Oregon State Bar Bulletin — JULY 2004

Oregon Legal Heritage
The life and times of Gene Marsh
By Rod Bunnell

Gene taught me something about country lawyers.

Maybe you think all smart, ambitious attorneys head for the big cities, with the best and the brightest going on to Wall Street or Washington, D.C. If that’s true, then the small town lawyers must be the leftovers, the ones who are a little slower and have to be satisfied with half a loaf. A lot of people would agree with that, but if I ever catch myself slipping into that opinion I just remember Gene. Over the years since I first met him it’s been my lot to work with or against some of the heavy-weights of the legal profession, including men and women in the nation’s largest and most famous firms. But none of them is any smarter, more competent or more successful than a fellow who spent most of his life practicing law in a sleepy little town in a back corner of the Oregon’s Willamette Valley.

To be fair, Gene was never “just” a small town lawyer. There are dullards in the country just as there are in the cities, but he wasn’t one of them. In addition to a busy law practice he took a leadership role in his profession, had a uniquely successful career as a state legislator, and was a regional power in business and finance. In addition he was widely known as a man who played and told stories with the same gusto he brought to his work.

The last time I visited with Gene was at the banquet following the annual meeting of the Oregon State Bar. He and his twin brother, Frank, were among those being honored for having practiced 50 years. Gene and Frank had both served as president of the bar, so they were the stars of the 50-year class. The identical twins bought matching suits for the occasion. About half way through the evening they began trading name badges with each other, causing great confusion among their friends. I was lucky to be one of the few who could tell them apart. They were notorious saloon fighters in their younger days, and both of them had sustained numerous broken noses. What I noticed the first time I saw them together was that their noses hadn’t healed the same. Gene had a hump in his nose like Dick Tracy’s, and Frank had a Bob Hope style ski-jump nose. So when they started charging drinks in the wrong name and making people think they were buying one for the other brother, I could keep track of who was who. It was typical of their pranks, a little strenuous for the occasion but harmless and good natured.

I first met Gene the year I started law school. I was working full time and going to school at night, and the president of the company decided I should be our lobbyist at the state legislature. Gene had been on the board of directors, but he was at the end of his term. He agreed to stay on for another year, though, and show me the ropes. Gene had several other legislative clients in connection with his law practice and he enjoyed being around the sessions. We agreed to meet at the state capitol building three mornings a week so I could watch him in action.

With Gene at the legislature
The first thing Gene had me do was attend every meeting of the House committee with primary jurisdiction over our business. He introduced me to the chairman and told him what I would be doing, and then he suggested to the speaker of the House that all the bills relevant to us should go to that committee. Since I sat through all the hearings, including those that didn’t relate to us, I came to realize that everything in the legislature really does relate to everything else. If a member couldn’t get cooperation on a measure that was important to him, he might get even by doing something illogical on a bill that was important to one of his colleagues. The second bill might be one we needed, but we couldn’t get the necessary votes unless we could bring the two members together on an issue we wouldn’t have paid any attention to otherwise. I finally decided this was what Gene was after. He could have managed our bills very easily without having me follow all the committee hearings, but it would have taken a lot longer to teach me this basic truth about legislatures just by telling me about it.

Gene testified on a bill for us before a Senate committee, and one of the senators made a personal attack on him. This particular senator had a special dislike for our industry, and I had a lot of trouble with him in later years. He told the committee that Gene was prostituting the prestige he had earned as a former legislator in order to get a few tainted dollars from an undesirable client. He went on to say that our company tried to buy influence with the legislature by hiring big shot expensive lawyers to overwhelm the committee. Our chairs were against the side wall of the hearing room, and Gene gradually began to hitch his chair around toward me and away from the committee. Then he moved a little cross-wise in his chair and twisted his shoulders a little. With all these moves in combination he had turned completely away from the committee and had the senator talking to his back. His expression didn’t change except for some red around the ears, and it looked to the rest of the room as if he was explaining some technical point to me. The senator clearly got the message, though. Later Gene told me “What he said was uncalled for and unprofessional. I wouldn’t give him the satisfaction of answering back or leaving the room, but I wanted to let him and everybody else on the committee know what I thought of him.”

