Oregon State Bar Bulletin — OCT0BER 2004

Oregon Legal Heritage
A tribute to the Hon. Malcolm F. Marsh
By Kelly Zusman

On the Second Floor of the Mark O. Hatfield U.S. Courthouse at the entry to the jury assembly room is a bas relief featuring the kind and thoughtful image of Judge Malcolm F. Marsh. The idea for the relief itself came from U.S. General Services Administration and its desire to honor the man who is primarily responsible for court’s input into the design and features of the courthouse that has since served as a model for other federal courthouse designs across the country. The placement — right near the jury assembly room rather than the main lobby — was Marsh’s decision. And that decision reflects just a small part of Marsh’s philosophy about justice and his respect for the jury system and the jurors who serve in his courtroom.

Take the north elevators to the 15th floor and walk across the glass-walled lobby and get a good look at the Park Blocks below. During the courthouse design process, Marsh insisted upon a large, light filled area where litigants could take a break from court proceedings and have enough light and space to "cool off" and seek respite, however temporary, from the stress of court proceedings. Litigants on the 9th floor are especially fortunate, for that floor opens to an outdoor park and courtyard featuring whimsical bronze sculptures. Little bronze laptop computers with hands and feet dance around the trees, chased by beavers dressed as attorneys wielding pencils. Walk through the trees and benches, and you will come upon a bronze courtroom scene — complete with an owl (not spotted) serving as judge, a cat in the defense box with a feather dangling from the side of his mouth and a jury of dogs and birds in various stages of attention.

The top floor of the building has one large ceremonial courtroom and reveals more signs of Marsh’s influence: three hand-woven tapestries created by an Oregon artist. Marsh insisted that the federal courthouse for the District of Oregon must include some representation by an Oregon artist; Judith Paxon-Foxe, a brilliant local weaver, was chosen for the project. Her first piece is nearly 18 feet long and depicts the Columbia River Gorge that separates Oregon and Washington. The second piece (of the same size) includes trees and flowers indigenous to the state. The third, located just outside the courtroom, uses vibrant colors to display a "blind justice" while the fourth is an outline of the state of Oregon.

If you return to the 15th floor, take the hallway on the south side of the building to Marsh’s chambers. The walk from the main lobby to chambers is lined with windows set at eye level. On a clear day you can see Mount St. Helens, Mount Adams and the tip of Mount Rainier. If it’s cloudy, turn your attention to the black and white photographs on your left depicting fishing scenes from Oregon around the turn of the century.

At the end of the hallway, walk into Marsh’s chambers and you are greeted by a spectacular view of the east side of Portland. The Willamette River, frequented by everything from kayaks to sternwheelers to naval ships, is just three blocks away. Five miles east, you can see the tree studded park of Mount Tabor. Further east, the symbol of Oregon, Mount Hood, rises majestically. Return your view to Marsh’s office and you slowly begin to realize that you are surrounded by the essence of Oregon. For in fact, you are in the presence of a man who fully represents the finest elements of the state and its people. On his shelves, you will find a hand-carved loon, a photograph of the Portland waterfront circa 1930 with the Stephenson Co. building in the foreground. (George R. Stephenson was Marsh’s grand father.) On the window sill is a photograph of Celilo Falls before The Dalles dam was erected. In a drawer of his desk, find a compass believed to have been used to lay out the original baseline for subsequent state surveys. And immediately behind his desk chair, you will find about a dozen photographs of Marsh’s wife, children and grandchildren. Three of his grandchildren are fifth generation born in Oregon.

Malcolm F. Marsh was born in Portland in 1928 and moved with his family to McMinnville in 1935. From his mother’s side of the family, Marsh traces his Oregon ancestry to the early 1850s. On his mother’s paternal side, Marsh’s Stephenson grandparents arrived in Oregon from Vermont in the early 1850s via a covered wagon on the Oregon Trail. Stephenson Road, near Mountain Park, was the original site of George Stephenson’s hop farm. His great-grandparents (the Roberts) sailed out of Boston Harbor in 1859 bound for Ponape Island in the South Pacific. They founded a Congregational church (which survives to this day), and later settled in The Dalles in 1868. Marsh’s grandmother Anna was born in The Dalles in 1869. Malcolm inherited a breakfront that his great-grandmother carried with her on a covered wagon; Malcolm’s brother Roger received a chest that sailed around the horn with the Roberts. Their mother was born in a Victorian-style house that still stands in the Lair Hill neighborhood in southwest Portland.

