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GOVDOC 
Y4.J89/2: 

S.HRG. /^^'/(PjlX 
L I S. Hrg. 103-1031, Pt. 2 

^' ^ ^.uil nRMATION HEARINGS 




ON FEDERAL APPOINTMENTS 

DEC I 9 1995 ■ 

HEARINGS 



' rsT"^':'' 



BEFORE THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

ONE HUNDRED THIRD CONGRESS 

SECOND SESSION 

ON 

CONFIRMATIONS OF APPOINTEES TO THE FEDERAL JUDICIARY 



JANUARY 27; FEBRUARY 3, 24; MARCH 2, 3, 10, AND 16, 1994 



Part 2 



Serial No. J-103-28 



Printed for the use of the Committee on the Judicisiry 




/^^^2-A 



S. Hrg. 103-1031, Pt. 2 

CONHRMATION HEARINGS 
ON FEDERAL APPOINTMENTS 



HEARINGS 

BEFORE THE 

COMMITTEE ON THE JUDICIARY 
UNITED STATES SENATE 

ONE HUNDRED THIRD CONGRESS 

SECOND SESSION 

ON 

CONFIRMATIONS OF APPOINTEES TO THE FEDERAL JUDICIARY 



JANUARY 27; FEBRUARY 3, 24; MARCH 2, 3, 10, AND 16, 1994 



Part 2 



Serial No. J-103-28 



Printed for the use of the Committee on the Judiciary 



GOVERNMEinr iX)CUIIENTS OEPARTMEWT ' 
^RECEIVED 




FEB 2 4 2000 



1 



U.S. GOVERNMENT PRINTING OFFICE 
90-550 WASHINGTON : 1995 



For sale by the U.S. Government Printing Office 
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 
ISBN 0-16-047739-5 



COMMITTEE ON THE JUDICIARY 

JOSEPH R. BIDEN, Jr., Delaware, Chairman 

EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah 

HOWARD M. METZENBAUM, Ohio STROM THURMOND, South Carohna 

DENNIS DeCONCINI, Arizona ALAN K. SIMPSON, Wyoming 

PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa 

HOWELL HEFLIN, Alabama ARLEN SPECTER, Pennsylvania 

PAUL SIMON, IlUnois HANK BROWN, Colorado 

HERBERT KOHL, Wisconsin WILLIAM S. COHEN, Maine 

DIANNE FEINSTEIN, CaUfomia LARRY PRESSLER, South Dakota 
CAROL MOSELEY-BRAUN, IlUnois 

Cynthia C. Hogan, Chief Counsel 

Catherine M. Russell, Staff Director 

Mark R. Disler, Minority Staff Director 

Sharon Prost, Minority Chief Counsel 



(II) 



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CONTENTS 



HEARING DATES 

Page 

Thursday, January 27, 1994 1 

Thursday, February 3, 1994 349 

Thursday, February 24, 1994 511 

Wednesday, March 2, 1994 675 

Thursday, March 3, 1994 761 

Thursday, March 10, 1994 959 

Wednesday, March 16, 1994 1059 

THURSDAY, JANUARY 27, 1994 

Statements of Committee Members 

Kohl, Hon. Herbert 1 

Cohen, Hon. WilUam S 14 

Introduction of Nominees 

Kennedy, Hon. Edward M 2 

Specter, Hon. Arlen 3 

Wofford, Hon. Harris 4 

Glenn, Hon. John 6 

Metzenbaum, Hon. Howard 7 

Stokes, Hon. Louis 7 

Norton, Hon. Eleanor Holmes 8 

Breavtx, Hon. John B 9 

Jefferson, Hon. William J 11 

Testimony of Nominees 

Hon. Judith Ann Wilson Rogers, of Washington, DC, to be U.S. Circuit Judge 

for the District of Columbia 12 

Hon. Michael A. Ponsor, of Massachusetts, to be U.S. District Judge for 

the District of Massachusetts 18 

Hon. Lesley Brooks Wells, of Ohio, to be U.S. District Judge for the Northern 

District of Ohio 22 

Marjorie Rendell, of Pennsylvania, to be U.S. District Judge for the Eastern 

District of Pennsylvania 27 

Thomas Vanaskie, of Pennsylvania, to be U.S. District Judge for the Western 

District of Pennsylvania 30 

Helen Georgena Berrigan, of Louisiana, to be U.S. District Judge for the 

Eastern District of Louisiana 34 

Tucker Melancon, of Louisiana, to be U.S. District Judge for the Western 

District of Louisiana 39 

Alphabetical List and Materlu. Submitted 

Berrigan, Helen Georgena: 

Testimony 34 

Questionnaire 230 

Biden, Chairman Joseph R., Jr.: 

Letter from Charles A. Vanik, Washington, DC, Jan. 24, 1994 304 



(III) 



IV 

Biden, Chairman Joseph R., Jr. — Continued 

Statement of Laurack D. Bray, opposing the confirmation of Judith Rog- ^^^ 

ers 305 

Copies of two civil rights complaints filed in the U.S. District Court 
for the District of Columbia: 

Alice Cheffield v. Henry F. Greene 307 

Sceva J. Kendall v. John Ferren, John Terry, and Michael Farrell 336 

Melancon, Tucker: 

Testimony 39 

Questionnaire 261 

Court cases 283 

Ponsor, Hon. Michael A.: 

Testimony 18 

Questionnaire 69 

Rendell, Marjorie: 

Testimony 27 

Questionnaire 149 

Rogers, Hon. Judith Ann Wilson: 

Testimony ■. 12 

Questionnaire 43 

Vanaskie, Thomas: 

Testimony 30 

Questionnaire 192 

Wells, Hon. Lesley Brooks: 

Testimony 22 

Questionnaire 113 

THURSDAY, FEBRUARY 3, 1994 
Statements of Committee Members 

Biden, Chairman Joseph R., Jr 349 

Hatch, Hon. Orrin G 351 

Moseley-Braun, Hon. Carol 353 

Cohen, Hon. William S 353 

Simon, Hon. Paul 374 

Thurmond, Hon. Strom 380 

Grassley, Hon. Charles E 391 

Introduction of Nominee 

Graham, Hon. Bob 354 

Mack, Hon. Connie 357 

Chiles, Hon. Lawton 376 

Testimony of Nominee 

Hon. Rosemary Barkett, of Florida, to be a U.S. Circuit Judge for the Elev- 
enth Circuit 359 

Alphabetical List and Material Submitted 

Barkett, Hon. Rosemary: 

Testimony 359 

Questionnaire 429 

Disler, Mark: 

Letter to Chairman Biden, Apr. 13, 1994 481 

Chairman Biden's response, Apr. 15, 1994 482 

Excerpt from the Congressional Record, Oct. 7, 1994 483 

Graham, Hon. Bob: 

Prepared statement 356 

Articles relating to the nomination of Rosemary Barkett: 

The Miami Herald, Sept. 28, 1993 484 

The News-Journal, Sept. 28, 1993 485 

The Orlando Sentinel, Sept. 29, 1993 486 

Sun-Sentinel, Oct. 1, 1993 487 

The Tampa Tribune, Oct. 2, 1993 488 



Graham, Hon. Bob — Continued 

Articles relating to the nomination of Rosemary Barkett — Continued ^^ 

The News-Journal, Oct. 18, 1993 489 

St. Petersburg Times, Oct. 19, 1993 490 

Tallahasse Democrat, Oct. 21, 1993 491 

Fort Lauderdale Sun-Sentinel, Oct. 21, 1993 492 

Sarasota Herald-Tribune, Oct. 22, 1993 493 

Gainesville Sun, Oct. 23, 1993 494 

The Palm Beach Post, Oct. 24, 1993 495 

The Orlando Sentinel, Oct. 25, 1993 496 

Florida Clipping Service, Inc., Oct. 26, 1993 497 

The Orlando Sentinel, Oct. 31, 1993 498 

The New York Times, Nov. 5, 1993 499 

Ocala Star Banner, Nov. 8, 1993 500 

News-Press, Nov. 13, 1993 501 

Miami Times, Nov. 18, 1993 502 

The Wall Street Journal, Nov. 29, 1993 503 

The New Yorker, Dec. 20, 1993 504 

St. Petersburg Times, Dec. 21, 1993 506 

Gainesville Sun, Dec. 23, 1993 507 

The Atlanta Journal, Dec. 26, 1993 508 

Hatch, Hon. Orrin G.: 

Questions for Chief Justice Barkett 469 

Responses from Chief Justice Barkett 472 

Supplemental questions for Chief Justice Barkett and her responses 476 

Simon, Hon. Paul: 

Letter to Chairman Biden from the National Association of Police Organi- 
zations, Inc., Washington, DC, Oct. 22, 1993 375 

Thurmond, Hon. Strom: 

Questions for Chief Justice Barkett 477 

Responses from Chief Justice Barkett 480 

THURSDAY, FEBRUARY 24, 1994 
Statements of Committee Members 

Hellin, Hon. Howell 511 

Brown, Hon. Hank 518 

Introduction of Nominees 

Hutchison, Hon. Kay Bailey 511 

Brooks, Hon. Jack 512 

Coleman, Hon. Ronald D 513 

Bryant, Hon. John 513 

Tejeda, Hon. Frank 514 

Ortiz, Hon. Solomon P 525 

Testimony of Nominees 

Samuel Frederick Bieiy, Jr., San Antonio, TX, to be U.S. District Judge 

for the Western District of Texas 518 

William Royal Furgeson, Jr., El Paso, TX, to be U.S. District Judge for 

the Western District of Texas 519 

Orlando Luis Garcia, San Antonio, TX, to be U.S. District Judge for the 

Western District of Texas 521 

John Henry Hannah, Jr., Tyler, TX, to be U.S. District Judge for the Eastern 

District of Texas 523 

Janis Ann Graham Jack, Corpus Christi, TX, to be U.S. District Judge for 

the Southern District of Texas 524 

Alphabetical List and Material Submitted 

Biery, Samuel Frederick, Jr.: 

Testimony 518 

Questionnaire 527 



VI 

Furgeson, William Royal, Jr.: Page 

Testimony 519 

Questionnaire 554 

Gsircia, Orlando Lms: 

Testimony 521 

Questionnaire 580 

Hannah, John Henry, Jr.: 

Testimony 523 

Questionnaire 606 

Jack, Janis Ann Graham: 

Testimony 524 

Questionnaire 638 

WEDNESDAY, MARCH 2, 1994 

Statements of Committee Members 

Biden, Chairman Joseph R., Jr 675 

Prepared statement 677 

Hatch, Hon. Orrin G 682 

Prepared statement 683 

Grassley, Hon. Charles E 696 

Introduction of Nominee 

Moynihan, Hon. Daniel Patrick 678 

D'Amato, Hon. Alfonse 680 

Prepared statement 681 

McNulty, Hon. Michael R 685 

Quinn, Hon. Jack 685 

Prepared statement 686 

Testimony of Nominee 

Thomas A. Constantine, Schenectady, NY, to be Administrator, U.S. Drug 

Enforcement Administration 688 

Alphabetical List and Material Submitted 

Biden, Chairman Joseph R., Jr.: 

List of law enforcement organizations and former DEA Administrators 

supporting the nomination 692 

Questions for Superintendent Thomas Constantine and his responses 747 

Constantine, Thomas Arthur: 

Testimony 688 

Questionnaire 716 

Leahy, Hon. Patrick J.: 

Questions for Superintendent Thomas Constantine and his responses 756 

Moynihan, Hon. Daniel Patrick: 

Reprint from the American Scholar: "Iatrogenic Government" 734 

Chart of homicides per 100,000 746 

THURSDAY, MARCH 3, 1994 
Statements of Committee Members 

Feinstein, Hon. Dianne 761 

Thurmond, Hon. Strom 764 

Introduction of Nominees 

HolHngs, Hon. Ernest F 762 

Murray, Hon. Patty 764 

Wellstone, Hon. Paul 765 

Hatfield, Hon. Mark O 766 

Wyden, Hon. Ron 767 

Graham, Hon. Bob 768 



VII 

Graham, Hon. Bob— Continued ^^® 

Prepared statement 769 

Johnston, Hon. Harry 770 

Durenberger, Hon. Dave 789 

Testimony of Nominees 

Cameron Currie, Columbia, SC, to be U.S. District Judge for the District 

of South CaroHna 770 

Franklin D. Burgess, Tacoma, WA, to be U.S. District Judge for the Western 

District of Washington 776 

Michael Davis, Minneapolis, MN, to be U.S. District Judge for the District 

of Minnesota 779 

Ancer Haggerty, Portland, OR, to be U.S. District Judge for the District 

of Oregon 783 

Daniel T.K. Hurley, South Palm Beach, FL, to be U.S. District Judge for 

the Southern District of Florida 786 

Alphabetical List and Material Submitted 

Biden, Chairman Joseph R., Jr.: 

Letter in opposition to the appointment of Judge Ancer Haggerty to 
the Federal bench, from Roy B. Thompson, P.C, Portland, OR, Mar. 

2, 1994 955 

Letter in support of the nomination of Judge Michael James Davis to 
be a U.S. district judge for the District of Minnesota, from Members 
of Congress, House of Representatives, Washington, DC, Mar. 3, 1994 .. 958 

Burgess, Franklin Douglas: 

Testimony 776 

Questionnaire 814 

Cvurie, Cameron: 

Testimony 770 

Questionnaire 791 

Davis, Michael: 

Testimony 779 

Questionnaire 830 

Haggerty, Ancer: 

Testimony 783 

Questionnaire 884 

Hurley, Daniel T.K.: 

Testimony 786 

Questionnaire 918 

THURSDAY, MARCH 10, 1994 

Statements of Committee Members 

Biden, Chairman Joseph R., Jr 959 

Hatch, Hon. Orrin G 960 

Simon, Hon. Paul 965 

Thurmond, Hon. Strom 983 

Metzenbaum, Hon. Howard M 986 

Simpson, Hon. Alan K 988 

Feinstein, Hon. Dianne 991 

Cohen, Hon. William S 994 

Moseley-Braun, Hon. Carol 997 

Prepared statement 1000 

Grassley, Hon. Charles E 1001 

Heflin, Hon. Howell 1005 

Specter, Hon. Arlen 1006 

Leahy, Hon. Patrick J 1010 

Introduction of Nominee 

Kerry, Hon. John F 962 

Prepared statement 964 

Coppersmith, Hon. Sam 965 



VIII 

Coppersmith, Hon. Sam — Continued p^^ 

Prepared statement 967 

Kennedy, Hon. Edward M 972 

Testimony of Nominee 

Deval L. Patrick, to be Assistant Attorney General for Civil Rights, U.S. 
Department of Justice 968 

Alphabetical List and Material Submitted 

Biden, Chairman Joseph R., Jr.: 
Letters from: 

Hill & Barlow, Boston, MA, Mar. 2, 1994 1051 

Massachusetts Black Lawyers Association, Boston, MA, Mar. 9, 1994 1053 
U.S. Department of Justice, Washington, DC, Mar. 14, 1994, with 
Deval Patrick's responses to Senator Pressler's written questions ... 1055 
Coppersmith, Hon. Sam: 

'The Right Person Is Put Forward for Civil Rights Post", by Judge 

Stephen Reinhardt, from the Los Angeles Times, Feb. 21, 1994 1050 

Kennedy, Hon. Edward M.: 

Prepared statement of the Lawyers' Committee for Civil Rights Under 

Law 1010 

Patrick, Deval L.: 

Testimony 968 

Prepared statement 971 

Questionnaire 1013 

WEDNESDAY, MARCH 16, 1994 

Statements of Committee Members 

Biden, Chairman Joseph R., Jr 1059 

Hatch, Hon. Orrin G 1061 

Simon, Hon. Paul 1071 

Moseley-Braun, Hon. Carol 1078 

Prepard statement 1078 

Feinstein, Hon. Dianne 1078 

Thurmond, Hon. Strom 1081 

Metzenbaum, Hon. Howard M 1085 

Grassley, Hon. Charles E 1088 

Cohen, Hon. William S 1090 

Specter, Hon. Arlen 1099 

Introduction of Nominee 

Mikulski, Hon. Barbara 1064 

Sarbanes, Hon. Paul S 1064 

Morella, Hon. Constance A 1065 

Testimony of Nominee 

Jamie S. Gorelick, to be Deputy Attorney General, U.S. Depsutment of Jus- 
tice 1067 

Alphabetical List and Material Submitted 

Biden, Chairman Joseph R., Jr.: 

Letter from the U.S. Department of Justice, Washington, DC, May 12, 

1994 1154 

Attachments — Jamie Gorelick's respones to questions submitted by: 

Senator Leahy 1155 

Senator Simpson 1158 

Senator Pressler 1159 

DOJ memorandums to: 

Janet Reno, Attorney General, from 18 trial lawyers. Environmental 
Crimes Section, Mar. 3, 1994 1165 



IX 

Biden, Chairman Joseph R., Jr. — Continued ^^^^ 

DOJ memorandums to— Continued 

All section line attorneys, from Messrs. Miskiewicz, Murtha, Nagle, 

and Uhlman, Mar. 4, 1994 1167 

Gorelick, Jamie: 

Testimony 1067 

Questionnaire 1111 

Moseley-Braun, Hon. Carol: 

Letter from the Hispanic Bar Association of the District of Columbia, 
Washington, DC, Mar. 15, 1994 ...., 1169 

ALPHABETICAL LIST OF NOMINEES FOR FEDERAL APPOINTMENTS 

Barkett, Hon. Rosemary, of Florida, to be U.S. Circuit Judge for the Eleventh 

Circuit 359 

Berrigan, Helen Georgena, of Louisiana, to be U.S. District Judge for the 

Eastern District of Louisiana 34 

Biery, Samuel Frederick, Jr., San Antonio, TX, to be U.S. District Judge 

for the Western District of Texas 518 

Burgess, Franklin D., Tacoma, WA, to be U.S. District Judge for the Western 

District of Washington 776 

Constantine, Thomas A., Schenectady, NY, to be Administrator, U.S. Drug 

Enforcement Administration 688 

Ciurie, Cameron, Columbia, SC, to be U.S. District Judge for the District 

of South Carolina 770 

Davis, Michael, Minneapolis, MN, to be U.S. District Judge for the District 

of Minnesota 779 

Furgeson, William Royal, Jr., El Paso, TX, to be U.S. District Judge for 

the Western District of Texas 519 

Garcia, Orlando Luis, San Antonio, TX, to be U.S. District Judge for the 

Western District of Texas 521 

Gorelick, Jamie S., to be Deputy Attorney General, U.S. Department of Jus- 
tice 1067 

Haggerty, Ancer, Portland, OR, to be U.S. District Judge for the District 

of Oregon 783 

Hannah, John Henry, Jr., Tyler, TX, to be U.S. District Judge for the Eastern 

District of Texas 523 

Hurley, Daniel T.K., SouVh Palm Beac^^^ Judge for 

the Southern District of Florida 786 

Jack, Janis Ann Graham, Corpus Christi, TX, to be U.S. District Judge 

for the Southern District of Texas 524 

Melancon, Tucker, of Louisiana, to be U.S. District Judge for the Western 

District of Louisiana 39 

Patrick, Deval L., to be Assistant Attorney General for Civil Rights, U.S. 

Department of Justice 968 

Ponsor, Hon. Michael A., of Massachusetts, to be U.S. District Judge for 

the District of Massachusetts 18 

Rendell, Marjorie, of Pennsylvania, to be U.S. District Judge for the Eastern 

District of Pennsylvania 27 

Rogers, Hon. Judith Ann Wilson, of Washington, DC, to be U.S. Circuit 

Judge for the District of Columbia 12 

Vanaskie, Thomas, of Pennsylvania, to be U.S. District Judge for the Western 

District of Pennsylvania 30 

Wells, Hon. Lesley Brooks, of Ohio, to be U.S. District Judge for the Northern 

District of Ohio 22 



NOMINATIONS OF JUDITH ANN WILSON ROG- 
ERS, TO BE U.S. CIRCUIT COURT JUDGE; MI- 
CHAEL A. PONSOR; LESLEY BROOKS WELLS; 
MARJORIE RENDELL; THOMAS VANASKIE; 
HELEN GEORGENA BERRIGAN; AND TUCK- 
ER MELANCON, TO BE U.S. DISTRICT 
JUDGES 



THURSDAY, JANUARY 27, 1994 

U.S. Senate, 
Committee on the Judiciary, 

Washington, DC. 

The committee met, pursuant to notice, at 2:03 p.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Herb Kohl presiding. 

Also present: Senators Kennedy, Metzenbaum, Specter, and 
Cohen. 

OPENDSIG STATEMENT OF SENATOR KOHL 

Senator KOHL. This hearing will come to order. 

This afternoon, the Judiciary Committee will conduct a hearing 
on the following judicial nominees: Judge Judith Rogers, of the Dis- 
trict of Columbia, to be circuit court judge for the District of Co- 
lumbia Court of Appeals; Judge Michael Ponsor, to be district court 
judge for the District of Massachusetts; Judge Lesley Brooks Wells, 
to be district court judge for the Northern District of Ohio; Marjorie 
Rendell, to be district court judge for the Eastern District of Penn- 
sylvania; Thomas Vanaskie, to be district court judge for the Mid- 
dle District of Pennsylvania; Helen Berrigan, to be district court 
judge for the Eastern District of Louisiana; and Tucker Melancon, 
to be district judge for the Western District of Louisiana. 

As is customary, we will hear first from Senators and Represent- 
atives who wish to introduce nominees to the committee. But be- 
fore we turn to them, let me state for the record that each nominee 
has completed a detailed questionnaire on his or her qualifications, 
experience, finances, and philosophy. The portions of the question- 
naires available to the public will be printed in the record of this 
hearing. 

We understand that we may receive written testimony about the 
nomination of Judith Rogers from Larac Bray. We will keep the 
record open for a limited time for any other written testimony sub- 
mitted to the committee, and just in case members of the commit- 
tee would like to submit written questions. Of course, we will place 

(1) 



in the record the full introductory statements of home State Sen- 
ators. 

Are there any other comments from Senators before we move on 
to introductions? 

[No response.] 

We have a number of very distinguished Senators and Rep- 
resentatives who are with us today, and we would like to begin 
with them as they introduce the nominees from their State. First 
we would like to ask Senator Kennedy and, if he is here. Senator 
Kerry to speak in behalf of Judge Ponsor, if Judge Ponsor would 
come forward. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 
FROM THE STATE OF MASSACHUSETTS 

Senator Kennedy. Thank you very much, Mr. Chairman and 
Senator Specter. 

I want to follow the adage that the shorter the introduction, the 
more rapidly the committee considers the nominee, so I will not 
take a great deal of time. But I want to say what a real honor it 
is to be able to recommend to this committee and to the Senate a 
really extraordinary candidate for judge for the Federal district 
court in Massachusetts. 

Michael Ponsor has been associated with excellence since the 
earliest days of his life, an absolutely brilliant student in his early 
days and his primary and secondary days, an outstanding academic 
record in college at Harvard University, was awarded a Rhodes 
Scholarship and later at Yale, has had a brilliant career in the law 
in the private sector among many of our outstanding law firms in 
Boston and western Massachusetts; currently serves as a mag- 
istrate. 

As you know, Mr. Chairman, magistrates, with the agreement of 
the parties, can serve as the judge in civil cases. It is a fact that 
Michael Ponsor has served with the confidence of the parties more 
than all of the other magistrates in Massachusetts combined. I 
think this is a very clear indication of the kind of confidence that 
those that have respect for the law and have a sense of his fairness 
and his judiciousness have taken. 

One of the qualities of Michael Ponsor that I find most appealing 
is his interest in community and pro bono work. In high school, he 
was involved in tutoring children. In college, in his junior year, he 
went and taught English in Kenya. He is the only person that I 
have ever known or that probably has been before this committee 
that speaks Swahili as well as Finnish. 

When he was in law school, he served in the Legal Defenders 
and spent a great deal of time both in law school at Yale and also 
in the practice of the law with pro bono work. He probably has had 
as much pro bono work as many, many other individuals combined 
before this committee. 

We had set up, John Kerry and I, a group of men and women, 
distinguished men and women of the bar in Massachusetts. That 
committee was chaired by Mr. Curtin, who was the former presi- 
dent of the ABA, and had many distinguished members. 

They had recommended to Senator Kerry and to myself Michael 
Ponsor, and we had the opportunity of reviewing the background 



and the experience and the temperament of individuals, Michael 
Ponsor and others, and Senator Kerry and I have a great sense of 
pride in recommending his name to the President, and we feel that 
the President has selected wisely in sending him to this committee. 
I know that he will be an outstanding judge. He served as a clerk 
to Judge Tauro, who is the chief of our court, and Judge Tauro, 
who is one of our most distinguished members, has nothing but the 
highest praise and recommendation of this nominee. 

I am proud to make the recommendation, and I look forward to 
favorable approval by the committee and the Senate. 

Thank you. 

Senator KOHL. Thank you very much, Senator Kennedy. 

I notice that Senator Kerry is guiding legislation on the floor at 
this time and wanted to be here. 

Senator KENNEDY. He wanted to have his remarks included. I 
know I spoke for him when I made those comments, and if he was 
not on the floor, he would be over here. 

If I could just take 30 seconds more, it is a personal delight for 
me also to say that Judge Rendell has been nominated, and I have 
known the family for many, many years — intelligent, thoughtful, 
committed to law. He has been a very dear and wonderful, valued 
friend, and I know will be an outstanding judge. 

Senator KoHL. We thank you. 

We thank you, Judge Ponsor. We will get back to you. 

Second, we have here with us today Senators Specter and 
Wofford, who will be speaking in behalf of Ms. Rendell and also 
Mr. Vanaskie. If they would come forward, please, Ms. Rendell and 
Mr. Vanaskie. 

Senator Specter. 

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
THE STATE OF PENNSYLVANIA 

Senator Specter. Thank you very much, Mr. Chairman. 

It is easier to find a seat up here today than it is in the hearing 
room, so I will exercise my prerogative as being both an introducer 
and a committee member. It is not to be both a litigant and a judge 
in the same case. 

I have the distinct pleasure, along with my colleague Senator 
Wofford, to present to the committee two very distinguished law- 
yers. 

Ladies first, Marjorie Rendell has an outstanding academic 
record, graduating cum laude from the University of Pennsylvania, 
and graduating from Villanova Law School. She has worked with 
the very prestigious law firm, Duane, Morris & Heckscher in Phila- 
delphia, for more than 20 years, and she has a really outstanding 
record. 

Beyond those formal qualifications, I can personally attest to 
knowing Midge Rendell from the time she came to a district attor- 
ney's party in Philadelphia with a young assistant district attorney 
whom she married in 1971. And with her tutelage and instruction, 
he became the district attorney of Philadelphia, and he is now the 
mayor of Philadelphia. 

There is an old story, which I will take just 1 minute to tell. It 
was first told to me about Mayor Flaherty of Pittsburgh, and I be- 



lieved it at the time. He was married to a very distinguished 
woman, Nancy Flaherty, and they were walking along and ran into 
a fellow coming out of a sewer pond. Mrs. Flaherty recognized the 
young man and greeted him, and, as they walked away, told Mayor 
Flaherty that they used to date. He said to her, "Aren't you glad 
you married me? I'm the Mayor of Pittsburgh." As you may have 
guessed by now, she said, "If I had married him, he would have 
been the Mayor of Pittsburgh." [Laughter.] 

I thought that was a true story, and perhaps it is. Midge Rendell 
is married to Ed Rendell, the mayor, and has a very, very distin- 
guished professional career in her own right, and I am delighted 
to see her nominated here today. 

If I may proceed now with Mr. Tom Vanaskie, another very dis- 
tinguished lawyer: Tom Vanaskie is a graduate of the Dickinson 
School of Law, a cum laude. He clerked for Judge William Nealon, 
a very distinguished jurist in the Middle District of Pennsylvania. 
He was associated with a very outstanding and prestigious law 
firm, Dilworth, Paxson, LaHsh & Kauffman, for 2 years, at a time 
when I believe the current Governor of Pennsylvania, Grovemor 
Casey, was associated with the firm. He has been in his own firm, 
Elliott, Vanaskie & Riley, for the past decade. 

He hails from Scranton, PA, and has promised to be an outstand- 
ing district judge, and I am delighted to join with Senator Wofford 
in presenting Ms. RendeU and Mr. Vanaskie to the committee 
today. 

Senator KOHL. Thank you very much. Senator Specter. 

Senator Wofford. 

STATEMENT OF HON. HARRIS WOFFORD, A U.S. SENATOR 
FROM THE STATE OF PENNSYLVANIA 

Senator WOFFORD. Senator Kohl, Mr. Chairman, Senator Cohen, 
my senior Senators. I thank you, Arlen. 

It is my pleasure to come here today to introduce two Pennsylva- 
nians that the President has nominated for the U.S. district court. 
First, to my right is Thomas Vanaskie, who is a nominee for the 
Federal District Court for the Middle District of Pennsylvania. 
With him today is his family, his wife Dorothy, and his three chil- 
dren, Diane, Laura, and Tommy. 

Would you stand? Thank you, Vanaskies all. 

Tom comes from the central portion of our State, a small coal 
mining town called Schmoken, where he learned the value of hard 
work from his parents, his father a seasonal bricklayer and local 
labor leader, and his mother a shirt factory worker. By the time he 
graduated from law school, Tom had worked as a paper boy, a serv- 
ice station attendant, a dishwasher, a fast-food worker, a tree 
planter, an assembly line worker, a stock boy, and as a construc- 
tion worker, and probably a few other things. 

He also found time to distinguish himself academically, graduate 
magna cum laude from Lycoming College in Williamsport, and 
graduating cum laude from Dickinson School of Law in Carlisle, 
where he ranked fourth in his class and was a member of the Law 
Review editorial staff. 

After law school, Tom clerked for 2 years with then Chief Judge 
William Nealon of the U.S. District Court for the Middle District. 



And for the past 14 years, he has been in private practice and is 
currently a partner and vice president of Elliott, Vanaskie & Riley 
in Scranton. 

During his years of practice, Tom has been an active member of 
eight bar associations, a recognized leader of the middle district 
bar. He was appointed to the Lawyers Advisory Committee of the 
U.S. District Court for the Middle District in 1992, and the next 
year he was appointed to the Civil Justice Reform Act Committee 
for the middle district bench. 

I know he will be a fme addition to the middle district bench. 

Next, Marjorie "Midge" Rendell, who the President has nomi- 
nated to the U.S. District Court for the Eastern District of Penn- 
sylvania. She is accompanied by her husband Ed Rendell, Ed the 
mayor, and their son Jesse. 

Would you stand? Thank you. 

Midge was bom in our neighboring State, the chairman of this 
committee's State of Delaware, but thereafter she graduated cum 
laude from the University of Pennsylvania, where she was as mem- 
ber of Phi Beta Kappa. She attended Georgetown University Law 
School, where she was asked to join the school's law journal, before 
she transferred and then graduated from Villanova Law School. 

She began her legal career in 1973 at the Philadelphia firm of 
Duane, Morris & Heckscher, where she is now a partner and leader 
of the reorganization and finance section. She is a recognized ex- 
pert on issues of bankruptcy and commercial finance law, a subject 
on which she has written articles and conducted numerous semi- 
nars and presentations. 

In addition to her reputation as a respected member of both the 
Philadelphia and Pennsylvania bars. Midge Rendell has been a 
civic leader. She serves on the boards of the Academy of Vocal Arts, 
as vice chair of the Avenue of the Arts, Inc., the Market Street 
East Improvement Association, Pennsylvania's Campaign for 
Choice, Philadelphia Friends for Outward Bound, and vice chair of 
the board of trustees for the Visiting Nurses Association of Greater 
Philadelphia, and on the board of managers of the Visiting Nurses 
Society. 

She is engaged in pro bono activity that includes work as a medi- 
ator with the U.S. District Court for the Eastern District, and is 
a board member of the Philadelphia Bar Foundation. 

She is that rare individual who combines the talent of people 
skills with intellectual and professional ability, to make a positive 
contribution to the people and institutions around her. I am certain 
she will do the same as an outstanding member of the eastern dis- 
trict bench. 

Again, I express my delight at being able to present to you two 
nominees who are fair, principles, intelligent, and dedicated law- 
yers, who will make excellent Federal judges. 

Senator KoHL. We thank you very much. Senator Wofford. 

We will get back to you in just a short while, my friends. 

Next we have here Judge Wells, who will be introduced by Sen- 
ator Metzenbaum, Senator Glenn, and also Congressman Lewis 
Stokes. 

Senator Glenn. 