Gene truly knew everything there was to know about the legislature. He had served in both the House and the Senate, and was one of the few people in the state’s history to have been presiding officer of both bodies. Also, his service had been recent enough that he knew nearly all the personalities, not just as a fellow politician but as a good friend. He said his best legislative accomplishment was establishing the Emergency Board. As he explained it, “The state constitution says the agencies can’t spend any money unless the legislature appropriates it. But the legislature only meets every two years, and circumstances change between sessions. If something comes up so a department needs some money in between times, the governor has to call a special session. We tried to appropriate some extra money to give the governor a discretionary fund to use in these cases, but every time we did, the supreme court said it was unconstitutional. Finally we came up with the idea of appointing a committee of senators and representatives and calling it the Emergency Board. That made it a state agency, so we could appropriate money to it, but it was part of the legislature so it could pass the money on to any of the regular departments that needed it. The supreme court went along with the idea, and the legislature has done it at the end of every session since.”

Almost governor, three times

Gene said he really liked politics, except for one part. “I like local politics, and state politics, and national politics, and legislative politics, and every other kind of politics except election politics. I hated having to run for office. If it weren’t for having to keep running, I might still be in politics.”

The one thing Gene wanted in politics but didn’t get was being governor. He said, “I would have been a good governor, one of the best the state’s ever had. Three times I missed being governor by just a hair’s breadth. The third time it happened I decided maybe I wasn’t supposed to be governor, and quit trying.

“The first time was when Earl Snell was killed. I had been in the House and finished my term as speaker, and then ran for the Senate. I was elected, and just after I was sworn in, Gov. Snell was killed in a plane crash. The president of the Senate was on the trip with him, and he was killed too. The speaker of the House was next in line, and if it had happened a week earlier, that would have been me.

“The next time was when Doug McKay became Secretary of the Interior. Eisenhower had promised during the campaign to appoint him, and Doug had agreed to resign as governor. The president of the Senate was next in succession to the governorship. I was in the Senate, and I had lined up the votes to be elected president as soon as the legislature convened in January. Ike agreed to delay Doug’s appointment until after I was elected, but then he changed his mind. He wanted his cabinet in place when he was inaugurated, so Gov. McKay had to resign ahead of schedule. Doug went out of office before I was president of the Senate, so Paul Patterson became governor instead of me.

“The third time was when Paul decided not to run for re-election. The Republican leaders around the state decided I would be the best candidate to succeed him, so they put out the word that I should begin collecting funds for a campaign. We got together at the Arlington Club in Portland to work out he details. Gov. Patterson came to the meeting to make it clear that I had his blessing, but right in the middle of the meeting he had a heart attack and died. Elmo Smith was president of the Senate, so he moved up to be governor. Since Elmo was already in office we obviously had to get behind him and try to get him elected (and not confuse the voters with another candidate). That was my last chance, and I haven’t run for anything since.”

Going for the gold
I mentioned to Gene that Sen. Ken Jernstedt from Hood River had been a good friend of my father. Ken came through Hood River shortly after the Second World War ended, and Dad persuaded him to invest in the local bottling company and settle down. Ken had been one of the “Flying Tigers,” the American pilots who flew for the Chinese before the U.S. entered the war. (They were the ones who painted teeth beside the air scoops of their P-40s to make them look like shark mouths.) The Chinese paid them in gold, $500 a month, plus $500 for each victory. Ken was one of the top aces, so he came home with a substantial amount of gold. Gene said Ken had come to him when he first got home, to see how much gold the government would let him keep. Ken had grown up on a farm near the town where Gene practiced, and the family had been clients for years. Ken had joined the Marines after he finished college, and earned his wings as a fighter pilot. Then he and a number of other young flyers were allowed to resign their commissions so they could fight for the Chinese. The “American Volunteer Group” was disbanded after Pearl Harbor, and most of the members transferred to the Army Air Corps. Ken had contracted malaria, though, and didn’t qualify so he spent the rest of the war as a civilian test pilot. The problem he brought to Gene was how to convert his Chinese gold into American currency. As Gene told the story, “His dad brought him to the office with this big bag of gold coins. It was illegal even to own gold, so I knew he had to get rid of it. What I didn’t know was how much of it the state and federal tax people would allow him to keep. Depending on how they read the rules, they could have got away with most of it.

