Oregon State Bar Bulletin JANUARY 2016
Profiles in the Law
The Judge’s Judge:
Edward Leavy Garners the Federal Judiciary’s Highest Honor
By Cliff Collins
One week he is in Texas doing a mediation, the next in San Francisco hearing motions. In a three-month period in late 2015, he was on the job every day. At 86 years old, Edward Leavy is still working, still going strong.
Leavy, a senior judge since 1997 of the 9th U.S. Circuit Court of Appeals, continues making an impact. “Our appointment is for life,” he says simply. “The commitment is to do the best you can.”
His judicial career of 58 years and counting, which includes service on both federal and state courts as well as what became a second career as a nationally recognized mediator, was acknowledged Nov. 13 in a special ceremony in the U.S. Supreme Court with what is considered the federal judiciary’s highest honor: the Edward J. Devitt Distinguished Service to Justice Award.
Often referred to as the Nobel Prize for the judiciary, the Devitt Award honors an Article III judge who has achieved a distinguished career and made significant contributions to the administration of justice, the advancement of the rule of law, and the improvement of society as a whole. A committee of federal judges, which this year was chaired by U.S. Supreme Court Justice Clarence Thomas, made the selection.
“Judge Leavy could well be the best-respected Oregon jurist of the last several decades,” says Richard G. Spier, 2015 Oregon State Bar president, who appeared before Leavy many times, represented clients in settlement conferences he conducted, and served with him on a committee revising the local rules of the court. “In all instances, I was impressed by Judge Leavy’s patience, judicial demeanor, lack of pretension, legal knowledge, and what he enjoyed calling his practical ‘barnyard knowledge,’ learned while growing up on the family farm.”
As his colleagues on the 9th Circuit noted in nominating him for the award, Leavy has made his mark as an outstanding judge, but also “his true genius has been in the role of mediator. He is the judge to whom chief judges and colleagues turn to solve difficult, complex cases of national importance. Members of the bar seek him out to resolve their disputes when no one else can. ... Ed is the quintessential judge’s judge, the best of our profession, and is an inspiration of excellence for the bench and bar.”
Leavy has successfully mediated and settled prominent civil and criminal cases that drew national media attention. An example was his overseeing the settlements of hundreds of suits related to the 2000-2001 Enron case that affected California and Pacific Northwest residents. The settlements resulted in refunds to ratepayers of more than $8.5 billion.
Other noteworthy mediations include negotiating a plea agreement in a 1999 case involving Wen Ho Lee, a New Mexico scientist accused of mishandling the nation’s nuclear secrets; settling lawsuits from 2004-09 by the Confederated Tribes of the Warm Springs Reservation claiming trust mismanagement by the federal government; and settling multiple suits and obtaining substantial compensation for pensioners after a massive investor fraud case involving Capital Consultants in 2000 in Portland.
The latter Ponzi scheme case, which constituted the epitome of complex litigation, gives him the most satisfaction of his many accomplishments. It involved civil and criminal lawsuits, class actions, law firms, accounting firms, and over 100 attorneys from throughout the country, representing “the warhorses of the profession,” he says. It amounted to “a house of cards,” as Leavy puts it. Because of the complexity of the case, any of the lawyers involved could have extended litigation for a decade and run up “horrendous attorney fees,” he says. “Instead, we never had to try one of these cases,” and “bit by bit” settled the cases in 18 months, with $150 million changing hands without a single deposition, and plaintiffs recovering 72 cents on the dollar.
“My pride in that was to be a lawyer, because that whole group of lawyers tried to resolve the problems,” he says. “So it is that one that I am most proud of, because it was so dependent on the professionalism of all those lawyers. On top of that, there is no residual conflict in the bar as a result of it.”
Portland attorney Stephen F. English, who represented plaintiffs in the Capital Consultants case, stated in testimony before a U.S. Senate committee that Leavy’s work in the case had proved “nothing short of brilliant in his ability to move the parties forward.” English, who has known and worked with Leavy for over three decades, says Leavy “epitomizes the character, professionalism, integrity and demeanor of the ideal federal judge.” Further, “Judge Leavy is revered by the lawyers in Oregon and anyone who has had the opportunity to meet him, work with him, and get the benefit of his incredible skills.”
Growing Up on a Farm
Leavy is a native Oregonian, raised as the youngest of 10 children on a 300-acre hop farm in Butteville, just south of Wilsonville. The family’s home had no electricity for the first few years of his life, and his Irish immigrant father, who was 24 years older than his wife, died when Leavy was 11.
Leavy got early experience doing mediation when his older brothers’ disputes sometimes came to drunken fisticuffs. Four of his brothers ended up becoming alcoholics. Seeing how alcohol affected them, at age 16 “I made up my mind I would never drink,” he says. In retrospect, he says, he could have ended up just like them, and he made the right decision. His mother determined that Leavy would be the first child to go to college, because, he explains, by then the economy was better and he was able to do it. Even though at the University of Portland he majored in business administration, Leavy had a strong interest in philosophy, and he took a number of courses in that subject in addition to the required religion courses at the Roman Catholic school.
Leavy was 16 when World War II ended, and about half of his classmates in college were veterans. That exposure to “all these mature people,” coupled with acquiring a work ethic and learning responsibility by growing up on a farm, served as advantages to his development, he feels. He first learned to drive a tractor and pull a large combine at age 13, and by 18 he was steering a farm truck into downtown Portland to hire and haul men to work on the farm. “It was a privilege to experience those things,” he says.
