NEWS STORY Team Supreme Oregon's high court plays catch-up. BY MAUREEN O'HAGAN mohagan@wweek.com

When the Supreme Court hears oral arguments, the justices enter the courtroom in order of seniority.   Carson, the chief justice and most senior member of the court, sits in a chair that's slightly higher than his six colleagues' chairs.   During oral arguments, white and red lights on a lectern tell lawyers when their time is up.   Sometimes the Court of Appeals must hear oral arguments in a makeshift courtroom in the Capitol building.

The Oregon Supremes:profiles of the judges This is the second installment of a two-part story. It's not exactly a locker-room dress-down from the coach, but the Oregon Legislature is clearly sending a message to the state Supreme Court. Lawmakers, frustrated that the court isn't making ballot-title decisions quickly enough, are contemplating giving Team Supreme a 30-day deadline to do the job. The ironic thing is that, comparatively speaking, the court moves relatively quickly on ballot titles. While these cases are decided about 90 days after the initial paperwork is filed with the court, it takes 541 days, on average, for the court to decide civil cases, 472 days for tax cases and 695 for bar discipline cases. In fact, the time between case filing and decision has grown by 50 percent since 1994 ["Justice Delayed," WW, April 21, 1999]. Chief Justice Wallace Carson Jr. has proposed a number of changes to speed things up, but some causes of the court's slothlike pace are rooted in tradition and personalities and aren't so easily fixed. Part of the problem has to do with the very nature of appeals courts, where the outcome of a case isn't up to one judge alone. Instead, it's decision by committee. "State supreme courts are making almost all of their decisions [as a group]," explains Roger A. Hanson, a national expert on state courts. "And what does that give rise to? Disputes. That's your key there. One of the best predictors of whether a case is decided quickly is the degree of agreement among the justices." In Oregon, with a high court of seven members, things are made more difficult because the state has a lofty goal--to strive, whenever possible, for unanimity. You think Lance Ito had it bad during the O.J. Simpson case? Imagine being part of a seven-member court where your colleagues--all of them--act as your editors. Retired justice Edward Fadeley commented on the problem in a footnote to a decision in 1993. "At times, that is a bit like participating in a seven-legged sack race where all the participants, each with one leg in the same sack, must cross the finish line together," he wrote. The starting line--or at least the part of that line that is public--is oral argument, during which lawyers on both sides stand up and present their cases. Unlike trial court, however, there is no jury. Nor can the lawyers question witnesses. Instead, the justices get to question the lawyers, and the discussion then moves behind closed doors to a weekly Tuesday conference, where the opinion-writing duty is assigned to one of the judges who is in the majority. Then comes the part that seems most strange to outsiders, the part that's most rooted in tradition and constrained by forced formality. Carson goes around the table in order (each justice sits in the same seat each week) asking each justice for an update on the opinion or petition he or she is working on. (He sometimes shakes things up by going counterclockwise or starting in the middle.) Justices are prohibited from interrupting each other. Instead, a justice must ask the speaker whether he will yield the floor before interjecting an opinion. Most of the time, the speaker will yield. Judge Edward Warren, who served on the Court of Appeals for 18 years before his recent retirement, says that's in sharp contrast to the style of the Court of Appeals. "We work together to try to get cases decided," he says. "We're more interested in getting it done fast, right, than fighting and having personalities. It's sort of like a Socratic debate. We get in there and talk to each other and interrupt. The Supreme Court is more formal and more rigid, and there's more pride in authorship. We have a group of kids that like to play." Some court watchers say that teamwork approach is one reason Oregon Court of Appeals judges last year issued more than five times the number of opinions their brethren on the high court did. Carson agrees that the Supreme Court is more formal than the Court of Appeals and has been since current rules were adopted back in the '80s. He believes it makes the process more fair. "Let me assure you, before we adopted the rule, everybody talked at once," he said. "It doesn't squelch the discussion. Quite the contrary. It allows the quietest or most thoughtful of us to have equal time and make a response. This system works." Still, there are flaws in the process. One is that any single justice could