Oregon State Bar Bulletin OCTOBER 2013
In October 2013, Chief Judge Rick Haselton will swear in three new judges who will fill three newly created positions on the Oregon Court of Appeals. The addition of those new positions represents the first expansion of the court in more than 35 years and brings the total number of judges on that court to 13. That expansion seems a fitting occasion to reflect back on the origins of Oregon’s busy, important — yet largely anonymous — intermediate appellate court.
For the first 110 years of the state’s history, no state court of appeals existed. In fact, as originally created by the state’s parsimonious founders, circuit courts as such didn’t exist either. The state’s court system consisted of four justices, each of whom did double duty as both circuit and Supreme (actually, in the original constitution, it’s “Suprume”) Court judges. The judicial-power article of the constitution provided that the double-duty system would continue until the state’s population exceeded 200,000 white persons, at which point the legislature would be authorized to create a separate set of circuit courts. Interestingly, the legislature did not wait, and, in 1878 — when the state’s white population was a mere 150,000 — split the court system in two, authorizing the governor to appoint three Supreme Court and five circuit court judges. No one ever challenged the failure of the legislature to meet the constitutional population milepost. Go figure.
Over time, the numbers of both circuit and Supreme Court judges increased to meet the increased demands of a litigious and growing state population. By 1968, the number of trial judges (district and circuit) totaled 85, while the Supreme Court had grown to seven.
Those judges were a busy lot, particularly on the Supreme Court. According to the Chief Justice’s Annual Report for calendar year 1968, the number of appeals to the Supreme Court had grown from 394 in 1960 to 629 in 1968. To keep up with the workload, the court came to rely on the regular assistance of circuit judges sitting on a pro tem basis. During 1968, for example, the Supreme Court issued over 345 opinions, 74 of which were written by pro tem judges. That figure meant that each of the justices was drafting an average of nearly 40 opinions each year, at a time when the American Bar Association was suggesting that a reasonable expectation was closer to 30.
The Creation of the Court of Appeals
The increasing workload, and the prospect that it would only get worse in the coming years, led Chief Justice William Perry to create a committee to study the matter. The committee readily concluded that the workload was unsustainable by the appellate court system as currently configured. The committee recommended the creation of a five-member intermediate court of appeals.
Why five? According to Supreme Court Justice Ralph Holman, a member of the committee, it was simple arithmetic. The American Bar Association recommended an expectation of no more than 30 opinions per judge, per year. The total of 345 opinions (the number that the Supreme Court wrote in 1968) divided by 30 came to roughly 12 judges. That meant, Holman explained, that the committee could recommend either increasing the Supreme Court to 12 members or creating a new court of appeals consisting of five. The committee rejected the former option as unwieldy and inefficient, which left the latter. Voila!
There was the question of the new court’s responsibilities. The committee contemplated routing all appeals through the new intermediate appellate court and converting the Supreme Court entirely to a court of review. That idea was rejected, however, out of concerns for costs. “It was apparent that we couldn’t get a court of appeals across the board,” Holman later recalled. The committee had to be content to “get the camel’s nose under the tent” and wait until later to expand the jurisdiction of the new court. The answer, again, was simple arithmetic. The committee took the workload of the Supreme Court and divided it into two piles: 42 percent (five-twelfths) to the new court of appeals and 58 percent (seven-twelfths) to the Supreme Court. According to a study of the Supreme Court’s caseload over the preceding seven years, the relative share of appeals from criminal, probate, domestic relations and administrative law cases totaled 42 percent. So the committee proposed to assign those to the new court. Herbert Schwab, a former Multnomah County circuit court judge and pro tem judge on the Supreme Court, had a slightly more cynical spin on the selection of the new court’s cases: “The Court (of Appeals) got the stuff nobody wanted.”
The committee’s recommendation to create a five-person court of appeals was introduced to the Oregon Legislature in 1969. With the support of the Oregon State Bar, the Supreme Court and Gov. Tom McCall, the recommendation sailed through the House Committee on Judiciary, to which the bill had been referred. The committee sent the bill to the floor with a do-pass recommendation with only one dissenting vote. (In the small-world department, one of the committee members voting in support of the bill was then-state representative and future chief justice, Wallace P. Carson Jr.)
The next stop was the Ways and Means Committee where the bill — and its price tag of $573,000 — had something of a cooler reception. After an 8-to-5 vote in favor of the bill, however, it went to the House floor, where it was approved by a vote of 50 to 4.
On the Senate side, the bill received the unanimous endorsement of the Senate Committee on Judiciary (again, in the small-world department, the motion to recommend the bill was offered by then-Senator and future Justice, Ed Fadeley and was supported by, among others, then-Senator and future Justice, Berkeley Lent) and went to the Senate floor, where it was approved by a vote of 28 to 1. On May 17, 1969, Gov. McCall signed the bill into law, which went into effect on July 1.
