06/27/2016

Five of the Greatest: Theodore Epstein (1896–1960)


To paraphrase the late Justice Potter Stewart, we know greatness when we see it. Greatness takes many forms and is sometimes judged subjectively, but characteristically includes:

  • professional excellence
  • respect of peers
  • service to a professional community
  • service to a spiritual community
  • service to the country.

Judged by these standards, there is no doubt that Theodore Epstein was one of the greatest.

This article is dedicated in memoriam to Theodore Epstein, Jr., “Uncle Teddy,” who passed on May 7, 2016, and who had proudly carried on the name and tradition of the family patriarch, Theodore.

The Early Years

Theodore Epstein was born on September 3, 1896, in Brooklyn, New York, to Frederick and Elizabeth Epstein, at the family home at 149 Devision Avenue. His name was spelled as “Thiodor” on his birth certificate.1 Frederick is “Fred,” who was born in Kovno (Kaunas) in what was then Czarist Russia, in approximately 1870. Elizabeth was born Elizabeth Antonofsky, in Kiev, Ukraine, in 1871, but her full name is noted as “Lizzie” on the birth certificate.

Elizabeth and Frederick met in New York City after their families emigrated to America. They married sometime around 1890. Uniquely, for an émigré, Frederick became an agent for the Prudential Insurance Company, a white collar job that was not available to most foreign-born Americans. Due to Frederick’s tuberculosis, Theodore moved with his parents and brother, Milton,2 to Denver for treatments at the National Jewish Hospital and the Jewish Consumptive Relief Society. The family initially took up residence at 1529 Dahlia. At some point, the family moved to 2004 Vine, where Theodore resided at the time of his graduation from East High School in 1915.


A young Ted with Loretta Plotkin at Washington Park in 1917.

Upon graduation, Theodore enrolled in the University of Denver, taking a “law course.” He lived the life of an undergraduate in a much simpler time, which allowed for the occasional frolic in the lakes at Washington Park.3 

Theodore served his country in the Navy from 1918 to 1919, stationed at Gulfport, Mississippi and other stateside bases during the war. His military service meant a great deal to him, and he was active with the Veterans of Foreign Wars the remainder of his life. Following his wartime service, Theodore returned to his studies to obtain a law degree from Westminster College of Law.

By 1920, Theodore had hung up his shingle in the downtown Symes Building at 16th and Champa. He worked there until his untimely death in 1960, at age 64, after 40 years of practice. During those years, Theodore associated with a number of attorneys. His longest and most productive partnership was with Phillip Hornbein (1879–1962). Hornbein and Epstein collaborated on many cases as they practiced together from approximately 1925 through 1950.

 

A Different Era; A Different Way of Being

To say the practice of law from 1920 through 1960 was different from today would be an epic understatement, given the advances since then in technology and social changes such as diversity, huge population growth, civil rights, and gender rights.

But the biggest difference is that lawyers in that earlier time, including my grandfather, often pursued justice, not just wealth. This is not to say that dedicated public servants and private practitioners who elevate justice over remuneration don’t exist today. But Ted Epstein’s practice—what he did and how he did it—was an extension of who he was as a person.

Described by his son Ron as a “Big Time New Dealer,” Ted Epstein represented many people pro bono or for reduced fees. He turned down few clients and was not above representing unpopular people or causes.


Ted’s military service meant a great deal to him.

 

When Ted practiced law, the legal culture did not encourage lawyers to have a “litigation persona” separate from their true persona, a division that describes many practitioners today. Ted Epstein was free to bring his personality and values to his practice.

Florence Tesser worked with Ted as the receptionist in his office suite on the 8th floor of the Symes Building from 1951 to 1953. Florence’s one abiding recollection was that she never “knew a man that loved his wife more than he did.”4 Ted, she said, always came off as a “tough kind of guy,” but he “was really the sweetest guy . . . and, oh, how he loved his family.”