STATEMENT OF HON. JOHN GLENN, A U.S. SENATOR FROM 

THE STATE OF OHIO 

Senator Glenn. Thank you, Mr. Chairman and members of the 
committee. 

It is a real pleasure for me to be here this afternoon to present 
to you Judge Lesley Brooks Wells. With so many qualified persons 
in Ohio, the decision of who to recommend for this post was not an 
easy one. And I know you are all aware that Judge Wells has ster- 
ling legal credentials and a distinguished legal background. But 
what sets Judge Wells apart for me was her commitment to public 
service and her willingness to face head-on the tough issues which 
plague our society. 

I do not believe that it is enough for the people we entrust with 
the awesome responsibility of serving on the Federal bench to know 
just legal theory. In order to perform their job effectively, I believe 
they should also feel a deep sense of responsibility to society. And 
through her actions. Judge Wells has proven her commitment to 
society and she has wrestled with many of the difficult issues that 
a Federal judge must face. 

For 3 years, she traveled throughout Ohio as chair of the Gov- 
ernor's Task Force on Family Violence. The task force focused on 
child abuse, elder abuse, domestic violence, all vitally important is- 
sues afflicting modem American society. 

She has also been a shining example of the good that lawyers 
can do, if they just put their minds to it. It was her leadership that 
established a citywide pro bono program, encouraging all lawyers 
in her native Cleveland to reach out and give a little something 
back. 

Judge Wells has also been a real inspiration in Ohio, working on 
such difficult issues as mental health and counseling, legal aid, and 
improving the health care received by residents of Cleveland's 
inner-city. 

Mr. Chairman and members of the committee, we could go on 
with other accomplishments and accolades, but I think you get the 
idea. In her life and in her work, she has proven that one person 
really can make a difference. 

I respectfully ask the members of this committee to allow Judge 
Wells to continue making a difference and to serve as a positive 
force of commitment, integrity, and responsibility on the Federal 
bench. 

I think Judge Wells' two daughters are here today, and I would 
like to introduce them. I think Karen and Christen are back in the 
back here. 

Would you stand up? Thank you. 

And thank you, Mr. Chairman. I am glad to recommend Judge 
Wells and give my unqualified recommendation. I know that she 
will be a great Federal judge. 

Senator KOHL. Thank you. Senator Glenn. 

Senator Metzenbaum. 



STATEMENT OF HON. HOWARD M. METZENBAUM, A U.S. 
SENATOR FROM THE STATE OF OHIO 

Senator METZENBAUM. Mr. Chairman, I am pleased to join Sen- 
ator Glenn and Congressman Lew Stokes in support of the nomina- 
tion of Judge Lesley Brooks Wells. 

It comes as no surprise that those who know Judge Wells, that 
President Clinton has nominated her to serve on the Federal 
bench. That is where she should be, and I hope that, as a result 
of this committee's deliberations and the Senate action, that she 
will be on that bench. 

Her dedication to legal excellence and public service make her an 
outstanding candidate to serve on the Federal district bench, and 
she deserves our support. 

One of the reasons that she will be an excellent Federal judge 
is her ability to put herself in the shoes of the parties that appear 
before her. Her ability stems from the fact that she has a diverse 
legal and nonlegal background that few can match. 

After obtaining her B.A. from Chatham College in 1959, and rais- 
ing a family, she is one of those pioneering women in the 1970's 
who made the law their second career. Since that time, she has 
been a sole practitioner, an equal employment opportunity litiga- 
tion director, an adjunct professor of law and urban studies at sev- 
eral Ohio universities. 

In 1983, she was appointed to the Court of Common Pleas in 
Cuyahoga County, OH. During her term on the bench, she has lit- 
erally served with distinction and is well known for her fairness, 
for her scholarship, and her wonderful judicial temperament. 

Despite the rigorous schedule one must keep as a trial judge, she 
has made the time to volunteer at a free medical clinic. Her energy 
and enthusiasm for life and the law and public service seems to 
have no bounds. 

I urge this committee to promptly move forward with her nomi- 
nation and send her name to the entire Senate for confirmation. 

Senator KOHL. Thank you very much. Senator Metzenbaum. 

Congressman Stokes. 

STATEMENT OF HON. LOUIS STOKES, A REPRESENTATIVE IN 
CONGRESS FROM THE STATE OF OHIO 

Mr. Stokes. Thank you very much, Mr. Chairman. 

It is an honor for me to join my two distinguished Senators from 
the State of Ohio, Senator Glenn and Senator Metzenbaum, here 
this afternoon in behalf of the nomination of Judge Lesley Brooks 
Wells. 

One of the things I think distinguishes this lady, along with the 
outstanding and exemplary legal career she has had is that she 
was a person characterized with a strong community activist record 
in our community for 30 years. While raising her four children, she 
was involved in the community school activities and development 
of a stable, integrated community. 

Mr. Chairman, while raising her children, she went to law school 
and served in a variety of legal positions, specializing in civil 
rights, with a strong involvement in matters involving ethics. Her 
law practice was also extremely diverse. She is an individual wh'^ 



8 

has served all the way from a neighborhood law office to one of 
Cleveland's oldest law firms. 

During this period, she has been very active in the political life 
of our community, and extremely active in matters related to the 
Democratic Party in the State of Ohio. The political organization 
which I happen to chair in Cleveland always endorsed her in every 
one of her races. She was one of the persons in our community 
whom we felt was one of the finest public servants that we have 
had the privilege of supporting. 

She brings to this nomination and to this room today great back- 
ground in terms of her service on the bench, both in domestic rela- 
tions court and several years on the common pleas court bench. 
Throughout her career, in all of her ratings she has been rated ex- 
tremely high, both in terms of scholarship and integrity. She is the 
type of judge who can face the type of tough issues faced by a Fed- 
eral court judge. She has been a professor of law. She is a prolific 
writer on legal matters. 

I would just like to close by reading just a brief paragraph from 
a letter she dropped to me last year when she was here in conjunc- 
tion with her nomination and had been over to see the two Sen- 
ators. She stopped by my office and she wrote me a letter after her 
return to Cleveland, and I just want to read this paragraph from 
that letter: 

When I left your office, I walked to the Supreme Court to pay my respects to Mr. 
Justice Marshall. Walking past the men and women calming waiting became a pow- 
erful experience. There was no stiff solemnity, no restlessness in the long lines, just 
respect and a kind of solid comfort. Your experience arguing the Terry case ran 
through my mind. People talked in line about Justice Marshall, what he meant to 
them, why they were there. Loss was expressed, but joy, too, especially for his cour- 
age and example. It was a gathering I won't forget. Fierce for justice how I think 
of him, and a powerful example to every one of us. 

I think that those words exemplify the characteristics that this 
distinguished lady would bring to the Federal judiciary, and I 
would urge this distinguished committee to confirm her nomina- 
tion. 

I thank you, Mr. Chairman. 

Senator KoHL. Thank you very much, Congressman Stokes, Sen- 
ator Glenn and Senator Metzenbaum. 

Before we ask you to step down, and we will ask you back in a 
minute, I would just like to ask you in a word. Judge Wells, can 
you confirm the veracity of everything that has been said about 
you? [Laughter.] 

Judge Wells. It is time for silence. 

Senator KoHL. You have not taken the oath yet. [Laughter.] 

We have Judge Judith Rogers, who will step up now, and the 
District Delegate Eleanor Holmes Norton along with her to intro- 
duce her. 

STATEMENT OF HON. ELEANOR HOLMES NORTON, A REP- 
RESENTATIVE IN CONGRESS FROM THE DISTRICT OF CO- 
LUMBIA 

Ms. Norton. Thank you, Mr. Chairman. 

It is a great pleasure and a real privilege to be able to introduce 
to you this afternoon a woman of well-known accomplishments in 



this city. I recognize that it is not necessary to call the entire roll 
on her long list of accomplishments. 

May I say, though, that chief judge Judith Rogers, Chief Judge 
of the District of Columbia Court of Appeals, has spent her life in 
the law, and much of that life already as a judge in a way that has 
profoundly prepared her for the role that President Clinton has 
nominated her to assume. 

Chief Judge Rogers has served for more than 10 years on our 
court of appeals, and for half of that time she has been chief judge. 
She was chosen as chief judge when there were judges considerably 
more senior, an indication of the regard in which she is held, be- 
cause of both her intellect and her leadership ability. 

Before coming to the court of appeals. Judge Rogers served as 
corporation counsel for the District of Columbia, and before that as 
an attorney in the U.S. Department of Justice. She has also served 
as an assistant U.S. attorney for the District of Columbia. 

Judge Rogers is a graduate with honors of Radcliffe and a grad- 
uate, as well, of Harvard Law School. I have personally seen Judge 
Rogers at work in a way that makes me not only comfortable, but 
very proud to recommend her. She has made distinguished con- 
tributions to our civil and criminal justice system. She has worked 
with tenacity to improve that system, both structurally and legally. 
Many of us cannot imagine that court now without Chief Judge 
Rogers at the helm. 

Mr. Chairman, may I say that, as I have already heard, you will 
have before you many distinguished candidates. I believe it is rare 
that you will find a candidate of the quality of Chief Judge Judith 
Rogers, and I am pleased to recommend her for the position of a 
judge on the U.S. Court of Appeals for the District of Columbia. 

Senator KOHL. Thank you for that very kind introduction. 

We will get back to you in just a few minutes. 

We now have Helen Berrigan and Tucker Melancon who will step 
forward, along with their introducers. 

Senator Breaux. 

STATEMENT OF H ON. J OHN B. BREAUX, A U.S. SENATOR FROM 

THE STATE OF LOUISIANA 

Senator Breaux. Thank you very much, Mr. Chairman and Sen- 
ator Cohen, for allowing us to present Ginger Berrigan and Tucker 
Melancon to the committee for approval of their nominations to the 
district courts in Louisiana, the Federal district court. 

Tucker Melancon, if there is ever any question about his desire 
and willingness to serve in this position, let me assure this commit- 
tee that this is an individual who has called me daily for the last 
4 months asking me when we would get to this day. He has the 
strong desire and willingness to serve, and I, without question, rec- 
ommend him for approval by this committee. 

All of our nominees are going to be extremely well qualified in 
the law, and Tucker is no different in that regard, having grad- 
uated from Louisiana State University and a degree in law from 
Tulane University in Louisiana. 

But he also brings to this committee I think something that is 
very important for all of our judges in our system, and that is a 
knowledge not just of the law, but also a knowledge of the people 



10 

that come before their courts. He is a real classic example of a 
small town lawyer who has had a small town practice. He has 
probably got his fees paid by corporations every now and then. He 
has probably also received fees from the products that were pro- 
duced in this little parish in Louisiana of Avoyelles Parish, where 
he is from. Probably he was paid in a few fruits and vegetables and 
maybe some of the other commodities, because many of his clients 
could not afford to write a check. 

Tucker Melancon also has been the type of person that accepted 
everybody who came before him and said I need to be represented. 
I think that kind of human connection is particularly important for 
all of our judges, and certainly he brings that to this court. 

I would say to my colleague Senator Cohen, you will note from 
his resume he has been an active Democrat, but you should not 
have any fear, because he has always performed those political du- 
ties with class and with style. And over all of these years, I never 
heard him say anything nasty or unkind about any political race 
that he was in of the opposition. I think that kind of spirit and af- 
fection and support for the democratic system is very, very impor- 
tant, and that is the kind of active Democrat that he has been. 

Senator Cohen. It is pretty unusual in Louisiana? [Laughter.] 

Senator Breaux. Yes, but despite that, he has been very success- 
ful. That is a good point. But we are very pleased to present him 
to the committee. 

Ginger Berrigan is also a person I think that brings unique 
qualifications to this committee. She is a person who is not only 
well read, but well traveled, having lived in several different areas 
of our country, and I think that is important, because it brings a 
great deal of knowledge about what this country is all about. 

You note that she has a degree in psychology, which is a good 
background for our profession, as well as being on a court I think, 
from the University of Wisconsin, a masters in journalism from 
right here in Washington at American University, and a juris doc- 
torate from Louisiana. So I think that type of blend is important 
and very helpful to understanding the people and the cultures that 
come before the court. 

She also is a member and a partner in a very prominent firm in 
Louisiana, the Gravel, Brady & Berrigan firm, which is well known 
and well respected and has produced some outstanding legal schol- 
ars for our State and practitioners. 

She has also served in government, being on the Governor's Par- 
don Board, as well as being a part-time legislative aide at a very 
early age — because I see the date, Ginger — to the chairman of this 
committee, Joe Biden, back — I will not say when, but about the 
time I was coming to the Congress. So she has had experience both 
in State government, here in Washington, and also worked as an 
aide to Senator Harold Hughs, a deeply respected Senator from 
Iowa. 

She has had a lot of community activities which the resume 
clearly points out, and a number of publications. This is a person 
who brings a real expertise to the question of criminal law and the 
rights and obligations and responsibilities of defendants, which is 
going to be so important for the remainder of this century and into 
the future. 



11 

So, without question, Mr. Chairman and Senator Cohen, I enthu- 
siastically recommend both of these nominees. I would just point 
out that Mr. Melancon also has the entire Parish of Avoyelles in 
the back of me in the audience. It is a national holiday back home, 
and I certainly want to join in that holiday. 

Senator KoHL. Thank you very much. Senator Breaux. 

Mr. Jefferson. 

STATEMENT OF HON. WILLIAM J. JEFFERSON, A REPRESENT- 
ATIVE IN CONGRESS FROM THE STATE OF LOUISIANA 

Mr. Jefferson. Mr. Chairman and members of the committee, 
I am pleased to join with Senator Breaux and Senator Johnston in 
his absence in support of these two outstanding candidates. 

I have come principally to talk about Ginger Berrigan, because 
she is a constituent of mine and resides in New Orleans, a place 
that I represent. But I want to take a moment to add my voice of 
support to that of Senator Breaux for Tucker Melancon, who I have 
known for a good long time. 

Mr. Justice Holmes said something which comes to mind now, 
and that is that the life of the law is not logic, it is experience. A 
judge ought to bring a kind of breath of experience to the court, to 
permit him, as Senator Breaux has said, to understand the varied 
cultures and backgrounds and make sound decisions based on his 
ability to identify with the people who appear before his court. 

My experience with Tucker was as a legislator when I was in the 
State Senate of Louisiana principally, and he worked to bring the 
African-American population in our State into the mainstream of 
the Democratic Party. His work is well regarded by all the folks in 
our State, but particularly by those of us who were trying to find 
a way to make our party more open and more cooperative and more 
supportive of some of the aspirations of the African-American com- 
munity. 

So I am proud to be a part of this nomination process and to sup- 
port his nomination, as well. 

Turning to Ginger Berrigan, I believe she will be an excellent ad- 
dition to the Court for the Eastern District of Louisiana, and I ap- 
plaud President Clinton for nominating her. Our district court has 
had a long list of distinguished jurists, judges such as J. Skelly 
Wright, Herbert Christianberry, Fred Casserbry, Fred Hebee, Lan- 
sing Mitchell, and Alvin Rubin, for whom I had the pleasure of 
clerking years ago, just a few of the outstanding judges who served 
on this court. I am convinced that Ginger Berrigan will serve in the 
tradition of these outstanding jurists. 

Mr. Chairman, I have known Ginger Berrigan for quite a few 
years. She has a well-earned reputation for competency and integ- 
rity in our legal community, and I feel certain that she will distin- 
guish herself as a scholar on the bench. 

But as Judge Alvin Rubin used to say so often, a judge must be 
more than a thinking machine, a judge must have an unswerving 
commitment to equsd justice under the law. In this regards. Ginger 
Berrigan has few peers. She is a virtual champion of civil liberties 
and civil rights for all people. She has spent her life confronting 
discrimination and winning. 



12 

Along the way, she has had the grace and the charm to turn foe 
to friend and, at the very least, to earn the respect of her adversar- 
ies. Ginger has that rare combination of brilliance, compassion and 
experience that makes her unusually well-suited for the Federal 
court. She will do more than add diversity to the court. She will 
make a real difference in the dispensation of justice there. 

For these reasons, I firmly urge this committee to recommend 
Ginger Berrigan to the full Senate for confirmation to the Federal 
District Court in New Orleans. 

Mr. Chairman, I appreciate the opportunity to appear before you 
and the committee, and I would be glad to answer any questions 
you might have. But I think John Breaux probably covered every- 
thing that needed to be dealt with here today. 

Senator KoHL. We thank you, Mr. Jefferson and Senator Breaux. 
They are wonderful introductions, and we will get back to you folks 
in just as minute. 

We would now like to call Judge Judith Rogers to the stand. She 
has been nominated to be circuit court judge for the District of Co- 
lumbia Circuit Court of Appeals. 

Judge Rogers, would you raise your right hand: Do you swear 
that the testimony you shall give in this proceeding shall be the 
truth, the whole truth, and nothing but the truth, so help you Grod? 

Judge Rogers. I do. 

TESTIMONY OF HON. JUDITH ANN WILSON ROGERS, OF WASH- 
INGTON, DC, TO BE U.S. CIRCUIT JUDGE FOR THE DISTRICT 
OF COLUMBIA 

Senator Kohl. How would you like to introduce some members 
of your family to us at this time, please. 

Judge Rogers. Thank you, Mr. Chairman. I want to thank you 
for chairing these hearings. 

My only regret is that my parents are unable to be with me 
today. Hazel Thomas Wilson and John Louis Wilson, Jr. They guid- 
ed me and their guidance continues to help me address my task. 

I am honored, however, to have with me today members of my 
court, members of the District of Columbia Court of Appeals, the 
Hon. John M. Ferren, the Hon. John M. Steadman, the Hon. John 
Kern, and the Hon. James A. Belson. 

I would also like to acknowledge the presence of my hard-work- 
ing secretary, Denise Lewis, my law clerks, and my special assist- 
ant. 

Thank you, Mr. Chairman. 

Senator KoHL. Thank you. 

Judge Rogers, if you are confirmed as an appellate judge, at 
some point you may be faced with applying a Supreme Court prece- 
dent with which you do not personally agree. Would you consider 
yourself bound to act by such a precedent? 

Judge Rogers. Yes. 

Senator KOHL. Of course, you will also be faced with cases in- 
volving issues on which the Supreme Court has not ruled. In many 
of those cases, however, you will have decisions from the District 
of Columbia Circuit on which to rely. Under what circumstances, 
if any, do you believe that an appellate judge should overturn 
precedent within his or her own circuit? 



13 

Judge Rogers. I would be bound by the opinions of the circuit, 
and only in those extraordinary cases where the en banc court 
overruled a decision by a three-judge panel would I be in a position 
not to follow an outstanding decision of the circuit. 

Senator KOHL. Judge Rogers, as chief judge of the District of Co- 
lumbia Court of Appeals, you delivered a speech discussing civil 
justice reform and the problems facing the District of Columbia 
court system. 

As you know, Congress passed the Civil Justice Reform Act in 
1990. The goal of this legislation is to streamline the judicial proc- 
ess and to make it more accessible, affordable, and fair. In your 
view, what role do judges play in controlling the pace and the con- 
duct of litigation? 

Judge Rogers. Mr. Chairman, as my speech indicated, in the 
District of Columbia we have taken a number of steps to ensure 
that judges do become actively involved in the pace and control of 
litigation. For example, in our trial court, which is a trial court of 
general jurisdiction, the chief judge of that court shifted from the 
former system to an individual calendar system in the civil divi- 
sion, so that a judge keeps the case from the beginning to the end. 

In addition, case management, case tracking has been a part of 
the trial court and, indeed, of the appellate court as a way of mak- 
ing certain that the cases move according to schedule. We have 
spent considerable time on studies, as well, on the application of 
computer technology to assist the judges, as well as judicial train- 
ing. And I think the type of individual calendar and case manage- 
ment successes in the trial court and, indeed, in the appellate court 
indicate that individual judges can make a real difference in the 
pace and conduct of litigation. 

Senator KoHL. Well, what kind of steps will you take to best con- 
trol your own docket? 

Judge Rogers. As an appellate judge, I have a number of proce- 
dures that I trust I will apply on the Federal court, as I have on 
the District of Columbia Court of Appeals. I keep a very close tab 
of the cases that are assigned to me and the cases that I am a 
member of the division. I have the assistance of a law clerk to as- 
sure that I get timely legal memoranda. I assume that those same 
procedures would work well on the circuit court, and I think my 
colleagues would attest to the fact that I am timely in producing 
my opinions and commenting on their's. 

Senator KOHL. Judge Rogers, since the inception of the Federal 
Sentencing Guidelines developed by the Sentencing Commission 
have been the subject of debate, largely because of concerns about 
mandatory minimum sentences — in fact, one district court judge re- 
signed, because, according to press accounts, he felt that the man- 
datory guidelines were too harsh and too rigid. 

As a Federal judge, what would you do if you were faced with 
a situation where the sentencing guidelines called for you to im- 
pose a sentence that you felt was too harsh? 

Judge Rogers. I would be obligated to apply the guidelines, Mr. 
Chairman. And certainly, as an appellate judge reviewing a district 
court judge's application of the guidelines, I would be obliged to re- 
view his or her apphcation, but to enforce the guidelines. 

Senator Kohl. I thank you very much, Judge Rogers. 



14 

Judge Rogers. Thank you. 
Senator KOHL. Senator Cohen. 

OPENING STATEMENT OF SENATOR COHEN 

Senator COHEN. Thank you, Mr. Chairman. 

Judge Rogers, welcome. 

Judge Rogers. Thank you. 

Senator COHEN. I would like to explore some of your ideas about 
the interpretation of the Constitution. I think you have decided at 
least six cases involving constitutional issues, three of which in- 
volved search and seizure. 

One of them happened to be fairly controversial. I think it was 
Cousart v. United States, right? 

Judge Rogers. I am familiar with the case. I am not sure I agree 
with the characterization. 

Senator Cohen. As being controversial? 

Judge Rogers. Yes. 

Senator Cohen. Would you describe what the facts were of that 
case? 

Judge Rogers. As I recall, Senator Cohen, in that particular case 
a police officer observed a car traveling at 30 miles an hour. The 
car made a wide U-turn, then the car began going at 45 miles an 
hour. At that point, the police officer put his emergency lights on 
the hood of the car and followed the car. The car proceeded for two 
long blocks, which the officer testified was tantamount to about six 
blocks. The car stopped of its own accord. The officer had radioed 
for help. The officer approached the car driver, his gun bolstered, 
asked the driver to step out, and took the driver to his car about 
25 feet away. 

A second police car arrived on the scene. One of the officers, with 
a rifle in his hand, on his knee and pointed upward, told the pas- 
senger in the car to reach for the ceiling. The trial court found, and 
the government did not dispute on appeal, that the passenger had 
been seized. 

The government asked our court to extend an opinion of the U.S. 
Supreme Court that applied to car drivers who were stopped for 
traffic violations to passengers of cars. Our court declined to do 
that and, instead, a majority of the court decided that, contrary to 
the requirements of the long-standing and often reaffirmed decision 
of Terry v. Ohio, limiting the conditions under which a police officer 
may seize a citizen, that the subjective view of the officer and his 
concern for personal safety was a sufficient ground to uphold the 
seizure of a gun that was found in the car. 

That is my recollection, Senator, of the facts. 

Senator Cohen. Did you write that opinion? 

Judge Rogers. I wrote an opinion when it was before a three- 
judge division. The court decided to hear the case en banc. I wrote 
a separate dissenting opinion. 

Senator COHEN. That decision was reversed on appeal, was it 
not? 

Judge Rogers. That is the effect of it, that is correct. 

Senator Cohen. I am curious about the interpretation of it, the 
very sterile factual statement you just gave. What was the neigh- 
borhood like? Is that a factor that should be taken into account, 



15 

when a court is making a decision dealing with a police officer's on- 
the-spot type of decisions? 

For example, one of our panelists this morning, in introducing 
Ms. Berrigan, I believe, quoted from Holmes who said the life of 
the law has not been logic, but that of experience. He went on to 
say that a page of history is worth more than a volume of logic. 

One thing that many critics of our courts today seem to feel is 
that there is an awftil lot of logic, but not a good deal of experience 
is being reflected by the courts' decisions in many cases. 

For example, if you have a situation in which there is a high- 
crime neighborhood and in which there were seven police officers 
killed during the preceding 30 days, would that be a factor that the 
court should take into account in examining an officer's reasonable 
actions under the circumstances in wishing to search a car for a 
weapon? 

Judge Rogers. The issue before me as an appellate judge was to 
apply the decisions of the Supreme Court. The Supreme Court has 
decided that there are certain limitations on officers when they 
seize citizens. I indicated in my opinion that, of course, officers 
have to take reasonable steps to protect themselves from safety, 
protect themselves so that they are safe. Of course, they are acting 
on our behalf to protect all of us. 

That was not the issue in the case. The issue was where the Su- 
preme Court has set out a test, is not the appellate court obligated 
to faithfully apply the test enunciated by the Supreme Court, 
whether or not we personally agree with it. And in my view, it was 
our obligation and that is why I wrote my opinion as I did. 

Senator COHEN. In other words, you were simply applying the 
doctrine of stare decisis, and that did not reflect your personal 
opinion in any way in terms of whether you felt the officer acted 
reasonably under the circumstances? 

Judge Rogers. The issue was did the officer have articulable 
suspicion that the passenger engaged in unusual conduct such that 
the officer could in his experience reasonably conclude that crimi- 
nal activity was afoot. The officer never offered such testimony, the 
trial judge never made such findings, the officer said he took out 
his shotgun because he was concerned about his safety. It had 
nothing to do with anything the passenger had done. 

Now, as an appellate court, I am obligated, where it is conceded 
by the Grovemment, where the trial court has found that a citizen 
was seized, I am obUgated, as an appellate judge, to apply the test 
that the Supreme Court has announced and repeatedly reaffirmed, 
and that is all I did. 

Senator COHEN. We talk about constitutional principles. I think 
you would probably agree that the Constitution as written is not 
locked in the concrete of the originsil time in which it was formu- 
lated. You would agree with that, would you not? It evolves over 
a period of time in terms of our interpretation, as we become either 
more sophisticated or more morally conscious of certain practices? 
There is an evolutionary interpretation of what was originally de- 
fined, at least, in the Constitution. Would you agree with that gen- 
eral statement? 

Judge Rogers. My obUgation as an appellate judge is to apply 
precedent. Some of the debates which I have heard and to which 



16 

I think you may be alluding are interesting, but as an appellate 
judge, my obligation is to apply precedent. And so the interpreta- 
tions of the Constitution by the U.S. Supreme Court would be bind- 
ing on me. 

Senator COHEN. In the absence of precedent? 

Judge Rogers. In what context? 

Senator Cohen. You are now faced with a constitutional issue or 
interpretation of the Constitution that the Court has not ruled on 
directly or has ruled on directly 50 or 60 or 100 years before. The 
case has not come up specifically on that point, and you are not 
necessarily bound by precedent in that case or it does not exist. 

The question I have is do you believe that the Constitution is in 
fact something that is subject to interpretation in a different time 
and a different era? As society's attitudes change about certain 
mores and practices, the interpretation of those original words also 
change. I think you would concede that, would you not? 

Judge Rogers. When I was taking my 

Senator Cohen. Unless you are prepared to endorse Judge Bork's 
interpretation of the original meaning of the Constitution, which 
was severely criticized, because he seemed to be articulating a phi- 
losophy that existed a century or so before. 

Judge Rogers. When I was taking my master's in judicial proc- 
ess at the University of Virginia Law School, one of the points em- 
phasized was the growth of our common law system based on the 
English common law judge system. And my opinions, I think if you 
look at them, reflect that where I am presented with a question of 
first impression, that I look to the language of whatever provision 
we are addressing, that I look to whatever debates are available, 
that I look to the interpretations by other Federal courts, that I 
look to the interpretations of other State courts, and it may be nec- 
essary, as well, to look at the interpretations suggested by com- 
mentators. And within that framework, which I consider to be a 
discipline, that I would reach a view in a case of first impression. 

Senator Cohen. Do social mores play any role in your interpreta- 
tion of a constitutional provision? 

Judge Rogers. I am not sure I know what you mean. Senator. 

Senator COHEN. What I mean is that, as we look at civil rights, 
for example, over a period of time, we have expanded civil rights 
in this country, and I think justifiably so. We have expanded inter- 
pretations of provisions of search and seizure over a period of time. 
As we have become more sophisticated, our interpretation of the 
Constitution has changed. Justice Holmes or one of his prede- 
cessors might have interpreted the specific language of the Con- 
stitution differently. 

The question I am really asking is: What happens when we go 
the other way? What happens when a society is so overwhelmed 
with fear of crime that they decide that sterner actions have to be 
taken? Take for example, stop and frisk laws. I assume you might 
have some problems with that particular policy in the practice of 
certain police. I notice that Virginia just this year started the prac- 
tice of setting up roadblocks during holiday periods, during Christ- 
mas and New Year's Eve, to stop vehicles to check them for the 
driver's sobriety. 



17 

So we are seeing concern about what is taking place in society, 
and I am asking you whether or not that should or would have any 
influence on your particular interpretation of the Constitution. 

Judge Rogers. As an appellate judge, I have been faced with a 
roadblock case, and I relied on Supreme Court decisions as to what 
is the proper scope for a roadblock. I would do the same type of 
thing with other issues. That is my role as an appellate judge, to 
apply precedent and look for the closest analogy I can find. 

Senator Cohen. A couple more questions. What is your opinion 
about the minimum mandatory sentencing provisions that Con- 
gress enacts? Senator Kohl asked you about this. What is your feel- 
ing, as a judge, as to their utility? 

Judge Rogers. I am aware, Senator, of some of the debate on the 
pros and cons, and certainly before I was a judge I was engaged 
in comment on them. But as a judge, I have been dealing with 
them strictly from the point of view of legal challenges to them. I 
have sat on a case where a mandatory minimum sentence was 
challenged, and we upheld it. 

Senator Cohen. What I am asking you is not whether you think 
they are constitutional or should be upheld, but from your point of 
view as a judge, what is their effectiveness? There is a good deal 
of controversy right now in terms of the mandatory guidelines that 
were adopted back in the early 1980's to minimize judicial discre- 
tion in the imposition of sentences. Now we have Federal manda- 
tory sentencing provisions, and some argue that they are now in 
conflict and we are back to a chaotic situation. I am wondering, not 
about your interpretation of their constitutionality, but your feeling 
about their effectiveness, as a judge. 

Judge Rogers. Well, as a judge, I have not been exposed to the 
Federal sentencing guidelines. We do not have such guidelines in 
the District of Columbia. We do have mandatory minimum sen- 
tences and I have enforced them, as I mentioned, when the issue 
has arisen. 

Senator Cohen. One final question: In the State of the Union 
Message this week. President Clinton supported a provision which 
is now commonly known as three strikes you are out, or actually 
three strikes and you are in. What is your reaction to such a pro- 
posal? Is that something you would favor? 

Judge Rogers. As an appellate judge, my obligation is to enforce 
the laws that the Congress passes or, where I am now, that the 
District of Columbia Council passes. 

Senator COHEN. Assuming it is constitutional? 

Judge Rogers. Assuming it is constitutional. 

Senator COHEN. I think that is all I have right now. 

Senator KoHL. Thank you very much, Senator Cohen. 

Thank you much. Judge Rogers. 

Judge Rogers. Thank you, Mr. Chairman. 

Senator KOHL. We would like now to call Judge Michael Ponsor 
to the stand. Judge Ponsor has been nominated to be district judge 
for the District of Massachusetts. Would you please raise your right 
hand: Do you swear that the testimony that you shall give in this 
proceeding shall be the truth, the whole truth, and nothing but the 
truth, so help you God? 

Judge Ponsor. I do. 



18 

TESTIMONY OF HON. MICHAEL A. PONSOR, OF MASSACHU- 
SETTS, TO BE U.S. DISTRICT JUDGE FOR THE DISTRICT OF 
MASSACHUSETTS 

Senator KOHL. Thank you very much, Judge Ponsor. 

If you have members of your family here, we would love to meet 
them. 

Judge Ponsor. I do. I am proud to have my mother Yvonne 
Ponsor here with me this afternoon, and my sister, Valerie 
Pritcher. My father Ward Ponsor is not able to be here, but he is 
here in spirit. And my three children, my oldest Christian is in 
California and is unable to be here, and my two little ones, Ann 
and Joseph, who are 10 and 8, unfortunately are back in Massa- 
chusetts with the flu. Otherwise, they would be here, as well. 

Senator Kohl. Very good. 

Judge Ponsor, you have been a magistrate for a number, of years 
now. What do you perceive to be the primary differences between 
your current position and a position as a Federal district court 
judge? 

