This morning's Oregonian announced the death of Lee Johnson.  Judge Johnson had been a state legislator, Oregon Attorney General, advisor to Governor Atiyeh, appellate court judge and Multnomah County judge.  He was in the news last year when two of his grandchildren were tragically killed by a private plane that crashed into their house in Gearhart, Oregon.  He was also the defendant in the case Grant v. Johnson  which was filed by DRO in 1989.

Back then, Judge Johnson was running the Probate Court here in Portland.  Part of his job was to consider petitions for guardianships, including so-called  "temporary guardianships."  One day, an attorney representing Kevin Grant came to court and asked Judge Johnson to sign an order that would give his mother-in-law, Frances Sherrill, the power to make all medical and other life decisions for his wife Ginger.  The lawyer asserted that Ginger lacked the "capacity to meet the essential requirements for her physical health or safety due to her suffering from psychological problems preliminarily diagnosed at Providence Medical Hospital as high anxiety and panic reaction."  

Judge Johnson agreed to this request and appointed Ms. Sherill as temporary guardian "for a period not to exceed six months or until a permanent guardianship is established."   The Judge's order authorized Ms. Sherrill to "provide, consent to or approve any and all necessary medical or other professional care, counsel, treatment or service for Virginia Marie Grant"  and "to immediately place Virginia Marie Grant in a medical care facility, if necessary."  Ms. Sherrill immediately used this authority to have Ms. Grant placed on a psychiatric ward with strict orders that she could have no visitors, send mail or use the phone.  Meanwhile, Kevin Grant emptied the couple's bank accounts and moved out of their house.

After nine days of forced captivity, Ms. Grant was permitted by a concerned nurse to call DRO.  We immediately took steps to get her released.  We also looked carefully at what had happened in Judge Johnson' s court.  Our conclusion was that the Judge, Ms. Sherrill and Mr. Grant had all acted within the bounds of Oregon law.  The law on the books did not require Ms. Grant to be given meaningful notice and a chance to object.  Ms. Grant asked us to find a way to challenge that law so that something like this would not happen again.

Because of some very arcane procedural issues, we ended up suing Judge Johnson in federal court for the sole purpose of obtaining a declaration that the Oregon law was unconstitutional.  In 1990, Judge Helen Frye ruled in our favor.  The Oregon legislature subsequently changed the law to allow for adequate notice, independent investigation and opportunity to object.

Suing a judge is not what one would call a good career move.  We realized that at the time but couldn't figure out another way to get at the statute.  Judge Johnson was not pleased but he was professional.  Years later when we worked together on a bill to restructure Oregon's guardianship and conservatorship laws, he never mentioned the matter to me.  I did notice at that time, however, how smart and experienced he was.  When we filed our lawsuit, he seemed like a very old guy to us.  (He was about the age I am now.)  I'll admit to a certain amount of youthful rebelliousness on my part when we decided that suing a judge was the right thing to do.  

But was it the right thing to do?  Yes.  The courts exist to assure justice for our citizens.  The state (and Judge Johnson) chose to take this case all the way to the US Court of Appeals because it didn't like the idea of a judge being sued for following an unconstitutional law.  This is an reasonable principle but not one that would keep Ginger Grant and others from being held incommunicado on a psychiatric ward by authority of court order.  Her experience demanded justice for her and for others who are denied basic constitutional protections.

I'm saddened by Judge Johnson's passing.  I only knew him in his public role where he seemed a thoughtful and accomplished professional.  I don't think we added to the tragedies he endured in his private life.  In the arena of law, I sensed that he liked a good fight.