hold up another's opinion simply by objecting to it. "That can be a problem, and it has been a problem," Carson says. "The author is not very happy about having his or her opinion held up while somebody who doesn't agree with him or her is writing [a dissent]. We know there are people counting out how long it takes to get a case out." The court adopted a rule several years ago to limit the holdups. Now, if the objecting justice doesn't submit a written dissent within 21 days, his new cases get put on hold, and he's the one who will be embarrassed when the public thinks his decisions take too long. But even if a justice isn't dragging his or her feet, dissents make things more difficult for the court. This was evident in the person of Justice Ed Fadeley. Fadeley, who retired early last year after being accused of sexual harassment, was said to be a divisive influence on the court, an iconoclast who authored many dissenting opinions. Retired Justice Richard Unis was also a frequent dissenter. "Part of the problem was chemistry, and I think that's changed," says lawyer Laura Graser, who handles many appeals. Carson says that last year the court had fewer dissents than at any other time in the recent past, an indication of the court's cohesiveness. Without Fadeley and Unis--and with the addition of Leeson, who is said to be a hard worker--the pace of the court should be picking up as well. "I think they're all of judicial temperament now," says one lawyer. "They're more likely to disagree in less strenuous terms. I think things will pick up now." - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Willamette Week | originally published April 28, 1999

The Oregon Supremes Profiles of the judges.   WALLACE "WALLY" CARSON JR. Chief Justice Route to the Big League: Republican legislator 1967-1977. Marion County circuit court judge 1977-1982. Appointed to the high court in 1982. Became chief justice in 1991. Stance: None of the justices strays too far from the center, but compared with his colleagues, Carson bats primarily from the right. Slugging Percentage: The author of the opinion that threw out a victims' rights initiative, Carson rocked the world of prosecutors statewide. 1998 Stats: Wrote five opinions. One opinion, on a criminal case, took 28 months to produce. Scouting Report: Chief Wally has two full-time jobs: He's a judge and a court administrator, so his low stats are a bit deceiving. He also gets points for being a heck of a nice guy. "He is one of the fairest and most personable people you'll ever meet," says state public defender Dave Groom. But as the team leader this may work against him. (Remember what Leo Durocher said about "nice guys.") "He's not the type of person who's going to strong-arm other people," says Greg Chaimov, legislative counsel. Given the need to speed up the team's productivity, it may be time for Carson to learn to kick some butt.   MICHAEL "MICK" GILLETTE Route to the Big League: The only Ivy Leaguer on the high bench, Gillette got his law degree from Harvard, then went into private practice in Portland. He went through a series of trades--bouncing from deputy district attorney to assistant attorney general to solicitor general--before becoming a Court of Appeals judge in 1977. Nine years later, his solid performance got him drafted to the state's high court. Stance: Mick "the Stick" leads the right-swinging contingent of the bench. Slugging Percentage: Gillette is the court's heavy hitter and often writes its most important opinions. He's the author of PGE vs BOLI, a benchmark case. 1998 Stats: The Mark McGwire of the court. A consistently high producer, he wrote 27 opinions last year. Scouting Report: Gillette is perhaps the most conservative of the bunch, but that doesn't mean he's on the radical right by any stretch. Instead, his philosophy is better labeled as libertarian. He's often described as the sharpest member of the bench--both in terms of brainpower and personality. He has a reputation for asking lawyers the tough questions during oral arguments. ("It's one of the privileges of rank," he told one last year.) And his powers of persuasion are said to be without equal during deliberations.   GEORGE VAN HOOMISSEN Route to the Big League: One of three justices to first reach the high bench through a competitive election, he began serving in 1988. Before that, he played at both politics and law, going from state representative (1959-1962) to Multnomah County district attorney (1962-1971), to circuit court judge (1973-1981). Then it was off to the Court of Appeals from 1981 to 1988. Stance: Switch hitter. Van Hoomissen is tough on crime, but he can be a swing vote in other matters. Slugging Percentage: Van Hoomissen didn't write any of last year's major decisions, but that doesn't mean he's a weak stick. 