THE U.S. DISTRICT COURT OF OREGON HISTORICAL SOCIETY NEWSLETTER

Setting the Standard, Part 2

Carol Hewitt-The Dalkon Shield Cases & BeyondBy TOM BALMER

CarolHewitt (1945-1993) was one ofa handful of law-yers who literally changed the face of the Oregon legalcommunity during the 1970s and 1980s. With her un-timely death from lung cancer in 1993, the Oregon barlost one of its most successful advocates. This is thesecond installment of an article on her life.

At the same time she was helping reshape the law ofemployment discrimination, Hewitt served, as she

put it, as a "briefcase carrier" for senior partner AllanHart, representing various national clients in complexlitigation. Business Journal, July 8, 1991, p. 14. Onesuch clientwas drug manufacturer A. H. Robins of Rich-mond, Virginia, a defendant in an antitrust case involv-ing pharmaceuticals pricing that dragged on throughmost the 1970s. When Robins began to face a trickleand then a flood of lawsuits over another product-anintrauterine contraceptive device known as the DalkonShield-it turned for representation in Oregon to theLindsay Hart firm and Carol Hewitt.From the start, the Dalkon Shield work was chal-

lenging and controversial. The cases raised difficultquestions of product liability law and causation, as wellas complicated medical and scientific issues. The issuesof sexual experience and infertility that came up in dis-covery made the casesparticularly trying for the womenwho brought them, and Hewitt-who by now had es-tablished a strong reputation as a leading feminist law-yer-was criticized for defending Robins against theirclaims. But her combination of legal skills and disarm-ing frankness when dealing with sexual issues in thecourtroom allowed her to playa key role in trying manyDalkon Shield cases and in the national settlement thateventually resolved the rest.During the late 1970s and early 1980s, Hewitt led a

trial and appellate team, including Steve Blackhurst,Rick Haselton, and (now Judge) Janice Wilson, thatdefended Robins in dozens of cases in state and federalcourt. Various cases were settled or resolved on mo-tions, including significant statute of limitations deci-sions from the Oregon Court of Appeals and the NinthCircuit. Dortch v. A.H. Robins Co., 59 Or. App. 310,650 P.2d 1046 (1982); Philpott v. A.H. Robins Co.,710 F.2d 1422 (9th Cir. 1983). But in the fall of 1983,

13 cases in which women claimed that the Dalkon Shieldwas defective and caused their pelvic inflammatory dis-ease and related injuries were consolidated for trial be-fore U.S. District Judge Robert Belloni.Hewitt and others on the team moved to Eugene in

October 1983, and trial began November 7. JudgeBelloni consolidated general liability issues and thentried individual issues of causation and damages sepa-rately before the same jury. Trial of the consolidatedcases lasted four solid months and resulted in a seriesof controversial evidentiary rulings and judgments.The jury found that the Dalkon Shield was danger-ously defective and awarded damages to three indi-vidual plaintiffs; it returned defense verdicts in fourof the individual cases. Because the jury did not findthat Robins had been negligent or had committedfraud, Judge Belloni withdrew the issue of punitivedamages. Hewitt handled the appeal on behalf of Rob-ins, and the Ninth Circuit affirmed the trial court rul-ings (with one minor exception), finding that JudgeBelloni's rulings were correct, or, at most, harmless er-ror. Coursen v. A.H. Robins Co., Inc., 764 F.2d 1329(9th Cir. 1985).In preparing and trying the consolidated federal court

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Carol Hewitt with her beloved dog, Vouvy.

SUMMER 2000

On May 5 there was a lovely event in Portland honoring Judge RobertE. Jones with the unveiling of his portrait. Once again, Wayne Chinhas outdone himself with the rich, warm portrait of the now SeniorUnited StatesDistrict Court Judge. The judge is so lifelike in this paintingthat he nearly appears to jump out of his 'chair and off the canvas.There is no question about it, Wayne has discovered the essence ofJudge Jones and it can be found on the walls of Courtroom 14A at theMark Hatfield United States Courthouse. Check it out!

I am happy to report that the Societyhas expanded its history projectsbeyond our very 'successful oral histories of federal lawyers and judges to in-clude a series on famous federal cases.

On March 30 the Society held its first in the series, filling the ceremonialcourtroom of the US Courthouse. A superb panel including Judges Marsh,Jelderks and Leavy as well as former prosecutor Bob Weaver and defense attor-ney Jack Ransom held the audience spellbound as they regaled us with true talesof their roles in the litigation of the Rajneesh Era in the 1980s. A videotape ofthe discussion has been placed in our archives at the Oregon Historical Society.We look forward to our second program in the series on October 26, whenformer U.S. Attorney Sid Lezak will moderate a similar discussion of the SohappyCase and the Columbia River fishing rights litigation. Special thanks to execu-tive committee members Clarence Belnavis and Tom Sondag for their efforts inco-chairing this series.

