s bankruptcy system through 1978, a year of unprecedented structural change in the bankruptcy world.  With this summer’s USDCHS picnic honoring bankruptcy practitioners, it’s time to catch up on developments since the enactment of the Bankruptcy Code in 1978.

Detail of and attorney admission register that shows bankruptcy referees in the district of Oregon from the era of the Chandler Act. From the archives of the US District Court of Oregon Historical Society

Although the first lasting bankruptcy legislation was passed in 1898, specialized bankruptcy judges or adjudicators were not recognized on a national scale until the Chandler Act of 1938.  Under the Chandler Act, district court judges were able to appoint bankruptcy “referees” to oversee both administrative and adjudicative aspects of bankruptcy cases.  In 1973, when the Federal Rules of Bankruptcy Procedure were promulgated, the title referee was abandoned in favor of “bankruptcy judge.”

Spurred by an explosion in consumer bankruptcies, Congress began debating a bankruptcy overhaul in 1968.  Two years later, Congress created a commission to study and recommend changes in administrative and substantive bankruptcy law.  The commission, which included University of Oregon law professor Frank Lacy, conducted numerous research projects and held hearings around the country.  In 1973, the commission issued a two-part report that recommended sweeping changes to the Bankruptcy Act of 1898.  Several years of Congressional debate followed, culminating in the passage of the Bankruptcy Reform Act of 1978.

Much of the debate focused on the status of the new bankruptcy judges.  Some advocated for using staff “commissioners” (who would report to district judges), while others thought a new tier of bankruptcy judges should be created.  Alternatively, some in Congress thought district judges should handle all bankruptcy matters, while still others advocated for bankruptcy judges with Article III status (i.e., lifetime tenure and salary protections).  Debates also arose over who should appoint bankruptcy judges (Circuit courts? District courts? The president?).  The legislation that passed Congress created new bankruptcy courts which were to act “as an adjunct to the district court for such district.”  Northern Pipeline Constr. Co. v. Marathon Pipe Line Co. 458 U.S. 50, 53 (1982).  The judges of the new bankruptcy courts were to be appointed by the president for 14-year terms, removable (by the circuit judicial counsel) only for cause.

In Oregon, four former bankruptcy referees were appointed as new bankruptcy judges under the 1978 Act: Folger Johnson, Henry Hess, and Donal Sullivan, in Portland, and C.E. Luckey in Eugene.  Judge Michael Hogan also served double-duty as a part time magistrate and part-time bankruptcy judge in Eugene.

Only a few years after the passage of the 1978 Act, the Supreme Court threw a wrench into the new court structure.  In the Marathon case, the court held that Congress’s delegation of judicial power to bankruptcy judges without Article III protections violated the Constitution.  Rather than immediately toss the bankruptcy system into chaos, the court issued a stay of its decision so that Congress could amend the law.  Unsurprisingly, Congress did not complete its work on time and requested several extensions from the Supreme Court.  Ultimately, the Court’s patience was exhausted and it declined to further stay the decision.  As a result, for a few weeks in 1984 (after the expiration of the stay, but before the enactment of the Bankruptcy Amendments and Federal Judgeship Act), all bankruptcy judges were laid off and rehired as “consultants.”  According to Judge Elizabeth Perris’s oral history, “We gave up wearing our robes.  We would ask the parties who showed up for their trials if they wanted the consultant to make finding and recommendations on their trial.  And they would say, most of them, ‘Yes’ . . . . We couldn’t sign any orders because we had no judicial authority.  All the orders had to go to the district court for signature.  It was an interesting period.”

Since the jurisdictional wrinkles were sorted out in 1984, Oregon’s bankruptcy court has functioned consistently and largely without drama.  Although it lacks the high-profile cases that East Coast bankruptcy courts are used to, our court has had some moments in the spotlight, including the nation’s first-ever Catholic church bankruptcy, In re Roman Catholic Archbishop of Portland in Oregon, Case No. 04-37154-elp11.  Other notable Oregon cases include the 1985 liquidation of the holding company owned by the Rajneesh Neo-Sannyas International Commune in Central Oregon, the 2004 reorganization of the Oregon Arena Corporation (owner of the Rose Garden), and the 2016 bankruptcy of Seaport Airlines.