1998 Stats: Seven opinions last year and one dissent. Scouting Report: He looks the part of justice, but Van Hoomissen's stern façade may mask another side. Surprisingly, he's a guy who mows his own lawn. Still, 1998 was an off year for a justice who usually produces more opinions. Some suspect he's getting ready to retire.   ROBERT "SKIP" DURHAM Route to the Big League: Practiced labor law for 17 years (part of that time as a partner in a firm with fellow bench warmer Kulongoski) before joining the Court of Appeals in 1991. He was drafted to the high bench in January 1994. Stance: A left-handed hitter, he's the justice most likely to shake things up on the court. Slugging Percentage: As the justice who's most often in the minority, he doesn't get much of a shot at writing the most important opinions (that duty goes to a justice in the majority.) 1998 Stats: Seven majority opinions and five dissents. One opinion was three years in the making; another was so confusing he had to issue a supplementary opinion two months later. Scouting Report: Durham is proof that hard labor pays off--as long as it's a lawyer doing the laboring. Many observers say he won his appointment because he has an affinity for unions. He's also considered to be brainy. Where he does fall short is in his speed. "Well-liked but slow," one lawyer says. Others were less complimentary. "A procrastinator, even back when he practiced law," says another.   THEODORE "TED" KULONGOSKI Route to the Big League: Whupped intellectual Court of Appeals Judge Rex Armstrong in a 1996 contest and took office in January 1997. No surprise there--The K Man is among the most widely-known names in Oregon politics. He was a state legislator from 1974 to 1983 and subsequently chaired numerous governors' task forces. In 1987 he became director of the state Department of Insurance and Finance, and in 1993 he became attorney general, a job he called "the best position in the state for a lawyer." Stance: In the day-to-day world, he's seen as swinging more left than right, but as a born-and-bred politician, Kulongoski knows how to play the middle ground effectively. Slugging Percentage: Kulongoski hasn't made much of a mark yet, partly because he's barred from participating in decisions that crossed his desk as attorney general. 1998 Stats: Seven opinions last year, including one two-pager that was a year in the making. This guy's batting in the low .200s. Scouting Report: With no judicial experience, little trial-court work, and no past demonstrated interest in the intellectual side of the law, he's the one justice who seems out of place. Some expect him to make a mad dash back to politics, partly because the world of handshakes and negotiating seems a better fit for Kulongoski's personality than the heady, intellectual world of appellate law.   SUSAN LEESON Route to the Big League: A faculty member at Willamette University from 1970 to 1992, she taught politics and law before joining the Court of Appeals in 1993. She joined the state high court's roster in March 1998. Stance: Leeson bats slightly to the left of the most experienced members of Team Supreme, but since she hasn't written a single dissent, she's obviously not rigid about it. Slugging Percentage: Leeson wrote a death-penalty opinion last year, one of the most complicated types of cases the court handles. Because she served on the Court of Appeals, she's barred from participating in some decisions, so it's too early to tell how much power she'll have. Stats: Wrote eight opinions. Scouting Report: Expect to see more playing time for Leeson. Once the cases she heard on the Court of Appeals are pushed through the pipeline, Leeson promises to be a workhorse of the magnitude of Gillette. Described as the "most down-to-earth" justice by public defender Dave Groom, she was called a "breath of fresh air" by lawyer Laura Graser after her appointment. Former justice Edwin Peterson calls her a "superb judge."   WILLIAM "BILL" RIGGS Route to the Big League: Riggs came out on top in a tough May '98 primary battle against four other candidates. Set to square off against Bob Tiernan in November, Riggs took his seat a few months early after Tiernan dropped out of the race. Before that, he was a Court of Appeals judge (1988-1998), a trial-court judge (1978-1988) and before that a lawyer in private practice. Stance: A former plaintiff's lawyer, he's seen as more liberal than conservative, although during the 1998 primary he ran ads that made him appear tough on crime. Maybe we'll see another switch-hitter. Slugging Percentage: Riggs is just beginning his rookie season on the high bench, so we'll have to wait and see. 1998 Stats: Not unexpectedly, Riggs didn't write anything last year. Scouting Report: Riggs came from the Court of Appeals, where the workload is tremendous, so he has the background to make him a top-producing Supreme Court justice. Still, some say he doesn't have the drive to be anything like the court's top producer, Gillette. Maybe caffeine will give Riggs, a non-stop coffee drinker, the energy he needs.