Judge Ponsor. I think there are probably two primary dif- 
ferences that I will be facing. One will be the increased caseload 
and responsibilities of the U.S. district court judge, and the other 
will be the responsibility for the conduct of felony jury trials, of 
which a magistrate judge is not permitted to conduct. I have con- 
ducted misdemeanor trials and a large number of civil trials, but 
I have not sat on a felony jury trial, and I think that will be a dif- 
ference. 

Senator Kohl. Well, what areas of the law do you think you will 
need to study up on to get up to speed, should you be confirmed 
for this position? 

Judge Ponsor. Well, I feel fortunate, because, as a magistrate 
judge in a single-judge court in our rural area of Massachusetts, I 
have handled many of the responsibilities of district court judges 
already. The one area where I believe that I will need to look for- 
ward to help from the Federal Judicial Center and from my col- 
leagues on the court will be in the area of presiding over felony 
jury trials, and I think that would be the main area of getting up 
to speed. 

I will also be responsible for handling bankruptcy appeals, as a 
district court judge, which was not part of my work as a magistrate 
judge, and I think that is another area where I will be putting in 
some particularly hard work to get myself ready. 

Senator KOHL. Judge Ponsor, your response to the committee 
questionnaire indicates that throughout your career you have been 
committed to the rights of the mentally ill. From your experience, 
what have you learned about the problems facing lawyers dealing 
with the issues that affect the mentally ill? 

Judge Ponsor. Well, I think there are probably a couple of areas. 
One is the separate area of actual legal rights, which can be very 
complex, and that has to do with what sorts of procedural protec- 
tions may be afforded to people who are suffering from mental ill- 
ness, and what the court's responsibilities are. 

There is a second aspect to it, and that has to do with community 
acceptance, how much can we ask of our communities, how much 
can we properly ask of our communities, and I believe that is an- 



19 

other area where work needs to be done by advocates on behalf of 
the mentally ill, and people really need to have a dialog about what 
is really best for people who suffer from these disabilities and what 
is best for the community. 

Senator KOHL. What can Congress do, in your opinion, to assist 
in assuring that the mentally ill get adequate legal representation? 

Judge PONSOR. Well, I think probably the primary thing is to 
make sure that the judges who come before you are sensitive to the 
problems, and make sure there is sufficient funding for such orga- 
nizations as the Legal Services Corporation, so that they will be 
able to assist problems. As you know, this population is largely in- 
digent, and they suffer from a lot of the difficulties that indigent 
people suffer from generally, and I think probably those two areas 
would be the primary ones that come to mind for me. 

Senator KOHL. Judge, you will probably be faced with cases in- 
volving issues on which the first circuit has not ruled. How will you 
approach cases on which the circuit has not ruled, and for which 
there is no precedent? 

Judge PONSOR. Well, if it has to do with statutory construction, 
I would begin by looking carefully at the statute and at the legisla- 
tive history of the statute. If it does not involve actual statutory 
construction, then I will try to look at other districts or other cir- 
cuits which might have had cases in the area, although my own cir- 
cuit or district might not have handed down any decisions. 

If I can't find any parallel decisions from other districts or other 
circuits, I will try to find analogous situations and reason by anal- 
ogy. If I cannot find that, then I am going to have to go back to 
basic principles and try to remember that what we are ultimately 
trying to do as judges is do something which is fair. 

Senator COHEN. Why are you interested in this appointment? 

Judge PONSOR. Well, I spent my whole life and have found my 
life enriched from the time I was an undergraduate in high school 
in public service, and I seem to have a bent for this kind of work 
which permits me to contribute something to my community. 

I love western Massachusetts. I love the people of western Mas- 
sachusetts, and this seems to be the best way that I can give some- 
thing back for the enormous privileges that I have enjoyed in my 
life, and I really look forward to doing that. 

Senator KOHL. Very good. Thank you very much. 

Senator Cohen. 

Senator Cohen. Protocol does not permit you to ask us the same 
question, I might point out. [Laughter.] 

Let me follow up with just a couple of questions. You mentioned 
that in trying to arrive at an appropriate decision, you would look, 
among other things, at legislative history. What do you look for in 
legislative history? I am saying this by way of a caution to you. You 
are aware that Justice Scalia does not hold a very high opinion of 
legislative history and, as a matter of fact, he maintains it is a fig- 
ment of our imagination. I would be interested in hearing what you 
would look for in the way of legislative history. 

Judge PONSOR. I agree that one has to be careful and sensitive, 
when you are getting into legislative history, and one hopes, of 
course, that the statute is clear on its face and you do not have to 
get into it. 



20 

But I do find that it is sometimes helpful to look at the congres- 
sional debates or the committee reports that describe a particular 
piece of legislation, and that that is sometimes helpful. That is 
where I go, to the Congressional Record, when I am looking at 

Senator COHEN. Do you place more emphasis on what a commit- 
tee chairman or ranking member says than you would upon some 
nonmember of the committee? Because, as you know, a great deal 
of debate takes place on the floor, but following the debate, mem- 
bers insert extensive materials that are not uttered on the floor, 
but are simply inserted for the record, which may lead you down 
a labyrinth course to a dead end. So do you place any priorities in 
terms of who you would look to in the way of trying to determine 
what Congress really intended? 

Judge PONSOR. To be honest, I try to look at the whole record, 
and where it is so muddy that I cannot draw a real conclusion from 
it, then I just have to go elsewhere. But it is remarkable to me that 
there often is unanimity about a particular intent, and when you 
can find that, I think it is very helpful. 

Senator COHEN. The October 1993 issue of the Massachusetts 
Lawyer Weekly reported your decision in the FDIC v. Huntington 
Bank Corporation, and the quote was that it underscores the effec- 
tiveness of the D'Oench Duhme doctrine in collection actions by the 
Federal Deposit Insurance Corp. and its successors in interest. In 
other words only those agreements in writing as authorized by the 
board of directors of a particular bank will be regarded as being en- 
forceable. Obviously, every one of us has an interest in seeing to 
it that the FDIC and RTC in fact have this tool at their disposal 
in order to protect the public's interest. 

The question I have is, what about situations where you have 
small vendors? You might have a plumber or a window washer, 
and they do not have enforceable agreements and they are pre- 
cluded under the D'Oench Duhme doctrine from bringing lawsuits. 
Do you see any injustice in that particular case, where you have 
the small vendors who do not operate on that basis? 

Judge PONSOR. I believe there is a potential for injustice. The 
D'Oench Duhme doctrine in section 1823 is one of those two-hand- 
ed arguments. On the one hand, you want the FISC to be pro- 
tected, you want the FDIC to be protected from the effect of secret 
side agreements. 

On the other hand, there is a very real potential for unfairness. 
The Huntington case for me, fortunately, fell right in the heartland 
of D'Oench Duhme. It wasn't a supplier. It was a situation where 
there was a promissory note, and so on, and I felt bound by the 
50-year-old Supreme Court precedent and Congress' statute. But I 
can foresee situations where the D'Oench Duhme doctrine may con- 
ceivably be overused, and I think we need to be sensitive to it. 

Senator COHEN. I am glad to hear that. I introduced a bill to try 
to correct that, as a matter of fact, just so we take into account the 
little folks who do not have the advantage of having written con- 
tracts. 

One final question: Your experience has been rather limited in 
the field of criminal trials. I suspect that you are going to have an 
increased workload in that regard. What are you going to be doing 



21 

to get yourself in a position to be able to decide these kinds of 
cases, which may amount to a flood tide in the coming years? 

Judge PONSOR. I have two things in my background which will 
help me. One was that I was a criminal defense attorney when I 
was in private practice, and I tried felony cases in Federal court 
as a practitioner. 

Second, as a magistrate judge, I have presided over a number of 
evidentiary hearings involving motions to dismiss and have dealt 
with all of the preliminary matters right up to trial as part of my 
responsibilities as a magistrate judge. So I think that will give me 
a leg up, so to speak. Then, second, as I said before, in fact this 
Monday I am going to Richmond to begin a week of hard work pre- 
paring for what I hope will be my new responsibilities. I think that 
and the assistance of other judges will give me all the hope that 
I will need to get ready. 

Senator COHEN. As I understand it, you were appointed to an ad- 
visory group in Massachusetts, Federal District Court, Civil Justice 
Reform Committee 

Judge PoNSOR. Yes, sir. 

Senator Cohen [continuing]. Which made recommendations 
about implementing the Civil Justice Reform Act of 1990, that Sen- 
ator Kohl mentioned? 

Judge PoNSOR. Yes. 

Senator Cohen. I think the Massachusetts group went quite far 
in terms of what it recommended. The question is what rec- 
ommendation do you have in terms of trying to reform the rules? 

Judge PONSOR. I think, first of all, you need very close case man- 
agement. When I was appointed in 1984 a magistrate judge in 
Springfield, we had over 800 pending civil cases. I am happy to say 
that we now have approximately 330 pending civil cases, and I 
think part of the explanation for that reduction is in very close case 
management by the judge. I am a hands-on judge. I am setting 
schedules, I am assisting in settlement all the time. I think that 
is very important. 

I think our new local rules which were enacted pursuant to the 
Civil Justice Reform Act and the changes that have recently come 
into effect in the Federal Rules of Civil Procedure will make discov- 
ery a lot faster and a lot cheaper for a lot of litigants, and I think 
that is something that judges should rightly have on their mind. 
We need to move our civil cases along and we need to try to move 
them along in a way which reduces expense, so that our Federal 
courts remain open to little people, ordinary people, as well as 
large corporations. 

Senator Cohen. That is all I have, Mr. Chairman. 

Senator KOHL. Thank you very much. Senator Cohen. 

Thank you very much, Judge Ponsor. You are excused. 

Judge Ponsor. Thank you. 

Senator KOHL. I am going to be leaving this hearing right now. 
I have enjoyed being here, and I wish all the nominees the very 
best of luck and good fortune. 

Senator Metzenbaum is going to be sitting in my stead. Senator 
Metzenbaum. 

Senator Metzenbaum [presiding]. Our next nominee is Leslie 
Brooks Wells. 



22 

Ms. Wells, do you solemnly swear to tell the truth, the whole 
truth, and nothing but the truth, so help you God? 
Judge Wells. I do. 

TESTIMONY OF HON. LESLEY BROOKS WELLS, OF OHIO, TO BE 
U.S. DISTRICT JUDGE FOR THE NORTHERN DISTRICT OF OHIO 

Senator Metzenbaum. Would you like to introduce your family 
and perhaps the Campbells, as well, and anybody else that is with 
you? 

Judge Wells. Thank you very much. 

I think you met my daughters, Kristin Brooks of Cleveland, OH, 
and Caryn Brooks of Berkeley, CA, representing Lauren, my 
daughter, and Stan Miller, and my grandchildren, Storm and 
Tenaya Miller of Mt. Shasta, CA, as well as my son, Tom Brooks 
and his wife, Francesca, and my grandson Riccardo of Lugano, 
Switzerland. 

Also my brother and sister-in-law, Fred and Adrienne Brooks of 
The Plains, VA, and my cousins, Jim and George Anna Hilton of 
Salisbury, MD, are here with me. 

My bailiff, Rob Pacsi, and Tom and Peg Campbell are here from 
Cleveland, OH, Madelaine Fletcher of Baltimore, MD, Bob Fenton 
of Alexandria, VA, and Wendy Leatherberry of Washington, DC. 

Senator Metzenbaum. Let me ask your daughters to stand. 

Judge Wells. Again, Caryn and Kristin. 

Senator Metzenbaum. We are happy to welcome all of them and 
happy to welcome you. 

Judge Wells. Thank you, sir. 

Senator Metzenbaum. Do you have a brief opening statement 
that you would care to make? 

Judge Wells. No. Thank you very much. 

Senator Metzenbaum. Judge Wells, Congress is contemplating 
legislation aimed at reducing the overcrowding in Federal courts, 
by allowing Federal judges to assign some of their smaller cases to 
court-appointed arbitrators. Some people have expressed concerns 
about this approach, saying that it infringes upon the rights of citi- 
zens to a jury trial. 

On your questionnaire, you listed the case of Essef Corporation 
V. Mordecki Driori as one of your most significant opinions. That 
case involved the confirmation of an award made by the American 
Arbitration Association in a matter concerning a patent license dis- 
agreement. Given your experience both as a judge and a litigator, 
what are your thoughts on the proposal to use court-appointed ar- 
bitrators? 

Judge Wells. Certainly, as we have seen many, many attempts 
at trying to find alternatives for people to resolve their disputes, 
arbitration is one of the time-honored ones and has great value. I 
particularly find when it is contracted for by the parties in ad- 
vance, that it is a wonderful assistance to having people anticipate 
how their problems will be resolved in a swift way. 

On the other hand, the right to be able to proceed in court is a 
very important right, and we have been able — and I think our dis- 
trict in the northern district has set some wonderful standards — 
to use early dispute resolution, mediation, types of arbitration, and 
summary jury trials as efforts to give people, once they are at the 



23 

courthouse door, an option to proceed. But it still preserves for peo- 
ple who feel that they need their day in court the opportunity to 
go forward. 

All I can say is that I am pleased to be moving to a bench hope- 
fully that has the full facilities to offer these options. They are im- 
portant in a time like this. 

Senator Metzenbaum. But it would always be optional with the 
litigants? 

Judge Wells. But they are optional with the litigants, and I 
think many people take advantage of them. It is sort of as if trial 
has become to a client, as somebody has said, sort of like surgery 
would be to a patient. It can be very important, but it is not the 
only way to resolve disputes, and in America we need to make 
available as many as possible. 

Senator Metzenbaum. In recent years, much has been said about 
Federal courts' increased caseload generally and the resulting prob- 
lem of docket backlogs. If confirmed, what steps, if any, would you 
take to ensure that your docket progresses at as quick a pace as 
is fair and reasonable? 

Judge Wells. I am fortunate in some respects to anticipate being 
able to follow a judge who went over several years ago from the 
bench I am on, which is one of the busiest in the country, really, 
and so we try very hard, but with extraordinarily limited resources 
to do lots of things that manage the docket. 

The closest thing I know to say, as a trial judge, is you stay on 
top of it. Everybody who works with you in your courtroom stays 
on top of that docket, and you in an early point in any case have 
an opportunity — I do it personally, rather than through surrogates 
or law clerks — to sit down with the lawyers, so that you can get 
a good feel for what direction a case needs to go, and that has 
proved useful. I think I will be able to apply those things, but cou- 
ple them with a system which is much more prepared to accept — 
as our district court system is, and I think with some of the re- 
forms that have come along, it is particularly so — prepared to ac- 
cept the substantial increase in dockets. 

Senator Metzenbaum. Some Senators, as well as some com- 
mentators, have criticized judicial opinions that they label the work 
of judicial activists. These critics recognize the importance of stare 
decisis, judicial precedent, and sometimes these two goals, to avoid 
what some may call legislating from the bench and to follow settled 
law, may conflict. Do you have any thoughts on the importance of 
stare decisis and the need to follow settled law? 

Judge Wells. We do follow it. I have been a judge 11 years. I 
sit in a State where I am constrained to follow the law, and I have 
done that. That is our primary obligation, is to follow the law. 

Senator Metzenbaum. Do you think at times a judge has a case 
before him or her and it cries out for a specific kind of a conclusion, 
and yet, based upon stare decisis, the decision would fall the other 
way? What does a judge do then? 

Judge Wells. Well, it is one of the great challenges of being a 
judge, is that you understand your primary obligation, and it may 
be that you feel as the case develops that there might be some 
other way to go. But it is a fairly common occurrence that one has 



24 

to look seriously at being constrained by the law. Yes, we are con- 
strained by the law. 

That is different I think in your question than the unprovided 
case, where you get a situation where there has never been any- 
thing you can lean on. I think what you are suggesting is some- 
thing different. And certainly there was a period in this country 
where there was a great expansion in what people wanted to do, 
but it is not my judicial philosophy. 

Senator Metzenbaum. Senator Cohen. 

Senator Cohen. Thank you very much. 

Judge Wells, I do not profess to understand Louisiana politics, 
and even perhaps less Ohio politics. But I was curious, do you have 
an election system in 

Judge Wells. We have a very vigorous election system, very vig- 
orous for the judges. I sit in a county where 20 of us will be up 
for election this term, and there are legions of people who run. 
There is no incumbency rule. I have gone through many elections. 

Senator Cohen. We do not have such a system in Maine, except 
for probate judges. When you run, how do you run a campaign for 
the court? Do you base it on your record? You have had an out- 
standing record. I think 7 of your opinions out of 147 were ap- 
pealed, a pretty outstanding record, I would think. What do you 
run on? 

Judge Wells. I think 7 were reversed out of 147 appealed or 
something. It is a very challenging thing to do and you run it very 
close and tight and with good advisors. Actually, we formed com- 
mittees who do much of it. But it is a good question. 

Senator Cohen. Not the mechanics of running, but the basis 

Judge Wells. Well, we cannot say anything really except judge 
us on our record. Yet, let me say this: I know it is a highly criti- 
cized system, but it is one I have been in for a long time. It does 
do something that overcomes the isolation that judges commonly 
feel. When I go into the community, which I do on many occasions, 
I am a lightening rod for all of their concerns about the justice sys- 
tem. 

Of course, I cannot do anything about those concerns except di- 
rect them to the people who can. But it does mean that the courts 
feel to the people as if they are their courts, and I think that is 
something that you could lose in an isolated position where judges 
were kept away from people. But you are correct, it is an awkward 
campaign. There are many, many decisions one makes as a judge 
not to do things that others urge you to do, because you are a 
judge. 

Senator Cohen. In other words, you do not go out on the cam- 
paign stump and say I am for law and order or I am for greater 
police protection. What do you do? 

Judge Wells. No, we are governed by the canons. We are gov- 
erned by the canons, and our canons in our State follow the model 
of the canons here, with the exception that they recognize that we 
are in a State with partisan primary races for judges who must run 
flat-out open each time. There is no retention. So it is challenging. 

Senator CoHEN. And somebody running against you, do they hold 
up your written opinions? 



25 

Judge Wells. Sometimes they just go on television and show 
slamming jail door cells or something and put their name across 
the screen. You know, it can get very down and dirty. [Laughter.] 

Senator COHEN. You have a State in which you have two Demo- 
cratic Senators, and we had a Democratic President elected in 
1992. I was wondering whether or not you got caught up in the pol- 
itics of that somehow. As I understand, you ran for the supreme 
court? 

Judge Wells. I ran in the contested primary on the Democratic 
ticket for the supreme court, and I was the endorsed Democrat in 
that race. I lost it, but very narrowly. 

Senator Cohen. Do you have a judgment as to why? What were 
the issues? Was it something about your record? 

Judge Wells. Talk to your colleague sometimes and maybe he 
has more insight than I do. No, it was not about my record. But 
I ran a very constrained campaign, as I feel is proper. So no tele- 
vision maybe would be part of your answer. 

Senator Cohen. Senator Metzenbaum raised the issue about ap- 
plying stare decisis, and what you would do in the absence of some 
applicable case right on point. I was trying to explore with Judge 
Rogers earlier the situation in which we want our judges to be in- 
sulated and protected against public opinion. That is the reason 
why we are protected by life tenure. 

But do you draw a distinction between public opinion and what 
Holmes might call the "felt necessities" of the time? In other words, 
in your own mind, are you able to distinguish, or is there a distinc- 
tion between what is taking place currently as far as public opin- 
ion, and what you might determine to be something so compelling 
in the way in which society is drifting, whether left or right, that 
you would feel compelled to respond to that? 

I am not arguing one way or the other whether you should be 
more to the right or the left, but obviously there is a political swirl 
taking place in our society, and always has and always will. What 
is your opinion about a situation in which you do not have a prece- 
dent and you are free to exercise some judgment in this particular 
field. 

Do you take into account what the people are thinking? Is that 
something that should be dismissed out of hand, as someone who 
has run for reelection as a judge? Do you listen to what they are 
saying, or do you say, wait a minute, I cannot listen in this case, 
I know there is a problem out there, I know there is violence — I 
know all of this, but I am taking a very academic approach and I 
am insulated against the felt necessity of the time? 

Judge Wells. Fortunately, I am a trial judge, and so I would say 
do I let that influence me? No, I cannot. I am not permitted to do 
that under my oath. I follow the law and I follow it as it comes to 
me. 

Senator COHEN. The law is unclear. 

Judge Wells. When the law is unclear, then it is a different in- 
quiry. I do not take that line of inquiry. When there is a case 
where the law is cloudy, then one tries to clarify it. If there is a 
case where there is no provision in the law — and that happens oc- 
casionally, which I call the unprovided case — then that is a little 
bit of a different analysis. 



26 

But it comes down to the same thing. We have very narrow re- 
sponsibiHties. Find the intent, if it is not clear on its face. If it is 
clear on its face, that is the intent, whether there has been another 
case in the court of appeals or not. If it is not and it is a generaliza- 
tion, then one tries very hard to understand what the legislative 
intent was, and I think we have had some discussion about ways 
of doing that. But one looks for parallels, if it is not a question of 
a statute. 

Senator COHEN. I am not even talking about legislative intent. 
You have a factual situation in which you are a trier of fact now. 

Judge Wells. All right. 

Senator COHEN. You are looking at the actions of a police officer 
under a certain set of circumstances and you listen to the entire 
presentation of facts, that the police officer is in a very dangerous 
area with lots of shootings of police officers in recent times. Do you 
take into account their actions within the context of the world in 
which they have to function? 

Judge Wells. Senator, this is my daily bread. I am a very busy 
felony court. As I understand the law in my jurisdiction, no. 

Senator Cohen. You do not take that into account? 

Judge Wells. No, not what you are describing. 

Senator COHEN. You participated in the Ohio Supreme Court and 
the Ohio Bar Association Task Force on Gender Fairness? 

Judge Wells. I did. 

Senator COHEN. The Senate last year passed the Violence 
Against Women Act, sponsored by Senator Biden and cosponsored 
by a number of us on the committee, and one of the titles of the 
bill is the Equal Justice for Women in the Courts. It was in re- 
sponse to a number of task force reports that we had on wide- 
spread gender bias in the courts, particularly in the case of rape 
and domestic violence. We would provide funds for education and 
training programs for Federal judges and court personnel. 

I would like the benefit of your own experience in terms of deal- 
ing with the courts. Is there gender bias, in your judgment, in rape 
cases and domestic abuse cases? If so, should we spend the kind 
of money that we are about to authorize for training judges and 
court personnel in dealing with it? 

Judge Wells. I have been privileged to be part of some of the 
training as a subject. I mean I have gone to sessions. In Ohio, we 
train our judges in gender bias. I think it is helpful. 

Senator COHEN. You would recommend that we continue to fund 
it? 

Judge Wells. I think people basically just need to hang all their 
biases at the door when they walk in a court room, and I think that 
holds for all the staff in the justice system, from the person who 
types something in an order to the person who is the judge. 

Senator COHEN. That is all I have. Thank you very much. Judge 
Wells. 

Senator Metzenbaum. Thank you very much. Senator Cohen. 

Thank you very much, Judge. We will see if we cannot move your 
confirmation process along. 

Judge Wells. Thank you. 



27 

Senator Metzenbaum. Our next nominee is Marjorie Rendell. Do 
you solemnly swear to tell the truth, the whole truth, and nothing 
but the truth, so help you God? 

Ms. Rendell. I do. 

TESTIMONY OF MARJORIE RENDELL, OF PENNSYLVANIA, TO 
BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT OF 
PENNSYLVANIA 

Senator Metzenbaum. Ms. Rendell, do you have any opening 
statement you would care to make? 

Ms. Rendell. No, I do not, Mr. Chairman, other than the fact 
that I am privileged and honored and very pleased to be here. 

Senator Metzenbaum. We are happy to have you with us. 

Do you have members of your family and friends here, and would 
you like to introduce them? 

Ms. Rendell. Yes, Mr. Chairman, I would like to. I believe you 
already met my son Jesse who is here. My husband Ed is expected 
any minute. He had to go to a conference that is being held in 
Washington, so he will be here shortly, I am sure. 

My cousins, the Ramseys, Lisa, Jean and Jill are here, as is a 
law clerk in waiting, Dan Gruen, who is a lawyer here in the Dis- 
trict who hopefully in several weeks would be helping me on the 
bench. 

I would like to note the absence of my father who is in North 
Carolina; my sister who, but for the weather, would have been here 
from North Carolina; Beth Cummings; and my mother who passed 
away, as a matter of fact, the day that I was nominated for this 
position, but she is here in spirit. 

Thank you, Mr. Chairman. 

Senator Metzenbaum. Your son is how old? 

Ms. Rendell. He is going to be 14 in March. 

Senator Metzenbaum. Stand up, please, young man. What is 
your name? 

Ms. Rendell. His name is Jesse. 

Senator Metzenbaum. Do you think your mother will be a fair 
judge? 

Senator Cohen. Wait a minute, is he under oath here? [Laugh- 
ter.] 

Senator Metzenbaum. Then I think we will move forward with 
the confirmation process. 

Ms. Rendell. I guess he will get that Genesis game after all. 
[Laughter.] 

Senator Metzenbaum. Your questionnaire indicates you engage 
in many public service activities, such as the Visiting Nurses Asso- 
ciation and the mentoring and counseling of college students. Given 
your experience, do you think that there should be a mandatory re- 
quirement that lawyers must engage in pro bono activities, or do 
you believe the voluntary system works at present? 

Ms. Rendell. Mr. Chairman, I believe you cannot force people 
to do good, and I believe that mandatory requirement of pro bono 
activities does not get to the heart of the matter. I believe that our 
pro bono service should be on a voluntary basis, but at the same 
time I believe that the legal profession should encourage voluntary 
service and, therefore, I am in favor of the ABA's recent resolution 



28 

that makes an aspirational goal for each lawyer of 50 hours per 
year of pro bono service. So I believe that our profession has re- 
sponsibility to encourage the voluntary pro bono service. 

Senator Metzenbaum. You have been in practice most of your 
career, and most of your experience I note has been in bankruptcy 
law. If confirmed, you will be faced with a docket of criminal, as 
well as civil matters, including constitutional, employment, and 
civil rights issues. Given your background, pretty much in bank- 
ruptcy, what steps do you plan to take to familiarize yourself with 
those areas of law in which you do not have that much experience? 

Ms. Rendell. I am taking advantage even at this time of the re- 
sources of the Federal Judicial Center and am reading up on dif- 
ferent areas, especially the criminal area where I really have no ex- 
posure. I will be going to judge school next week, as well, and plan 
to do a lot of reading in that area and other areas, as well. 

We also have a wonderful bench in the Eastern District of Penn- 
sylvania, and my hopefully soon-to-be colleagues, many of them 
have offered assistance and I have already started talking to some 
of them and also to some of my colleagues. In fact, one of my part- 
ners, Michael Beilson, who was U.S. attorney in the eastern dis- 
trict, to try to get up to speed. It will be a challenge, it will be a 
learning experience, but I believe I am ready for that challenge and 
looking forward to it. 

Senator Metzenbaum. With your experience in bankruptcy, this 
does not necessarily come under your jurisdiction as a Federal 
judge, but this Senator has long had the feeling that there was 
kind of in-breeding in the bankruptcy courts where the lawyer for 
the trustee and the lawyer for the creditors and the lawyer for the 
bankrupt, they just move around back and forth and one hand 
washes the other, and nobody worries too much about preserving 
the assets. Do you have any thoughts on that subject? 

Ms. Rendell. Yes, Mr. Chairman. Prior to the 1978 Bankruptcy 
Code, the Bankruptcy Act which had been in force since 1933 really 
left us open as a system to that kind of criticism, and it was per- 
haps the case. 

But with the advent of the 1978 code, different specific respon- 
sibilities have been given to different parties, and I think that we 
are doing much better and that this tarnished reputation should 
not continue. However, at the same time, we have not had effective 
tools within the bankruptcy system for case management, that is 
moving cases along on a fast or at least appropriate track, so that 
the backroom dealing or the discussions among the various parties 
are the way that things have moved. 

But I will say that with the Senate bill now pending, we hope- 
fully will be given case management tools such as the presumption 
of the filing of a plan within 1 year for every case, such as a new 
fast-track chapter 10 proceeding, whereby small cases move for- 
ward. I think the diligent time advancing of cases and the judge's 
monitoring of those cases will help do away with a lot of the, as 
I say, tarnished reputation or cronyism that I think has been asso- 
ciated with the bankruptcy system in the past. 

Senator Metzenbaum. Thank you. 

Senator Cohen? 



29 

Senator Cohen. Just a couple of quick questions on bankruptcy. 
Are there too many priorities set forth in the law as far as pref- 
erences under the Bankruptcy Act, so that by the time you get 
through all the priority creditors, there is nothing left over for any 
of the unsecured creditors? 

Ms. Rendell. That is an interesting question, and I am wonder- 
ing if legislation has been thought of to do away with some of 
them. I cannot think of any of the priority claims that really should 
not be there. I understand that some might have reluctance be- 
cause of the trickle-down theory, and if there is nothing there, it 
is not right for creditors. 

Yet we have very good priorities. We have priorities for taxes, we 
have priorities for ERISA claims, we have priorities for costs and 
expenses of administration, which must be borne or there definitely 
will be nothing there for trade creditors. 

So while you might criticize that, because that is what has hap- 
pened, I believe the legislature would be hard-pressed to whittle 
away on any of those or limit them, because I believe that maybe 
could do more disservice to trade creditors in the end. 

Senator Cohen. What about the effectiveness of chapter 11, has 
it served a valid social goal? 

Ms. Rendell. There has been a lot of commentary in the last 18 
months about chapter 11 and that it has not served a goal. Again, 
I would say exactly as I said to the chairman, that the goal of chap- 
ter 11 should be to come out of chapter 11. It should not be to lin- 
ger. And to the extent that a judge in a given case or the attorneys 
in a given case let it linger, then they are doing a disservice to 
chapter 11. 

So I believe that with the passage of S. 540, that we will have 
tools that will move it along, and I think will make a lot of the 
commentators think twice about just abandoning this as a system. 
I do not think there is anything wrong with the system that we 
working diligently and working through effective case management 
cannot overcome. 

Senator Cohen. That is all I have, Mr. Chairman. 

Senator Metzenbaum. Thank you very much, Senator Cohen. 

Senator Specter. 

Senator Specter. How do you hke being a witness? 

Ms. Rendell. Actually, being a witness is a lot better than an- 
ticipating being a witness. Senator. [Laughter.] 

Senator Specter. Your answers are very good, Ms. Rendell, and 
I do not have any questions for you, because, as I said earlier, I 
have known you a long while and have total confidence in your 
ability to handle the job. 

I would make one comment that I heard Senator Thurmond 
make in 1982, at one of the first Judiciary Committee hearings I 
attended, where there were two judicial nominees from Pennsylva- 
nia testifying. Senator Thurmond asked the question: Do you prom- 
ise to be courteous, if you are confirmed? And I thought to myself, 
what kind of a question is that? Who would not answer that in the 
affirmative? 

Of course, both nominees answered it in the affirmative, and 
then Senator Thurmond said, the more power a person has, the 
more courteous that person should be. 



30 

Senator Cohen. Speak into that machine there, will you? 
[Laughter.] 

Senator Specter. You mean pull it closer? 

Senator COHEN. Senator Thurmond always admonishes us to 
speak into the machine. 

Senator Specter. Among other things. [Laughter.] 

I am in my 14th year now here and I have not heard anything 
wiser than that said in the time I have been here. I believe there 
is a problem with judges, maybe even with Senators, perhaps less 
so with Senators who have to run for election. Although there is 
some consideration to limit Federal judicial positions to 6-year 
terms and give Senators life tenure. [Laughter.] 

But there is a real problem with judges having life tenure not to 
remember what it was like not being a judge, and I think that is 
something that has to be remembered. There have been a great 
many judges appointed, about 30 in Pennsylvania since I have been 
in the Senate, and I have to say that I get some complaints about 
some of those. So I always want to make Senator Thurmond's 
point. 

Ms. Rendell. I could not agree more with that. I think self-re- 
spect for the individual, understanding the traumas that the law- 
yers, the litigants, and the jury is going through and empathizing 
with them, and not engaging in belittling, that to me is so fun- 
damental to our system. And I think that the concept of life tenure 
should instead be that you have security in order to accomplish 
something while you are there, not security that would make you 
feel self-important. So I feel that those words are well spoken, and 
I hope and believe I can carry them out. 

Senator Specter. I appreciate that response, and I think that is 
the essence of life tenure: to give independence so you can carry on 
your role as a judge. I look forward to seeing you do just that. 

Ms. Rendell. Thank you so much. Senator. 