“I decided we’d just as well hit them head on, so I told him to come back in his full uniform with all the medals he was entitled to wear. When he came back he was decked out like a comic opera admiral. The Chinese Air Force wore blue uniforms, and Ken had all the medals, sunbursts, and gold braid you could squeeze onto it. This was right at the start of the war, and people at home hadn’t seen a lot of uniforms. There weren’t many heroes yet because the war hadn’t been going very well, and the stories about the Flying Tigers were almost the only good news we had heard. So I took Ken to the state treasurer’s office in Salem and the Internal Revenue Service office in Portland just as he stood, in all his finery. He was a tremendous hit. The officials asked him to come through and shake hands with all their staffs, and go out to lunch or come home to dinner with them. When they got down to our business, they couldn’t do enough for him. He got his gold converted to U.S. currency, and came away with more of it than I could justify by any reasonable reading of the tax laws.”

Helping the eagles soar
Another story Gene told about his law practice had to do with the Fraternal Order of Eagles, a lodge in his home town. The F.O.E. is patterned after the Masonic Lodge, like the Elks and the Moose and all the similar organizations, but it draws most of its membership from young blue-collar laborers. It is known as a working man’s lodge. When the Second World War started almost all the Eagles in Gene’s home town went into the service, and the club only had four or five active members left. Gene had done some legal work for one of them, so the entire membership came to his office and asked him how they could dissolve the club until after the war. Gene listened to their story, investigated the club and then made them a counter-offer.

“What I told them was that I would join their lodge and guarantee its continuation, if they would make me chairman of the membership committee. They agreed and I went out and signed up all the other lawyers, the doctors, the bankers, the business leaders, the college professors and all the other substantial men in town. You see, what I’d found out was that the Eagles owned one of the main downtown office buildings, free and clear. The lodge hall was on the second floor, along with a dining room and kitchen and a store room for the costumes and swords and stuff. But the ground floor was all prime retail space. I renegotiated the leases, and the income covered all the club’s expenses with a good deal left over. We used the excess to redecorate the club rooms and set up the best restaurant and bar in town, all substantially free to members. ‘Come on over and have lunch, and then we’ll play a little cribbage. It’s the best game in town. In fact it’s the only game in town. The Baptists pretty well run things here, and you can’t buy a drink except in a private club.’”

The story was entirely true, as I heard from other sources. This particular Eagles’ club was, unlike any other, the prestige social organization in town, the one all the people on the way up wanted to join. When the original members came back from the war, Gene and his friends made them welcome. A few of them didn’t like the new atmosphere, but most of them enjoyed it. And some of them gained real success out of having the most influential men in town as lodge brothers.

The one drawback with this arrangement had to do with the lodge’s ritual. From time to time state or national officials would visit the local chapter and expect to see the members putting on initiations and doing other secret work. Like all lodges, the Eagles have long and involved ceremonies for various occasions, in which members wear ornate costumes and give lengthy speeches from memory. Gene and his friends were weak on this aspect of fraternal activity. As he explained it, “We weren’t interested in the part where you put on the old fashioned clothes, walk around in circles and give speeches. We had joined the lodge for a place to have fun and get a free lunch. So when the brothers showed up from Portland for the ceremonies we would meet them at the door, explain about our free bar, and pour them a drink. Then we’d keep on pouring drinks into them for as long as they could stand. When they passed out we had a bedroom behind the kitchen where we could put them to bed. The next morning one of us would wake them up, give them some breakfast, and tell them what a great ritual they’d put on the night before -- ‘You sure looked good in your grand uniform. I’ve never heard the dedication speech recited better.’”

Gene’s memory of these occasions may not be entirely accurate, because the version I heard from one of his fellow members is slightly different: According to his friend, “It was probably the funniest thing I ever saw. Picture old Gene wearing a 16th century court outfit with baggy tights and a hat with a feather that keeps getting in his eyes, reading a speech that’s printed inside his hat and pretending that he has it memorized, and trying to walk with a sword that keeps getting between his legs, and all this time he’s about half in the bag. That’s something you’re never going to forget.”

His law practice

I visited Gene’s office several times during the years we worked together. He and Frank practiced with two other lawyers and a junior associate. They seemed to have most of the legal business in town. They represented the city, the schools, the municipal electric company, the college, the local insurance company and of course the Eagles Lodge. They also had a lot of ordinary people as clients. Gene told me one time that all this business caused ethical problems with possible conflicts of interest. He explained that a lawyer can’t even give the appearance of representing both sides of the same issue, nor can any of his partners or associates. “With so many of us in the same firm and doing most of our business in the same town, we have to be careful to keep from running into ourselves coming and going.”