All told, thirteen judges have sat on the U.S. Bankruptcy Court for the District of Oregon since 1978, with tenure as follows:

Judge Location Years of Service (including referee) USDCHS Oral History
Folger Johnson Portland 1955-1984 No
Henry Hess Pendleton/Portland 1958-1993 Yes (available online)
C.E. “Ed” Luckey Eugene 1961-1984 Yes (available at the Oregon Historical Society library)
Donal Sullivan Portland 1969-1999 Yes (available at the Oregon Historical Society library)
Michael Hogan Eugene (part time) 1973-1991 In process
Polly Higdon Portland 1983-1999 No
Albert Radcliffe Eugene 1983-2011 No
Elizabeth Perris Portland 1984-2015 Yes (available online)
Frank Alley Eugene 1995-2016 In process
Randall Dunn Portland 1998-2017 In process
Trish Brown Portland 1999-present
Thomas Renn Eugene 2011-present
Peter McKittrick Portland 2015-present
David Hercher Portland 2017-present

 

Department of Homage: Wendy Koble and Volunteer Transcribers

By Janice Dilg

Our initial email exchange occurred in December 2011. On February 20, 2018, my email inbox contained a missive from Wendy Koble with a subject line of “Judge Lent Finished!!”. Wendy Koble is the Judicial Assistant to Senior Judge Owen M. Panner, a post she’s held for six years. Before that she worked in the James A. Redden Courthouse clerk’s office from 1997-2009 until her retirement. Claiming to have “flunked retirement,” she welcomed the opportunity to return to the courthouse as Judge Panner’s JA in 2011. Judge Panner’s previous JA, Margaret Hunt, had created a digital word document from the paper-only version of Judge John Kilkenny’s oral history transcript, and since she had found it interesting work she suggested Wendy might enjoy doing some transcription for the oral history project. Hence, Wendy’s fateful email of 2011 offering her transcription services.  We settled on her working on the oral history of former Oregon Supreme Court justice and state legislator Berkeley “Bud” Lent (1921-2007).

Oregon Supreme Court Justices, 1983. From bottom of stairs: Chief Justice Edwin Peterson, former Chief Justice Berkeley Lent, Justice Hans Linde, Justice J.R. Campbell, Justice Betty Roberts, Justice Wallace Carson, and Justice Robert E. Jones. Photo courtesy of Judge Jones.

Transcription takes concentration and diligence to accomplish, and one hour of recording can take three to four hours of transcription time.  Wendy worked on batches of five or six tapes at a time. Lent used a fair amount of slang, according to Wendy, and his stories needed a lot of punctuation, especially quotation marks. This slowed the transcription process considerably. Over the years, Wendy would let me know she had one set of tapes transcribed, then share the transcript. With each completed set of transcripts I expected (and feared) Wendy would graciously decline to continue, but she always asked for the next batch of recordings. Only once around Tape 18 did she allude to some weariness and wonder what Lent might still have left to tell about his legal career.  Still, Koble notes that even though she has worked in the judicial system a long time “I’ve learned a lot about the court system transcribing Judge Lent’s oral history.” And, when she didn’t know the people Lent was referring to in his interviews, Judge Panner “knew everyone.”

In that February email that held the last of Lent’s transcript (which covered 22 cassette tapes), Wendy stated: “At the moment, I’m not ‘up’ for any more transcription.” But by the next morning there was another email in my inbox indicatinging that after sleeping on it, Wendy had decided that that she was “open to transcribing some more,” with the caveat that it be  “one that isn’t quite so long.” Wendy is now reviewing a succinct four-hour oral history of a former Oregon assistant attorney general and senior attorney for Multnomah County Legal Aid.

MUCH older transcription equipment. 1897 illustration of a typist transcribing dictation using an early wax cylinder. Wikimedia Commons

There are a few outstanding lengthy oral histories waiting to be transcribed: Roger Martin (1935- ) legislator, gubernatorial candidate, and lobbyist—11 cassette tapes;  John Dellenback (1918-2002), attorney, legislator, four-term Oregon congressman, and Peace Corps director—19 cassette tapes; Robert Duncan (1920-2011), attorney, legislator, and seven-term Oregon congressman—31 cassette tapes; Lee Johnson (1930-2009) attorney, legislator, Oregon Attorney General, and circuit court judge—21 cassette tapes, five of which have been transcribed by volunteers at Dunn Carney; and Hans Linde (1924-  ) attorney, US Supreme Court law clerk, law professor, and Oregon Supreme Court Justice (45-51 cassette tapes, sources have conflicting numbers). Tapes 5-8 and 12-35 have been transcribed. Twelve tapes were completed by staff of Justice Paul De J. Muniz, and three tapes were transcribed by staff at the Coquille Indian Tribal offices. While these interviews list cassette tapes, and that is the format Wendy transcribed from, the oral history interviews have been born digital since 2006, and the Oregon Historical Society will digitize tapes for transcribers.

If you, or someone you know, would like to provide some volunteer transcribing, please contact the USDCHS Oral History Committee chair, Joe Carlisle at jwc@buckley-law.com. And if you have questions, maybe you should talk to Wendy.