Senator Specter. Thank you, Mr. Chairman. 

Senator Metzenbaum. Thank you very much. 

Ms. Rendell. Thank you, Mr. Chairman. Senator Cohen, thank 
you. 

Senator Metzenbaum. Mr. Thomas Vanaskie: Mr. Vanaskie, do 
you swear to tell the truth, the whole truth, and nothing but the 
truth, so help you Grod? 

Mr. Vanaskie. I do. 

TESTIMONY OF THOMAS VANASKIE, OF PENNSYLVANIA, TO BE 
U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF 
PENNSYLVANIA 

Senator Metzenbaum. Would you like to introduce your family, 
Mr. Vanaskie? 

Mr. Vanaskie. Yes, I would, Mr. Chairman. Thank you very 
much. 

I only brought a pad with me, because I did not want to forget 
anybody. I have with me and have already been introduced to you 
the rock of my life, my wife Dottie, and my children, Diane who 
is 14, Mark who is 12, and my son Tommy who is a little over-awed 
by the whole process. He is 10 years old. 



31 

I am proud to be here, sir, to introduce my parents: My father, 
who is a Pearl Harbor survivor, and my mother, John Vanaskie 
and Dolors Vanaskie. And I have here my mother-in-law and fa- 
ther-in-law. Bob and Edith Williams; my brother-in-law and sister- 
in-law, Bobby and Marsha Williams are here with their nephew 
Scott, who is a senior in high school. My very, very dear friends 
from home, the Helbachs, Karen and Mike and their children Jill 
and Mike, Jr., are here, as well. 

My colleague in practice in Scranton, Tommy Brown is here, and 
my colleague in practice in Washington, Joe Artebean had been 
here. And also I am really pleased that two very distinguished at- 
torneys from the District of Columbia who I have practiced with on 
some difficult matters have stopped over, Dave Eisenstadt and Dan 
Joseph. 

Senator Metzenbaum. Do any of you think that Mr. Vanaskie 
will not be a fair judge, if confirmed? If you do, you had better 
leave the room promptly. [Laughter.] 

Mr. Vanaskie, would you care to make an opening statement? 

Mr. Vanaskie. I do not have any opening statement, Mr. Chair- 
man, other than to express my gratitude to the President for the 
confidence he has expressed in me in nominating me for this posi- 
tion of tremendous responsibility, to express my thanks to Senator 
Specter and Senator Wofford for their kind words of support they 
offered today, and to commend the committee and its staff for 
bringing this nomination to a hearing so promptly after the recess. 

Senator Metzenbaum. Mr. Vanaskie, I heard Senator Wofford 
spell out some of your background, and some of it passed over me. 
Would you just give me a little bit of a resume on that? 

Mr. Vanaskie. Mr. Chairman, I grew up and I have four brothers 
and two sisters. It was a large family in a very, very small house, 
half-double, in a little coal mining town called Schmoken. My dad 
is a bricklayer and, as a bricklayer, especially in that area, it was 
seasonal employment and it was tough going. My mother worked 
in a shirt factory. 

And at an early age, we had to work and I have worked since 
I can remember. I have worked, of course, as a paper boy and then 
in the circulation department of a newspaper, I have flipped ham- 
burgers, I have washed dishes, I have worked in a hat factory, I 
have worked in a shirt factory, in a warehouse, I worked as a con- 
struction laborer. I think the hardest job I ever had was planting 
trees in strip-mine reclamation projects. It does not sound like hard 
work, but digging in rock and planting trees in rock is very hard 
work. 

I have also had great experiences both in law school and being 
able to clerk as a first-year law school student for Judge Genevieve 
Blatt, who was on the commonwealth court, a very distinguished 
member of our commonwealth court, which is an intermediate ap- 
pellate in our State. And I have worked in a State agency and I 
have worked for a Republican State Senator in Pennsylvania, as 
well, while I was in law school. 

Senator Metzenbaum. A very interesting background, and it cer- 
tainly gives you a broad base from which to become a jurist. 

Your questionnaire states that since 1985, 100 percent of your 
practice has been civil litigation. If confirmed for a position on the 



32 

Federal bench, you will preside over cases which may include drug 
trafficking, major Federal and civil rights violations, and constitu- 
tional issues. That is a little bit different from civil litigation, and 
my question is do you have any steps that you plan to take in order 
to familiarize yourself with those areas of the law on which you 
may lack experience? 

Mr. Vanaskie. Yes, Mr. Chairman, I do have plans, and in hope- 
ful anticipation that I am confirmed, I have already begun the ef- 
fort to bring myself up to speed in those areas. For example, I have 
already attended a seminar put on by the U.S. Sentencing Commis- 
sion with respect to the guidelines. I have obtained from the Fed- 
eral Judicial Center educational materials that are very, very use- 
ful, including video training materials. As the other nominees who 
are here today, I am enrolled next week to go to video orientation 
for district court judges. 

I have a very good rapport with the members of the Middle Dis- 
trict of Pennsylvania now, and I intend to enlist their advice and 
help in coming up to speed in this area. I should mention that, in 
terms of civil rights, I have had experience in that area as a litiga- 
tor and have represented an indigent State court prisoner in bring- 
ing an appeal to the U.S. Court of Appeals for the Third Circuit 
that raised constitutional rights. 

Senator Metzenbaum. In 1992, you were appointed to the Law- 
yers Advisory Committee for the U.S. District Court for the Middle 
District of Pennsylvania. Please explain what issues that commit- 
tee addressed, and whether your experience has provided you with 
any insights concerning the challenges that a U.S. district judge 
may face. 

Mr. Vanaskie. The advisory committee for the middle district 
has been in place for a great number of years. It predates, of 
course, the Civil Justice Reform Act, but its intent was to serve as 
a liaison between the practicing members of the bar and the court 
itself, and we hold quarterly meetings with the chief judge of our 
district, and the purpose of those meetings is to bring to the court's 
attention concerns that practitioners are having in terms of case 
management or case progress. 

We have also addressed matters such as greater utilization of 
magistrate judges in order to move the matters along, and we have 
implemented, in cooperation with the chief judge and the members 
of the middle district court a law school practice role. And I think 
that is a very effective means of readying those who are students 
for the practice of law. 

Senator Metzenbaum. What was your major area of accomplish- 
ment in the athletic world? I see you have got a number of awards 
in sports. 

Mr. Vanaskie. Maybe the thing I am most proud of now — the 
older you get, of course, the more important they seem to become, 
but I was inducted into the Schmoken, PA, Chapter of the Penn- 
sylvania Hall of Fame, and that was a very gratifying recognition, 
I suppose. But maybe in terms of how I feel about the other rec- 
ognitions, it would have been recognized as the first academic ail- 
American in football. 

Senator Metzenbaum. In football? 

Mr. Vanaskie. In football, sir. 



33 

Senator Metzenbaum. Very good. 

Senator Cohen. 

Senator Cohen. I would just challenge one statement you made. 
I would say the older one gets, the award that one achieved seems 
to loom larger in the memory. As someone who was engaged in a 
lot of college activities, they seem much more magnanimous now in 
retrospect than they were at the time. 

Mr. Vanaskie. I agree with you. 

Senator Cohen. I read your article in 1977 about the Supreme 
Court decision in the National League of Cities v. Usery. 

Mr. Vanaskie. Yes. 

Senator Cohen. I was curious about the language that you used, 
because you discussed the precedents that the court both used and 
discarded and you wrote that in National League of Cities the 
Court has "fabricated a new method for reviewing commerce power, 
regulations and State functions, namely the State sovereignty doc- 
trine." 

I was curious about your use of the words "they have fabricated." 
As an attorney, I am sure Senator Specter and Senator Metzen- 
baum would say that attorneys or Leagues of Cities or any other 
plaintiff does not necessarily fabricate, but does advocate a particu- 
lar position. They were successful in 1976 when the case was de- 
cided, and then a short time thereafter the court reversed, as I re- 
call, and basically came, I assume, to your own position on this. 

It raised a question in my mind. Do you think the court was cor- 
rect in overruling the 1976 decision, or should the court have ap- 
plied stare decisis in that matter? 

Mr. Vanaskie. I do not know if I have a position, but the premise 
of the paper, the premise of the article was that rationales were de- 
veloped in order to justify a certain outcome. 

Senator Cohen. I think you used the word "fabricated." 

Mr. Vanaskie. I used the word "fabricate," yes, absolutely. And 
in terms of do I agree that there are instances where there should 
be — your specific question, Senator Cohen, is did I agree with the 
result in the Garcia case, Garcia v. San Antonio School District, I 
believe. 

In terms of an outcome, it seemed to me that when we looked 
at decisions that involved exercise of the commerce clause power 
insofar as it affected State governmental matters, matters of State 
interests, the court in Maryland v. Wirtz had spoken pretty clearly 
on that point, but again a divided court, and it seemed to me that 
we were obtaining results based upon a judiciary's view or the 
court's view of the proper structure of federalism, what it ought to 
be. 

I thought the instance of using the State sovereignty doctrine in 
the National League of Cities case was an instance of judicial activ- 
ism, where the legislative policy was disregarded. It seems to me, 
and I believe it would be correct, that the premise of the article is 
that questions of the proper structure and allocation of power in 
the Federal system is left to the political bodies and not to the judi- 
ciary. 

Senator Cohen. So if you have a case in which you believe the 
prior court decision was the result of judicial activism, does that 
mean that you would support a reversal of that decision. In other 



34 

words suppose when you have a different court come in by virtue 
of the replacement of members, and they look back and say we had 
a very activist court during the 1970's and the 1980's. Would it be 
proper for the court to say it is taking a different tact now, that 
a prior decison was the result of judicial activism and that it is 
being overruled? 

The question I really have is, do you think that a court should 
apply stare decisis? Is there a timeframe that you look at? 

Mr. Vanaskie. There is no timeframe, and I would mention that 
the Maryland v. Wirtz case was decided in 1968, so 8 years later 
you had that overruled, as well. 

But my responsibility as a district court judge, if confirmed, is to 
follow the law as it is established, and I have no function in terms 
of deciding whether or not that was an exercise of judicial activism 
or not. It is simply to apply the precedent as it has been estab- 
lished by the Supreme Court, of, if there is none, by the third cir- 
cuit. 

Senator COHEN. In other words, if you were presented with a 
similar case, even though you felt the League of Cities, if it were 
in effect at the time, was the product of either fabrication or nov- 
elty advocacy, would you uphold until it was overruled? 

Mr. Vanaskie. Yes, Senator. 

Senator COHEN. I think that is all I have, Mr. Chairman. 

Senator Metzenbaum. Thank you very much, Senator Cohen. 
Senator Specter. 

Senator Specter. Thank you very much, Mr. Chairman. I have 
no questions. You were in the room and heard what I had to say 
to Ms. Rendell about Senator Thurmond's admonition. Good luck. 

Mr. Vanaskie. Thank you, and I agree wholeheartedly with what 
you said. Senator Specter. 

Senator Specter. Thank you. 

Senator Metzenbaum. Thank you very much, Mr. Vanaskie, and 
good luck to you. 

Mr. Vanaskie. Thank you. 

Senator Metzenbaum. Our next witness is Helen Georgena 
Berrigan, New Orleans, LA. 

Do you swear to tell the truth, the whole truth, and nothing but 
the truth, so help you God? 

Ms. Berrigan. I do. 

TESTIMONY OF HELEN GEORGENA BERRIGAN, OF LOUISIANA, 
TO BE U.S. DISTRICT JUDGE FOR THE EASTERN DISTRICT 
OF LOUISIANA 

Ms. Berrigan. If I could, I would like just to say as a preface 
that this has been a very extraordinary week for me. This past 
Monday, my entire family, my brothers and sisters and nieces and 
nephews got together for the first time in over a decade to cele- 
brate my father's 100th birthday. 

Senator Metzenbaum. Fantastic. 

Ms. Berrigan. And it was that afternoon of his birthday that the 
call came from the Justice Department to head on down here. My 
dad unfortunately, because of his age, could not make the trip. He 
very much wanted to be here. He is the reason we have the film 
crew, so I just wanted to say hi. 



35 

I do have a number of very important people here with me today. 
First, my husband and best friend Joe. 

Senator Metzenbaum. We are glad to have you with us. 

Ms. Berrigan. And my sister Kathy from Louisiana, who is my 
second best friend. Until I met Joe, she was my first best friend. 

My law partner Jim Brady, who has helped guide me through 
this whole unusual process. Also, my mom died many years ago, 
and there is a woman here who kind of was a surrogate mom for 
me during some important times of my life, and that is Maureen 
Finnigan, and I would like her to stand. 

And then a very good buddie of mine from my hometown who 
went to the University of Wisconsin with me and was my room- 
mate here in Washington when I had the distinction of working for 
Senator Hughs and Senator Biden, Stu Jackson Pardo. 

Senator Cohen. You worked for Senator Biden, too? 

Ms. Berrigan. Yes, sir. 

Senator Cohen. We may have to take a reconsideration of your 
nomination. [Laughter.] 

Ms. Berrigan. My dad did want me to tell Senator Cohen that, 
for all his 100 years, he has been a Republican. [Laughter.] 

Senator Metzenbaum. You obviously did not come from Louisi- 
ana originally? 

Ms. Berrigan. No, sir, I am originally from Larchmont, NY. 

Senator Specter. You all sound like it. 

Senator Metzenbaum. Do you have an opening statement? 

Ms. Berrigan. One other comment I forgot to make is that my 
mom and all her family were from Tip City, OH, and we spent 
many a summer 

Senator Metzenbaum. Whereabouts in Ohio? 

Ms. Berrigan. Tip City, outside Dayton. 

Senator Metzenbaum. Well, we are very happy to have you here. 

In 1987, you wrote an article suggesting as an alternative to in- 
carceration that an inmate be sentenced to a boot camp. After suc- 
cessfully completing boot camp, the offender would be eligible for 
parole release or he would be intensely supervised and subject to 
a curfew house arrest. 

As you know, the Senate recently passed a crime bill which in- 
cludes a provision of established Federal boot camps for nonviolent 
offenders. If that bill becomes law and you are confirmed, how 
would you determine which nonviolent offenders to send to boot 
camp? 

Ms. Berrigan. We have a similar type statute in Louisiana, and 
the statute sets forth the offender classes that would be eligible. I 
think you have to be sentenced to a sentence of 7 years or less, it 
is certain particular offenses, the judge has to make the rec- 
ommendation, there has to be no history of violence. There is a 
number of qualifications that have been put into the statute. 

I would hope that if such a similar procedure was enacted by 
Congress, it would also set forth the guidance in the statute as to 
what offenders would be eligible for consideration. 

Senator Metzenbaum. As a district court judge, would you con- 
sider yourself bound by Supreme Court and circuit court decisions, 
even though you might personally feel quite strongly that some of 



36 

those decisions were incorrect or failed to interpret the Constitu- 
tion as you thought it should be interpreted? 

Ms. Berrigan. I think one of the most important aspects of the 
law is stability and respect for stare decisis and prior jurispru- 
dence, and I would consider myself totally bound by both fifth cir- 
cuit and U.S. case law. 

Senator Metzenbaum. As a practicing lawyer — and you are a 
practicing lawyer I understand now — what type of work did you do? 

Ms. Berrigan. Primarily criminal defense and postconviction 
pardon and parole, but criminal related law. 

Senator Metzenbaum. I do not have your record in front of me, 
but have you been in any extracurricular activities? What kinds of 
any have you been involved in? 

Ms. Berrigan. Well, I am not sure what you mean by extra- 
curricular. I have been active in the Louisiana American Civil Lib- 
erties Union for a number of years. I have been active in political 
organizations, for example, an organization to encourage women to 
run and serve in public office. I have done fund-raising activities 
on behalf of a hospice for AIDS victims and patients in New Orle- 
ans. I have done things in the community that I hope improve the 
community. 

Senator Metzenbaum. It sounds pretty good to me. 

Ms. Berrigan. Thank you. 

Senator Metzenbaum. The Judicial Conference, which is the pol- 
icy-making arm of the Federal courts, is in the midst of a 3-year 
experiment allowing the use of cameras in Federal courts during 
civil trials. A restriction on that experiment is that the media, 
when it is interested in televising a particular trial, must notify the 
presiding judge in advance and the judge may refuse the request 
at his or her discretion. 

What factors would you use in making your decision as to wheth- 
er to agree to a request to televise a certain trial? 

Ms. Berrigan. I think the primary consideration is giving the 
litigants a fair trial. I guess at the one side I would be concerned 
as to how the televised aspect of it might affect the witnesses, 
whether the witnesses would be intimidated or somehow affected 
in their testimony by being on television, how the jury might be af- 
fected, if it was a highly emotional case, would the jury be con- 
cerned about being on television and what folks outside might 
think. Those are the things I would probably take into consider- 
ation. 

Senator Metzenbaum. Senator Cohen. 

Senator COHEN. Thank you very much. 

Ms. Berrigan, you wrote an article called "The Purpose of Pun- 
ishment" 

Ms. Berrigan. Yes. 

Senator COHEN [continuing]. In which you list the four tradi- 
tional philosophies of correction being rehabilitation, deterrence, in- 
capacitation and retribution. I think you indicated that retribution 
is at best shortsighted, and at worse dangerously destructive to in- 
dividuals who are otherwise salvageable. 

The question I have is what role, if any, does retribution have 
in the criminal justice system, as far as you are concerned? 



37 

Ms. Berrigan. Well, I think there is a natural need for society 
to say to someone in a forum or either through our criminal justice 
system that you cannot do certain things to your fellow citizens. If 
retribution is that, if it is the just deserts concept that you have 
done wrong and, therefore, you must pay the consequences of what 
you have done, that is salutary and important, because people do 
have to be held responsible for what they do. 

I think rehabilitation also is an important consideration, and you 
did read the complete sentence where I indicated that when people 
can be salvageable, and I think rehabilitation, for example, should 
always be at least an opportunity. Only a person themselves can 
decide they want to rehabilitate themselves. The system cannot do 
it to them, but certainly the opportunity should be there. 

So I think all four of those ingredients are a part of our correc- 
tions system and probably will remain so and appropriately so. 

Senator COHEN. One of the problems I think you indicated before 
is that we need to maintain respect for the courts and our judicial 
system, but that respect is breaking down. Now, it may be that the 
loss of respect is endemic. It is affecting all of our institutions. But 
more and more I think the focus has been directed toward the 
courts, as well, because of the celebrated cases. For example, the 
Monica Seles case in Germany, in which she was attacked with a 
pair of scissors or a knife, as I recall, and stabbed, and yet the 
court released that individual and put him on probation. There was 
a natural outcry, saying a tremendous injustice has been done. 

You can go through case after case in which there is a horrible 
example of a vicious crime being committed against an individual, 
and society says something must be done to acquire retribution in 
that case. The most recent one I can think of is just this week 
there was a case in which a man was sitting in his car and an indi- 
vidual came up and had a gun and demanded the man get out of 
the car. He locked his doors and ducked down on the seat and was 
lying prone on the seat, and the individual who was trying to get 
in started firing the gun into the car and succeeded in paralyzing 
that individual for life. 

The reaction of the victim's family was "I want the perpetrator 
of the crime to live exactly as my father has to live the rest of his 
life." Now, retribution in this case does serve a very valid purpose 
in our system. It is not to say that any court or society is going 
to impose an equal level of retribution. We are not going to see that 
that individual is paralyzed, but the emotion that is involved collec- 
tively in society, particularly for that family, is so strong that the 
sentence that individual receives, if in fact he is ever convicted, 
seems to me should be very severe. 

To often, we tend to take into account the salvageability or the 
rehabilitation of the individual and we tend to ignore the severity 
of the pain that individual has inflicted. To the extent we continue 
to do that, society is going to see the rise of vigilante groups, people 
taking the law into their own hands, people equipping themselves 
with their own weapons, riding around with guns in their cars to 
prevent car jackings. There is a common sense that we have been 
too easy in terms of the penalties that have been imposed. People 
go in prison and they are back out on the street. 



38 

You cannot turn on a program on television at nighttime now, 
"Courts and the Law," or "Cops Out on the Beat," without hearing 
every individual in the law enforcement business rail against the 
criminad justice system complains about spending more time filling 
out paperwork than the criminal will to serve in prison. And you 
see people going to the system and coming out. 

As a matter of fact, that is one of the reasons I think, the Presi- 
dent endorsed the Senate's crime bill that contained the so-called 
three-strikes-and-you-are-out provision, because there is a collec- 
tive anger that is building in society saying that we are putting too 
much emphasis perhaps on rehabilitation and not enough on pun- 
ishment. 

Now, in your article I think you pointed out that there is some 
moderate correlation that is shown to exist between deterrence and 
the certainty of imprisonment as a sentence, even though this is 
subject to question. I do not disagree with that. I have heard a 
number of speeches given by Rev. Jesse Jackson in which he points 
out that for many of the individuals who are now being sent off to 
prison, it is not a step down, it is a step up. They are coming out 
of poverty and deprivation and lawlessness, and going to a place 
where they can in fact receive meals and cable television and pret- 
ty warm accommodations which they do not have out on the street. 

So I am not sure what the answer is. There maybe a correlation 
between the certainty of imprisonment and deterrence. I do not 
know. I do not have the answer to that, but we are all struggling 
with that right now. It seems to me that the more we read about 
it, we have got at least one generation, possibly two, that are com- 
ing up in an atmosphere which is almost tantamount to the "Lord 
of the Flies." There is no sense of morality. 

I saw one interview recently in which inmates, career criminals, 
who have been in prison for 15-20 years are shocked by the amo- 
rality of the individuals coming into the prison system today. They 
would say, that when they robbed a person they would take the 
money and leave. Today, criminals take the money and kill you 
anyway. 

So we have a long-term problem and we have a short-term prob- 
lem. The long-term problem obviously has to do with racism in our 
society, with giving people who have been deprived an opportunity 
to rise and to flourish and receive an education and to nurture 
those individuals who do not otherwise have a fair chance. 

At the same time, we have a short-term problem, and the short- 
term problem has to be to get the violent criminals off the street, 
because most people today, particularly in this city — and I am sure 
in both Ohio and Louisiana — are frightened. Fear is the biggest 
issue on the minds of the American people today, even above that 
of health care reform or welfare reform. Fear of being a victim of 
a violent criminal act is perhaps foremost in the minds of the 
American people. 

So I hope as you serve in this capacity, you will take that into 
account, understanding that retribution, a collective societal ret- 
ribution, is also a very important element in preserving a respect 
for the law. 

Ms. Berrigan. I have been a crime victim myself, so I know the 
feeling. 



39 

Senator COHEN. Thank you. 

Senator Metzenbaum. Thank you very much, Senator Cohen. 

Ms. Berrigan, what is the Forum for Equality? 

Ms. Berrigan. The Forum for Equality is an organization that 
was created about 4 or 5 years ago now in New Orleans, with two 
purposes. The first purpose was to promote equal rights for all mi- 
norities, regardless of race, religion, gender, age, sexual orienta- 
tion, disabilities, basically the whole gamut, almost like an um- 
brella, but to be also a political advocate which, for example, the 
American Civil Liberties Union is not. The ACLU does not get in- 
volved in political campaigns. The Forum for Equality does. It en- 
dorses candidates, interviews candidates and so forth. 

The second mission of the Forum for Equality was to promote 
good government. Louisiana has an unusual history in that regard, 
so we felt that it was important to have that as part of our mission, 
as well. So it is really a dual mission organization to promote equal 
rights for all minorities and good government from all our public 
officials. 

Senator Metzenbaum. Thank you ver>' much. I must say that I 
did not think I would ever sit here and have the president of the 
ACLU in New Orleans and a very active member of the Forum for 
Equality — I guess you are a member — come up as a nominee for 
the Federal district bench. I am pleased to see it, and I congratu- 
late you. I more particularly congratulate the Senators who I as- 
sume nominated you. 

Ms. Berrigan. Thank you very much, Senator. 

Senator Metzenbaum. Thank you. 

The last nominee is Tucker Melancon, a Greek name, sir? 

Mr. Melancon. French. 

Senator Metzenbaum. Do you solemnly swear to tell the truth, 
the whole truth, and nothing but the truth, so help you God? 

Mr. Melancon. I do. 

TESTIMONY OF TUCKER MELANCON, OF LOUISIANA, TO BE 
U.S. DISTRICT JUDGE FOR THE WESTERN DISTRICT OF LOU- 
ISIANA 

Senator Metzenbaum. Would you like to introduce members of 
your family? 

Mr. Melancon. With the chairman's permission, I would like to 
remain standing, so I do not forget. As Senator Breaux said in his 
introduction, I have got quite a contingent to come up from Louisi- 
ana and I have some friends from the Washington area I would 
like to introduce. 

Senator Metzenbaum. Please, whatever is convenient for you. 

Mr. Melancon. My wife Kitty; my daughter Robin and her hus- 
band A.J. Roy; my son Ben and his brand-new wife Celeste; my law 
partner and step-brother Rodney Rabalais, his wife Wanda, and my 
nephew Kevin; and a friend of mine from Marksville, LA; from my 
hometown Glenn Groudeau and his wife Jo, and their sons Beau 
and Jacques. I also have from Senator Breaux's office a young lady 
from my hometown. Celeste Coco, and another young lady from my 
hometown who is a student in Washington, Shibohan Dupuy. 

Last, I would once again like to recognize a long-time great 
friend of mine, Jim Brady. 



40 

Senator Metzenbaum. Thank you very much. I am pleased that 
we have helped improve the airline economy between Louisiana 
and here. Between you and Ms. Berrigan, it is a good grouping. 

Senator COHEN. You have also complicated our lives. We had just 
gotten used to addressing General Shalikashvili. Now you have 
given us a new name to master here today. 

Senator Metzenbaum. Do you have an opening statement? 

Mr. Melancon. No, Mr. Chairman, other than to say that I am 
honored to be here. 

Senator Metzenbaum. You served on the Committee to Study 
the Backlog in Louisiana Court of Appeal for the First and Third 
Circuits. Given your experience, if confirmed, what steps will you 
take to ensure that your docket progresses at as quick a pace as 
fair and reasonable? 

Mr. Melancon. Mr. Chairman, I served on that committee by 
appointment of the Louisiana Supreme Court and I think the prob- 
lems that we found in the first and third circuits in the State 
courts of Louisiana are not, based on my present appreciation of 
what I will face as a Federal judge, if I am so lucky to be con- 
firmed, are not the same. 

I agree with what has been said earlier, that I think a Federal 
judge needs to be a hands-on judge, if you are going to be in a posi- 
tion to control the docket, and by that I mean to be involved at 
each stage. I think my appreciation of rule 16 conferences and the 
procedures that have been recommended, based on my recent read- 
ings in the use of magistrate judges, will help in that regard. 

In my particular situation, the Monroe division, which I have 
been nominated for, the six other judges of the western district 
have done a magnificent job in trying to keep that docket, particu- 
larly the criminal docket, as current as possible. This position has 
been vacant for approximately 2 years and they have done a real 
good job. I think right now there are about 430 cases pending. 

Senator Metzenbaum. Mr. Melancon, I notice that you have had 
a considerable business interest in a number of different busi- 
nesses. What portion of your time has been devoted to the law and 
what portion to your business enterprises? 

Mr. Melancon. Mr. Chairman, I would say candidly about 110 
percent of my time to the law. Except for a period from about 1980 
to 1991, when I was involved as an investor in a restaurant, the 
investment went bad because of some improper management, and 
for a short time I was actually in the restaurant business. 

Other than that, the business activities that are mentioned in 
the information I have supplied to the committee were basically as 
investor in most instances with a step-brother and a brother-in- 
law, and I did serve in a technical sense as a member of the board 
of directors for a closely held corporation. But I have been a full- 
time lawyer for most of the 20-plus years that I practiced law. 

Senator Metzenbaum. What kind of community activities have 
you engaged in? 

Mr. Melancon. I have been involved basically early on when I 
got out of law school in civic organizations such as the Jaycees. I 
have been very active in the Boy Scouts, not in recent years, but 
T was an Eagle Scout and was involved when I got out of law school 



41 

and during the period in which my son was a Boy Scout. He is also 
an Eagle Scout. 

Senator Metzenbaum. As you know, the Rules of Civil Procedure 
allow judges to impose sanctions against lawyers or parties who file 
frivolous lawsuits. Recently there has been much debate over the 
courts' increased willingness to punish litigants under rule 11. 

Now, I have not practiced for a good many years, but I am rather 
sensitive about the pendulum swinging to the place where the 
judges start to punish lawyers for bringing cases, rather than let- 
ting the cases proceed or else dismissing the case and not punish- 
ing the lawyers. Some lawyers have actually argued the rule has 
been applied to chill pursuit of new and creative arguments in de- 
veloping areas of the law, such as civil rights. One judge recently 
stated "today's frivolity may be tomorrow's precedent." 

Given your experience as a htigator, what is your view about 
when rule 11 sanctions should be imposed? 

Mr. Melancon. Mr. Chairman, I share your concern that rule 11 
can, if misused, have a chilling effect, and I was struck by some 
of the comments Senator Specter made to both of the nominees 
from Pennsylvania in the way that a judge treats the members of 
the bar and the public that comes before a court. 

But I think that rule 11, when used appropriately, there is a 
valid reason for it, but I think it can certainly be abused. Again, 
as a practicing lawyer, I do not think that will be a problem for 
me. 

Senator Metzenbaum. Were you plaintiffs' lawyer or defendants' 
lawyer mostly? 

Mr. Melancon. Well, it is quite interesting to answer the ques- 
tion. I practice in a rural area, a town of about 5,000, and I guess 
for the first 17 years I was primarily a plaintiffs' lawyer. For sev- 
eral reasons, the last 2V2 to 3 years I have primarily been a de- 
fense attorney, although my firm, which is comprised of my partner 
who I introduced earlier and one associate, continues to have a var- 
ied practice. 

Senator Metzenbaum. Senator Cohen. 

Senator Cohen. Thank you, Mr. Chairman. 

Is your partner's name Rabalais? 

Mr. Melancon. Rabalais. 

Senator Cohen. Rabalais, I want to make sure I get that one 
right. 

First of all, Senator Metzenbaum I think has a strong conflict of 
interest in asking you the question as to whether or not you would 
be receptive to complaints being brought by creative plaintiffs. He 
is about to leave the Senate and he will probably go back into the 
practice of law. Given his creative talents on the Senate floor, he 
is probably worried that the courts are going to take into account 
that he might be filing frivolous lawsuits, but most of us by virtue 
of experience know that he will be in the forefront or at least 10 
years ahead of his time. So I think there is a conflict of interest 
with that statement. 

Senator Metzenbaum. There are a few cases I tend to file in 
New Orleans. [Laughter.] 



42 

Senator COHEN. Most of your practice, as I understand it, has 
been on the civil side, if not all of it, at the State level. Have you 
practiced to any significant degree before the Federal courts? 

Mr. Melancon. In recent years, Senator, I have had the oppor- 
tunity as part of the defense work I have been doing to represent 
the Louisiana Sheriffs Risk Management Program, and we have 
been involved in a number of prisoner cases, some personal injury 
cases against the Louisiana Sheriffs Risk Management Program. 

I have also had the opportunity to have a number, I guess over 
the 20 years probably 15 to 20 admiralty-type cases, and I have 
had several trials against various Government entities, the VA hos- 
pital comes to mind. The bulk of my practice has been in State 
court. 

Senator COHEN. I assume, like Ms. Berrigan, you are going to a 
trial judges' school? 

Mr. Melancon. This week, yes, sir. 

Senator Cohen. I would just say for the benefit of those in the 
audience I suspect that people are not aware of exactly how de- 
manding a trial judge's job is. You have got to make quick decisions 
on spur-of-the-moment evidentiary decisions, and someone is al- 
ways looking over your shoulder. They may be big cases or small 
cases, but eventually you are going to have an appellate court look- 
ing over your shoulder and possibly a Supreme Court, and it is a 
tremendous burden upon any Federal district court judge. I would 
say more so than for the circuit court judges. 

They have a tough job, but it is really not nearly as tough as you 
will have, because you are on the spot and you must make instan- 
taneous decisions in terms of whether something is admitted, ex- 
cluded, overruled, et cetera. 

So good luck to you in your school. It is going to be very impor- 
tant to you, and I am sure that both of you will have to have some 
on-the-job experience or training. It is going to be a very difficult 
job. That is why we insist that the people who come before us are 
as qualified as possible and as highly intelligent and capable as 
possible, because it is going to be a very vigorous and demanding 
job on your part. 

Good luck. 

Mr. Melancon. Thank you very much. Senator. 

Senator Metzenbaum. Thank you very much, Senator Cohen. 

