The First Duty: A History of the U.S. District Court of Oregon.

I. INTRODUCTION

The First Duty: A History of the U.S. District Court for Oregon(1) is a project of the U.S. District Court of Oregon Historical Society, founded in 1984.(2) Edited by Carol M. Buan and with an introduction by historian Terence O'Donnell, the book is an illustrated collection of essays on the history of the United States District Court for the District of Oregon. Readers with an interest in Oregon history, legal history, or both will find much here, in a highly readable format, to further that interest.

Each essay addresses a distinct time period in the history of the state and of the federal court. In the essay entitled "Oregon's First Federal Courts, 1849-1859," Caroline P. Stoel, adjunct associate professor of law at Portland State University, describes the era of the Oregon Territory and the earliest federal judicial appointments. Next, Professor Ralph James Mooney of the University of Oregon School of Law discusses "The Deady Years, 1859-1893." Following that essay is a description of "The Years of Growth, 1893-1927," co-authored by Todd A. Peterson, a Portland lawyer in private practice, and Jack G. Collins, a lawyer in the United States Attorney's office for Oregon. Randall B. Kester, also a Portland lawyer in private practice, examines "A Time of Change, 1927-1950." Finally, Laurie Bennett Mapes, a faculty member at the Northwestern School of Law of Lewis and Clark College, describes "A Period of Complexity, 1950-1991." In all, The First Duty portrays more than a century and a half of federal adjudication in Oregon.

Despite its ambitious scope, the book provides a pleasant journey through that chronology. The chapters helpfully divide into discrete areas of discussion, the prose is generally clear and concise, and the text highlights numerous accounts of lively and interesting episodes in the history of the court and of Oregon itself. For those seeking more detail, ample footnotes provide guideposts to additional travels through the landscape of Oregon's federal judicial history. My own tour through that landscape revealed several significant features.

II. THE INFLUENCE OF POLITICS AND PERSONALITY

First, each of the essays in this book, whether intentionally or not, discloses the significant effect of politics and personalities on the judicial process. Politics and personality influence both the selection of federal judges and their performance on the bench.

As the book reveals, being appointed to a federal judgeship has always been a largely political process. Evidence for this is found in the earliest days of the Oregon Territory, when Judge William P. Bryant was appointed, in the words of Caroline P. Stoel, "as a reward for supporting [James K.] Polk's successful 1844 campaign for the presidency,"(3) or from the modern era, when, for example, McCarthy-era allegations of Communist sympathies nearly derailed Judge Gus Solomon's confirmation by the United States Senate.(4)

The authors also reveal how the business of judging reflects the political and personal persuasions of individual judges, sometimes to the peril of the judicial process itself. Fortunately, the more negative examples spring largely from the early days of the federal court. As a member of the Oregon territorial court, for example, Judge William P. Bryant acquired a financial interest in the infamous McLoughlin land claim, the rightful ownership of which ultimately would have to be settled by a lawsuit in his district.(5) During that same period, Judge Orville C. Pratt was actively involved in numerous financial dealings in the state, including the sale of timber and other merchandise--conduct that, as Stoel points out, would be considered unethical today.(6)

Despite their frailties and foibles, as portrayed in this volume Oregon's federal judges generally have performed well.(7) The representative cases described in the book show readers how, using their personal visions of what is right, those judges charted a course for legal progress.

III. DIVERGENT CONCEPTS OF JUSTICE

Another theme that pervades the book is that, in every time period, opposing political perspectives and interest groups have struggled for dominance over Oregon's political landscape, including its federal courts. For example, disputes between labor and management appeared frequently in the district court's cases of various periods. In 1921, Judge Charles Edwin Wolverton enjoined picketing by striking longshoremen, possibly resulting in the union's concessions that swiftly followed.(8) According to co-authors Peterson and Collins, a resurgence of unionism on the West Coast did not occur until passage of the National Recovery Act of 1934.(9)

Another long-standing struggle in Oregon involved racial minorities. Discrimination against racial minorities was part of Oregon's political fabric from the earliest time of white settlement, as demonstrated by various acts of the territorial and state legislatures and by early provisions of the state constitution.(10) The federal judicial response to the issue included close scrutiny of such legislation in the late 1800s by Judge Matthew P. Deady, who not only consistently condemned racial discrimination from a moral point of view but also sought, and frequently found, relief for its ill effects in federal law.(11)

