3Trial Lawyer • Summer 2004

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View From The Bench

Hon. Rick Haselton

Kids ask the hardest questions

by Hon. Rick HaseltonOregon Court of Appeals

Note: The author reminds readers that theviews expressed here are solely his own anddo not represent those of his colleagues in-dividually or of the Oregon Court of Ap-peals as an institution.

For the last four years, the Court ofAppeals has held oral arguments,

roughly once a month during the schoolyear, at high schools and middle schoolsaround Oregon, from Coos Bay to LaGrande, from Newport to Klamath Falls,and dozens of locations in between.Many OTLA member lawyers have par-ticipated as counsel in our “road show”arguments, and many others have helpedprepare the students in their communi-ties for our visits. When the argumentsare completed, we take questions fromthe students and often visit their class-rooms later to engage in further Q&A.

Those unscripted sessions have pro-duced the most candid interchanges be-tween judges and citizens that I’ve wit-nessed. Because the students are fearlessand ingenuous, the questions often goto the heart of who we are and how weperceive, and perform, our work. Otherquestions are, predictably, silly (as are ourresponses). Regardless, I’ve often thoughtthat, if I were still in practice, I’d love tobe in that classroom or auditorium.Hence, my top ten “road show” ques-

tions, with my responses:

Question 1: What are the hardest cases?Answer: Cases involving children—espe-cially termination of parental rights andcustody fights.

Why? Because they are so personaland emotional, because we have de novoreview, and because, no matter what youdo, there’s (almost) always some doubt.They are so permanent—people’s lives arechanged forever; things will never be thesame. There are lots of cases with hard,close legal issues, but I leave those at theoffice. It’s the kid cases that wake me upin the middle of the night.

Question 2: Do your personal back-ground and beliefs affect how you de-cide a case?Answer: Judges are not computers. We’repeople and, like everyone else, we bringour life experiences to our work. That’snatural and inevitable. I’d be lying to youif I said that, at least at some subcon-scious level, our experiences never affecthow we look at a case.

With that said, the challenge is to tryto be aware of those influences and tocheck, and double check, yourself. Youcan’t begin a case by subconsciously pull-ing for one side. You can’t begin withsome preconceived idea of the “right”outcome, based on some personalagenda, and then work backwards so thatyour reasoning fits that result. If you did,

the judicial system would lose its cred-ibility—and, in the end, that’s all it has.Credibility. Instead, you have to disci-pline yourself to be indifferent about theoutcome. That sounds heartless—but ifyou deal honestly with the facts and thelaw, the results will almost always be“just” (even if occasionally distasteful).

Question 3: Have you ever decided a casewhere, looking back, you wish you couldchange the result?Answer: Yes. There are two or three deci-sions from my first few years on the courtthat I wish I could take back (I won’tidentify them). I suspect that manyjudges feel the same way. Some of that isexperience; some of that is that we allchange; and some of that is that no onebats 1,000. You do your best, learn, andmove on.

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However, for me, much more fre-quently I wish I could change my rea-soning. One of the really intimidatingaspects of our work is that once we writean opinion and it’s published in thebound volumes for the whole world tosee, it’s there forever and it’s binding —unless the Supreme Court reverses us orwe overrule ourselves, which happensvery rarely. Thus, anything you write can— and often will — come back to biteyou. The real lesson, which I’m stilllearning, is that it’s usually best to sayless, not more.

Question 4: Do you worry about publicreaction to your opinions?Answer: Sometimes, yes—initially. It’sinvoluntary and instinctive. But the realquestion is what do you do next?

Sooner or later, almost every judgewill be faced with rendering some reallycontroversial and unpopular decision—like striking down an initiative or grant-ing a convicted murderer or rapist a newtrial. You know what the reaction is go-ing to be. You know that it may hurtyour chances to be reelected—and, be-lieve me, it’s no fun being the bum ofthe week on talk radio.

But then you do your duty—or tryto, as well as you can. You do that be-cause you’ve taken an oath. You do itbecause any judge who pulls his or herpunches isn’t worthy of the job. Whenyou start looking over your shoulder, it’stime to hang it up. You do it because ofhistory, because of your colleagues’ trust,and because, in the end, you have to livewith yourself. In my ten years on theCourt of Appeals, I’ve never seen a singlevote affected by concern about adversepublic reaction.

I’m not saying that it’s easy. And I’mnot saying that we’re heroes. It’s just theway it is.

Question 5: What are your most memo-rable (or grossest) cases?

953 P2d 1130 (1998) Reversing is-suance of civil stalking protective or-der against an anti-abortion activist,where the predicate “contacts” in-volved constitutionally protected ex-pression.

• McCathern v. Toyota Motor Corp., 160Or. App. 201, 985 P2d 804 (1999),aff ’d, 332 Or. 59, 23 P3d 320 (2001)Affirming award of damages to theplaintiff in a catastrophic vehicle roll-over case; exploring contours ofOregon’s “consumer expectation” test.

• State v. Thorp, 166 Or. App. 564, 2P3d 903 (2000) (Haselton, J., dis-senting), dismissed, 332 Or. 559(2001) Addressing whether imposi-tion of 75-month Measure 11 sen-tence on a 16-year-old defendant,who was convicted of statutory rapefor engaging in consensual inter-course with his 13-year-old girlfriend,violated the proportionality provi-sions of the Oregon Constitution.

Question 6: How do you balance yourwork and your family/home life?Answer: Not as well as I’d like—andsometimes, not very well at all. Too of-ten, to be honest, my family loses out.Over time, though, I think I’ve gottenbetter, not just because I’ve becomesomewhat more efficient, but also be-cause of a talk I had with one of my oldlaw partners a couple of years ago. Myfriend was, and is, very wise—he’d doneit all and seen it all. He pointed at theleather-bound volumes in which ouropinions are published and said, “Whenyou die, do you think that they are go-ing to mourn you or remember you? Doyou really think that anyone’s going toread that [expletive deleted] 50 yearsfrom now?” I try to remember that.