Thank you, I might say, for spending the afternoon here. 

Thank you very much, and we wish you well. 

Mr. Melancon. Thank you, Mr. Chairman. 

Senator Metzenbaum. This hearing stands adjourned. 

[Whereupon, at 4:22 p.m., the committee was adjourned.] 

[Submissions for the record follow:] 



43 



SUBMISSIONS FOR THE RECORD 



United States Senate 

1. Full name (include any former names used). 

Judith Ann Wilson Rogers (Judy) 

2. Addresses: List current place of residence and office 
address (es) : 

Home: 111 Third Street, N.E. 
Washington, D.C. 20002 
Telephone: 202-546-7472 

Office: D.C. Court of Appeals 
500 Indiana Av., N.W. 
Washington, D.C. 20001 
Telephone: 202-879-2770 

3. Date and place of birth: 

July 27, 1939; New York, N.Y. 

4. Martial Status (include maiden name of wife, or husband's 
name) . List spouse's occupation, employer's name and business 
address (es) : 

Divorced, August 8, 1978, from Stephen Childs Rogers, 
Esquire, 503 A Street, S.E. , Washington, D.C. 20003 (202-546- 
5926) . 

5. Education ; List each college and law school you have 
attended, including dates of attendance, degrees received, and 
dates degrees were granted. 

Radcliffe College: 1958-1961, A.B. degree, cum laude (1961). 
Harvard Law School: 1961-1964, LL.B (1964). 
University of Virginia Law School: 1986-1988, LL.M. degree 
(1988) . 

6. Employment Record : List (by year) all business or 
professional corporations, companies, firms, or other 
enterprises, partnerships, institutions and organizations, 
nonprofit or otherwise, including firms, with which you were 
connected as an officer, director, partner, proprietor, or 
employee since graduation from college. 

Summer 1961: survey analyst for Conover-Mast Publishing Co., 
205 East 42nd Street, New York, N.Y. 

Summer 1962: Assistant to W. Barton Leach, Professor of Law, 

1 



44 



Harvard Law School, Cambridge, MA. 

Summer 1963: Aide to counsel for the President's Commission 
on Juvenile Delinquency and Youth Crime, U.S. Department of 
Justice, Washington, D.C. 

1964-65: Law Clerk, Juvenile Court of the District of 
Columbia. 

1965-1968: Assistant United States Attorney for the District 
of Columbia, U.S. Department of Justice, Washington, D.C. 

1968-1969: Staff attorney, San Francisco Neighborhood Legal 
Assistance Foundation, 1095 Market Street, San Francisco, CA. 

s 

1969-1971: Trial attorney. Criminal Division, U.S. 
Department of Justice, Washington, D.C. 

1971-72: General Counsel, Congressional Commission on the 
Organization of the District Government, Washington, D.C. 

1972-74: Legislative Program Coordinator, Office of the 
Assistant to the Mayor-Commissioner, and subsequently in the 
Office of the Mayor, District of Columbia government. 

1974-79: Special Assistant for Legislation to the Mayor, 
District of Columbia government. 

1979 (January to April 15) : Assistant City Administrator for 
Intergovernmental Relations, District of Columbia government. 

1979-1983: Corporation Counsel for the District of Columbia. 

1983 to present, associate judge (1983-88) and Chief Judge 
(November 1, 1988 to present), District of Columbia Court of 
Appeals. 

7. Military Sei-vice : Have you had any military service? If so, 
give particulars, including dates, branch of service, rank or 
rate, serial number and type of discharge received. 

No, 

8. Honors and Awards . List any scholarships, fellowships, 
honorary degrees, and honorary society memberships that you 
believe would be of interest to the Committee, 

Phi Beta Kappa, Radcliffe College, June 3, 1986. 

Certificate of Appreciation, in recognition of outstanding 
service as Chief Judge of the District of Columbia Court of 
Appeals, .Bar Association of the District of Columbia, November 

■ -y. 

2 



45 



15, 1991. 

Woman Lawyer of the Year Award, Wonen's Bar Association of 
the District of Columbia, May 30, 1990. 

Chairman's Special Award, The Judicial Council of the 
National Bar Association, August 1, 1990. 

Charlotte Ray Award, Greater Washington Area Chapter, Women 
Lawyers' Division, National Bar Association, 1989. 

Distinguished Public Service Award, District of Columbia 
government, September 13 1983. 

Outstanding Performance Citation by Mayor Walter E. 
Washington, for period April 1, 1977 to March 31, 1979. 

Resolution of the Council of the District of Columbia in 
Recognition of skillful and effective representation of the 
District government, "Judith W. Rogers, Esquire, Resolution of 
1983," No. 5-285, July 12, 1983. 

Proclamation by Mayor, proclaiming September 13, 1983 as 
"Judith W. Rogers Day" in the District of Columbia in recognition 
of dedicated and distinguished service. 

Citizens' Citation for outstanding service, Self- 
Determination for D.C. Coalition, following enactment by Congress 
of the D.C. Self -Government and Governmental Reorganization Act 
of 1973. 

Honorary Doctor of Laws, University of the District of 
Columbia School of Law, May 1992. 

9- Bar Associations ; List all bar associations, legal or 
judicial-related committees or conferences of which you are or 
have been a member and give the titles and dates of any offices 
which you have held in such groups. 

Member: 

American Bar Association, 1984 to present; 

Life Member of the Fellows of the American 
Bar Foundation, 1992 
D.C. Bar, 1974 to present. 
Bar Association of the District of Columbia, 1966-67; 1983 

to present, 
Washington Bar Association, 1983 to present. 
National Bar Association, 1988 to present. 
National Association of Women Judges, 1983 to present. 
Council for Court Excellence, ex officio, 1988 to present. 
Conference of Chief Justices, 1988 to present: 

Executive Committee, 1993 to present. 



46 



10. other Memberships ; List all organizations to which you 
belong that are active in lobbying before public bodies. Please 
list all other organizations to which you belong. 

Conference of Chief Justices, 1988 to present. 

Wider Opportunities for Women, Board of Directors, 1972-74 

Friends of the D.C. Superior Court, Board of Directors, 

1972-74 
Radcliffe College, trustee, 1982 to 1988 
Harvard University, Visiting Conmittee to the law school, 

1984 to 1990 
St. Mark's Episcopal Church, 1981 to present. 
The Cosmos Club, 1990 to present. 
The Lawyers Club, 1990 to present. 

11. Court Admission : List all courts in which you have been 
admitted to practice, with dates of admission and lapses if any 
such memberships lapsed. Please explain the reason for any lapse 
of membership. Give the same information for administrative 
bodies which require special admission to practice. 

United States Supreme Court, May 14, 1979. 

United States Court of Appeals for the District of Columbia 

Circuit, October 11, 1965. 

United States District Court for the District of Columbia, 

June 21, 1965. 

District of Columbia Court of Appeals, April 1, 1972. 

Superior Court of the District of Columiba, April 1, 1972. 

D.C. Court of General Sessions, October 7, 1969. (Admitted 

to predecessor court, June 21, 1965) 

12. Published Writings : List the titles, publishers, and dates 
of books, articles, reports, or other published material you have 
written or edited. Please supply one copy of all published 
material not readily available to the Committee. Also, please 
supply a copy of all speeches by you on issues involving 
constitutional law or legal policy. If there were press reports 
about the speech and they are readily available to you, please 
supply them. 

All of my published writings appear in the form of (1) 
testimony before Congress or the Council of the District of 
Columbia on proposed legislation, including budget requests, and 
(2) published opinions as a judge on the D.C. Court of Appeals. 
A summary of the nature of my testimony before the D.C. Council 
appears at Tab 1. 

My speeches have addressed the needs of the Judicial Branch 
of the District government, but generally have not addressed 
legal policy. I attach a copy of my speech to the Fellows of the 



47 



American Bar Foundation, District of Columbia, May 12, 1992. See 
Tab 2. 

13. Health ; What is the present state of your health. List the 
date of your last physical exeunination. 

My health is excellent. My last physical exiunination was on 
February 22, 1993. 

14. Judicial Office ; State (chronologically) any judicial 
offices you have held, whether such position was elected or 
appointed, and a description of the jurisdiction of each such 
court . 

1983; Appointed by President Ronald Reagan, and confirmed by 
the United States Senate, to a fifteen-year term on the D.C. 
Court of Appeals. 

1988; Designated by the D.C. Nomination Commission to a 
four-year term as Chief Judge, D.C. Court of Appeals, beginning 
November 1, 1988. 

1992: Redesignated by the D.C. Nomination Commission to a 
second four-year term as Chief Judge, D.C. Court of Appeals, 
beginning November 1, 1992. 

The D.C. Court of Appeals is the highest court in the 
District of Columbia. Created by Congress in 1970, the Court 
functions like the state appellate courts. It performs both 
error-review and jurisprudential functions. Appeals from 
decisions of the D.C. Court of Appeals are to the United States 
Supreme Court on a petition for certiorari review. The Court 
consists of nine judges, who sit in three-judge panels; 
occasionally, the Court sits en banc. 

The D.C. Court of Appeals has jurisdiction to hear all 
appeals in civil, criminal and administrative agency cases. It 
also has original jurisdiction in some matters, including 
attorney discipline. Because the District of Columbia has state, 
county and municipal responsibilities, the D.C. Court of Appeals 
hears the same types of appeals as the appellate courts in the 
states, with the exception of state constitutional issues. The 
federal rules of criminal and civil procedure apply in the trial 
court, except as modified upon approval of the Court of Appeals. 
The United States Attorney for the District of Columbia is both 
the local and federal prosecutor in the District of Columbia, and 
hence, the Justice Department appears in nearly all criminal 
appeals. 

15. Citations : If you are or have been a judge, provide: (1) 
citations for the ten most significant opinions you have written; 



48 



(2) a short suminaxy of and citations for all appellate opinions 
where your decisions were reversed or where your judgment was 
affirmed with significant criticism of your sxibstantive or 
procedural rulings; and (3) citations for significant opinions on 
federal or state constitutional issues, together with the 
citation to appellate court rulings on such opinions. If any of 
these opinions lists were not officially reported, please provide 
copies of the opinions. 

(1) Ten significant opinions that I have written on behalf 
of the D.C. Court of Appeals: 

1. Hessey V. Bd of Elections & Ethics , 601 A. 2d 3 (D.C. 1991) (en 
banc) . 

2. Scott V. United States, 559 A. 2d 745 (D.C. 1989) (en banc). 

3. Battle V. U.S. , 630 A. 2d 211 (D.C. 1993). 

4. Johnson V. U.S. , 616 A. 2d 1216 (D.C. 1992). 

5. Caldwell V. U.S. , No. 595 A. 2d 961 (D.C. 1991) 

6. Durant V. U.S. , 551 A. 2d 1318 (D.C. 1988). 

7. Newspapers, Inc. v. Metropolitan Police Dept. , 546 A. 2d 990 (D.C. 

1988) . 

8. Stutsman V. Kaiser Found. Health Plan , 54 6 A. 2d 3 67 (D.C. 

1988) . 

9. Embassy of Benin v. D.C. Bd. of Zoning Adjustment , 534 A. 2d 310 

(D.C. 1987). 

10. Sherrod V. U.S. , 478 A. 2d 644 (D.C. 1984). 

(2) Summary and citation where my decision was reversed or 
affirmed with significant criticism: 

This has occurred when the en banc court has reversed a 
decision of a three-judge division: 

1. Harris V. U.S. , 602 A. 2d 154 (D.C. 1992) (en banc) (whether 
"plain error" requiring reversal occurred where appellant claimed 
prosecutorial misconduct, trial judge error, and unprofessional 
conduct by defense counsel) 

2. Speight V. U.S. , 569 A. 2d 124 (D.C. 1989) (en banc) 
(constitutionality of statute allowing enhancement of sentence, 
in absence of finding of culpability for first offense, when 



49 



defendant commits second offense while on pretrial release for 
first offense and the sentence exceeds the combined maximum 
penalty for conviction for second offense and the penalty for 
violating a condition of pretrial release) . 

3. Cousart V. U.S. , 618 A. 2d 96 (D.C. 1992) (en banc) (in 
absence of articulable suspicion of automobile passenger, whether 
passenger was seized in violation of the Fourth Amendment when 
told by police officer holding shotgun in the "ready" position to 
reach for the ceiling of car) . 

(3) Significant opinions on federal or state constitutional 
issues. 

1. Darabv.US., 623 A. 2d 127 (D.C. 1993) 

2. In re AS., 614 A. 2d 534 (D.C. 1992) 

3. Ceddwell V. U.S. , 595 A. 2d 961 (D.C. 1991) 

4. Guadaloupe V. United States , 585 A. 2d 1348 (D.C. 1991) 

5. Galbertb V. U.S. , 590 A. 2d 990 (D.C. 1991); after remand, 
Taylor V. U.S. , 595 A. 2d 1007 (D.C. 1991) 

6. Wbeelock V. U.S. , 552 A. 2d 503 (D.C. 1988) 

16. Public Office ; State (chronologically) any public office you 
have held, other than judicial offices, including the terms of 
service and whether such positions were elected or appointed. 
State (chronologically) any unsuccessful candidacies for elective 
public office. 

Assistant United States Attorney for the District of 
Columbia, appointed by Attorney General Nicholas deB. Katzenbach, 
November 29, 1965. Served until June 1968. 

Corporation Counsel of the District of Columbia, appointed 
by Mayor Marion S. Barry, April 16, 1979, and confirmed by the 
Council of the District of Columbia, June 19, 1979. Served until 
September 15, 1983. 

I was an unsuccessful candidate for election to the Board of 
Directors of the D.C. Bar in the late 1970s. 

17. Legal Career ; 

a. Describe chronologically your law practice and experience 
after graduation from law school, including: 



50 



1. whether you served as a clerk to a judge, and if 
so, the name of the judge, the court, and the dates of 
the period you were a clerk; 

1964-65: Law Clerk, Juvenile Court of the District of 
Columbia: Chief Judge Morris Miller (now deceased). Some 
assignments from the other judges: Judge Marjorie Lawson, Judge 
Orman Ketchum, Judge Aubrey Robinson, and Judge John Fauntleroy. 

2. whether you practiced alone, and if so the 
addresses and dates; 

I have never practiced alone. 

3. the dates, names, and addresses of law firms or 
offices, companies or governmental agencies with which 
you have been connected, and the nature of your 
connection with each; 

1965-1968: Assistant United States Attorney for the District 
of Columbia, U.S. Department of Justice, Washington, D.C. 
Assigned for one year to the local court to prosecute misdemeanor 
jury and non-jury trials, conduct preliminary hearings, motions, 
arraignments, and presentments in felony cases. Supervisor: 
Honorable Tim C. Murphy, former trial court judge and now 
Associate Attorney General, U.S. Department of Justice, 10th 
Street and Constitution Av., N.W. , Washington, D.C. (202-514- 
4945) . 

Thereafter, assigned to the United States District Court for 
the District of Columbia to handle special proceedings (habeas 
corpus, collateral attacks on criminal convictions, extradition, 
and civil commitments) . Supervisor: Oscar Altshuler (now 
deceased) . Also wrote three briefs in criminal cases before the 
U.S. Court of Appeals for the District of Columbia Circuit and 
prepared comments for the United States Attorney on federal 
legislation. 

In 1967, assigned for three months to Office of Assistant 
Attorney General Fred Vinson to work for the Office of Criminal 
Justice on reorganizing the District of Columbia court system. 
Prepared a report for the United States Judicial Conference 
Committee on the Administration of Justice, chaired by Gerhart 
Gesell (later judge on U.S. District Court, D.C, now deceased) 
on a family court branch in a restructured local court 
(addressing rules and procedure, role of counsel, comparison with 
other jurisdictions). Resigned, June 1968, because my husband 
had accepted a clerkship in San Francisco, California. 

1968-1969: Staff attorney, San Francisco Neighborhood Legal 
Assistance Foundation, 1095 Market Street, San Francisco, 
California. Did legal research on various class action suits in 

8 



51 



federal court. Represented clients in state administrative 
proceedings. Taught a clinical course on poverty law with two 
other attorneys at Boalt Hall, University of California at 
Berkeley, California. Supervisors: Jerry Carlin and Sidney 
Wolinski, Esq. 

1969-1971: Trial attorney. Criminal Division, U.S. 
Department of Justice, Washington, D.C. Assigned to the Office 
of the Deputy Attorney General to develop legislation to 
reorganize the District of Columbia courts. Part of a four- 
lawyer team that prepared draft legislation, department and 
legislative reports, and testimony, and worked with congressional 
committees as the bill was considered by the House and Senate. 
The legislation creating a state-type court system for the 
District of Columbia was enacted as the D.C. Court Reform and 
Criminal Procedure Act of 1970, Pub. L. 91-358 (July 29, 1970), 
84 Stat. 473. Supervisor: Donald E. Santarelli, Esq., 1155 
Connecticut Av. , N.W. , Washington, D.C. 20036 (202-466-6800). 

In August 1970, assigned to the Legislation and Special 
Projects Division to prepare legal memoranda for guidance of 
United States Attorneys' offices, reports on congressional 
legislation, and analysis of proposed changes in the Federal 
Rules of Criminal Procedure. Supervisor: Harold D. Koffsky 
(deceased) . 

1971-72: General Counsel, Congressional Commission on the 
Organization of the District Government, Washington, D.C. 
Responsibilities included review of recommendations to change the 
organization and responsibilities of the District government. 
Worked with management staff on proposed legislation to establish 
a new personnel system for District government employees. 
Supervised five consultants who were examining youth services in 
response to the recommendations in the 1966 report of the 
President's Commission on Crime in the District of Columbia. 
Supervisor: John E. Hogan, Executive Assistant and Director, 213 
11th St., S.E., Washington, D.C. (202-544-2532). 

1972-74: Legislative Program Coordinator, Office of the 
Assistant to the Mayor-Commissioner, and subsequently the Office 
of the Mayor, District of Columbia government. Responsible for 
the development of the Mayor's annual legislative program to 
Congress. During this time I did substantial work with District 
and federal officials, congressional committees and staff, on 
legislation to provide home rule in the District of Columbia. 
The legislation was enacted as the D.C. Self -Government and 
Governmental Reorganization Act of 1973, Pub.L. 93-198 (December 
24, 1973), 87 Stat. 774. Supervisor: Hon. Walter E. Washington, 
408 T Street, N.W. , Washington, D.C. 20001 (202-DU 7-4613). 

1974-79: Special Assistant to Mayor Walter E. Washington for 
Legislation. Responsible for preparation of the Mayor's annual 



52 



legislative programs to Congress and the new Council of the 
District of Columbia. In conjunction with the heads of the 
departments and agencies, developed legislative recommendations 
for the Mayor, drafted and analyzed legislative proposals, and 
prepared and presented testimony. In 1977, served as the Mayor's 
liaison to the President's Task Force on the District of 
Columbia, chaired by Vice President Walter Mondale; responsible 
for preparing position papers. 

1979: January to April 15: Assistant City Administrator for 
Intergovernmental Relations, District of Columbia government. 
Responsible for annual legislative programs to Congress and the 
Council of the District of Columbia, and for the development of 
relationships with regional and national organizations. 

1979-1983: Corporation Counsel for the District of Columbia. 
The Corporation Counsel serves in a capacity similar to that of a 
state attorney general. Actively supervised an office of 200 
attorneys, who appeared in the federal and District of Columbia 
courts; prepared official legal opinions; commented on District 
and congressional legislation; advised departments and 
administrative agencies on a variety of legal issues; and 
obtained significant funding increases for the District's legal 
office. See Annual Reports of the Office of the Corporation Counsel, at Tab 
3. 

1983 to present, associate judge (1983-88) and Chief Judge 
(1988 to present), D.C. Court of Appeals, 500 Indiana Av., N.W., 
Washington, D.C. 20001. 

b. 1. What has been the general character of your law 
practice, dividing it into period with dates if its 
character has changed over the years? 

1965-1969: Trial Litigator. As an Assistant United States 
Attorney for three years, I prosecuted criminal cases in the 
District's trial court on almost a daily basis and handled civil 
proceedings in the United States District Court on almost a 
weekly basis. As a trial attorney in a legal services program 
for under a year, I represented individual clients in state 
administrative hearings and civil proceedings and also worked 
with several lawyers in representing a community organization in 
a class action suit in the federal district court. 

1969-1979: Legislation. During these years I worked 
principally on legislation of all types, in Congress and the 
Council of the District of Columbia. At the Justice Department I 
worked on the legislation to create the District's current state- 
type court system. In the District government, I worked on the 
congressional legislation to create the current form of local 
government in the District of Columbia. My experience spanned 

10 



53 



the development of legislation through intra-agency and inter- 
agency review with local and federal depairtments and agencies, 
drafting and review and preparation of testimony and legislative 
reports, and work with congressional and Council committees. 

1979-1983: Corporation Counsel for the District government. 
Like a state attorney general, I was actively involved in the 
development of legal strategy and legal positions, formal legal 
opinions, regulatory review and advice, review of appellate 
briefs as well as staff management, training, fiscal and budget 
issues. Congressional contacts continued as a result of 
legislative work and congressional review of budget requests. 

1983 to present: Appellate Judge. After serving for five 
years as an Associate Judge on the District's highest court, I 
was selected, by a seven-member Nomination Committee, to be the 
Chief Judge. After serving a four-year term as Chief Judge, the 
Nomination Commission appointed me to serve a second four-year 
term as Chief Judge. While serving as Chief Judge, I have 
continued to carry the full workload of an associate judge in 
addition to performing my responsibilities for administration of 
the appellate court and as chair of the Joint Committee on 
Judicial Administration, the policy making body of the District 
of Columbia Court system. 

During my service as Chief Judge, the D.C. Court of Appeals 
has adopted and implemented a case management program, added 
calendars, made greater use of senior judges, streamlined 
procedures, and increased productivity. In response to four 
independent studies, and upon exhausting alternative solutions, I 
worked closely with the Bar and other groups on congressional 
legislation to establish an intermediate appellate court. I 
served on the Conference of Chief Justices and was elected to its 
Executive Committee in August 1993. 

While chairing the Joint Committee on Judicial 
Administration, the District of Columbia courts have, among other 
things, adopted new personnel standards, developed alternative 
compensation packages, and obtained increased funding for the 
Judicial Branch of the District government. The latter occurred 
with the assistance of the Bar, which I sought out in speeches 
and meetings, and resulted in testimony and letters as well as 
the preparation of a white paper by the D.C. Bar on the need for 
adequate funding of the courts. Also, of significance, under my 
leadership the Joint Committee established task forces to examine 
gender and racial and ethnic bias in the courts and thereafter 
implemented recommendations to address bias in the courts. See 
Annual Report of the District of Columbia Courts , at Tab 4 . 

2. Describe your typical former clients, and mention 
the areas, if any, in which you have specialized. 

' 11 



54 



My professional career has been devoted to pxiblic service. 
With very brief exceptions I have worked for either the federal 
or the District governments. Hence, ny clients have been the 
government, and its departments, agencies, boards and 
commissions. As a legal services attorney, I represented 
individual clients, including a community organization seeking 
injunctive relief in federal court and individuals seeking state 
administrative remedies. 

c. 1. Did you appear in court frequently, occasionally, 

or not at all? If the frequency of your appearances in 
court varied, describe each variance, giving dates. 

1965-68: in court regularly 
1979-83: very rarely 

2. What percentage of these appearances was in: 

(a) federal courts: 

100 percent 1967-68 
50 percent 1979-83 

(b) state courts of record: 

100 percent 1965-66 
50 percent 1979-83 

(c) other courts: 

None. 

3. What percentage of your litigation was: 

(a) civil: 

40 percent 1966-68 
100 percent 1979-83 

(b) criminal: 

60 percent 1966-68 

4. State the number of cases in courts of record you 
tried to verdict or judgment (rather than settled) , 
indicating whether you were sole counsel, chief 
counsel, or associate covmsel. 

As a prosecutor representing the United States, I 
conducted misdemeanor prosecutions in 1965-66 on almost a daily 
basis. I conducted forty-one jury trials in misdemeanor 
prosecutions in addition to numerous trials and motions argued 
before the court. From 1967-68, I handled numerous civil matters 

12 



55 



in the federal district, including civil commitment cases where 
there were jury trials nearly every week. In addition, I 
prepared pleadings and argued motions in extradition cases, 
collateral attacks on criminal convictions, and responded to 
petitions for writs of habeas corpus. 

5. What percentage of these trials was: 

(a) jury: 

(b) non-jury: 

Working in a high volume prosecutor's office, I did not 
keep records of the percentages. The nature of the trials is 
described in response to question 4 . 

8. Litigation : Describe the ten most significant litigated 
matters which you personally handled. Give the citations, if the 
cases were reported, and the docket number and date if 
unreported. Give a capsule summary of the substance of each 
case. Identify the party or parties whom you represented; 
describe in detail the nature of your participation in the 
litigation and the final disposition of the case. Also state as 
to each case: 

(a) the date of representation; 

(b) the name of the court and the name of the judge or 

judges before whom the case was litigated; and 

(c) the individual name, addresses, and telephone 
numbers of co-counsel and of principal counsel for 
each of the other parties. 

Significant litigation in which I was involved as 
Corporation Counsel included litigation (1) testing the scope of 
delegated powers of the new home rule government; (2) land use 
within historic districts; (3) the municipal corporation's 
liability for common law torts, medical malpractice, and 
constitutional violations; (4) contracts, personnel, and labor 
relations; (5) presentation and review of administrative 
proceedings; (6) prosecutions for minor misdemeanors, juvenile 
delinquency, child abuse and neglect as well as regulatory 
violations; and (7) enforcement actions to collect child support 
as well as taxes and other funds owed to the District government. 
See Annual Reports of the Office of the Corporation Counsel, at Tab 3 . 
Significant matters include: 

Taxing power : As Corporation Counsel, I presented the 
District government's argument before the en banc court in Bishop 
V. District of Columbia , 411 A. 2d 997 (D.C. 1980) (en banc), cert, 
denied, 446 U.S. 966 (1980). The case involved the taxing 
authority of the new home rule government. The Council of the 
District of Columbia had enacted legislation to repeal an 
exemption for lawyers and other professionals from the D.C. 

13 



56 



franchise tax on unincorporated business. A three-judge division 
of the Court held that the legislation exceeded the powers of the 
D.C. Council under the D.C. Self -Government and Governmental 
Reorganization Act of 1970. The en banc Court agreed to rehear 
the case. I presented additional arguments based on the 
provisions and legislative history of the D.C. Income and 
Franchise Tax Act of 1947, which distinguished between the 
proscribed commuter tax on personal income ("income taxes") and 
an unincorporated business franchise tax. The en banc Court 
nevertheless concluded that the Council had exceeded its 
authority. 

Attorneys of record: John M. Bixler, Esq., 655 15th Street, 
N.W., Washington, D.C. 20005 (202-626-5800), with Ronald D. 
Aucutt, Esq., of the same address and telephone number; Phillip 
L. Kellogg, Esq., 1275 K St., N.W., Washington D.C, 20005 (202- 
898-0722), with James L. Lyons, Esq., of the same address and 
telephone number. 

Other examples of significant litigation in which I had a 
direct supervisory role: 

Personnel authority : Barry et al. v. Public Employee Relations Board, et 
ai, No. C.A. 15364-80 (D.C. Superior Court, June 30, 1981), 
appeal American Federation of Govt Employees v. Barry, et ai , 459 A. 2d 
1045 (D.C. 1983). This case involved the scope of the District 
government's authority to establish a personnel system that was 
independent of the personnel system for federal government 
employees. Section 422(3) of the D.C. Self -Government and 
Governmental Reorganization Act required the District government 
to establish its own personnel system, but also required that the 
new system include benefits "at least equal to" those previously 
provided by Congress for District government employees. I 
recommended that the District government file suit after the 
Public Employee Relations Board issued an opinion requiring 
collective bargaining to set certain cost-of-living increases, 
thereby purporting to limit the Mayor's authority under the newly 
enacted D.C. personnel law. The District government's motion for 
summary judgment was granted by the trial court. The work in 
this case provided the basis for the District government's 
position in two other cases where District government employees 
raised the "at least equal to" claim. See Concerned Court Employees 
et ai V. Polansky, et ai , No. 81-1035 (D.C. Super. Ct. Jan. 29, 1982); 
on appeal: 478 A. 2d 1096 (D.C. 1984); Thomas et ai v. Barry, et al , 
No. 92-1920 (D.D.C. 1982), on appeal: 234 U.S. App. D.C. 370, 729 
F.2d 1469 (1984) . 

Attorneys for the Board: Thomas H. Queen, Esq., 530 8th 
Street, S.E., Washington, D.C. 20003 (202-544-4200). 

Attorneys for the Union Coalition, which intervened in 

14 



i 



57 



support of the Board: A.L. Zwerdling, Esq. (deceased) and Wendy 
L. Kahn, Esq., then at 1730 K Street, N.W. , Suite 713, 
Washington, D.C. 2006 (unlisted in the 1993 Legal Register) . 

Scope of the initiative power i Convention Center Referendum Committee, 
et al. V. D.C. Bd. of Elections & Ethics , 438 A. 2d 132 (D.C. 1981) (en 
banc) . This case presented issues relating to the respective 
authority of the Mayor, the Council of the District of Columbia, 
and the Congress where the electorate, acting through a citizen 
initiative, sought to prevent construction of a convention 
center. Congress had appropriated the funds requested by the 
Mayor and Council for construction of the convention center. The 
litigation arose when the Board of Elections rejected a proposed 
initiative to stop construction of the center. The trial court 
agreed with the Board, but suggested what night be a proper 
initiative. A second initiative was also rejected by the Board. 
The trial court denied the plaintiffs' motion for declaratory 
relief and they appealed. A three-judge division of the D.C. 
Court of Appeals affirmed the trial court. The en banc court 
reheard the case. 

The District government's initial brief focused on the 
distinction between "legislative" and "administrative" matters as 
a basis for a narrow reading of the initiative. This approach 
conflicted with the District government's position that Congress 
intended a broad delegation of legislative authority to the home 
rule government. The revised brief avoided a restrictive 
interpretation of the Council's delegated powers. 

Attorneys for the plaintiffs: Williams F. Schultz, Esq., 
Diane B. Cohen, Esq, and Alan B. Morrison, Esq, 2000 P Street, 
N.W., Washington, D.C, Washington, D.C. 20036 (202-833-3000) 

Attorneys for amici: James H. Heller, Esq., 1275 K Street, 
N.W., Washington, D.C. 20005 (202-898-4800), and Arthur B. 
Spitzer, Esq., 1400 20th Street, N.W. , Washington, D.C. 20036 
(202-457-0800); Stephen Truitt, Esq., 1300 19th Street, N.W. , 
Washington, D.C. 20036 (202-828-1452), and Deborah Calloway, Esq. 
(unlisted in 1993 Legal Register) , Jerry A. Moore III, 800 K Street, 
N.W., Washington, D.C. 20001 (202-408-3220), and J. Kirkwood 
White, Esq., 2100 Pennsylvania Av., N.W., Washington, D.C. 20037 
(202-881-1460) . 

Attorney for the Board of Elections and Ethics: William H. 
Lewis, 441 Fourth Street, N.W. , Washington, D.c. 20001 (202-727- 
2194) . 

Constitutional practices '. Morgan et al. v. Barry, et al , 596 F. Supp. 
879 (D. D.C. 1984). This class action suit sought injunctive 
relief against strip and squat searches and spraying of females 
arrested and temporary detained at the D.C. Jail, and the 

' ■'■■■ 15 



58 



practice of holding males and females in inadequately ventilated 
vans. In response to the plaintiffs' first demand, the District 
government entered into an agreement to stop such searches in the 
absence of probable abuse to believe the arrestee had weapons, 
drugs, or other contraband on her person. The District was 
facing the likelihood of a court order that it had violated an 
order entered in Langley v. Washington, No. 75-2058 (D.D.C. Dec. 23, 
1975) . The second demand, involving the vans, resulted in 
lengthy negotiations. But early resolution of the first demand 
resulted in the almost immediate cessation of the general 
practice of strip and squat searches of females awaiting 
arraignment. 

Attorney for the plaintiffs: Arthur Spitzer, Esq., 1400 20th 
Street, N.W., Washington, D.C. 20036 (202-457-0800); Nina Kraut, 
Esq., 3815 Yuma Street, N.W., Washington, D.C. 20016 (202-745- 
0300) . 

