Justice Landau issues his final 'verdict': retired
As he sat down for the job interview more than three decades ago, Jack Landau knew he was off to a bad start.
He had applied for a clerkship in U.S. District Court in Portland after earning his law degree from Lewis & Clark College and teaching legal research and writing there for a year.
Now Landau was face to face with Judge Robert C. Belloni — and Belloni knew who Landau was although they had not met.
"After we exchanged pleasantries, I saw he had that article on his desk. He said: This is what I really want to talk about," Landau recalled.
In 1980, while still a law student, Landau wrote a critical article for Environmental Law, "Empty Victories: Indian Treaty Fishing Rights in the Pacific Northwest."
After the U.S. Supreme Court ruled in 1968 that states could regulate fishing rights that tribes obtained through federal treaties — but offered no specifics about how to do it — Belloni decided in 1969 that tribes had standing with commercial and sport fishing groups and tribes were entitled to an unspecified "fair share" of the catch.
"Unfortunately, Judge Belloni's decision in this case … did little more than reiterate the empty standards" in the U.S. Supreme Court ruling, Landau wrote.
"With all the arrogance of a 27-year-old law student, I was critical of Judge Belloni in not going far enough to protect Indian treaty fishing rights," Landau said.
"My article said that (fair share) was all well and good, but if the supply of fish is steadily dwindling, half of nothing is still nothing."
In 1974, U.S. District Judge George Boldt in Washington state — "in the most controversial treaty rights case of the century," as Landau put it — defined "fair share" as half for the tribes and half for others. Belloni then applied that standard to the Columbia River fishery, over which his court had authority.
"Judge Belloni let me know in no uncertain terms he thought I was wrong and I did not really understand all the complexities of the case," Landau said.
"I thought: There is no way I am ever going to get this job. So I tried to stick to my guns — and we had a fairly spirited conversation for about 20 minutes."
But Belloni, who took senior status in 1984 and died in 1999, had one more surprise for Landau at the end:
"He said: This is really fun. This is exactly what I want from a law clerk, not somebody who will tell me what I want to hear, but will give me the benefit of independent thinking. Will you come to work for me?"
So that clerkship was the start of a legal career for Landau, who retired Dec. 31 after 25 years of his own as a judge of the Oregon Court of Appeals and a justice of the Oregon Supreme Court.
"It was then (as a law clerk) that I got to see what lawyers actually got to do — and I thought this was something I could actually enjoy doing," he said.
He is the third justice to retire from the seven-member court in 2017, a modern record. Richard Baldwin retired March 31, and David Brewer on June 30. Gov. Kate Brown has named a successor in Adrienne Nelson, a Multnomah County judge who would be up for a full six-year term for the nonpartisan position this year (2018).
"I happened into the law. I wish I could say it was more of a thoughtful career plan," Landau said.
"I changed majors as often as people changed socks."
He graduated in 1971 from Franklin High School in Portland — he also attended Franklin High School in Los Angeles — and earned a bachelor's degree in history and psychology from Lewis & Clark College. He also took the Law School Admission Test on the advice of a friend.
But Landau said he had another career in mind with an electric bass, six- and 12-string guitar.
"I played in a number of bands and found out how really difficult it is to make a living as a professional musician," he said. "Part of the problem may have been that I just wasn't good enough."
Landau did go to law school, where he enjoyed legal writing and critical thinking.
"It's about problem solving, weighing arguments, trying to figure out which one is more persuasive than the other — and communicating that in a persuasive way to somebody else," he said.
After his two years as a law clerk in U.S. District Court, Landau joined the Portland firm of Lindsay Hart Neil & Weigler, now Lindsay Hart. Among those he worked with there were two future judicial colleagues — Tom Balmer, now chief justice of the Oregon Supreme Court, and Rick Haselton, retired chief judge of the Oregon Court of Appeals — and others who ended up in government.
"The firm ended up attracting people who ended up in public service," he said.
By the late 1980s, Landau had made partner in a firm with more than 100 lawyers.
"In the meantime, some friends of mine from the firm had gone to work for state government during the (Neil) Goldschmidt administration," he said. "When I said I was perhaps interested in doing something else, they said let's see what is out there."
But instead of working for a Democratic governor, Landau ended up being hired by Attorney General Dave Frohnmayer, a Republican who was setting up a new special litigation unit to deal with high-profile cases.
Frohnmayer transformed the Oregon Department of Justice during his 11 years as attorney general. Among those Landau worked with were two future Supreme Court colleagues, Rives Kistler and Virginia Linder.
"Dave attracted an incredible collection of truly remarkable lawyers. It was a special place to be," he said. "Dave made all of us feel we were part of something important, that we were not just advocates for a particular position that benefited the state — we were public servants in a noble calling."
In December 1990, Frohnmayer asked Landau to be deputy attorney general — the No. 2 position in the agency — and Landau remained there under Charles Crookham after Frohnmayer resigned a year later to return to the University of Oregon law school as its dean.
As deputy, Landau argued for the state in a 1992 case, Stevens v. Cannon Beach, in which a landowner sued to build a seawall that would have opened the site to hotel or motel development. The lawsuit followed a 1969 case in which the Oregon Supreme Court upheld the 1967 "beach bill," defining beachfront open to the public and not subject to compensation for landowners.
The second case went all the way to the U.S. Supreme Court, but the state eventually won.
Landau said he got a note afterward from Alfred "Ted" Goodwin, who wrote the 1969 decision while on the Oregon Supreme Court, and is now a senior judge on the U.S. 9th Circuit Court of Appeals.
"When I walk on the beach, I'll always think: Brought to you by Jack Landau," said Goodwin's note, attached to a picture of the beach.