Gene was involved in more than just legal practice. One time when I went to see him he took me for a drive through an area which had been swampy waste land at the edge of town. It had been drained and developed into an industrial park. Most of the lots had been sold to small manufacturers or “think-tank” type concerns, giving the town a whole new employment base. Gene didn’t say exactly how he had been involved in the development, but it was obvious that he had been a major mover.

And Gene’s activities weren’t limited just to his home town. When we decided we needed to do joint marketing with a life insurance company we looked up the most aggressive and successful of the new companies in the region. We asked to meet with their principal officers, and when we got together there was Gene acting as general counsel and secretary of their board. As he told the story later, his home town undertaker came into his office to talk about organizing a prepaid funeral plan with some other funeral directors across the state. Gene said he looked up the law, and “I told him the only safe way to do it was to organize a life insurance company. And once they had it organized there was no point in limiting it to funeral plans. It could do that business, but there are lots of other opportunities for insurance companies to make money. I knew a couple of insurance executives who were ready to run their own business, so we hired them and decided to see how far we could push it.” The company came on to hard times later, but while Gene was involved it was a high flyer and earned a lot of money for the funeral directors -- and for Gene.

Even though he could wheel and deal among the big time operators, Gene recognized that some aspects of his practice could only happen in a country town. “Like the time I defended the old farmer accused of raping his daughter-in-law. His story was that he was drunk most of the winter, and this girl moved in after the wedding, and she made a habit of running around the house half naked, and one thing led to another. He had been in some kind of property trouble and had a bad reputation around the courthouse, and the prosecutor was talking about sending him to the penitentiary. That didn’t seem right to me. He was a mean old fellow, but he was the only one in the family strong enough to hold the farm together. If he was in prison for a year the whole family would be on welfare. They had a hearing in court and the family doctor who examined the girl was there. He and I were visiting and he said ‘I could do a little cutting on him and he wouldn’t be a risk for that particular crime any more.’ He was probably kidding, but it sounded possible to me. I asked the judge to bring all of us into his chambers to talk about it.

“The old man thought it was a good idea. He said ‘I’ve had enough of that stuff. It’s time I quit anyway.’ The son and daughter-in-law said they thought they could all get along on the farm if the operation calmed the old man down. When the doctor realized we might take him seriously, he got worried about whether the surgery would be ethical. He called up a couple of other doctors at the hospital and they said it would be okay if the judge ordered it. The prosecutor said it would be all right with him if the judge agreed. Finally the judge said ‘Gene, you draw up an order and by God I’ll sign it.’ I’ll bet there aren’t many lawyers in Portland who have written an order like that.”

Neighbor to justice William O. Douglas
Gene put the same energy into recreation as into work, and his play was just as strenuous as his practice. When I first knew him he had a summer place and horse operation in eastern Oregon next to the Wallowa Wilderness Area. The next ranch over was owned by Associate Justice William 0. Douglas of the U.S. Supreme Court. Naturally Gene and Justice Douglas spent a lot of time together when they were both on vacation, and you will find Gene in Douglas’ book about Western men and mountains. According to Gene, “Sitting around a camp fire, Bill Douglas was the best guy you’d ever want to meet. He could do anything that had to be done with a horse or around camp, and he’s one of the world’s best story tellers. It’s hard to believe he could be such a bad Supreme Court justice.”

When I finished law school and prepared to take the state bar examination, I found that you have to submit an application signed by three practicing lawyers who certify to your character and integrity.

Recommended to the bar
I called Gene and asked if he would sign for me. He agreed, and invited me to come out to his office. After we did the paperwork Gene took me to lunch at the new country club. Gene and his friends had built the club for much the same function the Eagles Lodge had once performed. The special feature of the bar was Gene’s innovation, the “Bull Shot,” a cup of beef bullion with a shot of vodka. He assured me that it didn’t leave any trace on your breath, and it gave you as much nourishment as a bowl of soup.

I think Gene was pleased that I asked him to sign for me. You can’t put much personal information in your application, and this gives the bar examiners an idea of the kind of lawyers who approve of you and think you are significant. A few candidates have asked me to sign their applications in later years, and I’ve always been glad to do it.

I always think of Gene when I sign, and I hope the new lawyer has as much success and as much fun with the law as he did.

Copyright © 2004, Roderick Bunnell, Portland.

© 2004 Rod Bunnell

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