A Practical Star for Oregon and the Country: U.S. Bankruptcy Judge Elizabeth Perris

By U.S. Bankruptcy Judge Peter McKittrick and Diane K. Bridge

This article is based on an oral history conducted by Janice Dilg in 2015 and 2016 and some additional research. The oral history is on file with the Oregon Historical Society on behalf of the US District Court of Oregon Historical Society. The transcript of Judge Perris’s oral history can be found at https://usdchs.org/oral-histories/elizabeth-perris/.

Elizabeth Perris served as a U.S. bankruptcy judge in the District of Oregon for 31 years. Her accomplishments are stunning. Respected judge, educator to judges, lawyers, and students, pro bono leader—Elizabeth Perris did it all. Her legacy through her work is both local and national.

Family and Youth

Allen and Joan Perris with their first child, Elizabeth.

Perris was born in Dayton, Ohio in September 1951 to Allen and Joan Perris.  She is the oldest in a family of two daughters and a son.  As a young child, she moved with her family to Southern California where her father found work in real estate. She loved that she could swim and skateboard for most of the year. Her family moved to the San Francisco suburb of San Mateo when she was in high school.

The summer after Perris’s first year in high school, she participated in a residential six-week-long program at Stanford run by an organization called the Junior Statesmen of America. Roughly eighty teenagers from all over California learned about government and economics. “It was very intense. I mean, we stayed up late. We studied and we talked. It was a little taste of what college would be like, although you could not sustain the level of energy we sustained for six weeks through a school year. But it was kind of an eye opener that it’s a bigger world out there.”

Perris finished high school when she was 16 years old. She also found time to work during high school. Her first job was with Polaroid as a file clerk.  She had a summer job working for a company that produced large print books for the visually impaired, cutting up texts and sending pages out to a printer to enlarge the print, then hole-punching the pages and putting them in binders.  Hers was, as she said, a typical 1950s three-child family upbringing. She recalls in her oral history, “I can’t say that we were terribly put-upon children. Our main job was to do a good job in school and to be responsible kids.”

College and Law School

A just barely 17-year-old Freshman at Berkeley

Perris did her undergraduate work at the University of California Berkeley.  Her first year at Berkeley, when she had just turned 17 years old, was especially formative.  She lived in a 20-person co-op housing arrangement, where she made many great friends.  She continues to stay in touch with six of them on a regular basis.

Perris’s time at Berkeley was marked by student protests and political activity. Perris was used to lively political debates, as she grew up in a “split” household—one of her parents was a Democrat while the other was a Republican. She enjoyed listening to speakers and watching the protests but was mainly an observer during the unrest rather than a participant. “At one point, I remember sitting in a classroom and the protestors came by. They started throwing rocks through the windows. The professor said, ‘Oh I think we better move over closer to the wall.’  But that’s how it was my first year, so I was kind of surprised my second year when things calmed down and you actually had to do all the work and there wasn’t quite as much excitement on campus.” She decided early on that she wanted to study criminology, but she enjoyed many other classes including zoology, astronomy, and other liberal arts courses. By her junior year at Berkeley, Perris decided she wanted to go to law school. She thought that the law was very practical, and it was flexible, providing lots of choices when you had your degree.  Her interest in the law was buttressed by an attorney she heard speak at Berkeley about her work fighting employment discrimination.

Graduation from UC Davis Law School, 1975.

After living in the Bay Area for many years, the University of California Davis was her first choice for law school. When she did not get in, she decided to go to Willamette University College of Law in Salem, Oregon. Perris said going to Willamette and living in Salem was “like getting into a time machine and going backwards.” She remembers there were 13 women in her class at Willamette.  Although that was a small minority of the class, Perris noted it was a large improvement over the previous years. After one year at Willamette, she fulfilled her dream of going to UC Davis by transferring there for the balance of law school. Perris graduated from UC Davis Law School in 1975.

Mary Jo Peters: 35 Years of Service to the District of Oregon

By Gosia Fonberg

Mary Jo Peters made Portland’s federal courthouses brighter places for over 35 years until her retirement on February 28, 2018. An Oregon native, Mary Jo was born in Gresham. Her paternal grandfather immigrated to Oregon from Germany in 1906 when he was 19 years old to work for his uncle in the brickmaking business. Her grandfather then built the Columbia Brick Works plant in Gresham, and her father and his three brothers continued the family business until it was sold in 1973. Mary Jo grew up in one of the houses within the 80-acre Gresham plant. The company made the bricks that built many of the buildings in downtown Portland, including the former Lotus Café across the street from the Hatfield Courthouse.

When she was a high school senior, Mary Jo did an internship as a legal secretary in a Portland law office for school credit. She caught a city bus in the late morning from Gresham High School to downtown Portland (a 45-minute ride). When she graduated, the firm offered her a job. She accepted and went on to work for various private law firms over the next seven years, including a stint at the then-named Miller Nash Yerke & Wiener LLP. Ironically, her future boss Judge Michael Mosman began his Portland legal career at Miller Nash, but Mary Jo’s time there did not overlap with his.

