Born: Monday, April 27th, 1896
Died: Tuesday, March 2nd, 1982
Birthplace: Winlock, Washington
Religion: Methodist
Education: Reed College (1916-1917)
University of Washington, LL.B. (1926)
Career: Prosecuting Attorney (1926-1928)
Assistant U.S. Attorney (1928-1934)
Municipal Court (1934-1940)
Superior Court (1940-1942)
Served: Monday, November 9th, 1942 to Monday, January 15th, 1962
Chief Justice: Monday, January 13th, 1947 to Monday, January 10th, 1949
Political Party: Republican
Appointing Governor: Langlie (Republican)
Judge Mallery’s father, Joseph H., a veteran of the Civil War, brought his wife Maria (Murch) Mallery and their four children west to Winlock, Washington, in Lewis County, after a grasshopper infestation destroyed crops on his homestead farm in Kansas. Joe was born on the “stump ranch” in Winlock where his father raised chickens and worked in a grocery store. Joe was three months old when they moved to Castle Rock, Washington, to be close to his father’s newest venture, Mallery’s Cash Store. As the son remembered, “the word ‘cash’ was a misstatement of fact. Few paid any attention to it except my father. He was soon back raising chickens.” His father’s politics proved important to the future judge: “Father was a rebel, honest and outspoken. He had a constitutional aversion to the majority. It was his idea that if too many people accepted a notion it must be wrong.” His father, a populist follower of William Jennings Bryan, also admired Eugene Debs and Robert LaFollette.Young Joe attended grammar school in Sandy Bend after his father had moved from town to a forty-acre homestead four miles south of Castle Rock. At Castle Rock High School, Mallery starred on the track team, anchored its debate squad, and played fiddle at local dances “for four bucks a night.” After graduation he passed the teachers’ exam and taught school, serving as principal and janitor for $630 a year at Scantygrease Grade School. He saved enough money to attend Reed College and marry high school classmate Mildred McClane, daughter of the editor of the Cowlitz County Advocate. They had two children, Joe, Jr. and Frances. Mildred died in 1933 and two years later Mallery married Lovella Wrigglesworth, who died in May 1962 following his retirement.
Mallery, drafted into the army, served the last six months of World War I at Port Angeles and Vancouver, gaining discharge as a buck private. For the next five years he taught school at Silver Lake and served as principal at Cathlamet.
From the beginning of Joe’s adult life he aspired to public office, especially the U. S. Senate. Since “lawyers predominated in Congress and I wanted to be a U. S. Senator,” he saved his teaching money, added it to a state veterans’ bonus, and attended the University of Washington. He graduated with an LL.B. in 1926, fifth in his class.
Mallery opened a law office in Castle Rock and, after a few months with very little business, filed for election as Cowlitz County Prosecutor. Much to his and others’ surprise, he won. He attributed his victory to the simple fact that he was “widely known and widely liked.” The young lawyer gained a reputation as a vigorous and successful prosecutor of bootleggers during prohibition. Senator Wesley Jones, an avid “dry,” heard of Mallery’s efforts and recommended him to the U. S. Attorney. In 1928 the future judge moved to Tacoma as Assistant U. S. Attorney, largely responsible for trial work.
After an unsuccessful run as commissioner of finance for Tacoma, he became convinced that nonpartisan elections were the only route to public office during the Democrat-dominated 1930s for a former activist in the Republican Party and past president of the Pierce County Young Republicans. He successfully campaigned for the nonpartisan position of Tacoma Justice of the Peace in 1934 and gained assignment as Tacoma Police Judge four years later. In 1940 voters elected him Pierce County Superior Court Judge, and he served until his high court appointment in 1942.
Unusual circumstances surrounded Mallery’s election and appointment to the supreme court. He had the audacity to challenge longtime incumbent Judge John F. Main, who had been on the bench since 1912. Main edged Mallery by only 685 votes in the primary and both advanced to the November balloting. For reasons of health, Main withdrew, unwilling or unable to face the rigors of further campaigning, leaving Mallery’s name alone on the general election ballot. The third-place candidate in the primary challenged Mallery’s sole placement on the November general election ticket, necessitating a supreme court interpretation. The court ruled that the law required only the candidate receiving the “next greatest” number of votes behind Main be advanced to the November ballot. In October Judge Main died, leaving three months in his unfinished six-year term. Governor Arthur Langlie appointed Mallery to the short term because he would assume responsibilities following the election anyway.