Ted was always upbeat and outgoing. His suite-mates from almost 65 years ago were George Bakke, Floyd Walpole, socialite Pierpont Fuller, Ed Schueterman, Charlie Graham, and Ray Goldin. Attorney Sonny Thorn,5 a contemporary of Ted, recalls the joviality and joy with which Ted ran his life and practice. In his office or in court, a big fat stogie was ubiquitous and sometimes even lit, a vice inherited by his son Fred.

The late Honorable Robert L. McWilliams, who served on the Colorado Supreme Court and the Tenth Circuit Court of Appeals, recalled Ted as being “tough as nails and smart as hell.”6

At the time, smoking and chewing tobacco were almost de rigueur, so spittoons were placed throughout the courtroom and used by janitors and jurists. But they were often unused by Ted. One of Ted’s hall of justice negotiating tactics, as relayed by several “old-timers,” was to get close to a young lawyer’s face and let the juice building up from the chewed cigar spray and splatter. Normally the young lawyer caved. Occasionally Ted may have paid the vanquished attorney’s cleaning bill.

Professional Excellence

It was an earlier time, when people could perhaps distinguish themselves more easily than today. Theodore Epstein was a big fish in the then much smaller Denver pond. As indicated by the variety of cases Theodore took to the state and national high courts, his era of practice preceded the focus on specialization in law practice. Theodore would handle a zoning case on Monday, represent the draft board on Wednesday, and defend a murder charge on Friday. Some cases that highlight his career follow.

The Murderess

The September 3, 1939, front page caption of The Denver Post states:

Denver schoolgirl on trial accused of murdering father Mary Wine confident of acquittal as she watches selection of jurors—insists that shooting was accidental

A 16-year old girl, Mary Wine, was called to trial Wednesday morning in the Criminal Division of the Denver District Court, charged with the murder of her father, Max Wine, on December 12, 1938. With her attorneys, Phillip Hornbein and Theodore Epstein, the youthful defendant sat at one side of a long table . . . however in the courtroom, Mary Wine, holding fast to the hand of her black-eyed buxom mother, Jeannie Wine, had said: “I hope to be back in my classes at North High before long, preparing myself for a career as a trained nurse.”

The March 27, 1939 Saguache Crescent stated, “Ms. Wine, 15, shot and killed her father to save her mother, Mrs. Jennie Wine, from a beating at his hands.” Mary’s father, Max Wine, was a bootlegger and gangland figure. Shortly after the trial, a North High teacher, Julia Lengel, expressed:

At the time I met Mary, both her parents were doing time in the penitentiary, and Mary and her two brothers lived at the National Home for Jewish Children . . . After the parents were released, the children were sent to live with their mother and father. I was so upset . . . I went to the principal about it. I had a presentment that something terrible would happen, but there was nothing we could do. It happened on December 14, 1938. Mary shot her father to death when she found him beating her mother with a stove lid lifter.7

Mary Wine’s case was presented to the jury. After deliberating for less than eight minutes, the jury pronounced Mary Wine not guilty.

The Bootleggers

One of Ted’s more colorful cases was that of the Rossis.8 Manilo (Mike) and Caroline Rossi had a little mom and pop cafe, the Moonlight Ranch, in Arapahoe County. Prohibition laws were in effect at the time, and the Rossis were enjoined by an order from the U.S. District Court for the District of Colorado from “maintenance of a certain roadhouse near Denver, where intoxicating liquors were alleged to have been manufactured, sold, kept, and bartered by them.”9 The Rossis were convicted twice by a jury of violating the injunction, and jail time and fines were ordered. The Rossi case involved two issues: the substantive crime and the denial of bond. After defeat in the trial court, Theodore filed an appeal and requested bond pending same. The U.S. District Court judge denied bond; an appeal of the denial of the bond followed, in which Theodore argued that the Eighth Amendment of the U.S. Constitution applies. It states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Eighth Circuit Court of Appeals overturned the district court and ordered that the Rossis be permitted to post bond.10 The Rossis won the battle but lost the war. The Eighth Circuit upheld the conviction, stating:

Meals were served, a regular cook was employed, and ample provisions were always in stock. A colored orchestra was maintained, and people resorted there in large numbers for various purposes. . . . The evidence shows that ample liquor was there; that defendants furnished their patrons with glasses, chipped ice, ginger ale, and soft drinks, charging $2.50 a quart for ginger ale . . . it is the testimony of witnesses that generally by midnight . . . virtually all of the crowd was drunk. It was necessary to carry out drunken men, while drunken women fell upon the floor. Men and women were drinking and tussling on the floor, and, while the evenings started in quietude and peace, they ended in Bacchanalian orgies, with all the concomitants, and, as described by some of the witnesses, the place became a “veritable madhouse.”11

The Rossis were convicted. The evidence failed to show that they sold any intoxicating liquor, so the case turned on whether they facilitated its consumption. While the Rossis themselves may not have served alcohol, they did very well selling mixers; using the Consumer Price Index, $2.50 for a quart of ginger ale in 1926 equates to $33.63 in 2016 dollars.


Ted’s civic involvement included service to the Boy Scouts.

 

Double Indemnity

Day v. Equitable Life Assurance Society of the United States involved an insurance carrier’s failure to pay double indemnity for an accidental death in an airplane.12 Mr. Day’s friend took him on a pleasure flight during which the plane crashed and Mr. Day was killed. His insurance contract provided for payment of an additional $5,000 for death resulting from an accident, but precluded double indemnity if the death resulted from “submarine or aeronautic expeditions.” The insurance carrier defaulted on its liability for the $5,000 accident benefit. Construing the phrase “expedition,” the Tenth Circuit held that a short or casual pleasure trip is not an expedition. Equitable paid up.

The Labor Union

Colorado-Wyoming Express v. Denver Local Union No. 13 of the International Brotherhood of Teamsters, Chauffeurs, Stable Men and Helpers of America involved a collective bargaining dispute.13 Theodore represented the defendant unions. Colorado-Wyoming Express was a common carrier that sought injunctive relief relative to the practices of Denver unions. The plaintiffs alleged that pursuant to permits issued by the Intrastate Commerce Commission and contractual rights, they were entitled to operate their lines free of coercion or control by local unions, but the local unions were requiring all carriers to be closed union shops, and no union shop would do business with the Colorado-Wyoming Express until all of its employees were union members. The gravamen of the complaint was that the unions were conspiring to prevent Colorado-Wyoming Express from engaging in inter- and intra-state commerce under threats of sympathetic strikes and otherwise. The plaintiffs sought injunctive relief. The appellate court sided with Ted’s client, the union, holding:

Consciously or unconsciously, plaintiffs seek to prevent their employees from becoming members of a labor union and ask the court to restrain the defendant union, which as far as the records disclose has been chosen by the plaintiffs’ employees as their bargaining agency, from using lawful means to enforce their demands for a closed shop. All of which is contrary to the broad public policy declarations . . . found in the National Labor Relations Act.14

Fighting City Hall

Theodore’s representation of Denver Buick, Inc. might be his most famous case.15 Denver Buick and its owner challenged the zoning ordinance requiring a certain amount of off-street parking at the Denver Buick location on South Colorado Boulevard on the basis that it unconstitutionally deprived landowners of the use and enjoyment of their property. Contrary to the aphorism, Theodore Epstein fought and beat City Hall. The trial court ruled on April 4, 1958 that the ordinance was unconstitutional and granted injunctive relief prohibiting the City from enforcing the ordinance: “The privilege of a citizen to use his property according to his own will is not only a liberty, but a property right, subject only to such restraints as the common welfare may require.” The Supreme Court affirmed.16

The Cherry Pit

In the early fifties, Miss Kanaster was eating a piece of cherry pie at the Woolworths counter at 16th and Champa when she chipped her tooth on a pit. Without filing suit, Ted obtained a $2,000 settlement for his client; that is $20,000 in today’s dollars for a chipped tooth.