By contrast, in 1850, Judge Orville C. Pratt was unsuccessful in preventing the questionable conviction and execution of members of the Cayuse Indian tribe for the murder of territorial missionaries.(12) Similarly, during World War II, Oregon's federal judiciary was unable to mitigate the harsh effects of anti-Japanese sentiment, as illustrated by the case of United States v. Minoru Yasui,(13) in which the federal district court convicted a U.S.-born individual of Japanese ancestry (who was a graduate of the University of Oregon School of Law) of violating a law establishing a curfew for persons of Japanese ancestry.(14)

Thus, The First Duty illustrates an obvious attribute of courts: no decision pleases everyone, either in the opposing litigants' immediate sphere or in the larger society. The volume also makes readers aware of evolving attitudes toward political and social issues, and toward the concept of justice itself.

IV. STATE-FEDERAL JUDICIAL RELATIONS

A third theme is the ongoing tension between the state and federal judiciaries in Oregon. Areas of law illustrating that conflict have included land claims, admiralty law, and proceedings related to prisoners' rights.

Land claim litigation began early in Oregon, stimulated in part by the initially uncertain relationship between the Federal Public Lands Act of 1844 (also known as the Townsite Act),(15) which precluded private claims within towns and cities, and the Oregon Donation Act,(16) passed by Congress in 1850, which granted settlers title to parcels of land. It fell to Judge Matthew P. Deady to decide, in author Mooney's words, that Congress "had intended the latter act for unsettled regions, not one like Oregon with extensive settlements, a provisional government, and even its own land law."(17) Similarly, Judge Deady decided the limits of federal admiralty jurisdiction in cases involving mistreatment of foreign seamen, contracts for shipbuilding services, liability for shipped goods, seamen's wage claims, and claims for personal injury or death on the high seas.(18)

Beginning in the 1950s, a variety of state prisoners' rights issues arose in the federal district court. A 1963 decision of the Supreme Court of the United States, Fay v. Noia,(19) opened the door for state prisoners to seek habeas corpus relief in the federal courts. In 1973, in Delorme v. Pierce Freightlines Co.,(20) the federal district court struck down Oregon's "civil death" statute, under which felons lost all civil and political rights.(21) On several occasions, the federal district court has adjudicated claims regarding conditions in the state's prisons.(22) Thus, the United States District Court in Oregon has, at times, used federal supremacy to oversee, and even to thwart, the operation of state law.

V. LAND AND THE ENVIRONMENT

Finally, environmental and natural resources matters have figured prominently in the history of federal adjudication in Oregon. The prominence of land-claim and land-fraud cases in the early history of the federal district court already has been mentioned. The district court has also impacted the development of agriculture in Oregon. For example, during the 1940s, the court considered contract claims between hop growers and buyers(23) and, following the construction of Bonneville Dam and the concomitant development of industry, claims arising from the effects of aluminum production on cattle.(24) Other claims involving the environment include a case to stop the spraying of herbicides in the Siuslaw National Forest;(25) a case involving the siting of the Mount Hood Freeway;(26) a case involving the construction of the Elk Creek Dam;(27) and numerous cases involving timber cutting, particularly in national forests.(28)

The reason for the prominence of cases involving land and the environment is straightforward. Natural resources have been frequent subjects of federal litigation in Oregon simply because Oregon has had a resource-based economy. Thus, these claims tell us about what Oregonians do.

In addition, such claims are interesting because they reveal the character of the typical settler in Oregon--the so-called "Eden seeker." As Terence O'Donnell points out in his introduction to this volume,(29) such individuals, who originally came to Oregon with a sense of appreciation of (and, I would add, desire to exploit) its natural environment, later turned to the court for protection of that environment. Reasons for that shift include the pressures of a growing population and the increasingly urban character of the state, the latter depriving residents of their everyday enjoyment of nature but giving them an incentive to conserve the natural environment.

Thus, although it primarily is concerned with the endeavors of the federal judiciary in Oregon, this volume also reveals a great deal about the character of the Oregon citizen. For a further example, it appears that Oregonians' sense of natural superiority over their southern neighbors also appeared early in the state's history. Judge Deady apparently declined to settle in California because he disapproved of the effects of gold-mining on a region's development.(30) Folklore has it that the trail west was marked with written signs leading to Oregon but mere chunks of ore pointing toward California,(31) possibly encouraging the formation of a more literate populace in this state. Such character traits of both judges and litigants in Oregon's federal district court form an intrinsic part of that court's fascinating story.