Scope of District government's public duty : Warren et al. v. District of 
Columbia, 444 A. 2d 1 (D.C. 1981) (en banc). This case involved 
the public duty doctrine, arising in a negligence action brought 
by two women who were assaulted in their home after the police 
failed to respond to their telephone calls. A three- judge 
division of the D.C. Court of Appeals reversed the trial court's 
dismissal of the complaint for failure to state a cause of 
action. The en banc court concluded, however, that a special 
relationship did not arise as a result of the promise of the 
police to respond. 

Attorney for plaintiffs/appellants: Steven A. Friedman, 
Esq., 6404 Ivy Lane, Greenbelt, Md. 22701 (301-220-2200). 

19. Legal Activities ; Describe the most significant legal 
activities you have pursued, including significant litigation 
which did not progress to trial or legal matters that did not 
involve litigation. Describe the nature of your participation in 
this question, please omit any information protected by the 
attorney-client privilege (unless the privilege has been waived) . 

As Corporation Counsel for the District government, I was 
involved in developing the government's legal position in a large 
number of cases. This occurred at a significant time, shortly 
after the home rule government was formed, when it was testing 
the scope of the powers delegated to it by Congress. Having 
worked on the legislation that created the new form of local 
self-government, I was in an almost unique position to guide the 
District's legal response. 

This was accomplished through weekly meetings with Division 
Deputies, who also submitted monthly litigation reports, and 
meeting on nearly a daily basis with supervising Deputies and 

16 






59 



trial attorneys as well as the affected department officials and 
administrative agencies to develop the District government's 
litigation strategy. In addition, I reviewed and edited 
pleadings and briefs. I was fortunate, as well, to have the 
assistance of very able attorneys, including Deputies whom I 
recruited or promoted from within the ranXs. 

Such joint efforts enabled the District government to 
prevail at times when it otherwise night not have prevailed, see, 
e.g., Convention Center Referendum Committee et at. v. D.C. Bd. of Elec. & Ethics, 
etal., 438 A. 2d 132 (D.C. 1981) (en banc), or forestalled having 
harsher judgments entered against the government. See, e.g., Morgan 
et al. V. Barry et al. , 596 F. Supp. (D.D.C. 1984) (strip and squat 
searches of female prisoners) . Most significantly, it enabled 
the new home-rule District government to effectively present Its 
position, consistent with congressional reservation of certain 
powers and constitutional responsibilities, that the 
congressional delegation of the authority under the D.C. Self- 
Government and Governmental Reorganization Act of 1973, Pub. L. 
93-198, was intended to be broadly construed. 



Attachments (Tabs 1, 2, 3 & 4) 



17 



60 



II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 

1. List sources, amounts and dates of all anticipated receipts 
from deferred income arrangements, stock, options, uncompleted 
contracts and other future benefits which you expect to derive 
from previous business relationships, professional services, firm 
memberships, former employees, clients or customers. Please 
describe the arrangements you have made to be compensated in the 
future for any financial or business interest. 

I will receive an annuity from the District government as a 
result of more than ten years of judicial service. 

2. Explain how you will resolve any potential conflicts of 
interest, including the procedure you will follow in determining 
these areas of concern. Identify the categories of litigation 
and financial relationships that are likely to present potential 
conflicts-of-interest during your initial service in the position 
to which you have been nominated. 

Consistent with federal law and the Code of Conduct for 
United States Judges, I will continue my practice of recusing 
myself in any case in which I have a financial interest in a 
party. I will also recuse myself for two years from sitting on 
any case involving the District of Columbia courts or court 
employees, as well as from cases involving those courts and 
employees that arose while I was a District of Columbia judge. 

3. Do you have any plans, commitments, or agreements to pursue 
outside employment, with or without compensation, during your 
service with the court? If so, explain. 

I have no such plans, commitments or agreements. 

4 . List sources and amounts of all income received during the 
calendar year preceding your nomination and for the current 
calendar year, including all salaries, fees, dividends, interest, 
gifts, rents, royalties, patents, honoraria, and other items 
exceeding $500 or more. (If you prefer to do so, copies of the 
financial disclosure report, required by the Ethics in Government 
Act of 1978, may be substituted here.) 

See Tab 5. 

5. Please complete the attached financial net worth statement in 
detail. 

See Tab 6. 

6. Have you ever held a position or played a role in a political 



61 



campaign? If so, please identify the particulars of the 
campaign, including the candidate, dates of the campaign, your 
title and responsibilities. f 'j , yuui 

I was a volunteer in several Democratic presidential 
campaigns during periods when I was not otherwise employed: 1968: 
Humphrey-Muskie; 1972: McGovern-Eagleton. 



Attachments (Tabs 5 & 6) 



62 



Sources of Income 1992-93 

4. List sources and amounts of all income received during the 
calendar year preceding your nomination and for the current 
calendar year, including all salaries, fees, dividends, interest, 
gifts, rents, royalties, patents, honoraria, and other items 
exceeding $500 or more. (If you prefer to do so, copies of the 
financial disclosure report, required by the Ethics in Government 
Act of 1978, may be substituted here.) 

Sources of all income received in 1992 and 1993 





??iJ?pdar i??2 


Judicial Salary: 


$130,087.40 


Investment income: 




IBM sh. 


$1,077 


Waste Mgmt sh. ) 


$319 


Phillip Morris sh.) 




Prudential Bank 


$994 


Am. Sec. Bk 


$846 


Citibank 


$2,967 


Second Nat. Fed. 




Sav. Bk 


$2,552 


Meritor Sav. Bk 


$7,560 


Crestar Bk 


$1,885 


Nat. Trust Group 


$436 



Calendar 1993 



Judicial- Salary 
(to 12-11-93) 



$142,032.32 



Investment Income: 

Phillip Morris sh.) $277 
Waste Mgt (now ) 
WMX Techs) ) 
Nat. Trust Group $2,534.90 
Reinvested, in 

unlisted securities 
(see schedule 
attached , at 
Tab 6) 



63 



FINANCIAL STATEMENT 

NET WORTH 

Provide a complete, current financial net worth statement 
which itemizes in detail all assets ) including bank accounts, 
real estate, securities, trusts, investments, and other financial 
holdings) all liabilities (including debts, mortgages, loans, and 
other financial obligations) of yourself, your spouse, and other 
immediate members of your household. 



AgSET? 

Cash on hand in banks 
Crestar Bank 
Citibank 

U.S. Government Securities: 

Unlisted Securities 

(see attached schedule) 

Accounts and notes 
receivable 



$29,738 
$32,419 

none 

$499,590 



none 



LIABILITIES 

No debts, mortgages, 
loans or other 
financial obligations 



Real Estate owned: 

111 Third St. , N.E. 

(1993 assessed value) $332,780 

Real Estate mortgages 

receivable none 



Autos and other personal property 
1985 Toyota Corolla 

estimate: 
household furnishings: 
estimate: 



Cash value - life insurance 

Other assets: itemize: 

Judicial Retirement 
contributions 



$3,000 

$10,000 

$0 



$109,214 



Total Assets 



$1,016,741 Total Liabilities: $0 
Net worth $1,016,741 



64 



Total liabilities 
and net worth: 

$1,016,741 



CONTINGENT LIABILITIES 



GENERAL INFORMATION 



None 



Mo assets pledged. 

I am not a defendant in 
any suits or legal 
actions, with the 
possible exception of any 
pending lawsuit against 
the Court that names me 
in my official capacity 
as a judge of the D.C. 
Court of Appeals.' 



I have never declared 
bankruptcy . 



65 



Unlisted Securities 
Schedule^ 

1. Bond Accounts 

AIM Ltd. Mat. Treas. $61,492 

Calvert Tax-Free Resvs. $43,100 

2. Stock Accounts 

American Funds: 

Investment Co. Amer. $112,603 

Washington Mutual Inv Fd $88,414 

New Perspective Fd $51,435 

Growth Fd America $54,462 

3. Balanced Accounts 

Defrd Incm-Lincoln 

Nat Managed Fd $62,340 

IRA Incm Fd America $25,744 



TOTAL $499,590 



^ Figures based on latest 1993 reports 



66 



III. GENERAL (PUBLIC) 

1. An ethical consideration under Canon 2 of the American Bar 
Association's Code of Professional Responsibility calls for 
"every lawyer, regardless of professional prominence or 
professional workload, to find some time to participate in 
serving the disadvantaged." Describe what you have done to 
fulfill these responsibilities, listing specific instances and 
the amount of time devoted to each. 

1972-74: Member of the Board of Directors of Wider 
Opportunities for Women. This organization developed training 
programs to assist poor, mostly minority, women in gaining skills 
so that they could become gainfully employed. Meetings on 
approximately a monthly basis. 

1972-74: Member of the Friends of the D.C. Superior Court. 
This organization developed and ran a child care center for 
parents who were involved in court proceedings and had no where 
else to leave their children. Meetings held approximately every 
other month. 

1979-83: As Corporation Counsel, 1979-83, I met with 
numerous community groups and a variety of persons, most 
frequently at night and on weekends, to understand how the 
District's legal office could respond more effectively to 
concerns of the disadvantaged. Such meetings, for example, led 
to my testimony in support to legislation to improve police 
response to domestic violence and work to improve the Citizens 
Complaint Center. Also, working with representatives of the 
United States Department of Health, Education and Welfare, I 
established a child support enforcement section, resulting in 
Increased collections. I also took steps to ensure that greater 
efforts were made in the areas of child abuse and neglect as well 
as in the prosecution of absentee slum landlords. To ensure 
continued responsiveness to the concerns of the disadvantaged, I 
also recruited lawyers who had worked in legal services programs. 

1982-90: Trustee at Radcllffe College (1982 to 1988) and a 
member of the Visiting Committee at Harvard Law School (1984 to 
1990) . I urged the expansion of financial aid programs so that 
disadvantaged youngsters would be able to attend these schools 
and so that their graduates could afford to work In the public 
sector. 

1988 to present: As Chief Judge and Chair of the Joint 
Committee on Judicial Administration (the policy-making body of 
the District of Columbia courts) , I proposed and established task 
forces on gender and racial and ethnic bias in the courts. 
Although a number of state court systems had conducted gender 
bias studies, and a few had undertaken racial bias studies, only 



67 



the District of Columbia courts pursued both areas 
simultaneously. This arose from my understanding that in urban 
courts gender issues, particularly as they affect the 
disadvantaged seeking relief in the courts, often involve issues 
of race and ethnicity, and vice versa. Because the sources of 
the biases are different, however, separate task forces were 
needed. But, by working simultaneously, and holding some joint 
public meetings, the task forces produced a Final Report with a 
comprehensive series of recommendations. I arranged for the 
Annual Judicial Conference of the judges and the Bar to pursue 
the issues presented in the Final Report. Thereafter, I 
contacted task force members to serve on an advisory committee to 
assist the Joint Committee in overseeing implementation of the 
recommendations. One year after receiving the Final Report, the 
Joint Committee issued a report demonstrating major 
accomplishments in implementing the task forces' recommendations. 
See Annual Report of the District of Columbia Courts, at Tab 4 . 

As Chief Judge, in addition to making numerous speeches in 
the community, I have also participated in the annual law day 
programs involving high school students from public and private 
schools. 

2. The American Bar Association's Commentary on its Code of 
Judicial Conduct states that it is inappropriate for a judge to 
hold membership in any organization that invidiously 
discriminates on the basis of race, sex, or religion. Do you 
currently belong, or have you belonged, to any organization which 
discriminates — through either formal membership requirements or 
the practical implementation of membership policies? If so, 
list, with dates of membership. What have you done to try to 
change these policies? 

I do not belong, nor have I belonged, to such organizations. 

3. Is there a selection commission in your jurisdiction to 
recommend candidates for nomination to the federal courts? If 
so, did it recommend your nomination? Please describe your 
experience in the entire judicial selection process, from 
beginning to end (including the circumstances which led to your 
nomination and interviews in which you participated) . 

There is no selection commission in the District of Columbia 
to recommend candidates for nomination to the U.S. Court of 
Appeals for the District of Columbia Circuit. 

4 . Has anyone involved in the process of selecting you as a 
judicial nominee discussed with you any specific case, legal 
issue or question in a manner that could reasonably be 
interpreted as asking how you would rule on such case, issue, or 
question? If so, please explain. 



68 



No such discussion has occurred. 

5. Please discuss your views on the following criticism 
involving "judicial activism": 

"The role of the Federal judiciary within the Federal 
government, and within society generally, has become the subject 
of increasing controversy in recent years. It has become the 
target of both popular and academic criticism that alleges that 
the judicial branch has usurped many of the prerogatives of other 
branches and levels of government. Some of the characteristics 
of this "judicial activism" have been said to include: 

a. A tendency by the judiciary toward problem-solution 
rather than grievance-resolution; 

b. A tendency by the judiciary to employ the individual 
plaintiff as a vehicle for the imposition of far- 
reaching orders extending to broad classes of 
individuals; 

c. A tendency by the judiciary to impose broad, 
affirmative duties upon governments and society; 

d. A tendency by the judiciary toward loosening 
jurisdictional requirements such as standing and 
ripeness; and 

e. A tendency by the judiciary to impose itself upon other 
institutions in the manner of an administrator with 
continuing oversight responsibilities." 

The Judicial Branch must respect the roles of the Executive 
and Legislative Branches. The principle of separation of powers 
is fundamental to our system of government. Cases and 
controversies are to be decided by the courts. Hence, parties 
must properly be before the court and the issues must be ripe for 
decision. The criticism of "judicial activism" is to be 
distinguished, however, from matters that are properly before the 
court where the appropriate disposition of the case or 
controversy may have far-reaching consequences. My experience 
indicates that judges are loath to assume administrative 
responsibilities much less impose broad affirmative duties on 
government and society that exceed the requirements of law in the 
case pending before the court. 



69 



I. BIOGRAPHICAL INFORMATION (PUBLIC) 
1. Full name (include any fomer names used.) 

Michael A. Ponsor 



2. Address: List current place of residence and office 
address (es) . 

Home: 387 Bay Road Office: U.S. District Court 

Amherst, MA 01002 1550 Main St., Rm. 512 

Springfield, MA 01103 

3. Date and place of birth. 

August 13, 1946. Chicago, Illinois. 

4. Marital Status (include maiden neune of wife, or husband's 
naune) . List spouse's occupation, employer's name and business 
address (es) . 

Divorced. 



5. Education : List each college and law school you have attended, 
including dates of attendance, degrees received, and dates 
degrees were granted. 

Yale Law School: 1971-73, 1974-75; J.D., January 1975. 

Pembroke College, Oxford University, England: 1969-71; B.A. 
(second class honours), June 1971; M.A., March 1979. 

Harvard University: 1964-67, 1968-69; B.A. ( magna cum laude l . 
June 1969. 

6. Employment Record ; List (by year) all business or 
professional corporations, companies, firms, or other 
enterprises, partnerships, institutions and organizations, 
nonprofit or otherwise, including firms, with which you were 
connected as an officer, director, partner, proprietor, or 
employee since graduation from college. 

_, January 1984 to present : United States Magistrate Judge, 
U. S. District Court, Springfield, Massachusetts. 

Januarv 1988 to present : Professor of Law (Adjunct), Western 
New England College Law School, Springfield, Massachusetts. 



70 



January 1989 to 1991 ; Professor of Law (Adjunct) , Yale Law 
School, New Haven, Connecticut. 

September 1978 to December 1983 ; Partner, Brown, Hart & 
Ponsor, 35 South Pleasant St., Amherst, Massachusetts. 

September 1976 to September 1978 : Associate, Homans, Hamilton 
& Lamson, 1 Court St., Boston, Massachusetts. 

September 1975 to September 1976 ; Law Clerk, Hon. Joseph L. 
Tauro, U. S. District Court, Post Office & Courthouse, Boston, 
MA. 

Summer 1974 ; summer clerk. Hill & Barlow, Boston, MA 

Summers 1969 and 1971 ; General assignment reporter, 
Minneapolis Tribune, Minneapolis, MN 

July 1967 to August 1968 ; Teacber, Kenya Institute of 
Administration, Nairobi, Kenya (on leave from Harvar'd) . 

7. Military Service : Have you had any milieory service? If so, 
give particulars, including dates, branch of service, rank or 
rate, serial number and type of discharge received. 

None 

8. Honors and Awards ; List any scholarships, fellowships, 
honorary degrees, and honorary society memberships that you 
believe would be of interest to the Committee. 

Rhodes Scholarship 

Dean's List, all years at Harvard. 

Honorary Scholarships for academic excellence, all years at 

Harvard. 



9. Bar Associations ; List all bar associations, legal or 
judicial-related committees or conferences of which you are or 
have been a member and give the titles and dates of any 
offices which you have held in such groups. 

American, Massachusetts, Hampshire County and Boston Bar 
Associations. National Council of United States Magistrate 
Judges . 



71 



10. other Memberships ; List all organizations to which you belong 
that are active in lobbying before public bodies. Please list 
all other organizations to which you belong. 

I belong to no organizations actively lobbying before 

public bodies. Other organizations I belong to are: 

American Field Service; 

Association of American Rhodes Scholars; 

Oxford Society; 

United State Magistrate Judges Association; 

The Finnish-American Society. 

South Congregational Church 

11. Court Admission ; List all courts in which you have been 
admitted to practice, with dates of admission and lapses if 
any such memberships lapsed. Please explain the reason for 
any lapse of membership. Give the same information for 
administrative bodies which require special admission to 
practice. 

United States Supreme Court, 1980 

Massachusetts Supreme Judicial Court, 1975 

U. S. Circuit Court of Appeals, First Circuit, 1976 

U. S. District Court, District of Massachusetts, 1976 

12. Published Writings ; List the titles, publishers, and dates of 
books, articles, reports, or other published material you have 
written or edited. Please supply one copy of all published 
material not readily available to the Committee. Also, please 
supply a copy of all speeches by you on issues involving 
constitutional law or legal policy. If there were press 
reports about the speech, and they are readily available to 
you, please supply them. 

I am currently co-editor of an updated edition of Civil 
Litigation in the First Circuit , which will be published in 
1994 by Massachusetts Continuing Legal Education. I will be 
writing two sections of the book: one on arguing motions (now 
in draft form) , the other on special features of civil 
practice in the District of Massachusetts. A copy of my draft 
"Avoiding Catastrophe at Oral Argument" is included in my 

3 



72 



Appendix as Section S. 

A list of speeches and other presentations I have made is 
appended to this form as Attachment 1. I am not aware of any 
press coverage of these events. The presentations were not 
written, and I currently have no documents embodying them. 



13. Health ; What is the present state of your health? List the 
date of your last physical examination. 

My health is excellent. My last physical exam was on 8/4/93. 



14. Judicial Office ; State (chronologically) any judicial offices 
you have held, whether such position was elected or appointed, 
and a description of the jurisdiction of each such court. 

I was appointed U.S. Magistrate Judge for the United 
States District Court for the District of Massachusetts 
(Western Section) on January 6, 1984 and reappointed to 
a second eight-year term on January 6, 1992. The Western 
Section exercises jurisdiction over all federal criminal 
and civil cases in the four counties of western Massa- 
chusettts. 

As the Magistrate Judge in the Western Section, my 
responsibilities include: (1) review of all applications for 
search, seizure, arrest or inspection warrants in these 
counties; (2) arraignments, initial appearances and detention 
hearings in all criminal cases; (3) issuance of rulings on 
non-dispositive pre-trial motions in all crxf^Ppl and civil 
cases; (4) issuance of reports and recommendations on 
dispositive motions in criminal and civil cases, following 

4 



73 



conduct of evidentiary hearings, if necessary; (5) jury and 
non-jury trials in criminal misdemeanor cases and in civil 
cases, with the consent of the parties. 

15. Citations ; If you are or have been a judge, provide: (1) 
citations for the ten most significant opinions you have 
written; (2) a short summary of and citations for all 
appellate opinions where your decisions were reversed or where 
your judgment was affirmed with significant criticism of your 
substantive or procedural rulings; emd (3) citations for 
significant opinions on federal or state constitutional 
issues, together with the citation to appellate court rulings 
on such opinions. If amy of the opinions listed were not 
officially reported, please provide copies of the opinions. 

(1) Ten Significant Opinions . 

A. Gunther v. County of Franklin . C.A. 91-30108 (October 15, 
1992) . Report and Recommendation addressing the constitu- 
tional rights of inmates at correctional facilities suffering 
from HIV-related illnesses, and recommending that defendants' 
motion for summary judgment be denied. This recommendation 
has been adopted by Sr. Judge Frank H. Freedman on September 
29, 1993. See Appendix A. 

B. Mattoon v. Pittsfield. C.A. 88-0128-F (July 17, 1991). 
Report and Recommendation addressing the preemptive impact of 
the Safe Drinking Water Act, 42 U.S. C. § 300f, on plaintiffs' 
federal and state claims against the City of Pittsfield and 
others for an outbreak of waterborne giardiasis caused by 
beaversf in the city's reservoirs, recommending allowance of 
the defendants' motions for summary judgment. This recommen- 
dation was adopted by the district court and affirmed in 

5 



74 



Mattoon v. Pittsfield . 980 F.2d 1 (1st Cir. 1992). See 
Appendix B. 

C. Wilkes V. Heritage Bancorp C.A. 90-11151-F and 90-11285-F 
(November 21, 1990) . Report and Recommendation addressing the 
sufficiency of a complaint against a bank for violations of 
sections 10b and 20 of the Securities Exchange Act of 1934, 
concluding that the allegations failed to state a claim under 
Fed. R. Civ. P. 12(b)(6) and, further, failed to satisfy the 
particularity requirements of Fed. R. Civ. P. 9(b), recommend- 
ing that the complaint be dismissed without prejudice to a 
motion to amend. The recommendation was subsequently adopted 
by the district court in Wilkes v. Heritage Bancorp. Inc. . 767 
F. Supp. 1166 (D. Mass. 1991) . See Appendix C. 

D. Frazier v. Bailey . C.A. 89-30098 (December 14, 1990). 
Report and Recommendation addressing the entitlement of 
counsellors, social workers and other medical personnel 
involved in a child sexual abuse case to qualified immunity 
from claims brought under 42 U.S. C. § 1983 by the children's 
father, the purported abuser, alleging violations of his 
constitutional rights, recommending that defendants' motions 
for summary judgment be allowed. This report and recommenda- 
tion was subsequently adopted by the district court and 
affirmed in Frazier v. Bailev . 957 F.2d 920 (1st Cir. 1992). 
See Appendix D. 



75 



E. Russell Harrington Cutlery. Inc. v. Lamson & Goodnow Mfg. 
Co. . C.A. No. 89-01077 (Dec. 26, 1989) . Memorandum and Order 
addressing plaintiff's claim that it possessed the exclusive 
right, under common law and statutory trademark, to 
manufacture white -handled knives in the United States and 
Canada, and recommending (with a bow to Moby Dick , and the 
"whiteness of the whale") that the defendants' motion for 
summary judgment be allowed, on the ground that, generally 
speaking, a manufacturer cannot obtain a trademark on a color. 
Since this was a consent case pursuant to Fed. R. Civ. P. 73, 
this ruling was the final order in the case. It was not 
appealed. See Appendix E. 

F. Colon V. Casco. Inc. . C.A. 86-0177-F (September 15, 
1988) . Memorandum and Order awarding damages to migrant 
workers for violations of the Migrant and Seasonal 
Agricultural Workers Protection Act, 29 U.S.C. § 1801, 
following a three-day trial under Fed. R. Civ. P. 73. On 
appeal, the district court, acting as a court of appeals, 
affirmed except for the issue of prejudgment interest, which 
was awarded on remand. The district court opinion is reported 
at 716 F. Supp. 688 (D. Mass. 1988) . See Appendix F. 

G. Rodriguez y. Springfield . 127 F.R.D. 426 (D. Mass. 
1989) . Memorandum and Order addressing the difficult issue of 
a civil rights plaintiff's entitlement to disclosure of the 



76 



identity of a confidential informant whose misinformation to 
the police regarding drug dealing led to a mistaken search of 
her apartment, balancing "with as much subtlety as the court 
can muster" — Id. at 431 — the plaintiff's right to this 
information to prosecute her claim of police misconduct, 
against law enforcement concerns about the protection of 
sources. See Appendix G. 

H. M.S. Chambers & Son. Inc. v. Tambrands. Inc. . 118 F.R.D. 
274 (D. Mass. 1987) . Memorandum and Order, adopted by then 
Chief Judge Freedman without objection, awarding defendants 
$17,181.13 attorneys fees as a sanction pursuant to Fed. R. 
Civ. P. 11, against the plaintiff's attorneys for knowingly 
filing suit in an improper venue and prosecuting the suit 
under the name of a plaintiff they knew, or should have known, 
was not entitled to relief. At the time this was one of the 
stiffest sanctions under Rule 11 in this Circuit. See 
Appendix H. 

I. Brown V . Ashe . C.A. 81-280-F. February 21, 1989. 
Memorandum and order capping the inmate population at the 
Heunpden County Jail and House of Correction at 450. This 
order issued in response to a visit by the court to the 
century-old facility and the revelation that the institution, 
which had a rated capacity of 314, housed 724 prisoners. The 
cap remained in place until the fall of 1992, when the new 

8 



77 



jail and house of corrections opened in Ludlow. All parties 
consented to trial of the case before me under Fed. R. Civ. P. 
73. The order was not appealed. See Appendix I. 

J. United States v. Joseph T. Keating . CR. 87-167-F. June 20, 
1988. Report and Recommendation urging allowance of the 
defendant's motion to dismiss for improper destruction of 
evidence, violation of the Speedy Trial Act and prosecutorial 
vindictiveness. The basis of the recommendation was the 
misrepresentation to the court by the government that an 86- 
second gap in a tape recording of a conversation between a DEA 
agent and the defendant, which defendant claimed was 
exculpatory, was innocently caused by excessive distance 
between the transmitter and receiver. In fact, following this 
representation to the court, made by the agent under oath, an 
F.B.I, expert testified that the gap was caused by a 
deliberate erasure. The recommendation was adopted by the 
district court and the indictment was dismissed with 
prejudice. See Appendix J. 

(2) Appellate Opinions . 

A. Sweeney v. Westvaco Co. . 926 F. 2d 29 (1st Cir. 1991) . 
Plaintiff brought a loss of consortium action against her 
husband's employer and supervisors alleging negligent 
infliction of emotional distress. After a jury trial in which 
the plaintiff was awarded substantial damages, the defendant 



78 



moved for judgment n.o.v. . and I allowed the motion, 
concluding that the suit was preempted under the Labor 
Management Relations Act, 29 U.S.C. § 185, and that the 
defendant had not waived the defense by failing to raise it 
before the verdict. The First Circuit affirmed my rulings 
against claims of trial-related errors, but — while 
recognizing that the defendant's argument was "a strong one," 
Id. at 38 — held that the defendant's failure to raise the 
preemption defense earlier constituted a waiver. The case was 
remanded with instructions to reinstate the jury's verdict. 

B. Santiago v. Fenton . 891 F.2d 373 (1st Cir. 1989). 
Plaintiff brought a civil rights action under both 42 U.S.C. 
Section 1983 and state common law. Some claims and defendants 
dropped from the case following rulings on motions for summary 
judgment. At the close of the evidence I directed verdicts 
for the remaining defendant on the state tort claims and 
federal and state civil rights claims for false arrest and 
imprisonment, malicious prosecution, abuse of process and 
conspiracy, on the ground that the uncontested evidence 
demonstrated that the defendant had probable cause to arrest 
the plaintiff. The claim for excessive force went to the jury 
and resulted in a damage award to the plaintiff. On appeal, 
the First Circuit affirmed in part, but reversed the grants of 
directed verdicts on the state tort claims of false arrest and 
imprisonment, malicious prosecution and abuse of process, and 



79 



the state and federal civil rights claims for illegal arrest 
and civil rights conspiracy. The case was remanded for a new 
trial on these claims and subsequently settled. 

C. Colon V. Casco. Inc. . 716 F. Supp. 688 (D. Mass. 1989). 
This was an action brought under the Migrant and Seasonal 
Agricultural Worker Protection Act, 29 U.S.C. § 1801, tried 
before me under Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). 
The parties opted to pursue their appeal before the district 
court under 28 U.S.C. § 636(c)(4). My findings and rulings 
were affirmed against a broad-based appeal by the defendants, 
but I was reversed on plaintiffs' cross appeal for denial of 
prejudgment interest. Id. at 695. The case was remanded for 
an assessment of prejudgment interest. 

D. Librera v. United States . 718 F. Supp. Ill (D. Mass. 
1989) . Plaintiffs brought a slip-and-fall action against the 
United States under the Federal Tort Claims Act after a fall 
at the Shelbume Falls Post Office. Following a non-jury 
trial I awarded damages in the amount of $124,151.82. As with 
Colon above, the case was tried before me by consent with the 
appeal to go to the district court. In an unpublished opinion 
dated October 24, 1988 the district court affirmed 
"substantially all" of my decision, but remanded for further 
findings, regarding "the respective lieJailities of the United 
States and Corliss [a private contractor, whose negligence 

11 



80 



arguably contributed to plaintiff's injury], and for a 
reduction in the award if appropriate." Id. at 112. On 
December 8, 1988 I issued my Memorandum on Remand finding that 
the plaintiff's injury was indivisible, that the United States 
was itself negligent, that this negligence was a substantial 
factor in causing the plaintiff's injury and that, as a 
result, the United States was jointly and severally liable for 
the entire damage award. This decision was affirmed by the 
district court on appeal in the ruling cited above. 

The four cases summarized above are the only appellate 
opinions where my decisions were reversed or significantly 
criticized. 

(3) significant Opinions on Constitutiona l Issues. 

A large percentage of the recommendations I have rendered 
since 1984 have touched on constitutional issues the parties, at 
least, deemed significant. The Gunther , Frazier and Keating cases 
at Appendix A, D and J are examples of these. Hundreds more 
rulings on non-dispositive motions, particularly in criminal cases, 
were drafted against a backdrop of constitutional law. See e.g. 
Rodriguez v. Springfield . 127 F.R.D. 426 (D. Mass. 1989) and United 
states V. Noetzel . 124 F.R.D. 518 (D. Mass. 1989). The following 
are significant opinions on constitutional issues. 



81 



A. United States of America v. Yana II Kim . CR. 85-0151-F. 
October 24, 1985. The court recommended allowance of defendant's 
motion to suppress on the ground that the government investigators 
had deliberately withheld Miranda warnings in an effort to 
intimidate the defendant into making incriminating statements. The 
defendant pled guilty while the government's objections to this 
recommendation were pending. See Appendix K. 

B. United States of America v. Single Family Dwelling . C.A. 
No. 85-0246-F (November 26, 1986). This memorandum recommended the 
dismissal of ten civil forfeiture actions on the ground that the 
procedure was unconstitutional as applied, or alternatively, that 
the practices employed by the government in effecting the 
forfeitures were so flawed that dismissal was appropriate. The 
recommendation was adopted by the district court, and all the 
complaints were dismissed. Although the discussion in the 
memorandum is somewhat anachronistic now, given subsequent 
refinements in procedures, at the time it offered one of the first 
constitutional analyses of civil forfeiture. See Appendix L. 

C. United States of America v. Scibelli . CR. 85-0399-F. 
August 13, 1987. This recommendation urged denial of defendant's 
broad-ranging motion to suppress electronic surveillance at his 
place of business. It addressed a number of possible grounds for 
suppression of the fruits of electronic surveillance. The 
recommendation was adopted by the district court and the defendant 

13 



82 

eventually pled guilty. See Appendix M. 

D. Plathe v. Coaains . C.A. 86-0273-F. July 11, 1988. This 
recommendation offers an instance in a civil rights case alleging 
police misconduct, where the court found that the reasonableness of 
the force used did not raise a jury question. Defendant was a 
female state trooper confronting the plaintiff, a much larger male 
who admitted resisting arrest. She incapacitated him with a single 
blow to the groin with her flashlight in order to apply handcuffs. 

Plaintiff suffered no injury beyond the initial shock, and the 
court found the force reasonable as a matter of law. The 
recommendation was adopted by the district court and summary 
judgment was entered for the defendant. See Appendix N. 

E. United States of America v. Hadfield . CR. 88-0254-F. March 
8, 1989. This recommendation found that defendants had made a 
sufficient preliminary showing, pursuant to Franks v. Delaware . 438 
U.S. 154 (19'78) , that false statements were contained in the search 
warrant supporting the search of their residence, and an 
evidentiary hearing was appropriate. The government objected to 
the recommendation and submitted additional material to the 
district court on review de novo that persuaded Judge Freedman not 
to adopt the recommendation. This decision was later affirmed at 
918 F. 2d 987 (1st Cir. 1987), cert, denied 111 S. Ct. 2062 (1991). 
See Appendix O. 