Peer Respect and Public Service

In discussing Ted’s role in his community, the chicken and egg conundrum comes to mind. Did his service to community and excellent lawyering engender the respect of his peers or did the respect of his peers engender his community service and professional excellence?

At the time of his death in 1960, Theodore was one of 12 prominent attorneys serving on the Colorado Attorney Grievance Board. This board preceded the Supreme Court’s Office of Attorney Regulation Counsel. Ted’s inclusion on the grievance board showed the high regard with which he was held by his legal community. As part of his service to country, Theodore was legal advisor to the Denver Draft Board. As such, he was responsible for prosecuting draft-dodgers and considering conscientious objector petitions. He was also extremely active in the Democratic Party. Following his service in World War I, he was president of the Leyden-Chiles-Wickersham Post No. 1 in the American Legion.

With respect to his spiritual community, Theodore Epstein sat on the Board of the Beth Ha Medrosh Hagodal Synagogue (BMH) in East Denver and also was an officer in Denver B’nai Brith, the predecessor to the Anti-Defamation League.

Part of Theodore’s civic involvement was with the Boy Scouts of America. As of October 31, 1941, he was the “committeeman of Pack 26 in Denver, Colorado.”

Grandpa Ted did it all, even family law. In February of 1951, Theodore appeared on Station KMYR in Denver to give a 10-minute talk on domestic relations.


Ted, Ida, and their children.

 

The Family Man

As noted above, Ted Epstein was informed by his love of his family, especially his wife. Ted married Ida Mandel in 1929 at the BMH Synagogue on 16th and Gaylord. She was from a large family that had pioneered Colorado in approximately 1875. Shortly after the couple married, Ted and Ida bought a large home on Cherry Street and Montview Boulevard, where Ted lived until his death. Ida gave birth to four children, Frederick (1931–1990); Ronald, born in 1933; Theodore Jr. (1936–2016); and Marilyn Epstein Snyder, born in 1938.

Frederick and Theodore, Jr. both followed their father’s footsteps into the law. Frederick, who died prematurely at age 58 in 1990, garnered accolades in his own right.17 Ted, Jr. practiced from approximately 1962 to 1986, but never loved the law like his father; his greatest achievements were garnered after his retirement, both as a sculptor of bronze and ceramic, and as an ultra-endurance athlete. Ronald taught in the Denver public schools for 30 years and is a serial entrepreneur. Marilyn, an entrepreneur and bon vivant, married Denver attorney Jerry Snider, who retired in 2014.

Ron Epstein recalls Theodore as a very private individual, but one who was always there for the family. Theodore’s life revolved around his practice and family. He worked six days a week and valued and enjoyed the esteem in which he was held. Ron recalls that Ted was “totally devoted to his practice.”

During the ’30s, ’40s and ’50s, Ted did not go out a lot in the evenings and had a very moderate lifestyle. The family had one car. Ida would usually take Ted from Park Hill to the Symes Building in the morning and pick him up at quitting time. Ted represented a policeman, Officer Quals, who permitted Ida to park in a no-parking zone until Ted would be finished with work.

Ron recalls that Ted’s routine was to come home in the evening, change into his silk robe and hightop soft leather slippers, read The Denver Post (then delivered in the afternoon), and listen to the news, rather than music, on his Philco radio.

The family would dine at restaurants as part of a barter agreement with restauranteurs he had represented. Ted was a steak-eater at the Stockyard, and dined at Joe’s Awful Coffee Restaurant and Patsy’s, which still exists at 38th and Tejon. Ted was not much of a drinker but would enjoy an occasional shot of bourbon.