Speaking of oral histories, there will be another chance to become what you'veonly dreamt of so far - an oral historian. A free training session for anyoneinterested in conducting an oral history for the Society will be held on Saturday,September 23. Be sure to let our oral history project chair, Sarah Ryan, know ifyou are interested in attending. We have a list of lawyers whose oral historiesneed to be taken soon, and everyone I know who has done this has enjoyed itinunensely.

Finally, as usual, the Society knows how to both work and play. If you missedthe Ice Cream Social in June, you definitely won't want to miss the end of sum-mer anchor, the Panner Ranch picnic. Once again, Judge and Nancy Pannerhave offered their magnificent grounds for this popularevent, Please markyourcalendars now for Sunday afternoon, September 17. Iti$;;a~amilY;;afflP~~th

. . . ...,;;:--" •.••.. __- - .- ....._. ..,':~·fA•..

.barbeque, live music, games, and pony rides. You ca~,~*e~/'t1:if9~:~~~g:a;f~~,.federal judge and not risk being held in contempt! S9!;~~W~:9'.:;d,~~~,,;'::.),'~~':~H;.

. Thanks for giving me the fun of leading ~i~ very i~(~f~bl~~~~l~~~~~r~~:a good summer and see you at the Panners -If not B:~fet\e··,,,,;,:-~tt 0 ~:/.,:",',";,.',~,

~~ii~IT'S ROUNDUP TIME!The U.S. District Court of Oregon Historical Society invitesyou to its ANNUAL END-OF-SUMMER PICNICSunday, September 17, 2000, 2-5 p.m.at the Ranch of Hon. Owen and Nancy PannerWatch your mailbox for an invitation or call 326-8009 afterSeptember 1 .

Carol Hewitt CONTINUED

cases in Oregon, Hewitt had become anexpert in the medical, scientific, and le-gal issues raised in the Dalkon Shieldcases and had worked closely with Rob-ins' national counsel and expert wit-nesses. Her expertise and unflappablecourtroom demeanor led Robins to re-cruit her to handle similar cases aroundthe country. For the next year, Hewittflew from one courtroom to another try-ing different Dalkon Shield cases. AfterRobins filed for bankruptcy in August1985, Hewitt was one of the key playersworking towards a resolution of the morethan 200,000 Dalkon Shield claims. Rep-resenting Robins, she helped to put to-gether proposed acquisitions, first byRorer Group and then by AmericanHome Products, which led to funding ofa $2.3 billion Dalkon Shield claimantstrust. For the next five years, Hewitt ap-peared frequently in federal court in Rich-mond, Virginia, seeking the approvalsnecessary for the acquisition, litigatingliability issues to determine appropriatefunding of the trust, and establishing pro-cedures for payments from the trust.

Back home, Hewitt's federal courtpractice flourished. One East Coast law-yer who worked with Hewitt called her"the most focused person I've ever met."Colleagues remember her ability to fo-cus, laser-like, on a single one of a dozenunrelated cases in front of her and thenquickly move on to give her full atten-tion to each of the others in turn-with-out missing a beat. Unlike many triallawyers, she was able to delegate workto other lawyers and to paralegals-yetremain sufficiently involved to take keydepositions and handle trials. And whileshe set extraordinary standards for theamount and quality of work expectedfrom her partners and associates, thosestandards were no higher than the onesshe set for herself.Hewitt's big-case management skills,

extensive trial experience, and drive en-abled her to develop a litigation andbusiness practice of uncommonbreadth. From the Dalkon Shield workcame representation of makers of othermedical products and devices, and shewas sought out as a products liabilitydefense lawyer by major drug and con-sumer products companies, includingBoise Cascade, 3-M Corp., AmericanMedical Systems and G.D. Searle. See,

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e.g., Allen v. C. D. Searle & Co., 708 ESupp. 1142 (D.Or.1989).At the same time, Hewitt's business

savvy put her on the short list of attor-neys to handle complex corporate litiga-tion. In 1981 Governor Victor Atiyeh hadappointed her to the Oregon InvestmentCouncil, which supervised the investmentof the state retirement and other funds,and she was reappointed by him in 1985and by Governor Neil Goldschmidt in1989. On the council, which she chairedfrom 1987 to 1990, Hewitt backed theState's first investments in leveraged buy-outs, which generated substantial contro-versy but also unprecedented gains forthe fund. Hewitt's role on the investmentcouncil further raised her profile in thebusiness community.During the latter part of the 1980s and

into the 1990s, Hewitt represented bothplaintiffs and defendants in high-pro-file corporate and securities litigation.When stock brokerage firm June S.Jones& Co, Inc. went bankrupt in 1984, thefederally chartered Securities InvestorProtection Corp. stepped in to assertclaims on behalf of the firm against cor-porations that had allegedly defraudedJones and its customers. Hewitt washired, and she filed a massive complaintalleging securities fraud and breach offiduciary duty against 33 corporate andindividual defendants.