Question 7: If you could change onething in your job, what would it be?Answer: The volume of our work, andparticularly the reading. Because wedon’t have any discretion to turn appealsaway—to “turn off the spigot”—every

Answer: At least three are both memo-rable and “gross”:• Penland v. Redwood Sanitary Sewer

Service District, 156 Or. App. 311,965 P2d 433 (1998) Affirming an in-junction against a sewerage district’s“Jo-Gro” operation, which convertedhuman waste to fertilizer, generating“unbearably nauseating” odor;composting operation held to be anuisance.

• Brown v. Washington County, 153 Or.App. 367, 987 P2d 1254 (1999) Af-ter escaping from county correctionalfacility because he suspected that hiswife was having an affair, an inmatefound his wife in bed with his brother,and killed his brother with an axe. Thebrother’s widow successfully sued thecounty for, inter alia, “custodial neg-ligence,” and the Court of Appeals af-firmed the jury’s award.

• Turudic v. Stephens, 176 Or. App. 175,31 P3d 465 (2001) Homeowners’maintenance of two pet cougars ontheir property did not violatesubdivision’s CC&Rs. Neighbors’ostensibly retaliatory placement of apurple “port-a-potty” on their prop-erty in front of the cougar owners’ pic-ture window, so as to impair theirview, violated CC&Rs.As for purely “memorable” cases,

there are many—but here are a few:• Picray v. Secretary of State, 140 Or.

App. 592, 916 P2d 324, affirmed byan equally divided court, 325 Or. 279(1996) Striking down a statute thatprohibited wearing of any “politicalbadge, button or other insignia” in apolling place, as violating free expres-sion protections of the Oregon Con-stitution.

• Lakin v. Senco Products, 144 Or. App.52, 925 P2d 107 (1996), aff ’d, 329Or. 62, 987 P2d 463 (1999) Affirm-ing product liability verdict in favorof a plaintiff who was grievously in-jured when a nail gun malfunctioned,shooting a roofing nail into his brain.

• Hanzo v. De Parrie, 152 Or. App. 525,

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5Trial Lawyer • Summer 2004

month more and more cases come in,and you feel like you’re running just onestep ahead of an avalanche. Sometimesthe avalanche catches you.

Because of all the reading, you feelas if you never have enough time to dowhat is most important—to really thinkand write. You’re constantly scramblingto free up some uninterrupted time. Be-yond that, there’s another real danger:The Court of Appeals has always prideditself on treating each case individu-ally—that is, we try to keep in mindjust how important each case is to theparties, even if it might not be to any-one else. At some point, however, thevolume of work and our fatigue canundercut that ethic, that sense that eachcase is important. Still, I have no solu-tion.

Question 8: What do your law clerks do?Answer: More than anything else, my lawclerk keeps me out of trouble. Even as akid, I was always too sure of myself—atleast when it came to arguments. And Inever had much patience for workingthrough the steps of a problem—I al-ways wanted to jump ahead to get to the“fun stuff.” That can get you into troublein math, and it can get you into troublein law. So when I sit down with my lawclerks on their first day of work, I tellthem that their primary responsibility isto make me slow down, to make methink, to keep me from becoming com-placent, and to tell me when I’m wrong.

What that means in practical termsis that we will discuss cases before andafter oral argument and brainstorm dif-ferent approaches. They will draft opin-ions, talking with me frequently, so thatwe can wrestle through problems to-gether. And then, after they draft anopinion, and I work it over with lots ofred ink (just as your teachers do withyour term papers), we discuss and de-bate those changes. Of course, the finalcall is, and must be, mine—and then wemove on to the next case, starting all overagain.

Question 9: Do you guys hang out to-gether outside of work?Answer: Not very much. At work, we dospend a lot of time together, chattingabout cases, and sometimes going outfor lunch—and some of us car pool to-gether. We’ll also sometimes attend ju-dicial conferences or retreats, to discusscourt-related problems. But unlike whenI was a practicing lawyer, it’s rare thatwe’ll go out after work or on the week-ends to have a few beers, catch a movieor see a ball game. I’m not sure why—we certainly like one another wellenough—it may just be that we’re olderand have other commitments. Still, oneof the judges has organized court-widebowling parties and a pool party, andpeople had a lot of fun with those.

Question 10: If you weren’t a judge, whatwould you be?Answer: Either a high school historyteacher or shortstop for the Red Sox.

For extra credit, five bonus questions:Question 11: Have you ever broken thelaw?

Answer: I’ll take the Fifth....Question 12: Why do judges wear robes(and what’s under them)?Answer: They cover a lot of imperfec-tions.Question 13: What is the difference be-tween the Equal Protection Clause of theFourteenth Amendment and the Privi-leges and Immunities Clause of the Or-egon Constitution?Answer: You’ve got to be kidding. Askyour mother or your father. (This ques-tion was asked by a middle schooler—and I knew that both of her parents wereattorneys.)Question 14: How much do you make?Answer: Every time we have one of theseschool settings, someone asks that ques-tion—and I can never remember.Question 15: Was that lawyer gettingpaid?Answer : Yes, but not by us.

The Honorable Rick Haselton is a Judgewith the Oregon Court of Appeals. You cancontact him at Oregon Court of Appeals,1163 State St, Salem OR 97301-2563.

Appeals Court Judges Mary Dietz, Bob Wollheim (r) and Rick Haselton discuss their workat Eastern Oregon University’s Hoke Students Center on May 11, 2004.

Photo by Hon. Eric Valentine