There remained the business of deciding who would be on the new court. The legislature had authorized the governor to appoint all five of the new judges, each of whom would stand for election at the next general election. Gov. McCall made the appointments immediately, with twin considerations of judicial experience and geography foremost in his mind. He selected Schwab to be the court’s first chief judge. He then added Ed Branchfield, who was the governor’s legal counsel and originally hailed from Medford; Robert Foley, a circuit court judge from Bend; William Fort, a circuit court judge from Eugene; and Virgil Langtry, a circuit judge from Portland.
The Court’s Early Years: 1969-77
The new court inherited 302 cases from the Supreme Court’s backlog, cases that had waited an average of 150 days from the completion of briefing to be set for argument. The court scheduled the cases for argument and set itself to the task of eliminating the backlog.
During its first six months, the court sat as a single five-judge panel. The court set up quarters in the first floor of the Supreme Court building and, in a practice that continues to this day, borrowed the Supreme Court’s courtroom for the oral arguments. The court made good on its goal of deciding its cases with dispatch. The first case — Green v. Haugen, a domestic relations appeal — was heard on July 7, 1969, and the court issued its decision a little over six weeks later. By year’s end, the court had cleared entirely the 302-case backlog that it had inherited from the Supreme Court and had reduced the time from briefing to argument from five months to one.
One problem quickly became obvious, however. The estimates of the Supreme Court’s caseload that had been used to divvy up the work between the two appellate courts turned out to be rather inexact. The calculations about the numbers of criminal cases, in particular, had been woefully underestimated. As a result, the new court soon was awash in criminal appeals. As Chief Judge Schwab saw it, the problem was that a good percentage of those criminal appeals were without merit and didn’t warrant the expenditure of court resources to write an opinion that said just that. To address the problem, Schwab later recalled, “I sold the court on the fact that we had to start affirming these without opinion. We just couldn’t keep writing nonsense.” The court briefly entertained the idea of consulting with the bar about the proposal, but Schwab nixed the idea, explaining that “if we did that, we’d be talking about it until we were long dead. So we just did it.” One morning, at the end an argument, the court simply announced from the bench that it would be affirming the case without issuing an opinion. Reportedly, the lawyer on the losing side said as he walked through the swinging doors of the courtroom, “Well, at least I’ll get my fee in a hurry.” Thus was born the AWOP.
The new judges had to stand for election. All save one were returned to office, the exception being Branchfield, who was defeated by former Attorney General Robert Thornton. In the meantime, the court split into two panels — called “departments” — of three judges each, with Chief Judge Schwab presiding over each panel. That quickly became untenable, and, in 1973, the legislature authorized the creation of a sixth position on the court so that two panels could operate without requiring the chief judge to sit on both. Gov. McCall appointed Portland lawyer Jake Tanzer to fill the new position.
Tanzer, of course, had to stand for election at the next general election, in 1974. He drew an opponent, controversial Portland lawyer Jason Lee, who defeated him in the primary election that spring. Tanzer’s campaign sued Lee for what it alleged were fraudulent statements during the election, statements that attributed certain unpopular decisions of the court to Tanzer personally. A jury found in favor of Tanzer, but the Oregon Supreme Court later reversed. Meanwhile, a Tanzer write-in campaign in the November election failed to bear fruit, and Lee took the bench the following year. In an odd twist of Oregon political fate, two years later, Gov. Bob Straub appointed Tanzer to the Court of Appeals a second time, to fill a vacancy created by the retirement of Robert Foley. Lee and Tanzer not only served on the same court during the next four years, but also served on the same panel. (Lee died Feb. 19, 1980, while still in office, at age 64.)
Under Schwab’s leadership, the new court quickly became known for its productivity, if not its collegiality. Schwab was known to remark that “you can’t be a good administrator unless you’re prepared to be a sonofabitch.” And by all accounts, Schwab filled the bill in both respects. Stories about Schwab — “old grumbleguts” to the staff — and his brusque nature are legion. According to one lawyer quoted in an Oregonian article about the court, Schwab was “crude, sexist and crass.” According to another, quoted in the same story, “Oregon is lucky to have a man like him.” Among the most familiar complaints about Schwab was his practice of turning his back to lawyers during oral argument to signal that he was done listening to them. (Schwab, by the way, later recalled the practice without apology. “Some people thought that they have to fill up their time, even if they have nothing to say,” he explained. “But we had to move things along.”)
The court became a victim of its own success. In the six years following the creation of the court, its caseload more than tripled, from 500 in 1970 (the court’s first full year of operation) to 1,847 in 1976. The increase in cases was due to a number of factors: population growth and a concomitant increase in appeals, the adoption of no-fault divorce by the legislature and new Oregon and U.S. Supreme Court decisions expanding the rights of indigent criminal defendants to appellate redress. The Court of Appeals responded by requesting that the legislature authorize the creation of two more positions on the court in 1977.