Ruling on a raft of motions to dismiss,Judge James Redden issued an importantsecurities law decision that upheld SIPC'sstanding to sue on behalf of the bank-rupt firm, each of more than 100 para-graphs alleging fraud on the part ofdefendants, and Hewitt's claims undersection 10(b) of the SecuritiesAct of 1933and sections 17(a) and 12(2) of the Secu-rities Exchange Act of 1934, as wellRICOand ORICO claims.SecuritiesInvestorPro-tection Corp. v. Poirier, 653 F. Supp. 63(D.Or. 1986). As the case progressed,settlements were reached with most of thedefendants.

One case of which Hewitt was particu-larly proud was a $40 million account-ing malpractice action brought by aprominent Portland businessman inwhich Hewitt represented the defendant,Coopers & Lybrand. As in many othercases on behalf of national clients, shereported to sophisticated corporate coun-sel and senior partners at some of thelargest firms in the country. Lori IrishBauman, who worked on the case withHewitt, remembered that the New York

lawyers involved in the Coopers casewere dismissive of the woman partnerfrom a firm they didn't know and a lawschool they'd never heard of-dismissive,that is, until they heard her analyze thecase, report on the results of discovery,andpropose trial strategies. After two years ofintense discoveryand a month before trial,the plaintiff reduced his demand to $5 mil-lion. Hewitt vowed he would never receivea dime. Two weeks later, he voluntarilydismissed the case without receiving any-thing from the defendant.

Hewitt was less successful in represent-ing the Federal Deposit Insurance Cor-poration in its claims against formerofficers and directors of three failed Or-egon banks. The banks had merged andthen been declared insolvent, and theFDIC, after paying depositors losses, suedthe former bank officials for actions thatallegedly led to the insolvency. JudgeOwen Panner held that the FDIC's claimsagainst the officers and directors were notindemnity claims on behalf of the deposi-tors-and thus subject to a six-year stat-ute of limitations-but rather directnegligence and breach of fiduciary dutyclaims with a three-year statue of limita-tions. He granted summary judgment onbehalf of the defendants. FDIC v.FormerOfficers and Directors of MetropolitanBank, 705 F.Supp. 505 (D.Or. 1987).

By 1990 Hewitt was a senior litigatorat Lindsay Hart, handling products liabil-

ity, environmental, and business cases.But the firm, which had grown to closeto 100 lawyers and several branch offices,suffered from internal divisions and dis-putes over management. In the breakupthat occurred that year, Hewitt emergedas a key player-and named partner-inthe larger of the successor firms, Ater,Wynne, Hewitt, Dodson & Skerritt (nowAter Wynne LLP). Her core practice andenviable reputation helped ensure asteady flow of work to the reorganizedfirm, and she continued representingmajor corporations and business people.When the federal Resolution Trust Com-pany seized control of Far West FederalBank in 1991, it fired president DonTisdel and refused to pay the $2.7 mil-·lion retirement package he had beengranted six years before. Tisdel retainedHewitt, who filed suit against the gov-ernment agency,eventually recovering thepayments due to her client.During this time, Hewitt still handled

cases in Oregon federal court, includingsecurities and medical products work,e.g., Newman u. Comprehensive CareCorp., 794 ESupp. 1513 (D.Or. 1992);Brudnok u. Tambrands, Inc., 1993 WL553746 (D.Or. 1993), but her practicealso took her to the u.S. Court of Ap-peals for the District of Columbia Cir-cuit, Alaska Energy Authority v. FERC,928 F.2d 1181 (D.C.Cir. 1991), and tostate courts outside Oregon.

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FROM CHAOS TO QUOTAS

The U.S. District Court of Oregon Historical Societypresents the second program

in its Famous Federal Cases Series

SOHAPPY &THE COLUMBIA SALMON WARS

Thursday, October 26, 2000, 4-6 p.m.History Presented by the People Who Made It-

Panelists include: Judge Owen M. Panner, JudgeJames A. Redden, attorney Dennis Karnopp,representatives of the Warm Springs Tribes,and author Roberta Ulrich

Moderator: former U.S. Attorney Sidney Lezak

Mark O. Hatfield U.S. Courthouse1000 S.w. Third AvenuePortland, Oregon

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On March 30, 2000 legal historycame to life in a big way when the U.S.District Court of Oregon Historical So-ciety presented the first program in its"Famous FederalCases" series. The wel/-attended event brought together many ofthe major legalplayers in the 1980s casesinvolving the Bhagwan Shree Rajneeshand his followers-and offered a behind-the-scenes look at what has been calledthe most bizarre episode in Oregon his-tory. The panelists were fanner AssistantU.S. Attorney Robert Weaver,Jr.,defenseattorney John Ransom, and JudgesMalcolm Marsh, Edward Leavy, andJohn Jelderks.