Judge Solomon’s Chambers

Mary Jo Peters and Judge Gus Solomon. Photos courtesy of Mary Jo Peters.

She left the private legal world for the federal courts in 1982 at the urging of her friend, Pam Lohrie, who worked for the Clerk of Court and later became the director of human resources. Judge Gus Solomon’s long-time judicial assistant retired in 1980, and Judge Solomon refused to replace her. Instead, he would ask Clerk’s Office staff to help him out. Since Judge Solomon (and nearly everyone else in the legal community at that time) relied heavily on secretarial help, it turned out to be a lot of filling in. The clerk finally convinced Judge Solomon to hire a judicial assistant, and Pam asked Mary Jo if she wanted to come in for an interview. Judge Solomon met with Mary Jo and hired her on the spot. The two got along well (even though Mary Jo was convinced he didn’t remember her name). Judge Solomon and his wife Libby attended Mary Jo’s wedding, much to the delight of the star-struck state court judge who kept reminding everyone Judge Solomon was in the audience and could barely perform the wedding!

Mary Jo remembers the chambers lunches Judge Solomon hosted every month or so for all the other judges. It was quite an event. Libby Solomon would bring in homemade Jewish dishes, including matzo ball soup, and Mary Jo and the judge’s law clerks spent hours setting up, serving food, and washing dishes. Mary Jo worked for Judge Solomon for four-and-a-half years until he passed away in February 1987. [Please click below to continue to page 2]

White House Appoints U.S. Attorney Billy J. Williams to Continue to Serve the District of Oregon

By U.S. Magistrate Judge Stacie F. Beckerman

U.S. Attorney Billy J. Williams.

On March 13, 2018, Chief U.S. District Judge Michael W. Mosman administered the oath of office to U.S. Attorney Billy J. Williams in Courtroom 16, shortly after Williams learned that President Donald J. Trump had signed his presidential commission. The U.S. Senate confirmed Williams’ nomination on March 7, 2018. A formal investiture will follow in June.

Williams, an 18-year veteran of the U.S. Department of Justice, was named the Acting U.S. Attorney for the District of Oregon in May 2015, following the resignation of U.S. Attorney S. Amanda Marshall. Attorney General Loretta E. Lynch appointed Williams as Interim U.S. Attorney in December 2015, and Chief Judge Mosman re-appointed him as Interim U.S. Attorney in February 2016. Prior to serving as U.S. Attorney, Williams was First Assistant U.S. Attorney, and had worked as the chief of the criminal division and chief of the violent crimes unit. Scott Bradford, the current chief of the fraud unit, reflects that “Bill’s steady hand during times of transition within the office and his tireless outreach within the community have kept the important work of this office moving forward.”

Before his federal service, Williams served as a senior deputy district attorney in Multnomah County. As a deputy district attorney, Williams prosecuted major crimes of violence, including aggravated murder, adult and child sex offenses, domestic violence, narcotics trafficking, vehicular homicide, and officer-involved shootings. Scott Asphaug, the current First Assistant U.S. Attorney and former criminal defense lawyer, notes that Williams and he have “been both opponents and partners in court” and “Bill has always been the same—a straight shooter who respects the law.”

During his tenure as U.S. Attorney, Williams has served on several Attorney General advisory subcommittees, including the Native American Issues Subcommittee, Civil Rights Subcommittee, Border & Immigration Subcommittee, Domestic Terrorism Executive Committee, and the Marijuana Issues Working Group. Williams is a member of the Ninth Circuit Fairness Committee and the District of Oregon Implicit Bias Steering Committee. Williams received his bachelor’s degree in criminal justice from Washington State University in 1981, and his law degree from the Willamette University College of Law in 1989.

Prior to entering the management ranks at the U.S. Attorney’s Office, Williams earned his reputation for hard work and building relationships when he served as the district’s Indian Country Assistant U.S. Attorney and Tribal Liaison. Kelly Zusman, current chief of the appellate unit, reflects that “[p]articularly with his many years of work handling Indian Country cases, Bill handled extremely sad and difficult cases with compassion for the victims and the affected community; he was unflappable.”

Williams’ experience, work ethic, and thoughtful leadership have earned him the respect and support of his team of assistant U.S. Attorneys. He has grown that team during his tenure by hiring experienced assistant U.S. Attorneys from other districts. Thomas Edmonds, current chief of the drug unit, states that he “can think of no more distinguished, hard-working and steady of colleagues than Bill Williams.” Zusman adds that “[f]or those of us who work with him, Bill inspires us to do more and to be better lawyers by recognizing our work and appreciating our time and effort….It’s an honor to be a part of his team.”