The legislature, apparently happy with the performance of the court, decided that more drastic measures were required. It first decided to expand the Court of Appeals’ portfolio to include virtually all appeals in all types of cases. Then, to help the court with its even greater workload, the legislature authorized the addition of four new judges.
Chief Judge Schwab recalls that the governor gave him and Justice Holman “very much of a hand” in the selection process, particularly in the selection of George Joseph, then Multnomah County counsel, and W. Michael “Mick” Gillette, then the state’s solicitor general. Holman and Schwab called Joseph, who had a reputation for being somewhat “acerbic,” and told him that the process would take about three months. “We told him,” Schwab later recalled, “that he had a good chance, if could just keep his damned mouth shut for three months.” Meanwhile, the two judges put in a call to the hirsute Gillette, recommending that “he ought to shave that big damned beard and get a grey flannel suit.” Gillette did just that. But when he showed up a couple of days later, suited and clean-shaven, Schwab and Holman “told him to call the barber up and see if he still had that hair around and could put it back on.” John Buttler, a business lawyer in private practice, was the third appointment. With the addition of civil cases to the court’s docket, the appointment of a lawyer with experience in private law was seen as a necessity.
The fourth appointment went to state Sen. Betty Roberts. Gov. Straub knew Roberts from her work in the legislature (she was, among other things, a co-sponsor of Oregon’s famous Bottle Bill) and was very interested in appointing her to the bench. He called her and offered her the choice of an appointment to the trial bench or to the Court of Appeals. “Without hesitation,” she later recalled, she chose the appellate court, being attracted to the challenge and the variety of the court’s cases. Her appointment represented the first of a woman to the Court of Appeals and, in fact, on any Oregon appellate court. (She went on to be the first woman to serve on the Oregon Supreme Court, as well.)
For the next 35 years, the court’s number remained stable at 10 judges, divided into three panels of three judges each, with the chief judge working as the administrator of the court and routinely substituting for other judges on an as-needed basis. During those three and one-half decades, 29 additional judges have been appointed or elected to fill the 10 seats on the court. George R. Joseph served as the court’s chief judge following Schwab’s retirement in 1981 until his own retirement in 1992. He was succeeded by William L. Richardson, Mary J. Deits, David V. Brewer and Rick Haselton, respectively. Among those who have served on the Court of Appeals are 14 past or present members of the Oregon Supreme Court and one judge of the U.S. Court of Appeals for the 9th Circuit.
Although the court’s number remained stable, its work did not. It continued to grow. And grow. By 1983, the number of appeals had grown to 3,500. In an article published in this Bulletin that year, then-Chief Justice Ed Peterson remarked of the Court of Appeals, “Man, they do work hard. They read briefs, opinions and other materials at every opportunity. They are serious about their work. Unfortunately, they have little else to be serious (or happy or sad or grateful) about, for they have time for little else.”
By the early 1990s, the number of appeals exceeded 5,000. By 2009, the number of appeals dropped back to its mid-1980s levels, at around 3,500 per year — still nearly double the number of appeals that precipitated the expansion of the court in 1977. The court issued more than 2,100 case dispositional decisions and issued 503 authored opinions.
In 2009, then-Chief Judge Dave Brewer commissioned a study by the National Center for State Courts (NCSC) on the workload of the Oregon Court of Appeals. In brief, the study concluded that, “(b)y any accepted measure,” the court remains “one of the busiest, most productive and most overworked, appellate courts in the nation.” The study concluded that, for the court to meet the demand of its current workload — not taking into account expected growth in the court’s work — would require an additional 3.4 judges and associated staff. (The study concluded that meeting anticipated future demand without sacrificing the court’s quality and timeliness concerns could require as many as a dozen new judges and associated staff.)
Armed with the NCSC workload study, the Oregon Judicial Department requested that the legislature authorize the expansion of the Court of Appeals to 13 judges. In 2011, the Legislative Assembly responded to the call for help. It passed House Bill 4026, which expanded the number of judges on the court to 13, effective October 2013, and authorized the governor to fill the positions by appointment. “We are profoundly grateful,” said Chief Judge Brewer in his 2011 annual report, “for the wise investment that the legislature has made in public justice,” by responding to the court’s workload needs. And, as of this writing, Gov. Kitzhaber and his staff are in the process of evaluating the applications of nearly 50 lawyers and judges for the three newly authorized positions.
Back in 1983, when writing of the judges on the Court of Appeals, Chief Justice Peterson mused, “I have scratched my head and said to myself, ‘Why do they do it?’ I don’t know, but we are lucky to have them.” We are, indeed. And we are soon to be lucky to have three more.
ABOUT THE AUTHOR
Jack Landau is an associate justice on the Oregon Supreme Court. He served on the Oregon Court of Appeals from 1993-2010. Special thanks to Derek Simmons, who — while a law clerk at the Court of Appeals — recorded interviews with Justice Holman and Chief Judges Schwab and Joseph. Thanks also to Sarah Walinsky-Harrington for much research assistance.
© 2013 the Hon. Jack Landau