ENTER,THEBHAGWANIn 1981 the Bhagwan ShreeRajneesh, a

little-known Indian guru, bought the'64,229-acre Big Muddy Ranch east ofMadras, Oregon, for $6 million and relo-cated his religious commune there. On thesite, he built a city that would eventuallybe home to about 5,000 followers.At Rancho Rajneesh-the commune's

chief spokesperson, Ma Anand Sheela,said-the faithful would live in harmonyand love. To their rural neighbors, how-ever, the commune's harmony appearedto depend on heavily armed guards andlove seemed to involve living in sin on agrand scale.Moreover, the commune wasviolating land use laws, blurring the linesbetween church and state, and-manypeople in Wasco County feared-wouldsoon outnumber them and take over lo-cal government. Those fears proved tohave merit, and before the drama hadplayed itself out Ma Anand Sheela and afew of her inner circle had cooked upplots to rig an election, introduce salmo-nella poisoning in The Dalles (wheresome 750 people fell ill), take over thetown of Antelope (which lay within theranch's borders), and murder Oregon Gov-ernor Victor Atiyeh and U.S. AttorneyCharles Turner.

IMMIGRATION FRAUDFrom the beginning, the Bhagwan's

plan to establish nirvana in the Oregondesert was fraught with illegalmaneuversthat looked a lot like conspiracy. First,explained former Assistant U.S.AttorneyRobert Weaver, the Bhagwan and manyof his followers lied to the Immigrationand Naturalization Service (INS) just toget into the country and import theBhagwan's fleet of Rolls-Royces, bulgingbankroll, and earthly comforts.

Once in the United States, many of thenewcomers began to marry Americans ata fast clip in what the INS believed weresham marriages-some 400 in all. How-ever, proving that the unions were a shamwas difficult. All of the faithful had twonames (those they were born with andthose they assumed in the commune), andlocating those individuals in a place thathad no street addresses was a challenge.Moreover, few informants were anxious tocooperate.Weaver and his colleagues were also

"working in a fishbowl" and contendingwith numerous leaks. As he explained it,"Grand juries meet in secret, but this wasthe exception. Before the ink was dry onthe transcripts, everyone seemed to knowwho would appear and what they hadsaid." And, he added, "we were at warwith our client. At the INS headquarterswe were fighting constant rearguard ac-tion." Nor were the Bhagwan's follow-ers sitting around waiting to be indicted;instead, they were filing civil actions tocompel the INS to act quickly on theirgreen card applications.The U.S. Attorney's office's work re-

sulted in the largest immigration fraudcase in U.S. history-a multiple-countindictment of the Bhagwan, Sheela, andseveral others. But not before Sheela andher "gang" had tried to carry out theirnefarious plots, been found out, and fled."Suddenly she was gone," said Weaver,"and she was my Number One target."

However, the drama wasn't over.WhenWeaver tried to get the INS to serve thearrest warrants, it refused, so he went tothe Marshal Service, the FBI, and theState Police for help. Meanwhile, theBhagwan had apparently been tipped offand had brought two Lear jets to theranch, loaded them up, and fled.

"We were able to chart the plane'sprogress across the U.S.," Weaver ex-plained. And ultimately the Bhagwan wasarrested at the Charlotte, North Caro-lina airport, where he had stopped to re-fuel. He was held without bail and sentback to Oregon, where Judge EdwardLeavy admitted him to bail (close to$500,000, plus other restrictions). Thematter was resolved by having theBhagwan enter a plea but serve no jailtime, surrender his green card, pay$400,000 in fines, and immediately leavethe country.Meanwhile, the U.S. Attorney's office

issued arrest warrants simultaneously inthe U.S. and Germany and went outsidediplomatic channels to prevent Sheelafrom crossing the border into Switzer-land, where she held citizenship. Sheelawas brought back to the U.S. and pledguilty to all charges except the murderattempt on Charles Turner.

REPRESENTING THE COMMUNEDefense attorney John Ransom's in-

volvement with the Bhagwan began af-ter Sheela fled the country and he wasretained to help represent the commune."Our basicmandate," Ransom explained,"was to conduct anUpjohn investigation,"which involved cooperating with federaland state authorities to make sure all thecrimes were revealed. This meant inter-viewing some 300 individuals.Ultimately, defense team members

talked to Charles Turner and said theywere confidant that none of those whoremained in the commune had any inten-tion of causing harm. Many, in fact, weredevastated to learn of the crimes that hadbeen committed by commune leaders theyhad trusted, including extensive wiretap-ping of the buildings in the commune.Meanwhile, Ransom and his colleagueshelped the FBI agents who also were atthe ranch conducting interviews. Whenthe FBI met with resistance, Ransom'steam would find the individuals theywere seeking and encourage them to co-operate.At the height of the drama, Ransom

said, "our greatest fear was that there

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afraid because there were people at theranch who would lay down their lives forhim, and they had a well-armed securityforce." Those fears were fueled by rumorsthat the U.S. Marshal was putting to-gether an armed force and that the Na-tional Guard would be called in. Toprevent bloodshed, an FBI agent toldCharles Turner that he would go into thecommune unarmed and make the arrest,but Turner refused to let him do so.

"But all the pressure was relievedwhenthe Bhagwan and his friends left," Ran-som explained, adding that he and a LosAngeles attorney were later retained torepresent the guru. In the end, however,the case didn't go to trial and the defenseteam agreed to enter a plea.