14 -\ 



83 



F- Kucefski v. Desv . C.A. 89-30167-F. October 8, 1992. This 
memorandum discusses the elements of a claim for false arrest and, 
more significantly, at 12 et seq. . the allegations required for a 
claim of civil rights conspiracy under 42 U.S.C. section 1985. The 
recommendation also discusses the factual prerequisites for a claim 
under the Massachusetts Civil Rights Act. It recommends that 
summary judgment be granted as to the claim for false arrest and 
otherwise denied. The recommendation was adopted by the district 
court on October 30, 1992. See Appendix P. 

G. Smith V. Springfield . C.A. 88-0165-F. October 13, 1992. 
The recommendation addresses a claim under 42 U.S.C. sections 1983 
and 1985 for civil rights violations arising from a "protective 
sweep" by federal state law enforcement officers of the plaintiff's 
residence. The memorandum incorporates a previous report, dated 
March 2, 1990, addressing the claims of excessive force and 
rejecting the defendants' claims of qualified immunity. This 
recommendation was adopted by the district court on September 24, 
1993. See Appendix Q. 

H. Pvle V. The South Hadlev Schoo l rnTmiii-n-g«>, c.A. 93-30102- 
F. June 8, 1993. Plaintiff high school students sought a 
temporary restraining order barring any attempt by the defendant 
School Committee to prohibit them from wearing two mildly vulgar T- 
shirts in school. The court denied the motion, concluding that the 
plaintiffs were unlikely to prove a First Amendment violation based 

15 



84 



upon the defendants' decision to limit clothing with sexually 
provocative slogans, where affidavits from the teachers suggested 
that such limitation protected students and enhanced the learning 
environment. This was a consent case under Fed. R. Civ. P. 73; the 
denial of the T.R.O. was not appealable. See Appendix R. 



16. Public Office ; State (chronologically) any public offices you 
have held, other than judicial offices, including the terms of 
service and whether such positions were elected or appointed. 
State (chronologically) any unsuccessful candidacies for 
elective public office. 

In 1979 I was appointed the Monitor to oversee 

implementation of the consent decree entered in Brewster v. 

Dukakis . C.A. 76-4423-F. I served until the end of 1983. 



17. Legal Career ; 

a. Describe chronologically your law practice and 
experience after graduation from law school including; 

1. whether you served as clerk to a judge and if so, 
the name of the judge, the court, and the dates of 
the period you were a clerk; 

2. whether you practiced alone, and if so, the 
addresses and dates; 

3. the dates, name and addresses of law fins or 
offices, companies or governmental agencies with 
which you have been connected, and the nature of 
your connection with each. 

I clerked for U.S. District Judge Joseph L. Tauro in 
Boston, 1975-76. 

Following my clerkship, I worked as an associate at a 
firm then named Homans, Hamilton and Lamson, 1976-78, located 
at One Court St., Boston. From 1978 until 1983 I was a 

16 



85 



partner at Brown, Hart and Ponsor, 37 S. Pleasant St., 
Amherst, Massachusetts. In January of 1984 I was appointed to 
my present position. I have never practiced alone. 



b. 1. What has been the general character of your law 
practice, dividing it into periods with dates if its 
character has changed over the years? 

2. Describe your typical former clients, and mention 
the areas, if any, in which you have specialized. 

From 1976 to 1978 criminal defense work predominated, 
through my association with William P. Homans, Jr. As a 
result, I assisted in felony trials in state and federal 
court, including cases involving charges of arson, fraud, 
rape, armed robbery and assault. I exercised sole 
responsibility for a number of state district court trials, 
including assault and battery on a police officer, breaking 
and entering, possession of stolen goods, larceny and driving 
under the influence. My clientele was mainly individuals of 
very modest means or, by appointment, indigent persons. 
Another element of my practice was plaintiffs' civil rights 
litigation. These clients included a group of students 
asserting claims against Boston University for suppressing 
their newspaper, and union organizers contesting unfair labor 
practices and intentional infliction of emotional distress. 

Following the move to Amherst in 1978 my practice 
gradually became more civil, though I still occasionally 

17 



86 



represented clients charged in criminal cases in federal 
and state court. Plaintiffs' personal injury litigation 
began to absorb more of my time, and I developed a brisk 
domestic practice. Mine was a rewarding small-town 
practice, and my typical clients were individuals charged 
with crime, negligently injured or in the grip of 
matrimonial difficulties. Other clients were local 
businesses as well as Hampshire College, which I 
represented in disputes with its faculty. 

Beginning in 1979, at the suggestion of now. Superior 
Court Judge Catherine White, who was then representing the 
Commonwealth, and with the approval of plaintiff's counsel, I 
was appointed by the U.S. District Court the Monitor for the 
Brewster v. Dukakis consent degree. While the decree was very 
elaborate, it essentially called for a gradual reduction in 
the patient population of the Northampton State Hospital and 
the transfer of patients into smaller, community-based 
treatment facilities. My responsibilities included overseeing 
implementation of the decree to insure its provisions were 
carried out, particularly those aimed at patient safety and 
care; reporting to the court on the progress of 
implementation; resolving disputes between counsel for the 
plaintiff patients and the Commonwealth, and advising the 
court when unresolved disputes broke into active litigation. 
After my appointment this work occupied a third to a half of 
my professional life. 

18 



87 



since January of 1984, I have performed my duties as 
a Magistrate Judge. 

c. 1. Did you appear in court frequently, occasionally, or 
not at all? If the frequency of your appearances in 
court varied, describe each such variance, giving 
dates. 

During 1976-78 in Boston, I typically appeared in court 

one or more times per week for hearings or trials. From 1978 

to 1984 the frequency of my appearance varied but on the 

average I was in court two or three times a month for either 

a trial, conference or hearing. 

2. What percentage of these appearance was in; 

(a) federal courts; 

(b) state courts of record; 

(c) other courts. 

Approximately eighty percent of these appearances were in 
state courts of record, the balance in federal court. 

3. What percentage of your litigation was: 

(a) civil; 

(b) criminal. 

From 1976-78, when I practiced in Boston, eighty percent 
of my litigation was criminal; after my move to Amherst, about 
eighty percent of my litigation was civil. 

4. State the number of cases in courts of record you 

19 



88 



tried to verdict or judgment (rather than settled) / 
indicating whether you were sole counsel, chief 
counsel, or associate counsel. 

My best estimate is that during 1976-78 while in Boston 

I tried approximately six major felony cases to judgment 

either in federal court or in state Superior Court, always as 

associate counsel. During the s£une period, I tried as sole 

counsel approximately five misdemeanor cases to verdict in 

various state district courts. Following my move to Amherst, 

I tried two major felony cases to verdict in federal court, 

one as associate counsel, and one — a three-week trial — as 

sole counsel. I tried a felony case to verdict in Superior 

Court as sole counsel, a misdemeanor case to verdict in 

Hampshire district court as sole counsel and at least two 

civil cases to verdict in Hcunpshire district court as sole 

counsel. 

5. What percentage of these trials was: 

(a) jury; 

(b) non-jury. 

In cases going to verdict approximately sixty percent 
have been jury trials, the balance non-jury. 



18. Litigation ; Describe the ten most significant litigated 
natters which you personally handled. Give the citations, if 
the cases were reported, and the docket number and date if 
unreported. Give a capsule summary of the substance of each 
case. Identify the party or parties whom you represented; 
describe in detail the nature of your participation in the 
litigation and the final disposition of the case. Also state 
as to each case: 

20 



89 



(a) the date of representation; 



(b) the name of the court and the name of the judge or judges 
before whom the case was litigated; and 

(c) the individual name, addresses and telephone numbers of 
co-counsel and of principal counsel for each of the other 
parties. 



It is difficult to address this question at the level of 
detail requested, because it seeks information from the time 
of my law practice, ten or more years ago. The following is 
my best effort, organized chronologically. 

A. Commonwealth v. Edwin Gumbs . Docket number unknown. 
Along with William P. Homans, Jr. (now of 215 First Street, 
Cambridge, MA 02142), I represented the defendant on a charge 
of arson before a jury in the Suffolk Superior Court in 
roughly 1977. I do not recall the judge, but the prosecutor 
was Sandra L. Hamlin, now a Superior Court judge. New Court 
House, Pemberton Square Boston, MA 02108. The trial resulted 
in an acquittal. I assisted throughout the preparation and 
trial of the case but did not conduct direct or cross- 
examination. 

B. Commonwealth v. Richard Liebman . Docket number 
unknown. Again, along with Attorney Homans I represented the 
defendant, an attorney charged with masterminding a robbery. 
The case was tried to a jury in Middlesex Superior Court 
before Judge Alan J, Dimond during the winter of 1977-78. The 

21 



90 



prosecutor was John K. Markey, now of One Financial Center, 
Boston, 617-542-6000. The trial resulted in a conviction, 
later reversed on appeal. Commonwealth v. Liebman . 388 Mass. 
483, 446 N.E.2d 714 (1983). I assisted throughout the 
preparation and trial of the case but, as in the Gumbs case, 
did not actively participate at the trial itself. 

C. United States v. Curt Beck . Crim. No. 78-327-F. My 
client was charged under a federal indictment with 
participating, along with others under the direction of 
swindler and escaped convict Alan Herbert Abrahams, in a 
fraudulent investment scheme. I was sole counsel for Beck in 
the case, which was tried to a jury in the fall or early 
winter of 1978 before U.S. District Court Judge Frank H. 
Freedman in Springfield. The defendant pled guilty after 14 
days of trial, subsequently shot himself — fortunately not 
fatally — and eventually received a term of probation with 
substantial community service. His co-defendants all went on 
to be convicted. The prosecutor was then Assistant U.S. 
Attorney Michael A. Collora, now at 400 Atlantic Avenue, 
Boston, (617) 357-9202. Pre-trial proceedings were extensive. 
See United States v. Abrahams . 466 F. Supp. 552 (D. Mass. 
1978) . Counsel for co-defendants included Andrew H. Good, now 
of 89 Broad St., Boston, 617-542-6663; Anthony M. Cardinale, 
One Commercial Wharf, Boston, 617-523-6163, and Robert F. Peck 
Jr., 265 Essex, Salem, 508-744-8180. 

22 



91 



D. United State v. Daniel Meehan . Docket number unknown. 
My client, a Pittsfield banker, was charged under a federal 
indictment with extorting money from loan applicants. The 
case was tried to a jury before U.S. District Court Judge 
Frank H. Freedman in Springfield, Massachusetts, in 
approximately 1980. I assisted in the preparation of the case 
and handled some cross examination at trial, though the lion's 
share of the work at the trial itself was performed by William 
P. Homans, Jr. The prosecutor was Assistant U.S. Attorney 
George F. Kelly, now at 1500 Main St., Box 15389, Springfield, 
Mass. 01115, (413) 781-4700. The trial resulted in a 
conviction. 

E. Commonwealth v. Justin Gordon . Docket numbei' unknown. 
My client, a University of Massachusetts undergraduate, was 
charged with assault with intent to commit rape. The case was 
tried to a jury in the Hampshire Superior Court before Judge 
John F. Moriarty in the fall of 1980. I was sole counsel. 
The prosecutor in the early stages of the case was Edward F. 
Berlin, later my law partner and now an assistant attorney 
general heading the western Massachusetts office at 4 36 Dwight 
St., Springfield, Mass., (413) 784-1240. At trial the 
assistant district attorney was John Landes, who has moved 
from the area. The result of the trial was a conviction, 
vacated by Judge Moriarty as against the weight of the 

23 



92 



evidence. Prior to a new trial my client was placed on 
unsupervised probation. 

F. B. U. Exposure v. John Silber . Docket number unknown. 
I represented a group of Boston University students who 
published an undergraduate newspaper called the B.U. Exposure, 
after their funding was cut off when they published an article 
embarrassing to the B.U. administration. The complaint was 
filed, I believe, in the Middlesex Superior Court and sought 
a preliminary injunction mandating the release of the funds 
for the paper. Counsel for Boston University was James N. 
Esdaile, Jr., now at 75 Federal St., Boston, 02110, (617) 482- 
0333. A lengthy preliminary injunction hearing occurred in 
1978 before Superior Court Judge Dimond, with testimony 
lasting almost an entire day, and resulting in denial of the 
motion for preliminary relief. Upon my move to Amherst, the 
case was taken over by the Massachusetts Civil Liberties 
Union. 

G. Frado V. Murphy . Docket number unknown. My client 
was sued for overcharging the plaintiff for the repair and 
refurbishing of his vintage Volvo two-seater. The case was 
tried, jury-waived, over a number of days before Judge 
Alvertus Morse, in the Northampton District Court in 1981 or 
1982. Various experts were presented on both sides regarding 
the value of the services performed by my client for the 

24 



93 



plaintiff. Opposing counsel was Edward D. Etheridge, now at 
64 Gothic St., Northampton, MA 01060, (413) 584-0368. The 
result was a verdict for the plaintiff. 

H. Commonwealth v. Shanahan . Docket number unknown. I 
represented an undergraduate charged with assault and battery 
on a police officer at the University of Massachusetts. The 
trial took place in 1981 or 1982, non-jury, in the Northampton 
District Court before Judge Kramer. The assistant district 
attorney was W. Michael Goggins, now at One Court Square, 
Northampton, MA 01060, (413) 586-9225. The result was an 
acquittal. 

I. Cave V. Cave . Docket number unknown. I represented 
an Episcopal minister through a particularly tangled domestic 
proceeding in an attempt to get custody of his four-year-old 
son, Daniel, who was taken out of the jurisdiction by his 
mother. After a hearing in 1982 or 1983 before Judge Sean M. 
Dunphy of the Hampshire Probate court, the court issued an 
order granting partial custody to my client. The order was 
taken to the Appeals Court where Judge Charlotte A. Perretta 
reversed. Opposing counsel was Jonathan Souweine, now at 39 
Main St., Northampton, MA 01060, (413) 584-7331. 

J. Brewster v. Dukakis . C.A. 76-4423-F. From 1978 
through 1983 I was the Monitor appointed by the U. S. District 

25 



94 



Court to oversee implementation of a consent degree mandating 
^he gradual reduction of the patient census at Northampton 
State Hospital through transfers to smaller, community-based 
treatment facilities. In addition to reporting on the 
progress of implementation, I was vigorously involved in 
mediating recurrent disputes among the parties during a very 
difficult period of transition, and working with the court 
when litigation erupted over unresolved issues. Counsel for 
the defendant Department of Mental Health was Richard Ames now 
of 80 Boylston St., Boston, MA 02116, (617) 482-5200 in 
coordination with a series of assistant attorneys general, the 
last being William L. Pardee, One Ashburton Place, Boston, MA 
02108, (617) 727-1014. Counsel for the plaintiffs were Steven 
J. Schwartz and Robert D. Fleischner, both of the Center for 
Public Representation, 22 Green St., Northampton, MA 01060, 
(413) 586-6024. Upon my appointment as Magistrate in 1984 my 
duties were passed on to a new Monitor. 



19. Legal Activities ; Describe the most significant legal 
activities you have pursued, including significant litigation 
which did not progress to trial or legal natters that did not 
involve litigarion. Describe the nature of your participation 
in this question, please omit any information protected by the 
attorney-client privilege (unless the privilege has been 
waived.) 



26 



95 

Most Significant Legal Activities. Chronologically; 

A. The Legal Rights of the Mentally 111. 

During my second year in law school I coordinated the 
efforts of approximately six other law students in delivering 
a wide range of legal services to patients at Connecticut 
Valley Hospital. In 1976, Judge Tauro's view of the Monson 
State School permitted me to witness firsthand the substandard 
conditions then existing at that institution. Still later, 
while in private practice, I made numerous visits to 
Northampton State Hospital and to dozens of small treatment 
facilities for the mentally ill throughout western 
Massachusetts in my role as Monitor for the Brewster consent 
decree. These contacts made me, I believe, more alert to the 
vulnerability of under-served segments of our population, and 
to the challenges of protecting the rights of groups like the 
mentally ill. 

B. Teaching the Law 

It is a proper part of the "legal activity" of a judge to 
teach the law. Five semesters at Western New England College 
Law School and two semesters at Yale Law School have given me 
the chance not only to share my experience but to enjoy the 
"recharging" that accompanies contact with students. Less 
extended teaching opportunities, such as work in continuing 
legal education, at Harvard's Trial Advocacy Workshop and at 

27 



96 



the Attorney General's Advocacy Workshop in Washington D.C., 
have generated the scune benefits. As one of only two western 
Massachusetts members of the state Advisory Committee for 
implementation of the Civil Justice Reform Act a special 
responsibility to the bar here has fallen on me to participate 
in workshops presenting the particulars of this important 
evolution of federal practice. Finally, it is especially 
gratifying to be frequently selected as a trainer for my 
fellow Magistrate Judges. In the past two years alone, I have 
participated in programs on attorney/client privilege, summary 
judgment, settlement, zmd discovery disputes at five separate 
seminars in various parts of the country for Magistrate 
Judges . 

C. Tenure as a Magistrate Judge 

In January of 1984 at the time of my appointment as the 
first Magistrate Judge in Springfield, the Western Section had 
836 pending civil cases. By the end of December 1992, the 
combined civil caseload for Senior Judge Frank H. Freedman and 
me was 341. While of course many factors contributed to this 
reduction, it has been a privilege to add to the court's 
resources and strengthen its eQiility to respond to the demands 
placed on it. 

The Magistrate Judge plays a unique role in this part of 
the state, in some ways similar to that of a district court 
judge. Counsel have been much more likely here to consent to 

28 



97 



trial of civil cases before the Magistrate Judge under Fed. R. 
Civ. P. 73. As a result civil jury and non-jury trials make 
up a large share of my work. In 1991 and 1992 I disposed of 
more civil cases by consent than all the other Magistrate 
Judges in Massachusetts combined. On the criminal side, no 
other Magistrate Judge is given responsibility as a matter of 
course to conduct evidentiary hearings on motions to suppress. 
Since 1984 over 700 written recommendations on dispositive 
motions, and literally thousands of rulings on non-dispositive 
motions in both civil and criminal cases, have issued over my 
signature. 



29 



98 



II. FINANCIAL DATA AMP COHFLICT OF INTEREST (PUBLIC) 



1. List sources, amounts and dates of all anticipated receipts 
fron deferred income arrangements, stock, options, uncompleted 
contracts and other future benefits which you expect to derive 
from previous business relationships, professional services, 
firm memberships, former e^loyers, clients, or customers. 
Please describe the arrangements you have made to be 
compensated in the future for any fintuicial or business 
interest. 

None, except that I have the option in the future, 
of taking partial reimbursement of my Federal Employee 
Retirement System contributions in lieu of an annuity. 

2. Explain how you will resolve any potential conflict of 
interest, including the procedure you will follow in 
determining these areas of concern. Identify the categories 
of litigation and financial arrangements that are likely to 
present potential conflicts of interest during your initial 
service in the position to which you have been nominated. 

No categories of litigation or financial arrangements are 

likely to present potential conflicts of interest. Since my 

appointment as Magistrate Judge in 1984 I have on a few 

occasions confronted situations where a conflict, or 

appearance of conflict, has arisen. My practice is to put the 

relevant facts on the record and hear from counsel. In nearly 

ten years, following the Code of Judicial Conduct, I have felt 

it necessary to recuse myself ed>out four or five times. 



3. Do you have any plans, commitments, or agreements to pursue 
outside employment, with or without compensation, during your 
service with the court? If so, explain. 

I will probably continue to teach one semester a year, 

one evening a week, with the permission of the Chief Judge of 

the First Circuit. Occasional, uncompensated continuing legal 



30 



99 



education will also almost certainly remain a part of my 
professional life. I have no other plans for outside 
employment. 

4. List sources and amount of all income received during the 
calendar year preceding your nomination and for the current 
calendar year, including all salaries, fees, dividends, 
interest, gifts, rents, royalties, patents, honoraria, and 
other items exceeding $500 or more. (If you prefer to do so, 
copies of the financial disclosure report, required by the 
Ethics in Government Act of 1978, may be substituted here. 

A copy of my financial disclosure report, dated 
November 22, 1993, is appended as Attachment 2. 

5. Please complete the attached financial net worth statement in 
detail (Add schedules as called for) . 

Appended as Attachment 3 . 

6. Have you ever held a position or played a role in a political 
campaign? If so, please identify the particulars of the 
campaign, including the candidate, date of the campaign, your 
title and responsibilities. 

I have never held a position or played a role in a 
political campaign. 



31 



100 



FINANCIAL DISCLOSURE REPORT ?-H.^H-Hr«"- 

(5 U.3.C.A. App. 6, SS)01-1U) 



1. Person Raportlng (l*«c ntaa, tizmz, mlddi* Initial) 

PONSOR, Michael A. 


2. CoazT or Or^anlzdCloa 

U.S. District Court 
Springfield, MA 


3. Oaca oC Raporc 

11-22-93 


4. T1U.O (Article III JMgam Indicate active or 

■anlor itatus; Haglatrate Judgea Indicate 
fvai- or part-tlae) 

U.S. Magistrate Judge 
(full-time) 


S. Rttporc Typa (cteck appropriate type] 

^ BTonlnacloa, Data 11~19"~93 

IftltlAl Annual Pinal 


6. Raporting Period 

through 
11-22-93 


7. caaabmcm or OCClca Addrsas 

1550 Main Street, Room 512 
Springfield, MA 01103 


e. On Uia baala of xha Inforaatlon contained in rnia Raport, IC 
In, In ay opinion, in coopllonca vlcn appllcania lawa and 
r«9ulaCioaa 

Kavlavinq Offflcttr Slvnatura 


IMPORTANT NOTES: The insnucxions acamtpanying this form must be followed. Complete all parts, 
cbecJdjig the NONT box for each section where you have no reportable information. Si^ on Inst page. 



I. POSITIONS. (Reponlng individual only, sec pp. 7-8 of Instruaions.) 

POSITION NAME OF ORGANIZATION/ENTTTY 

NONll (No reportable poaltlona) 

Professor of Law (ad-up.ct) 



Western New England Collece Law School, 



(1/93-5/93) 



Snrincfield, M.A 



1. AGREEME.NTS. (Reponing individual only; see p. S-9 of instructions.) 
PATH P.ARTIHS A-VP THR.MS 



NONH (No raportablo jcroafflenta) 



II. NON-INVE5T,M5.M I INCOME. (Rcponing indi\ida3! and sccusc; see pp. 9-i: of Instrjaions.) 

pat; SOt-'RCS .AVP TYPE CROSS fNCOME 

iKonorana only* ij.ours. coi spoiiic's) 



I I NONX (N3 re?crtJ3io r.c--ln-/e9l=on; lr.cc=e) 

Salar.- as Prcfssscr of La.v (ad-,;.-.ct) a- 



.\este: 



';ev Zr.-\=i-z Collera Lav School 



s :,ooo. :.: 



101 



FINANCIAL DISCLOSURE REPORT (cont'd) 



Nasw of ParsoD Reporxlng 

Michael A. Ponsor 



Dara of Bapoz-C 

11-22-93 



IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment. 

(Includes those to spouse and dependent children; use the parentheticals "(S)" and '(DC)' to indicate reportable 
reimbursements and gifts received by spouse and dependent children, respectively. See pp.13-15 of Instmctions.) 

SOURCE DESCRIPTION 

X I NONE {No auch Teporzabla raimfiaraamonta or glrta) 



V. OTHER GIFTS, (includes those to spouse and dependent children; use the parentheticals '(S)' and '(DC)' to 

' d( - J--- -"-'J _■_-._. i^__ __ .p ... -* T^_. 



Q 



indicate other gifts received by spouse and dependent children, respectively. See pp.15-16 of Instructions.) 
SOLTtCE DESCRIPTION VALUE 

NONE (Ko auca reportable glfta) 

s 

$ 

. $ 

$ 



VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person responsible 
for liabilitv bv usin;; the parenthetical "(S)" for separate liabilitv of spouse, "(J)" for Joint liability of reporting 
indi>iduarana spouse, and '(DC)" for liabilit>- of a dependent child. See pp.l6-I8 oflnstructions.) 

CREDITOR DESCRIPTION VALUE CODE' 

NONE (No reportable llabllltleel 

Fleet Bank Mortgage on 25 Prospect Ave.Tue, L 



Greenfield, Ma. 



J • r.5.:co or loss K • 515.001 to sso.ooo L - s:=,coi to sijo.ooo n - sioo.ooi to s25o,oco 

.1 - S--3-C01 to 5500,000 - 5500,001 to S1,000,OC: ? " -ere t.lan SI, COO, 000 



102 



Attachment 3 



FINANCIAL STATEMENT 
NET WORTH 



Provide a complete, current financial net worth statement which itemizes in detail all assets (including t 
accounts. r«al estate, socurities. trusts, investments, and other financial holdings) all liabilities (including de 
mongages. loans, and other financial obligations) of yourself, your spouse, and other Immediate member 
your household. - 



ASSETS 




r UABILmE£ 




lit ij. oao 






NoTti piyablt ts b*nk> — Mcurvd 

Noto pcyibU to bank>— unMcurvd 

Noln ptyaN* to raUUva 

Notn p<)nbl« to ethtn 

Accounti *nd bi'lli due 

Unpaid Incom* ux 

Othtr unpaid (ai and Innmt 

Raal ntaia mortsign payable — add 
•cAedule 

CunrI mortsagn and othar Hans 
payT&la 

Othar datti — llamlje: 


— 






U.S. Cov»mm«nt i»ajnd«— add ■ 








— 






^ 






Usttd Mcuhtifrw- «dd sch»dul* 


— 






..^ 






Unilfitd t^ufilin — tdd %et\9duit 


— 






.. 


^^^ 


1 


Acfsuna and notn rvcaivabU: 


— 






— 


^«_- ^_ 


Du« from T9\»t\vn and (h*nds 


- 


1 




""■ 






^'fi.flO^ 






I 








Rfii actJti e«m*d — add (chvduft 
Rcir nut« mortfsffu r»c«lvtbl« 


320,004 






1 


„.^, 




1 


1 


«fo,oao 








1 


Airtoi jn<J othfr p^rwnal property 


^.ooa 












Citf> value — lif* (niunnct 


^^ 


Thtiim- PufJh Ufu^ 


/;,od6 






1 




Otn«f •i»«t>— rtimlic: 






^ITTO LoAKi 




iliaao 




1 
1 






M-<r.TKeiPT-PoAjrj 








Total lUblhtid 
NatiMinn 

Total liablim« and n« worth 


1 


1 






i 
- 1 


Z4<7,0dO 1 


1 




rail Odd 






Tcui itA^ri 


*3le.o« 


1 


l23A,^£a 




CCNTINCENT UABILITIES ( 








CENEKAL INFORMATION 








Aj •floorwr. com»««r of eu»r»nior 






1 


A/a any aiMO pladtodJ (Ada acnad- 
uia.) 

An yrsu dalandam In any aurtt or 
Ifjai anonir' 

Hava )Ou awr takan bananipicy? i 














1 










txssi C:jimi 






1 




Prtr»iiior. (or Trterir Jncc.TH T«i 






1 


1 ( 


Cntr lp-ec:il a«Bt 




1 


1 j 




1 


- 


1 


1 


1 


,- 



♦SCHEDULE FOR REAL ESTATE: 

387 Bay Rd., Amherst, residence: $290,000 

25 Prospect St., Greenfield, i owner: $30,000 (total value: $120,000) 

♦SCHEDULE FOR MORTGAGES: 

387 Bay Rd. , $222,000 

25 Prospect St., $20,000 (total $80,000) 



103 



FINANCIAL DISCLOSURE REPORT (confd) 



HaB0 of Porsoa RaporUng 

Michael A. Ponsor 



Data o£ Raporc 

11-22-93 



VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those of spouse 

and dependent children; see pp. 18-27 of Instructioiis.) 



(luciudlng crusc assets} 

Indicara, where appLicaUe, ownar of 
Zbe assot ^ ubIjj? ttie pir«nUi«U.cai 

•fj}" tar joint cv-naxsriA;. oC reoort- 
Ing Indiviauai aac Boooae, "ISJ" for 
aepaxara o^normtLlp by eoouso, *'iDCJ" 
tor owBorBnip cy dependanc cftlld. 

Flaca *[Z}* aftar each asa«t. 

axaapt froa prlcr dxacXoauxa. 

1 !:?t»i;5«i8s^ 


B. 

rncoBB - 

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104 



III. GEKERAL (PDBLIC) 



1. An ethical consideration under Canon 2 of the Americim Bar 
Association's Code of Professional Responsibility calls for 
"every lawyer, regardless of professional prominence or 
professional workload, to find some time to participate in 
serving the disadvantaged." Describe what you have done to 
fulfill these responsibilities, listing specific instances and 
the amount of time devoted to each. 



Volunteer work has been a continuous thread in my life, 
starting well before my law degree. It seems awkward to 
characterize this work as "serving the disadvantaged," since 
I have myself received so much from doing it. 

As an undergraduate I volunteered during my freshman and 
sophomore years as a tutor for inner-city high school 
students. After my junior year, I spent thirteen months at 
the Kenya Institute of Administration at Kabete, Kenya, 
outside Nairobi, teaching English (the language of government) 
to Kenyan administrators-in-training, as part of a program 
sponsored by Harvard's Phillips Brooks House. After hours, my 
time was spent teaching remedial English to adults, and 
English enrichment to school children, at a small village near 
the Institute. 

At Oxford a Labour Club gave me the chance to tutor low- 
income Indian immigrant children in English several hours a 
week in the neighborhoods outside the center of town. 

During my first year in law school I joined Yale's Legal 
Services Organization, a forensic program offering legal 
services to various under-served populations. My own work was 

32 



105 



in providing legal services for institutionalized mentally ill 
at Connecticut Valley Hospital in Middletovm, Connecticut. 
This project occupied the summer after my first year. I was 
responsible for coordinating the work of six law students on 
the project during my second year, when I beceune a member of 
the board of the Legal Services Organization. 

During my third year the public defenders' office in New 
Haven gave me the opportunity to assist in the representation 
of indigent and largely minority persons charged with crimes, 
including the conduct of non-jury trials by leave of court. 

My practice with Attorney Homans during 1976-78 involved 
a considerable amount of pro bono work, or representation of 
persons of very limited means. I represented criminal 
defendants on appointment and indigent clients in domestic 
cases through the Massachusetts Bar Association. 

Following my arrival in Amherst, I was able to return to 
my interest in the legal rights of the mentally ill through my 
work as the Brewster consent decree Monitor. Moreover, I 
continued to represent indigent criminal defendants by 
appointment and to represent indigent or low income persons in 
domestic and other civil cases on a reduced or no- fee basis. 

Since 1987 I have been involved with the Amherst chapter 
of American Field Service, three years as its president. AFS 
sponsors American youngsters for svimmer, semester or year-long 
programs in foreign high schools, and brings high school 
students from abroad to spend a year in the United States. 

33 



106 



While I was president our chapter was able to raise sufficient 
funds to provide scholarships for low income applicants who 
had previously found the cost of the program prohibitive. 



2. Th« AB«rlcan Bar Association's Commentary to its Coda of 
Judicial Conduct states that it is inappropriata for a judga 
to hold membership in any organization that invidiously 
discriminates on the basis of race, sex or religion. Do you 
currently belong, or have you belonged, to any organization 
which discriminates — through either formal membership 
requirements or the practical implementation of membership 
policies? If so, list, with dates of membership. What have 
you done to try to change these policies? 

I have never belonged to any such organization. 

3. Is there a selection commission in your jurisdiction to 
recommend candidates for nomination to the federal courts? If 
so, did it recommend your nomination? Please describe your 
experience in the entire judicial selection process, from 
beginning to end (including the circumstances which led to 
your nomination and interviews in which you have 
participated) . 

There was a selection commission in Massachusetts, and it 

did recommend me as a potential nominee. Following my 

interview with the commission and its recommendation, I 

was interviewed by Senator Edward Kennedy, who forwarded 

my name to the President. Thereafter, I was inteirviewed 

by a representative of the Justice Department, by a 

special agent of the F.B.I. , and by a designee of the 

American Bar Association. 



4 . Has anyone involved in the process of selecting you as a 
judicial nominee discussed with you any specific case, legal 
issue or question in a manner that could reasonably be 
interpreted as asking how you would rule on such case, issue 
or question? If so, please explain fully. 

34 



107 



No. 

5. Please discuss your views on the following criticism involving 
"judicial activism." 

The role of the Federal judiciary within the Federal 
government, and within society generally, has become the 
subject of increasing controversy in recent years. It has 
become the target of both popular and academic criticism that 
alleges that the judicial branch has usurped many of the 
prerogatives of other branches and levels of government. 