VI. CONCLUSION

The First Duty takes its title from a statement by Alexander Hamilton: "I think the first duty of society is justice."(32) In my opinion, the authors and editor of this book have carried out their duty of justice as well--justice to the estimable and interesting history of the federal district court in Oregon and to those readers seeking information on that topic.

(1.)THE FIRST DUTY: A HISTORY OF THE U.S. DISTRICT COURT FOR OREGON (Carolyn M. Buan ed., 1993) [hereinafter THE FIRST DUTY].

(2.)Katherine H. O'Neil, Preface to THE FIRST DUTY, supra note 1, at vii, vii-x.

(3.)Caroline P. Stoel, Oregon's First Federal Courts, 1849-1859, in THE FIRST DUTY, supra note 1, at 1, 9.

(4.)Laurie Bennett Mapes, A Period of Complexity, 1950-1991, in THE FIRST DUTY, supra note 1, at 223, 269-70.

(5.)Caroline P. Stoel, Oregon's First Federal Courts, 1849-1859, in THE FIRST DUTY, supra note 1, at 24-25. The dispute involved a "successful conspiracy" to deprive John McLoughlin, chief factor of the British Hudson's Bay Company's Department of the Columbia, of valuable property in Oregon City. Id. at 22-23.

(6.)Id. at 11.

(7.)For example, several judges sitting on the Oregon district court, including Gus J. Solomon and Matthew P. Deady, played an active role in the protection of minority rights. See generally Ralph James Mooney, The Deady Years, 1859-1893, in THE FIRST DUTY, supra note 1, at 63; Laurie Bennett Mapes, A Period of Complexity, 1950-1991, in THE FIRST DUTY, supra note 1, at 223.

(8.)Todd A. Peterson & Jack G. Collins, Years of Growth, 1893-1927, in THE FIRST DUTY, supra note 1, at 127, 158.

(9.)Id. at 159.

(10.)See Ralph James Mooney, The Deady Years, 1859-1893, in THE FIRST DUTY, supra note 1, at 63, 104-17.

(11.)Id. For example, in Baker v. City of Portland, 2 F. Cas. 472 (C.C.D. Or. 1879) (No. 777), Judge Deady held invalid a state law prohibiting the employment of Chinese laborers on public works projects. Id. at 107-09.

(12.)Caroline P. Stoel, Oregon's First Federal Courts, 1849-1859, in THE FIRST DUTY, supra note 1, at 36-43.

(13.)48 F. Supp. 40 (D. Or. 1942).

(14.)Randall B. Kester, A Time of Change, 1927-1950, in THE FIRST DUTY, supra note 1, at 173, 186-89.

(15.)Law of May 23, 1844, ch. 17, 5 Stat. 657 (1844), repealed by Act of July 1, 1864, ch. 205, [sections] 5, 13 Stat. 343.

(16.)Law of September 27, 1850, ch. 76, 9 Stat. 496 (1850), repealed by Act of April 29, 1950, ch. 134, [sections] 4, 64 Stat. 93.

(17.)Ralph James Mooney, The Deady Years, 1859-1893, in THE FIRST DUTY, supra note 1, at 70.

(18.)Id. at 78-88.

(19.)372 U.S. 391 (1963).

(20.)353 F. Supp. 258 (D. Or. 1973).

(21.)Laurie Bennett Mapes, A Period of Complexity, 1950-1991, in THE FIRST DUTY, supra note 1, at 241.

(22.)Id. at 241-44. See, e.g., Capps v. Atiyeh, 495 F. Supp. 802 (D. Or. 1980), vacated and remanded 652 F.2d 823 (9th Cir. 1981), on remand 559 F. Supp. 894 (D. Or. 1982), in which Judge James Milton Burns considered conditions in Oregon state prisons.

(23.)Randall B. Kester, A Time of Change, 1927-1950, in THE FIRST DUTY, supra note 1, at 199-200.

(24.)Id. at 200-01.

(25.)Laurie Bennett Mapes, A Period of Complexity, 1950-1991, in THE FIRST DUTY, supra note 1, at 255-56.

(26.)Id. at 256-57.

(27.)Id. at 257-59.

(28.)Id. at 259-62.

(29.)Terence O'Donnell, Introduction to THE FIRST DUTY, supra note 1, at xi, xxiii.

(30.)Ralph James Mooney, The Deady Years, 1859-1893, in THE FIRST DUTY, supra note 1, at 64.

(31.)Id. at 117 n.5.

(32.)THE FIRST DUTY, supra note 1, on dust jacket.