"After that, we helped turn out thelights. And we did go through the bank-ruptcy court. Judge Elizabeth Parris...wasquite wonderful in working us throughthe process."His work with the commune, Ransom

concluded, "was the most enjoyable partof my career. I can't imagine having a bet-ter,more rewarding experience."

SOME VIEWS FROM THE BENCHIn addition to the aforementioned

cases, Judge Edward Leavy and laterJudge Malcolm Marsh heard a case in-volving wiretapping that took place in-side the commune, the work of Sheelaand her inner circle. Each of the judgessentenced three individuals, and JudgeMarsh sentenced four more in a combi-nation of the wiretap case and a con-spiracy case.During this time, constant media at-

tention led to a request for a change ofvenue, but Judge Marsh ruled against itbecause he felt the matter had already hadmassive amounts of national exposure.Also, because several potential witnesseswere fugitives living in other countries,there were requests for immunity, prob-lems taking depositions even a discussionin the British House of Lords about ex-tradition that raised the question ofwhether two of the defendants could re-ceive a fair trial in Oregon.And then there were the matters of

salmonella poisoning of a salad bar inThe Dalles and Sheela'smove to bus largenumbers of homeless people to WascoCounty, presumably to vote so that theRajneeshes could take over the county.Faced with this threat, Secretary of State

tered, these newcomers must showgood-faith residency in Wasco County.Judge Leavy ruled that this requirementwould not place a burden on their rightto vote, and lawyers were organized toact as hearings officers. In the end, WascoCounty's longtime residents turned outin mass, and the homeless didn't try tovote.Ultimately, Sheela was sentenced to

four years in prison for tampering withconsumer goods (under what's becomeknown as the Tylenol law) and was givena consecutive term on a false statementcount. She was placed on probation onthe condition that she leave the countryand not return. However, attempts werelater made to have her extradited andreturned to Oregon to be tried on chargesrelated to the attempt on the u.S.Attorney's life. That extradition attempt

but served no time. Through the entire or-deal, U.S. Attorney Charles Turner re-mained neutral in his dealings with thosewho plotted his demise. "I thought it wasto his credit that he never lost his objectiv-ity," said Judge Leavy.

IN HINDSIGHTWhat conclusions can be drawn from

this convoluted tale?"My memories were of the big pic-

ture," said Judge jelderks, who ruledfrom The Dalles on the name change re-quests. "I visited with them. Most werepleasant and well educated ....They couldhave reached their goals through legalmeans. I think they fell from within ....I'mnot sure if Sheela was evil from the startor became so with unrestrained power. Iknew when the homeless were bussed inthat it was the beginning of the end."

A. George H. WilliamsB. Orville C. Pratt

C. Matthew P. DeadyD. Reuben P.BoiseE. Dr. John McLoughlin

F. Sylvester PennoyerG. Gus J. Solomon

Here is another Oregon legal history puzzler from quizmaster David Bledsoe-also a member of the u.s. District Court of Oregon executive committee. Matchthe events in the first list with the individuals in the second. Stumped? See thecorrect answers on page 8.

1.Who, as a result of a joking reference in The Oregonian that wrongly stated hisfirst name as "Mordecai," temporarily lost his appointment to an Oregon territo-rial judgeship? _

2. Who repeatedly warned Marcus Whitman not to give medicine to the Cayuseto cure a measles epidemic because the Cayuse "kill their medicine men," and sotestified at the Whitman Massacre murder trial? _

3. Whose efforts led to the first formal publication of cases in the Oregon Reportsin 1853, ending an era when cases were reported sporadically in the newspaper ifatall? _

4. What attorney described the setting for an 1854 case in Eugene as "in the openair under a large oak tree, with a table and chair for the judge and some chairs andrude benches for the lawyers and other attendants,"adding, "when the court busi-ness got slack, we adjourned to the race track, which was nearby." _

5.What judge had to learn about Romans xm to find a means for young Jehovah'sWitnesses to qualify as conscientious objectors rather than go to jail for refusal toserve in the military? _

6. Who, prior to becoming Oregon's governor from 1887 to 1895, was a party ina famous personal jurisdiction case before the u.s. Supreme Court? _

7. What judge whose contempt ruling was overruled by his colleague, JudgeThomas Nelson, later got the last word by deciding motions in Marion Countythe day before Judge Nelson arrived to hear the same motions? _ANSWERS:

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An Affair of State:The Investigation,Impeachment, andTrial of PresidentClintonBy Richard A. Posner

.:.; Reviewed byMary Beth Allen

It was nearly a year anda half ago February 12,to be exact that impeach-

ment proceedings against PresidentClinton concluded with the President'sacquittal following his trial in the Sen-ate. While some readers might cringe atthe thought of revisiting the impeachmentand the scintillating events that promptedit, they would be well served to delve intoJudge Richard A. Posner's account of thelegal, political, and social ramificationsof the Clinton impeachment. Why? Be-cause Posner has accomplished the seem-ingly impossible by putting a fresh spinon the chain of events that unfolded inthe Clinton passion play.