According to Florence Tesser, Ron Epstein, and others, and as manifested in numerous photos, Ted was an impeccable dresser. He shopped at Gano Downs and Alperts. Mr. Buckley at Gano Downs was his haberdasher of choice. He insisted on a sharp crease in his trousers but none in his cuffs. The family would go to a film “every weekend” at the Bluebird Theater and would frequent the Sulky Races at the long-gone oval horse track in City Park, as well as attend ball games there.

Ted enjoyed poker, with a Mr. Monroe, among others, but did not have a regular game. He golfed at City Park with former lawyer Simon (Sy) Quiat. Denver resident Rhoda Friedman,18 Sy’s daughter, recalls that in the early ’50s her father was unable to speak due to a surgery. Ted volunteered to handle all of Sy’s cases until Sy recovered. If nothing else, Ted Epstein was extremely loyal to his friends and family.

Theodore’s Selective Service registration card of April 27, 1942 showed him as 5¢10²tall and 190 pounds. On his driver’s license, issued 18 years later, Theodore was still 5¢10²tall and 190 pounds. He was either in great shape or saw no reason to make any changes.


Ted golfed at City Park.

Ida fought cancer from about 1950 until May 3, 1954, in an era when the clumsy cure of radiation was truly worse than the disease. After watching Ida’s suffering for four years and her devastating death, Ted was never the same. He lived his last years under a cloud of depression. Ron recalls Ted’s loneliness and his pattern of buying a sandwich after work at Saliman’s Restaurant on 17th Street and going home to Park Hill to eat it by himself.

Contemporaneous newspaper articles and family recollections establish that in 1957 Theodore, as a single father, held a wedding for Marilyn and Jerry for 675 people at the old BMH. In attendance were Denver luminaries in law and government, including U.S. Senator John Carroll, Denver District Attorney Bert Keating, and a significant portion of the Denver judiciary.

Ted Epstein died on September 3, 1960. The cause of death was a severe nosebleed, secondary to a misdiagnosed bleeding ulcer. But son Ron believes the real cause of death was depression over the loss of the love of his life, Ida.

By all measures of greatness in a human being, Ted Epstein fit the bill.

Notes

1. State of New York birth certificate, Brooklyn #13510.

2. Milton Epstein did not choose the law route. He graduated from the Massachusetts Institute of Technology (MIT) around 1920 and later founded a large manufacturing and engineering firm.

3. An article from approximately September 8, 1917 in The Denver Post (see picture) states that “Theodore Epstein enlisted in the aviation service section of the Navy and is leaving soon for training at Gulfport, Mississippi. Epstein graduated from East Denver High School in the Class of 1915 and was taking a law course at the University of Denver when he enlisted.”

4. Interview with Florence Tesser, May 1, 2016.

5. Interview with Florence Tesser, March 17, 2016.

6. Interview with Florence Tesser, March 2013.

7. Lengel-Strickler-Hays-Youngberg genealogy exhibit, Julie Lengel at JuliaLengel.com.

8. Rossi v. United States, 16 F.2d 712 (8th Cir. 1926).

9. Rossi v. United States, 11 F.2d 264 (8th Cir. 1926).

10. Rossi, 11 F.2d at 267.

11. Rossi, 16 F.2d at 714.

12 Day v. Equitable Life Assurance Soc’y of the United States, 83 F.2d 147 (10th Cir. 1936).

13 . Colorado-Wyoming Express v. Denver Local Union No. 13 of the Int’l Brotherhood of Teamsters, Chauffeurs, Stable Men and Helpers of America, 35 F.Supp. 155 (D.Colo. 1940).

14. Id. at 159.

15. City and County of Denver v. Denver Buick Inc., 347 P.2d 919 (Colo. 1959). Portions of this opinion were rejected by a later court in 500 P.2d 807, 532 P.2d 720, and 563 P.2d 946.

16. Denver Buick Inc., 347 P.2d at 923–924.

17. Epstein, “Six of the Greatest: Frederick Epstein,” 37 The Colorado Lawyer 41 (July 2008).

18. Interview with Rhoda Friedman, December 2015.

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