Marsh’s father Francis practiced law in McMinnville Oregon for more than 50 years. Briefly, during the prohibition years, Francis prosecuted bootleggers for the U.S. attorney’s office. Francis had an identical twin brother named Gene who was also a lawyer and who served as president of the Oregon Senate in 1953. Both brothers served a term as president of the Oregon State Bar. Frank and Gene went to law school together and told stories about taking tests for one another and sharing train tickets because they looked so much alike. A mutual friend once claimed that he could tell the two apart because Gene’s nose had been broken in a fight and angled slightly to one side. Gene never had children, but he and his wife were so close to Frank and his family, that Marsh and Roger felt like they grew up with two fathers.

Growing up with two hardy Oregonian lawyers meant lots of fishing, hunting and outdoor activities. Frequent visits to a rustic cabin in the Steens Mountains and other trips provided a childhood that taught Marsh the intimate details of the geography of the state. Today, when law clerks and externs for Marsh want to know where to go hiking, camping or fishing, they’ve come to the right person. Marsh knows the state like most of us know our own homes, and he can direct a person to just the right spot to catch a steelhead on the Rogue River, or the best place to make camp in Central Oregon.

Marsh served in the Army in Japan in 1946-47 and returned to Eugene for law school. It was there that he met a tall, slender sorority girl with bright blue eyes named Shari Long. They married in 1953 and recently celebrated their 50th wedding anniversary. Son Kevin arrived in 1958, followed by daughters Carol and Diane.

After graduating from the University of Oregon in 1954, Malcolm went into private practice with his father - briefly. The monthly pay of $300 was a bit tough on the young couple, and Malcolm soon found in Salem the man who would be his partner for the next 33 years: Ned Clark. Malcolm quickly became an accomplished trial lawyer specializing in products liability cases and eventually attracting large clients like Volkswagen, Armstrong Cork Company, the PLF and numerous insurance companies. In 1979 he was inducted into the American College of Trial Lawyers.

In the late 1950s, Malcolm struck up a friendship with Sen. Mark Hatfield. When an opening came up for a federal district judgeship in Oregon (due to the ascendancy of Judge Edward Leavy to the 9th Circuit Court of Appeals), Sen. Hatfield was by then well aware of Malcolm’s impeccable reputation in the legal community — both for his skill as an advocate and his high ethical standards. Marsh was an obvious choice for the position and his confirmation was swift and without controversy.

Appointed in 1987 by President Ronald Reagan, Marsh took the bench and adapted to a caseload that included everything from arresting vessels to deciphering the reverse doctrine of equivalents in patent cases. He very quickly earned a reputation for his hard work and diligence in deciding cases and issuing opinions. Litigants were not always happy with the results, but Marsh consistently won praise for the clarity of his reasoning and the promptness with which he made his decisions. Marsh has a gift of being able to get to the heart of an issue, seeing things that others may have overlooked and asking just the right questions. He is also known as a judge who has the grace to admit when he is wrong and promptly correct any error.

In his tenure on the bench, Marsh is probably best known as the "salmon judge," because he presided over state and tribal fisheries management in United States v. Oregon, and oversaw the first cases filed under the Endangered Species Act that challenged operation of the Columbia River Power System after several salmon species were listed as endangered in 1992. His other notable cases include: high school drug testing in Vernonia; the criminal prosecution of the followers of the Bagwhan Shree Rajneesh; prosecution of the principals of the Ecclesia Athletic Association child abuse case; and trade dress and punitive damage claims involving the Leatherman Pocket Survival Tool. Throughout his tenure, Marsh has been a mentor for many law clerks and externs, teaching thoughtfulness, humility and the grace that comes from hard, honest work and thorough preparation. Jurors are also particularly fond of the judge who routinely held informal contests during voir dire to see who had the most grandchildren.

Marsh took senior status in April of 1998. A bright, creative mind needs continual growth and challenges, and Marsh has turned his attention to wood working, theological studies, fishing the Rogue and, most importantly, more time with his family. He represents the best that this country and, more particularly, the state of Oregon have to offer. He is, in the finest sense, a true son of the State of Oregon. He has, and continues, to make the rest of us proud to be Oregon lawyers.

Kelly Zusman is a former career law clerk to Marsh and currently works as an assistant U.S. attorney in Portland. This article appeared in the July 2004 issue of The Federal Lawyer.

© 2004 Kelly Zusman

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