In addition to offering original insightsinto the events leading up to the impeach-ment, Posner puts that historic event in

• SUNDAY, SEPTEMBER 17,20002 to 5 p.m.Our Annual End-of-SummerPicnic at the Parmer Ranch.Nobody wants to miss this one!

• SATURDAY, SEPTEMBER 23,2000, 1 to 4 p.m,A unique opportunity to betrained as an oral historian atour Oral History Workshop, tobe held at the Oregon State Baroffices.

• THURSDAY, OCTOBER 26,2000, 4 to 6 p.m.Sohappy and the ColumbiaSalmon Wars, the second pro-gram in our Famous FederalCases Series presented at the MarkO. Hatfield U.S. Courthouse.

ALSO, IN NOVEMBERAnnual Dinner (Details TBA)

historical and legal perspective, some-thing that most pundits have neither theinclination nor the intellect to do. (Posneris chief judge of the U.S. Court of Ap-peals for the Seventh Circuit, as well as alaw professor and prolific author.) Butwhat makes the book so interesting-entertaining, even-is Posner's clear-eyed and articulate analysis of thepolitical, social, and sexual issues thatsurrounded the impeachment and ulti-mately defined it.

Posner states strong opinions in thebook. Some are aimed at the SupremeCourt, specifically at its decisions involv-ing the independent counsel system andthe Paula Jones Case. Posner writes thatthe independent counsel operates "essen-tially without political check or budget-ary constraint, wielding the immensepowers that federal law vests in prosecu-tors." This power allowed Starr to "tiethe President in knots," Posner writes,adding that for almost a year, Starr"thrashed about, a bull in a political chinashop." He concludes that a private citizengiven the powers that Starr deployed is "ananomaly in our constitutional system," ananomaly that the Clinton sex scandalteaches us is "mischievous."

In discussing the Supreme Court's fail-ure to stay the Paula Jones case, whichClinton had sought on grounds of Presi-dential immunity, Posner says it shouldhave been apparent to the justices thatpublic exposure of Clinton's sex life couldundermine the President's authority andeffectiveness. He suggests that the nexttime there's a vacancy on the Court, itwould be wise to fill it with someone whohas held elective office or otherwise beeninvolved in high-level politics. The cur-rent Supreme Court is "notable for itshigh professional sheen-and lack of po-litical experience," he writes.

The heart of Posner's book is his theorythat Clinton's serious breaches of privatemorality were his violations of federalcriminal law, which Posner describes as"felonious, numerous, and nontechni-cal." He then goes on to discuss the his-tory, scope, and form of impeachment;how private and public morality enteredinto the Clinton impeachment; andwhether or not Clinton should have beenimpeached.

But the book really gets good (at least

for political junkies) when Posnerdeconstructs the American political andsocial scene to determine just whyClinton and his involvement with MonicaLewinsky (deliciously described by mas-ter wordsmith Posner in a footnote as a"giddy, pizza-bearing sextern") so polar-ized America. To the moralistic politicalRight, the President is a "carnivalesqueroisterer, a scapegrace, a Prince of Disor-der, a value-free postmodernist and suchan accomplished con artist that theAmerican people can't find it in theirhearts to hate him for his hateful acts,"Posner writes. "To anyone whose senseof morality and decorum assumed its per-manent form before 1968 and who thinksthe nation has undergone a precipitousmoral decline since, this man is a scan-dal whatever his policies."

The flip side of the Right's distaste forClinton is some liberals' love for himbased "on the kind of mild bohemianismwhich is so common a style of life inAmerican universities." That being so,Posner then points out that the Demo-cratic establishment is cool to Clintonbecause of "his lack of respect to tradi-tional liberal pieties" and the workingrelationship he has forged out of neces-sity with congressional Republicans.

Perhaps most refreshing is Posner's re-fusal to buy into the conventional wis-dom about the Clinton scandal. Posnerdismisses as "absurd" the Right's notionthat revelations about Clinton's affairhave weakened parental control overtheir children's sexual behavior as wellas the Left's charge that the Starr Reportis pornographic. Those putting forth suchviews "don't understand the family andsexual culture of late-twentieth centuryAmerica," Posner says. He also notes thatthe extent and detail of media coverageof the Clinton-Lewinsky liaison was afunction of changing social mores andpublic fascination with the story. Toblame the media for the escalation of thescandal is to blame the messenger.

Posner's message is essentially that thefollies of one very human man were notenough to bring down the Presidency oreven irrevocably damage the office. Hisexploration of that premise makes thisbook a must for anyone with an interestin Presidential law and politics. BillClinton himself would probably find it agood read.

Mary Beth Allen, a human resources attorney,is Human Resources Manager for the PortlandDevelo~ment Commission.