Leavy went to the university year-round and completed his degree with honors in just three years. He says his religious faith affects the way he relates to people of all walks of life; he has maintained close ties to his church and parish. The Archdiocese of Portland appointed him as the first lay member of its school board, and Leavy also serves on the board of the Red Mass of Oregon. In 2008, the University of Portland awarded him an honorary doctorate for his service to humanity.
Leavy finished fourth in his law school class at the University of Notre Dame and married his wife, Eileen, after his first year. After obtaining his law degree, the couple returned to Oregon to begin raising a family. Leavy first practiced briefly with a law firm in Eugene before becoming a deputy district attorney in Lane County.
Although Leavy says he never aspired to become a judge, at the age of 27 he was appointed by the governor as a trial judge for the Lane County District Court, becoming the youngest judge in the state. At 31, he knocked on 3,000 doors and beat an incumbent judge to join the Lane County Circuit Court for a six-year term. He ran unopposed for two additional terms, and he also served as a justice pro tempore on the Oregon Supreme Court. In 1976, the judges of the U.S. District Court for the District of Oregon selected Leavy to be one of the first federal magistrates in the state. He explains that the three district judges at the time wanted to make the magistrates able to try civil cases with the consent of the parties “before there was any law that allowed it. As that went on, what was being done in Oregon became the model for the nation.”
In 1984, President Ronald Reagan nominated Leavy to serve on the U.S. District Court for the District of Oregon, and three years later, the president elevated Leavy to the 9th U.S. Circuit Court of Appeals. Four years after taking senior judge status, U.S. Chief Justice William Rehnquist appointed Leavy to a seven-year term on the U.S. Foreign Intelligence Surveillance Court of Review.
At his first meeting of the 9th Circuit, the judges were holding discussions about the court’s needs 25 years out. At the end of the meeting, Leavy learned that the court was several months behind in handling motions. He told his new colleagues that if it were up to him, he would recommend solving how to tackle the backlog of motions rather than worrying about what was going to be needed 25 years hence. He suggested having staff attorneys orally present proposed dispositions for motions and screening cases to a three-judge panel. His idea became so successful that the court eliminated the backlog within one month, and Leavy’s method has been used at the 9th Circuit ever since. “We keep our motions current, with no more than a 30-day turnaround on motions,” he says.
Humble and Impartial
Friends and colleagues describe Leavy as modest and down-to-earth, with a good sense of humor. In a letter to the Devitt Award selection committee, Oregon Supreme Court Justice David V. Brewer calls Leavy “an Oregon treasure” and “a tireless teacher of lawyers and judges.”
“I have seen no finer judge or human being on the bench,” Brewer writes. Leavy is diligent and possesses “the common sense that everybody talks about but few of us come by naturally. ... Despite his legendary accomplishments, he is as humble and plain as the boy from the Marion County hop farm that he always will be. He is the best mentor and most shining example of judicial excellence that Oregon has ever produced.”
Former Gov. Ted Kulongoski, who first knew Leavy in 1970 when Kulongoski was a law clerk and had just come to Oregon, writes in his award endorsement letter of Leavy: “I have yet to meet another person who so ably combines good citizenship, professional skill and judicial temperament. ... He is intelligent, learned, fair and compassionate. Beyond that, he is a kind and gentle man.”
Fellow 9th Circuit Judge Diarmuid F. O’Scannlain, who has worked for 28 years in the same Pioneer Courthouse where Leavy’s office is located, writes: “Ed Leavy is unique. No other judge with whom I’ve had occasion to interact possesses in one being his dignity, sagacity, humility, warmth and gentle humor.” O’Scannlain adds that Leavy is “utterly unpretentious,” as well as respectful and collegial with others even if he disagrees with their positions. “Indeed, he is the quintessential country lawyer in style and demeanor, yet is smarter than all of us.”
For the past 15 years, the Leavy family has hosted on their family farm an annual picnic for the U.S. District Court of Oregon Historical Society. The Leavy farm was recently designated by the state of Oregon as an “Oregon century farm,” meaning a family-owned, working farm for more than 100 years. One of the Leavy sons continues to grow hops and filberts. The well-known picnic, held each August, is attended by Oregon judges, politicians, OSB presidents and other dignitaries and their families.
Reacting to his recognition of the Devitt Award, Leavy says: “I am overwhelmed by the kind and generous statements of those who nominated me and those who supported my nomination.” After being notified by Justice Thomas that he had won, Leavy says: “My first reaction was one of humility. I know personally some of the people who were previous recipients or knew them by reputation. There are judges who have received this award who have had worldwide, lasting impact on the judiciary in the country. That’s pretty joyous.”
Asked how he would like to be remembered, Leavy recounts how he learned as a young man campaigning for a judicial seat that “the population doesn’t want their judges to be controversial or have a bunch of causes, or to worry about how their case is impacted by those causes.”
“The lesson I learned is that you do the best you can,” and when you make a ruling, never focus on what people will think about it or the effect of your ruling. He hopes that he has demonstrated throughout his long career that “I did not show any kind of favoritism to any group of people or to any cause.”
ABOUT THE AUTHOR
Cliff Collins is a Portland-area freelance writer and frequent contributor to the Bulletin. Reach him at email@example.com.
© 2015 Cliff Collins