Mallery later described how he conducted that 1942 campaign, a carbon copy of his successful campaign for county prosecutor years earlier:
We got in the car and we’d go to a town; we’d hit this town and I had the car full of leaflets: name, offices … bragging on myself. I’d head for the lawyer’s offices and speak with them … and give them my cards. I had met some of them and some I hadn’t. Joe [son] and Frances [daughter] would walk up and down the business streets and pass out these cards everywhere … My wife did something, too … We made personal contacts. We didn’t wait for making speeches. We just went out and hit the public personally.
In 1944 Mallery filed his candidacy for the U. S. Senate. Later admitting that he “had not learned his lesson,” he lost soundly in the Republican primary.
Understanding Mallery’s decision-making over the nearly twenty years he served on the supreme court bench is difficult. His legal insights were exceptional when an issue piqued his interest. One former colleague remembered that on many occasions “Joe would take off his shoes,” sometimes put his feet on the table and start: “I don’t have much to say about this case,” and then launch into a thorough analysis of the issues and a complete review of relevant precedents, announcing an outcome upon which all would have to agree. His charming personality, colorful language, and unassuming manner stamped Mallery as a judge of the people.
However, personal conflicts on the high court came to the surface in the late 1940s in a public versus private power case. The Skagit County Public Utility District proposed to buy all the assets of the private Puget Sound Power and Light Company for $135,000,000 but needed court approval to consummate the deal. Mallery wrote an opinion endorsing the sale which, after the vote in conference, was to be the majority opinion. Judge Matthew Hill, a committed advocate of private power, wrote a strong dissent and, with a change in court personnel, a four-four split resulted. Chief Justice William Millard asked for a rehearing. When Mallery became chief in January 1947, he vacated the rehearing, letting the four-four split stand, which would have resulted in upholding the lower court’s approval of the sale. However, his brethren overruled him and scheduled a rehearing.
By March 1947, all the judges but Millard had signed either Mallery’s “majority” opinion or Hill’s “dissent.” Three months later Millard still had not affixed his signature to either. Under pressure from the state Grange and amid rumors that led to a rush on Puget Power stock, five of the justices, including Mallery, made public a memo to Millard, chastising him for failing to act. Millard immediately joined Hill’s opinion and voted to void the sale. He then turned on his colleagues:
The action of Judge Mallery and his four associates in making an issue out of the manner in which the members of this court conscientiously attempted to perform their duty is without precedent in the history of the court. I do not see how anyone can arrive at any … conclusion other than that it is the opening gun in Chief Justice Mallery’s campaign for reelection.
Mallery responded sharply:
Judge Millard’s resentment over the explanation of delay, due to his holding up of the case, shows a reliance on secrecy that speaks for itself… The throwing of light on public affairs is in the public interest.
In the 1948 election, largely because of the publicity surrounding the Skagit PUD case, Mallery faced a challenge from a candidate with the bar’s overwhelming endorsement. However, he turned back his opposition in the primary largely due to his incumbency, support from labor and the Grange, and his own campaign efforts.
In January 1962, after only one year into another six-year term, Joe Mallery announced his retirement from the bench. His wife, Lovella, seriously ill with cancer, required constant care. The state had recently increased retirement pay, and Mallery had become isolated from his bench colleagues. The Skagit PUD case still haunted him and a continuing debate with the National Association for the Advancement of Colored People had soured him on public office. Retirement seemed a welcome alternative.
The career of this self-made, outspoken, and colorful judge featured many outstanding moments and some setbacks. Not one to avoid controversy, at times he should have. Perhaps he took too seriously his own comment that “I might be wrong, but I’m never in doubt.” He would have been better suited for the open and freewheeling U. S. Senate to which he aspired from the beginning of his public life.
Mallery, active in the Grange since age fourteen, was state president of the Eagles, a member of the Elks, Masons, Moose Lodge, and the American Legion. An accomplished violin player, he often joined with Judges Robert C. Finley (clarinet) and Richard B. Ott (drums) to provide entertainment for social events in and around Olympia. Travel throughout the world, and residency in Mexico and San Diego occupied Judge Mallery’s retirement years. He died on March 2, 1982.
Selected References
Mallery’s oral history interview is in the supreme court collection, Washington State Archives. Also see the Mallery papers, same collection; Longview Daily News, 30 Aug. 1960; Seattle Post-Intelligencer, 6 Mar. 1982; “Just Call Me Joe,” The Eagle Magazine (Sept. 1945), pp. 12-14; C. W. Taylor, Eminent Judges and Lawyers of the Northwest (1954), p. 52; and memorial services, Washington Reports, vol. 97, 2d (1982), pp. xliv-xlvii.
The preceding biography is from Charles Sheldon's The Washington High Bench: A Biographical History of the State Supreme Court, 1889-1991, © 1992 by the Board of Regents of Washington State University. Reprinted here with permission and licensed to the public under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License by The Temple of Justice Project.