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Donald w. ("Mac") McEwen enjoyedreferring to himself as a member of

Dan Rather's "greatest generation."However, that description meant more tohim then merely serving as a tank com-mander in the Sixth Armored Divisionduring World War II. It also meant a coreset of moral values- honesty, integrity,courage, compassion, generosity and loy-alty-by which he led his life. His loss toall of us who knew him is immeasurable.As recognized by both the MBA Pro-

fessionalism Award in 1993 and theOwen M. Panner Professionalism Award,Don McEwen exemplified the best of thelegal profession. After graduating fromWillamette University College of Lawin 1949, he became one of four assis-tant U. S.Attorneys in 1950 and receivedhis first battle scars from the HonorableGus J. Solomon before joining the vener-able Cake & Cake firm in 1955.During his 50 years as a lawyer,he tried

every kind of civil case, from divorce tolegal malpractice. He was elected a fel-low of the prestigious American Col-lege of Trial Lawyers in 1971, servedas chairman of the Council of Court Pro-cedures from 1977 to 1983, and partici-pated in numerous other bar activities,including the Board of Bar Examiners,the Procedure and Practice Committee,and the Federal Practice and ProcedureCommittee.Although his craggy appearance and

large stature could be intimidating, hismanner was courtly and he had a heartof gold. He never sought the limelight andalways gave credit (often more than wasdue) to others. He was a mentor toyounger lawyers-not only by providingopportunities to work with clients he hadwon and maintained but by providingwelcome moral support.He was also a tough advocate and

master strategist who fought hard for hisclients, but never by taking unfair advan-tage of his adversary. In fact, he con-sciously avoided creating a legalmalpractice claim against another law-yer and was known to have thrown cli-ents out of his officewho did not measureup to his high standards. Even if he wasseething inside at a client, judge, or op-ponent, as he often was, he still was cour-teous on the outside.Part of his superior ability was due to

his amazing memory. Where most of us

l5y Mon. jaruce M. otewart

DOl! McEwfII (second from right) with (from left)Judges James Redden. William Dale. and DiarmuidO·Scannlain.

can only vaguely remember that a courtsomewhere at some time ruled on a par-ticular issue, he was a walking law libraryby recalling which court, approximatelywhen it ruled, and usually the name ofthe case. He also could recall not onlythe facts of every case he handled but alsothe names of the parties, opposing coun-sel, and judge involved, and he loved totell entertaining and insightful stories.

However, his professional lifewas onlya small part of this remarkable man. Theaccolades that meant the most to himwere from his friends and family.He mayhave enjoyed the law and been proud ofserving his country, but his first prioritywas his family. He adored his wife Jean,with whom he walked every morning,whom he called every noon hour, and towhom he was anxious to return at theend of the day for a pre-dinner drink andgame of Gin Rummy. He was particularlyproud of his three children and derivedgreat joy from his grandchildren, forwhom he would do anything.

Although he was immensely proud ofhis Scottish ancestry, and particularly offine Scotch liquor, he was generous to a

fault. He frequently took others to lunchand insisted on paying and also hostedand paid for several gourmet firm din-ners. He treated everyone, including part-ners, staff, colleagues, and janitors, asequals and friends. Although he smokedfor years and started more than one firein a wastepaper basket, he finally quit;and unlike many of his age, he made thetransition to e-mail, He also was a vora-cious reader (especially of military his-tory), a connoisseur of fine food anddrink, an exuberant traveler (particularlyto Hong Kong), and an avid bird hunterwith a tremendous enthusiasm for life. Itwas only fitting that Mac died as he lovedto live: in a favorite hunting spot withhis shotgun loaded and standing next toa good friend.

He was a rare man. We will miss him.

Federal Court History OnlineThe Federal Judicial Center has a newHistory of the Federal Judiciary Webpageat http://air.fjc.gov/history that containsa biographical database of over 2,800federal judges and justices since 1789,histories of the federal courts, landmarkjudicial legislation, topics in federal ju-dicial history, an online version of a pho-tography exhibit on display at the FederalJudicial Center, and historical publica-tions available from the Center.For those working on oral histories, the

Center's main site contains a 74-page di-rectory that lists 900 downloadable oralhistory interviews with federal judges andother individuals involved in litigation inthe federal courts. Visit the site at http://www·fjc.gov/PEDJUDHIS/oralhist/oralhist.html.

[fyou've always wanted to make history, now~ your chance•..

A rare opportunity to become an oral historian will be avail-able to our members on September 23, 2000, when we offer a3-hour Oral History Workshop, led by premier oral historianJim Strassmeier at the Oregon Historical Society.

The workshop is free to our members ($40 for nonmembers), Jim Strassmeierand once you are trained you can join our team of volunteers .. who take the oral histories of prominent members of the federal bench ~nd bat .Those who ate already involved in our Oral History Program say it is one of themost fascinating experiences they have ever had. If you're interested, contactStephen Brischettoat (503) 223-5814.or:slb@brischettohiw.com. .