"It is probably my most treasured professional memory," Landau said.
Court of Appeals
In late 1992, Attorney General-elect Ted Kulongoski arranged for Landau to stay on as his deputy, although Landau — not knowing who would be elected to the open position — had put in his name for a judgeship on the Oregon Court of Appeals.
"About a week later, I got a call from Gov. (Barbara) Roberts who said she wanted me on the Court of Appeals," Landau said. "Getting a call from the governor, who is offering you a place on the court, is not something you can refuse. You cannot say, 'Can I have a raincheck?' So I called Ted, and to his credit, he was gracious."
Although its volume of cases has dropped a little, the Oregon Court of Appeals remains one of the nation's busiest intermediate-level courts.
When Landau joined the court in January 1993, the caseload shared by the chief judge and nine others neared 5,000 annually. (Three more judges were added in 2013.) Unlike the Supreme Court, which can select its cases and turns down most appeals, the appeals court reviews virtually all appeals filed with it.
Although the appeals court does not issue written opinions in every case, judges still have to write opinions, hear arguments from lawyers, confer with other judges — most cases are decided by three-member panels — and read briefs.
A brief is a summary of the legal arguments for or against a position, and contrary to its name, it can be lengthy. No new evidence is presented in briefs, which were converted to electronic form only in recent years.
"It was a truly daunting workload," Landau said.
"My wife and two boys got used to seeing me carrying around stacks of briefs everywhere we went. We had a deal. I could read in transit, but not when we arrived at any destination. We just read briefs all the time."
Landau said a student asked him once just how much he had read during his judicial career.
"One afternoon I calculated it, and if you stack the briefs one on top of the other, all the briefs I have read over the past 25 years would be taller than a 42-story building," he said.
"If Gov. Roberts had pointed to a stack of briefs as tall as a 42-story building and said this is your life for the next 25 years, I'm not so sure I would have been as enthusiastic about saying yes to her offer."
In 1998, Landau wrote what became the nation's first appellate-level decision holding that same-sex couples could not be denied insurance benefits based on sexual orientation.
A group of employees, led by Christine Tanner, sued Oregon Health & Science University, which eventually changed its policy.(A future Supreme Court colleague of Landau, Lynn Nakamoto, filed a friend-of-the-court brief in support of Tanner for the ACLU Foundation of Oregon.)
OHSU argued in court it was not obligated to do so under Oregon law. But Landau wrote that the policy did violate a state constitutional guarantee.
"What is relevant is the extent to which privileges or immunities are not made available to all citizens on equal terms," he wrote.
"OHSU insists that in this case privileges and immunities are available to all on equal terms: All married employees — heterosexual and homosexual alike — are permitted to acquire insurance benefits for their spouses. That reasoning misses the point, however. Homosexual couples may not marry. Accordingly, the benefits are not made available on equal terms."
Oregon law was changed in 2007 to bar discrimination based on sexual orientation. A federal court decision gave Oregon same-sex couples the right to marry in 2014.
In 2010, after 18 years on the Court of Appeals, Landau won an open seat on the Oregon Supreme Court.
Upon his retirement, Landau pointed to a shelf in his chambers with black volumes containing the 1,250 opinions he has written for both courts, most of them for the appeals court.
"It is an awesome thing to write opinions describing your decisions that will affect not just those parties, but future litigants," he said. "It is really something to have that kind of effect to make a difference. It has been the best thing about the job."
Like most judges, Landau is reluctant to single out specific opinions.
"It is like asking which of your children do you love more," he said.
Still, Landau discussed a couple of his opinions, both from 2015.
One case (Couey v. Atkins) was about whether someone who is paid for gathering initiative-petition signatures can also do so on an unpaid basis for other measures.
"At a deeper level it is about access to the courts and whether the courts will erect artificial barriers to deciding cases that are of public importance," he said.
Another case (Oregon v. Nix) was about whether the victim of animal cruelty is the animal, or whether an animal is simply property owned by a person, as it is defined in some state laws.
"We said in our opinion that the victim of animal cruelty is the animal," Landau said in a ruling that went against the defendant, who was convicted of 20 counts of second-degree animal neglect.
In retirement, Landau will continue to serve as a part-time judge — at 35 days per year, assignable anywhere in Oregon — to qualify for greater retirement benefits. He said his help is probably most needed at his former position on the Court of Appeals.
He has taught part time at Willamette University law school for 25 years, and Lewis & Clark law school for three years, about how legislation is written and how courts interpret laws. After his retirement, he will teach the same course at the University of Oregon law school.
"My wife tells me we have to sit down and talk about the meaning of retirement," Landau said. "We have grandchildren who are not getting younger."
Landau has nothing but praise for colleagues during his legal career — a career he never envisioned during that first job interview back in 1981.
"Sometimes what happens is crazier than anything you could make up," he said. "I had no idea when I wrote that (law review) article that that was where it was going to lead."
Jack Landau file
Position: Retired Dec. 31 as Oregon Supreme Court justice.
Family: Wife, Diane Bridge; two grown sons.
Education: Franklin High School, Portland, 1971; bachelor's degree in history and psychology, 1975, law degree, 1980, both from Lewis & Clark College; master's degree in law, 2001, University of Virginia.
Career: Law clerk, Judge Robert Belloni, U.S. District Court, 1981-83; Portland firm of Lindsay Hart Neil & Weigler (now Lindsay Hart), 1983-89; Oregon Depart-ment of Justice, chief of special litigation unit within Trial Division, 1989-90; deputy attorney general, December 1990-December 1992.
Judicial: Oregon Court of Appeals, 1993-2011; Oregon Supreme Court, 2011-17.