7

When Hewitt, a non-smoker, was di-rgnosed with lung cancer at the end of1991, she fought for her health with gritmd good humor. She also traveled farind wide for the pure enjoyment of it and.pent time with family and friends-but.ontinued to devise strategy and directvork on large cases. In a particularly sig-iificant one, Hewitt represented San Di-.go Gas & Electric in preparing the first:ase tried to a jury on the theory that:xposure to electromagnetic fields (EMF)'rom power lines causes cancer. ZuidemaI. San Diego Gas &Electric, No. 63822Calif. Superior Ct., San Diego Co.) The~uidemaplaintiffs were well represented,md the case generated intense media in-erest. The entire electric utility industry'eared that even a partial plantiffs' winvould unleash a flood of EMF suits.Working with Julianna Wellman and

.o-counsel in' California, Hewitt de-

.igned the scientific framework and

.upporting expert testimony critical tohe case. She was ultimately too sick tory the case herself, but her work pro-rided the foundation for San Diego'slefense. After a three-week trial, the juryeturned a defense verdict in four hours.I'he plaintiffs did not appeal. Hewitt'sramework was the basis for a defense-erdicr in another EMF case against San)iego, and the California Supreme:ourt ultimately rejected an array of~MF property damage claims. San Di-sgo Gas & Electric Co. v. Superior:ourt,13 Cal.4th 893 (1996).

806£: 'oN ~!Wl~d110 'puBIllOd

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eral court in Oregon. It was there thatJudge Solomon first introduced her tofederal practice, that she made new lawin sex discrimination and products liabil-ity cases, and that she ably representedindividuals and corporations, plaintiffsand defendants. The cases she tried-andthe fact that she tried them-changed thelaw and the character of the U.S. DistrictCourt and are an important part of itsrecent history.

This review, by design, has focused onCarol Hewitt's work in federal court. Buteven a two-part article this brief wouldbe incomplete without some mention ofthe rest of Carol's life. More than a liti-gator, she negotiated many businesstransactions and financings and over thecourse of her career became a respectedlegal adviser, whose counsel was soughtby corporate executives and directors.And although Hewitt's public personacould be intimidating, she was unaffectedand down to earth. She was friend, men-tor, and teacher to many. She loved ski-ing, polo, tennis, and having a good time.The unique role she played in the Oregonlegal community is mirrored in the spe-cial place she had in the lives of manyfriends and colleagues.

Tom Balmer is a partner in Ater Wynne UP.

Author's Note: Thanks are due 10 the many peoplewho proVided information about Carol Hewitt's carttr.Sprcial thanks to Sara Tait for her rxcelltnt rtsearchassistance and to Rick Haselton, Juli Wtllman, andSteve Blackhurst for reviewing a prior draft.

Hon. Michael R. Hogan, Board Chairman;'Hon. Ellen F.Rosenblum, President; 'Nancy J.Moriarty, Vice PresidentlPresident Elect; *Ri.ch-ard B. Solomon, Treasurer; "Nicholas S. FIsh,Corporate/Executive Secretary; *Jeffrey M.Batchelor, Immediate Past President.

BOARD MEMBERS'Mary Beth Allen; Dr. Do?ald~. Balmer; AlbertJ. Bannon; the Belloni family, Honorary;'Clarence M. Belnavis; "David A. Bledose; ErnestBonyhadi, Honorary; "Stephen L. Brischetto;Hon. Anna J. Brown; Hon. James M. Burns,Honorary; Hon. Wallace P. Carson, Jr., Ex-Offi-cio' Robert L. Cowling; Antonia M. DeMeo; Dr.Go~don B. Dodds; 'Jeffrey J. Druckman; GilionEllis' 'Nicholas S. Fish; George H. Fraser, Hon-orar~; Martin E. Hansen; 'Kristin A. Haza~d;'Mitchell E. Hornecker; Douglas G. Houser; LIsaA. Kaner; 'Dennis C. Karnopp; Randall B.Kester; Prof. R. James Mooney; Chet Orloff, Ex-Officio; "Hon. Owen M. Parmer; Honorary;"Kathryn M. Pratt; Lawrence A. Rew, Ex-~ffi-cio; 'Sarah J. Ryan; 'Norman Sepenuk; Eliza-beth Solomon, Honorary; 'Thomas W. Sondag;Caroline P. Steel; Prof. Mary C. Wood.

LIFETIME MEMBERSJeffrey M. Batchelor, Owen D. Blank, Paul T.Fortino, George H. Fraser, Edwin A. Harnden,Wayne Hilliard, Douglas G. Housel; Robert E.Jones, Randall B. Kestel; Jeffrey S. Mumick,Verne W.Newcomb, Daniel O'Leary, Hon. OwenM. Panner, Dian S. Rubanoff, Sarah J. Ryan,Arlene Schnitzer, John L. Schwabe, NormanSepenuk, Arden E. Shenker, Richard B. Solomon,Gayle L. Troutwine, William F.White, Donald R.Wilson.

IN MEMORIAMHon. Robert C. Belloni, Raymond Conboy,Chester E. McCarty, and Frank Pozzi."Members of the Executive Committee

Newsletter Editor: Carolyn M. Buan(503) 224-8024; Design, Jeanne E. Galick

QUIZ ANSWERS:1. C, 2. E, 3. A, 4. D,S. G, 6. F, 7. B

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