Some of the characteristics of this "judicial activism" have 
been said to include: 

a. A tendency by the judiciary toward problem-solution 
rather than grievance-resolution; 

b. A tendency by the judiciary to employ the individual 
plaintiff as a vehicle for the imposition of far-reaching 
orders extending to broad classes of individuals; 

c. A tendency by the judiciary to impose broad, affirmative 
duties upon governments and society. 

d. A tendency by the judiciary toward loosening 
jurisdictional requirements such as standing and 
ripeness ; and 

e. A tendency by the judiciary to impose itself upon other 
institutions in the manner of an administrator with 
continuing oversight responsibilities. 

It is improper for a judge to disregard well 
established boundaries on judicial power, embodied in 
doctrines such as standing and ripeness. If we insist 
that others respect the rules, we must follow them 
ourselves. 

It is equally true that a judge's focus must always 
be on the case at hand. The couirts are not making stone 
soup, with the litigant in the role of the worthless 
stone, and the real ingredients — the meat of the matter 



35 



108 



— the personal social concerns of the judge. 

Moreover, a judge must always bear in mind our system 
of constitutional government, which emphasizes the 
coequal roles of the executive and legislative branches, 
and the prerogatives of the states as well, and maintain 
a scrupulous respect for them. 

The standard instruction given to federal juries 

at the conclusion of a jury trial states: 

Both the parties and the public expect that you will 
carefully and impartially consider all the evidence in 
the case, follow the law as stated by the court and 
render a just verdict, regardless of the consequences. 

Although this mandate could be parsed endlessly — 
the social consequence of a ruling, for example, is often 
a legitimate consideration — it states concisely the 
role of the court as well as the jury, both in finding 
facts and in fashioning appropriate remedies when 
necessary. The task is to consider the evidence 
impartially, follow the law and do justice in the 
particular case, neither manipulating the substance of 
the pleadings, nor fleeing their implications. 

In the beginning of the book of Deuteronomy, Moses, 

the Lawgiver, describes the attributes of a good judge: 

Hear, the causes of your brethren and judge 
righteously between every man and his brother and the 
stranger that is with him. Ye shall not respect persons 
in judgment. But ye shall hear the small as well as the 
great alike. Ye shall not be afraid of the face of any 
man. 

This advice — to address the cause, to be unbiased. 



36 



109 



and to act without fear — timelessly expresses the 
challenge facing the courts. If a judge concentrates on 
the facts of the case, and addresses the issues raised 
without prejudice or timidity, he or she will transcend 
topical debates and gain the respect even of those who 
may disagree with a particular decision. 



37 



no 

Michael A. Ponsor 

ATTACHMENT 1 - Speeches and Presentations 

Panel Member : "Federal Court Judicial Forum '93." Boston, MA. 
September 22, 1993. Sponsored by MCLE. 

Presenter : "The Role of Rule 11 Sanctions." Spring seminar 
sponsored by Massachusetts Defense Lawyers Association. Boston, 
MA. May 14, 1993. 

Presenter : "Settlement Conference Techniques and Alternative 
Dispute Resolutions in Federal Courts." National Workshop for 
District Judges I, New Orleans, LA. March 22 - 24, 1993. 

Faculty : "How to Try a Discrimination Case to a Jury." Suffolk 
University Law School, Boston, MA. February 26, 1993. 

Presenter : "Seminar on New Local Rules." Springfield, MA. 
Sponsored by Hampden County Bar Association. February 25, 199 3. 

Presenter : "Seminar on New Local Rules." Worcester, MA. 
Sponsored by the Boston Chapter of Federal Bar Association. 
October 27, 1992. 

Presenter : "Seminar on New Local Rules." Chicopee, MA. October 
14, 1992. Sponsored by MCLE. 

Presenter : "Discovery: Techniques for Expedited Resolution of 
Discovery Disputes." Workshop for U.S. Magistrate Judges of the 
4th, 5th, 11th and DC Circuits, St. Petersburg, Florida. September 
14 - 16, 1992. 

Presenter : "Discovery: Techniques for Expedited Resolution of 
Discovery Disputes." Workshop for U. S. Magistrate Judges of the 
1st, 2nd, 3rd, 6th and 7th Circuits, Philadelphia, PA. July 15 - 
17, 1992. 

Presenter ; "Process Design and Format Issues in Settlement of 
Civil Cases." Advanced Workshop on Settlement for U. S. Magistrate 
Judges, Boston, MA. June 14 - 17, 1992. 

Presenter : "Discovery: Techniques for Expedited Resolution of 
Discovery Disputes." Workshop for Magistrate Judges of the 8th, 
9th and 10th Circuits, Santa Fe, New Mexico. April 28, 1992. 

Presenter : "Summary Judgment: An Overview of Summary Judgment." 
Workshop for Magistrate Judges of the 8th, 9th and 10th Circuits, 
Santa Fe, New Mexico. April 28, 1992. 

Presenter : "Federal Court - Law and Practice," Springfield, 
Massachusetts. January 16, 1992. Sponsored by Hampden County Bar 
Association. 



Ill 



Presenter ; "The Americans With Disabilities Act — A Judicial 
Perspective, " Mercy Hospital, Springfield, Massachusetts. November 
13, 1991. Sponsored by Greater Springfield Chamber of Commerce, 
Workwise at Mercy Hospital, Employer's Association of Western Mass. 

Presenter ; "Critical Motions in the Federal Courts," Federal Court 
Judicial Forvun '91, Boston, Massachusetts. October 24, 1991. 
Sponsored by MCLE. 

Presenter ; "Attorney/ Client Privilege and Work Product Doctrine," 
Workshop for U.S. Magistrate Judges, 1st, 2nd, 3rd, 6th and 7th 
Judicial Circuits, Warren, Vermont. August 7-9, 1991. 

Faculty ; Attorney General's Advocacy Institute, July 17-19, 1991 
U.S. Department of Justice, Office of Legal Education, Washington, 
D.C. 

Presenter : "Attorney/Client Privilege and Work Product Doctrine," 
Workshop for U.S. Magistrate Judges, 4 th, 5th, 11th and D.C. 
Judicial Circuits, Washington, D.C. July 9, 1991. 

Presenter : "Case Management and Discovery Issues in Environmental 
Litigation," Boston, Massachusetts, June 12, 1991. Sponsored by 
Boston Bar Association. 

Presenter : "Trial Practice & Procedure: Employment & Labor Law," 
Springfield, Massachusetts. October 26, 1990. Sponsored by 
Massachusetts Academy of Trial Lawyers. 

Presenter : "Federal Court Practice," October 3, 1990, Northampton, 
Massachusetts. Sponsored by Hampshire County Bar Association. 

Faculty ; Trial Advocacy Workshop, September 21, 1990, Harvard Law 
School, Cambridge, Massachusetts. 

Presenter : "Civil Pre-trial Practice in U. S. District Court," 
February 22, 1990, Springfield, Massachusetts. Sponsored by 
Hampden County Bar Association, Young Lawyer's Section. 

Facultv ; Trial Advocacy Workshop, January 22-26, 1990. Harvard 
Law School, Cambridge, Massachusetts. 

Faculty : Attorney General's Advocacy Institute, October 25-27, 
1989, U.S. Department of Justice, Office of Legal Education, 
Washington, D.C. 

Presenter ; "Abusive Discovery," July 12, 1989, Seminar for U. S. 
Magistrates of the 1st, 2nd, 3rd, 4th & D.C. Circuits, Boston, 
Massachusetts . 



Presenter; "Federal District Court Practice, Social Security 
Disability," May 22, 1989, Holy Cross College, Worcester, 
Massachusetts. Sponsored by Disability Law Center. 



112 



Presenter : "Damages in Employment Cases," May 12, 1989, Fourth 
Annual New England Employee Relations Conference, Boston, 
Massachusetts. Sponsored by Massachusetts Bar Association and 
Massachusetts Continuing Education. 

Presenter ; "Federal Practice and Procedure, A View from a Session 
of the U. S. District Court," November 2, 1988, Springfield, 
Massachusetts. Sponsored by Massachusetts Continuing Legal 
Education. 

Presenter: "Rule 11 and Discovery Sanctions," March 16, 1988, 
Boston, Massachusetts. Sponsored by the Federal Bar Association, 
Boston Chapter. 

Presenter : "Representing Criminal Defendants in Federal Criminal 
Court: Comparison with State Court Proceedings," March 24, 1988, 
Boston, Massachusetts. Sponsored by Massachusetts Bar Association, 
Criminal Justice Section. 

Presenter : "Use of Sanctions in State and Federal Courts," 

May 30, 1987, Sturbridge, Massachusetts. Sponsored by 

Massachusetts Bar Association. 

Presenter : "Recent Developments in Massachusetts Federal Court 
Practice," February 2, 1987, Chicopee, Massachusetts. Sponsored by 
Massachusetts Bar Association. 

Presenter : "Civil and Criminal Forfeiture," October 15, 1986, 
Dixville Notch, New Hampshire, Magistrates' Session, First Circuit 
Judicial Conference. 

Presenter : "Insider's Guide to Federal District Court," April 16, 
1986, Chicopee, Massachusetts. Sponsored by Massachusetts Bar 
Association, Young Lawyers Division. 

Presenter : "How to Put a Personal Injury Case Together," April 20, 
1985, Springfield, Massachusetts. Sponsored by Massachusetts 
Continuing Legal Education. 



113 

Senate Judiciary Committee Questionnaire 
Judge Lesley Brooks WeU^ 

I. Biographical Information (Public) 

1. Fu]l Name (include any former names used): 

Lesley Brooks Wells 

Born: Lesley Simpson Wells 

Married: Lesley Simpson Brooks 

2. Address: List current place of residence and office address(es): 

Residence: Office: 

1 6926 East Park Drive Court of Common Pleas 

Cleveland, Ohio 44119 Cuyahoga County 

Justice Center, 16-B 
1200 Ontario Street 
Cleveland. Ohio 44113 

3. Date and place of birth: 

October 6. 1937 
Muskegon, Michigan 

4. Marital Status (include maiden name of wife, or husband's name). List spouse's 
occupation, employer's name and business address(es): 

Divorced 



5. Education: List each college and law school you have attended, including dates of 
attendance, degrees received, and dates degrees were granted. 

J.D.. cum laude. 1974 Cleveland State University, 1969 - 1970 

Cleveland-Marshall College of Law 1 972 - 1 974 
Cleveland, Ohio 

B.A. Philosophy. Chatham College. 1955-1959 

English. 1959 Pittsburgh. Pennsylvania 



114 



JUDGE LESLEY BROOKS WELLS 



Pa g e 2 



Education, continued: 

Certificates 



Graduate Study 
Toward Masters Degree 
College of Urban Affairs 

Fellow 



National Judicial College, 
University of Nevada 
Reno, Nevada 



1983 - Present 



Cleveland State University, 1979 - 1983 

Cleveland, Ohio 

Institute for Humanities and Medicine, 1991 - 1992 

National Endowment for Humanities 



Employment Record: List (by year) aD business or professional corporations, 
companies, firms, or other enterprises, partnerships, institutions and organizations, 
nonprofit or otherwise, including firms, with which you were connected as an 
officer, director, partner, proprietor, or employee since graduation from college. 



1989- 


- Present 


Chatham College, Pittsburgh, Pennsylvania 


Trustee 


1989- 


-1990 


Urban League of Cleveland 


Trustee 


1988- 


-1992 


Miami University, Oxford, Ohio 


Trustee 
Officer 


1986- 


-1992 


Rose Mary Center for Disabled Children 


Trustee 


1983- 


- Present 


Common Pleas Court, Cuyahoga County, Ohio 


Judge 


1980- 


-1983 


Schneider, Smellz, Huston & Ranney 
(now Schneider, Smellz, Ranney & LaFond) 
Cleveland, Ohio 


Associate 
Attorney 


1980- 


-1983 


Cleveland State University 
College of Urban Studies 


Adjunct Asst, 
Professor 


1980- 


-1981 


Cleveland State University 
Cleveland-Marshall College of Law 


Adjunct 
Instructor 


1979- 


-1980 


ABAR III Litigation Center 
Cleveland State University 


Attorney/ 
Director 


1975- 


-1979 


Brooks & Moffet, Attorneys at Law 


Partner 


1975 




Lesley Brooks, Attorney at Law 


Attorney 


1970- 


-1973 


Design Comer 


Clerk 



115 



JUDGE LESLEY BROOKS WELLS 



Pages 



6. Emplovment Record. conKmipri; 

1970's WomenSpace Trustee 

1970's Heights Community Congress Trustee 

1970's Heights YMCA Trustee 

1970's Cuyahoga Women's Political Caucus Trustee 

1960 - 1961 Brown Jug Restaurant Waitress 

7. Military ggrvicg; Have you had any military service? If so, give particulars 
including the dates, branch of service, rank or rate, serial number and tvoe of 
discharge received. 

None 

*• Honprs an<l Aw^rfls; List any scholarships, fellowships, honorary degrees, and 
honorary society memberships that you believe would be of interest to the 
Committee. 

• Alumni Award for Civic Achievement, 1992 
Cleveland State University 

• Fellow, Institute for Humanities and Medicine, 1991-1992 
National Endowment for Humanities 

• Distinguished Alumna Award, Chatham College 1988 

• Compassionate Judicial Insight Award, 1 go* 
The Women's City Club 

• Josephine Irwin Award for Outstanding Service, 1984 
WomenSpace 

• Merit Service Award. Bar Association of Greater Cleveland 1982 

• Superior Judicial Award, Supreme Court of Ohio 

• Who's Who in America and American Law 

• Martindale-Hubbell: AV 

• Book Award, Constitutional Law, Cleveland Marshall College of Law 

• Alumnae Scholar, Chatham College 



116 



JUDGE LESLEY BROOKS WELLS 



Pa g e 4 



9. Bar Associations: List all bar associations, legal or judicial-related committees or 

conferences of which you are or have been a member and give the titles and dates of 
any offices which you have held in such groups. 

• The American Inns of Court, No. 91 

Harold H. Burton Chapter 
Counselor 
Master of the Bench 
Membership Committee 

• Ohio Women's Bar Association 

Founding Member 

Chair, Bar Liaison Committee 



• Representative of the Supreme Court of Ohio: 

Steering Committee of the Ohio Supreme Court/Ohio State 

Bar Association, Joint Task Force on Gender Fairness 
Chairperson, Gender Bias Education 
National Judicial College, Biomedical Ethics and the Law (1990) 

• Cleveland State University Law and Public Policy Program 

External Advisory Board 

• Common Pleas Court Committees 

Civil Rules, Legislative, Social, Jail Facilities, 
Civil Court, Criminal Court 

• College of Urban Affairs, Cleveland State University 

Visiting Committee 

• Cleveland-Marshall College of Law, Cleveland State University 

Visiting Committee 

• Judicial Conference of the Eighth Judicial District, Life Member 

• American Bar Association 

National Conference of State Trial Judges 

Ethics and Professional Responsibility Committee (1986) 
AIDS Committee (1990) 

• National Association of Women Judges 

• Ohio State Bar Association 

Eighth District, Nominating Committee (1989) 

Board of Governors, Section on Women in the Profession (1993) 

• Ohio Judicial Conference 

Vice Chair, Civil Law and Procedure Committee (1993) 

• Ohio Common Pleas Judges Association 

• National Bar Association 



1993 -Present 
1990 -Present 
1993-1993 

1992 -Present 

1992 -Present 

1991 - 1993 

1991-1993 

1991-1993 

1989 -Present 

1988 -Present 

1987-1993 

1986 -Present 
1986 -Present 

1984 -Present 
1983 -Present 

1983 -Present 

1983 -Present 
1980 



117 



JUDGE LESLEY BROOKS WELLS 



Page 5 



1978-1983 
1975 - Present 



Bar Associations, continued: 

• The Association of Trial Lawyers of America 

• Cleveland Bar Association 

Commission on Women and Law; 

Vice Chair, Reorganization Committee; 

Committee on Mentally Disabled; Bar Advocacy Project; 

C.A.S.E. Program (Pro bono indigent representation) 

• Cuyahoga County Bar Association 

Long Range Planning Committee 
Municipal Courts Committee 

• National Association of Women Lawyers 

• Cleveland Women Lawyers Association 

• Cleveland-Marshall Law Alumni Association 

Life Member 

• Legal Aid Society of Cleveland 

President (1979 -1981). 

Treasurer; Executive Committee; Trustee; Audit Committee; 

Chair, Nominating Committee; Personnel Committee 



1974 -Present 

1974-1983 
1974-1983 
1974 -Present 

1967-1983 



10. Other Memberships: List all organizations to which you belong that are active in 
lobbying before public bodies. Please list all other organizations to which you 
belong. 

None of the organizations to which I belong really are active in lobbying except as the 
college and university may be affiliated with educational groups which may lobby. 



• Chatham College, Pittsburgh, PA 

Board of Trustees 

• Case Western Reserve University School of Medicine, 

Center For Biomedical Ethics, Advisory Board 

• Trinity Cathedral, Episcopal Diocese of Ohio 

• The City Club, Cleveland 

• The Club, Society Center, Cleveland 



1989 -Present 
1986 -Present 

1993 

1982 - Present 



118 



JUDGE LESLEY BROOKS WELLS Page 6 



11. Court Admission: List all courts in which you have been admitted to practice, with 
dates of admission and lapses if any such memberships lapsed. Please explain the 
reason for any lapse of membership. Give the same information for administrative 
bodies which require special admission to practice. 

The Supreme Court of the United States 1989 

State of Ohio 1975 

U.S. District Court, Northern District of Ohio 1975 

12. Published Writings: List the titles, publishers, and dates of books, articles, reports, 
or other published material you have written or edited. Please supply one copy of all 
published material not readily available to the Committee. Also, please supply a 
copy of all speeches by you on issues involving constitutional law or legal policy. If 
there were press reports about the speech, and they are readily available to you, 
please supply them. 

• " 'Wise Restraints Make People Free: The Bicentennial of the Bill of 
Rights'," Cleveland Bar Journal, Jan. 1991, Vol. 62, No. 3, pg. 73 -74. 
Exhibit for Question 12, Judiciary Committee. 

• Editor and an author, ABAR ID Civil Rights Litigation Manual. 

Federal and state civil rights remedies, federal procedure, discovery, 
class actions, intervention, interlocutory appeals, burden of proof, 
attorney fees, etc., 1980; 2nd Edition, 1981. 500 pgs. Exhibit for 
Question 12, Judiciary Committee. 

• Editor, Family Violence, Summary Report to the Governor, Task Force on Family 

Violence, December 1986. Exhibit for Question 12, Judiciary Committee. 

13. Health: What is the present state of your healtli? 
Excellent 

List the date of your last physical examination. 

May 26, 1993 



119 



JUDGE LESLEY BROOKS WELLS 



Page? 



14. Judicial Office: State (chronologically) any judicial offices you have held, whether 
such position was elected or appointed, and a description of the jurisdiction of each 
such court. 



Office Elected or Appointed 


Term 




Jurisdiction 


Judge Elected 1988 


1/89- 


1/95 


Constitutional court of 
general original jurisdiction 


Court of Common Pleas 






Civil, at law and in equity 


General Division 






where sum or matter in 
dispute exceeds $10,000; 
appellate jurisdiction from 
certain state and local 
boards; criminal felony 
jurisdiction. 


Judge Appointed 1983 


3/83- 


■1/85 


Divorce, legal separation, 
annulment and child custod^ 


Elected 1984 


1/85- 


•1/87 




Elected 1986 


1/87- 


•1/94 





Court of Common Pleas 
D.R. Division 



15. Citations: If you are or have been a judge, provide: 

(1) Citations for the ten (10) most significant opiru'ons you have written: 

See Exhibit for Question 15 (J), Judiciary Committee. 

Ohio V. Walker, Case No. 268354, November 21, 1991. 

Powe V. Powe (1987) 38 Ohio Misc 2d 5. 

Vrndavan v. Malcolm, et al. Case No. 193258, December 2, 1992. 

Eaton, et al v. Aetna, et al. Case No. 189068, September 23, 1991. 

Ohio V. Dellanno, Case No. 240217, March 7. 1990. 

Thomas et al v. LTV Steel Co., Inc. et al, CV 167508, April 30th, 1992. 

Duale, Adm., et al v. RTA, Case No. 134037/171715. January 3rd, 1992. 

Cookston V. Conroy, Case No. 178792, August 15, 1990. 

Spencer, et al v. McGill, et al, and Diversified Equities, et al. Case No. 195882, 
May 4, 1992; Court of Appeals Case No. 64215, Affirmed per curiam, April 8, 1993. 

Essef Corporation v. Mordecki Drori, Case No. 245551, October 6, 1993. 



120 



JUDGE LESLEY BROOKS WELLS Page 8 



(2) A short summary of and citations for all appellate opinions where your decisions 
were reversed or where your judgment was affirmed with significant criticism of 
your substantive or procedural rulings: 

Reversed: Seven (7) cases out of 147 appealed in eleven (11) years. 
Exhibit for Question 15 (2)(a), Judiciary Committee 

Ohio V. Walker, CA #62862 (CR-268354), October 28, 1993. 
This was a death penalty aggravated murder and mass murder case with seven (7) 
defendants, each entitled to separate trial and capital jury venire. Each man was charged 
also with aggravated burglary, aggravated robbery, attempted murder and two (2) counts 
of kidnapping. Only WaUcer retained counsel. The court appointed two lawyers for each 
of the other six defendants. The Court of Appeals reversed Walker's case for ineffective 
assistance of counsel "in failing to properly move for suppression of the evidence 
obtained from defendant's apartraenL" para. Ill, pg. 21. Reversed and remanded. 

State Automobile Mutual Insurance Co. v. Rainsberg 

CA # 61875 (CP # 191732), February 4, 1993. 

In an uninsured motorist declaratory judgment case. Slate Auto Insurance appealed the 
trial court's summary judgment to an employee injured while operating a company van 
insured by State Auto. The Court of Appeals decided the employee was not entitled to 
recover damages. Reversed and remanded. 

Hedges v. Gallagher, Sharp, Fulton and Norman et al, 

CA#63129(CP# 186,401), October 15, 1992. 

A woman sued in negligence for a hand injury from a conference room door at a law 
furn where she was deposed. The trial court granted summary judgment for the firm but 
the Court of Appeals found a jury issue in the employee's duties involuntarily opening 
the door for the woman. Reversed and remanded. 

Hosaflook v. Bar-linn, Inc., 

CA# 60382 (CP # 157366), June 4. 1992. 

The trial court granted a directed verdict for the Bar in a negligence case for plaintiffs 
failure to present medical proof on the issue of proximate cause. Hosaflook, a bar patron, 
allegedly fell off a bar stool. No witness saw him fall. Bar employees refused to serve 
him more alcohol but could find no one to drive him home. They locked him in his car 
to "sleep it off," taking the keys inside for his safety. An hour later he was found lying 
in the parking lot. There were no witnesses as to how he got out of his car or how he got 
a laceration over his eye. Two appellate judges found sufficient evidence to connect his 
skull fracture to a thump heard in the bar. One judge dissented due to the intervening fall 
in the lot. Reversed and remanded. 

Zaiewski v. Zaiewski 

C A# 5 1 470 (CP 85 D- 1 59 1 54), January 22, 1 987. 

A Polish woman, 57 and disabled, came to the U.S. to defend her 29 year old marriage 
when she was sued for divorce by her husband who had come to the U.S. in 1970, 
leaving her behind to raise their two sons. The trial was conducted with Polish 
translation. Mrs. Zaiewski repeatedly tried to leave Poland to join her husband but was 
unsuccessful because he had remained in the U.S. illegally. The husband sued for divorce 
on the grounds the parties lived one year apart without cohabitation. The trial court 
concluded the parties' separation was not voluntary, given the actions of the Polish 
government. The Court of Appeals disagreed and ordered the divorce granted. Reversed. 
Husband granted divorce. 



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(2) Citations, continued: 

Turoczy v. Turoczy, 

CA# 50729 (CP D- 126 135), June 12, 1986. 

After a divorce incorporating a settlement, wife charged, and the court on hearing found, 
that husband "had knowingly and intentionally transferred money and marital assets" 
and that his concealment of assets was a fraud on the court The Court of Appeals held 
that only fraud by an officer of the court could constitute fraud on the court and reversed 
reinstating the original settlement. 

Gramsz v. Gramsz, 

CA# 49276/49280 (CP D-139721), June 27, 1985. 

This case was heard by two trial referees. Several rounds of objections were filed 

to the referees' reports. Several time extensions were granted. The trial court denied one 

of the wife's motions for additional time to file objections. The Court of Appeals found 

such denial was error, reversed and remanded. 

Affirmed in part; reversed in part: Five (5) cases of 147 appealed. 
Exhibit for Question 15 (2)(b), Judiciary Committee 

Ohio V. Klanac 

CA # 63647 (CP# 271062), September 7, 1993. 

A jury convicted Klanac of aggravated murder and kidnapping. Klanac refused to 
participate in his trial and was tried in absentia. The Court of Appeals found there was no 
intent to hold the murder victim as a "shield or hostage" and reversed the kidnapping but 
not the aggravated murder conviction. 

Ohio V. Knowles, 

CA# 61881 (CP# 259154), March 4, 1993. 

The jury convicted Knowles of aggravated murder, murder, aggravated robbery and 
having a weapon as a felon. The Court of Appeals ordered the murder and firearm 
sentences merged. 

Filmore et al v. Convention et al, 

CA # 61269 (CP # 152102), October 29, 1992. 

One hundred or so convention visitors claimed they became ill at a banquet and they 
sued. The trial court granted all defendants summary judgment as plaintiffs failed to 
provide evidence connecting defendants to the alleged il&ess. The Court of Appeals 
upheld the trial court as to all but one defendant regarding whom the case was reversed 
and remanded. 

Ohio V. Hollins, 

CA # 60148 (CP # 250867), April 23, 1992. 

Hollins was found guilty of aggravated burglary, felonious assault and kidnapping plus 
a prior conviction enhancement was established. The Court of Appeals vacated the 
• felonious assault conviction, finding defendant should not have been convicted of both 
assault and kidnapping as they sprang from the same conduct. Otherwise, the court 
affurned. 



122 



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(2) Citations, continued: 

Merkel v. Merkel. 

CA # 53561 (CP # 166520). May 12. 1988. 

In a contested divorce, the court entered findings including escrowed ($10,000) 

settlement funds of husband and his girlfriend as marital property and awarded them 

equally to the parties after allocating one-half to the girlfriend who was entitled by prior 

Federal Court order to share in the underlying settlement The Court of Appeals disagreed 

with the finding and award; otherwise agreed. Reversed and remanded on property 

division. 

(3) Citations for significant opinjons on federal or state constitutional issues, together 
with the citation to appellate court rulings on such opinions. If any of the opinions 
listed were not officially reported, please provide copies of the opinions: . 

1 am on a court of first impression and general jurisdiction. Such courts do not often 
engender constitutional issues. However, they regularly apply constitutional principles 
which I have been obliged to do orally, in uial, on hundreds of occasions. See Exhibit for 
Question 15 (3), Judiciary Committee. 

State v. Burrage, CR 268354, Appeal 63824, affirmed oral trial opinion, 
October 18. 1993. 

State V. Hall, CR 269798, Appeal 63771, affirmed oral trial opinion. 
October 12. 1993. 

State v. Fair, CR 279394. Appeal 64843. affirmed oral trial opinion. 
June 17. 1993. 

Willingham v. Cleveland et al, CV 134681, June 23. 1992. 

Vodan v. Strongsville, CV 190982. June 23. 1992. 

State v. King, CR 246047, Appeal 59536. affirmed oral trial opinion. 
December 18, 1991. 

State v. Richard, CR 214217, Appeal 60741. affirmed oral trial opinion, 
November 25, 1991. 

Silverberg v. MayHeld Heights. CV 194148. August 8. 1990. 

State V. Dellanno, CR 240217. March 7. 1990. 

Grafton v. Emplex Systems, Inc. CV 229243. November 16, 1989. 



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JUDGE LESLEY BROOKS WELLS Page 11 



16. Public Office: State (chronologically) any public offices you have held, other than 
judicial offices, including the terms of service and whether such positions were 
elected or appointed. State (chronologically) any unsuccessful candidacies for 
elective public office: 

• Democratic Precinct Committee Person: 198 1 - 1983 
Cleveland, Ward 11, Precinct I, Elected. 

Cleveland Heights, Ward 2. Precinct F, Elected. 1965 - 1972 

• Unsuccessful candidacy: 

Justice, Ohio Supreme Court, 1992 Primary. 

17. Legal Career: 

a. Describe chronologically your law practice and experience after graduation from 
law school including: 

1. Whether you served as clerk to a judge, and if so, the name of the judge, the 
court, and the dates of the period you were a clerk; 

No 

2. Whether you practiced alone, and if so, the addresses and dates; 

Yes. 

Lesley Brooks Wells, Esq. 1975 

2385 Kenilworth Road 
Cleveland Heights, Ohio 44106 

3. The dates, names and addresses of law firms or office, companies or 
governmental agencies with which you have been connected, and the 
nature of your connection with each; 

Judge 1983 -Present 

Cuyahoga County Court of Common Pleas 
Justice Center and Lakeside Court House 
Cleveland, Ohio 44113 

Attorney 1980-1983 

Schneider, Smeltz, Huston & Ranney 
Now: Schneider, Smeltz, Ranney and LaFond 
1525 National City Bank Building 
Cleveland, Ohio 44114 

Attorney/Director 1 979 - 1 980 

ABAR III Civil Rights Litigation Support Center 
Cleveland-Marshall College of Law 
1801 Euclid Avenue 
Cleveland. Ohio 44115 
(Serving 14 slates in 5 Federal Circuits) 



124 



JUDGE LESLEY BROOKS WELLS 



Page 12 



17. Legal Career, continued: 

Adjunct Assistant Professor 
Law and Urban Policy 
College of Urban Affairs 
Cleveland State University 
1801 Euclid Avenue 
Cleveland, Ohio 44115 

Adjunct Instructor 

Cleveland-Marshall College of Law 
1801 Euclid Avenue 
Cleveland. Ohio 44115 

Attorney/Partner, Brooks & Moffet 
Cedar and Fairmount 
Cleveland, Ohio 44106 

Sole Practitioner, Lesley Brooks, Esq. 
2385 Kenilworth Road 
Cleveland Heights, Ohio 44106 

Federal Court Intern 

Women's Law Fund 
Cleveland, Ohio 

Volunteer 

Legal .\id Society of Cleveland 
Me'^ntal Health Unit 
Cleveland, Ohio 

Lecturer 

Cleveland State University 
College of Law and 
CoUese of Urban Affairs 
Cleveland, Ohio 44115 



1980-1983 

1990 -Present 
(pro bono) 



1980-1981 



1975-I97S 



1975 



1973-1974 



1970-1971 



1974 -Present 
(pro bono) 



1. What has been the general character of your law practice, dividing it into periods 
with dates if its character has changed over the years? 

2. Describe your typical former clients, and mention the areas, if any, in which you 
have specialized. 

Before I became a trial judge in 1983. I maintained a general civil practice including 
civil rights, domestic relations, tort, business, commercial, tax, trusts, estates, consumer, 
real estate, education, mental health, administrative and election law. 1 moved from a 
neighborhood law office to the university, then to an established downtown law firm. 
Specialization included two years concentration in federal practice and civil rights law. 

In the neighborhood practice, my clients were predominantly individuals and families. 
At Schneider, Smeltz, Huston & Ranney, small and medium businesses, health, 
educational and charitable organizations were also my clients. 



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JUDGE LESLEY BROOKS WELLS Page 13 



17. Legal Career, continued: 

c 1. Did you appear in court frequently, occasionally, or not at all? If the frequency of 
your visits varied, describe each such variance, giving dates. 

I appeared in court occasionally as a lawyer. 

2. What percentage of these appearances was in: 

(a) federal courts; 

34% 

(b) state of courts of record; 
66% 

(c) other courts. 




3. What percentage of your litigation was: 

(a) civil; 

100% 

(b) criminal. 


4. State the number of cases in courts of record you tried to verdict or judgment 
(rather than settled), indicating whether you were sole counsel, chief counsel, or 
associate counsel. 

Of eighteen (18) cases, I tried eight (8) cases to judgment, four (4) as lead counsel, 
three (3) as sole counsel, and one (1) as associate counsel. The rest settled during trial. 

5. What percentage of these trials was: 

(a) jury; 



(b) non-jury. 

100% 



126 

JUDGE LESLEY BROOKS WELLS Page 14 



18. Litigation: Describe the ten (10) most sgniflcant litigated matters you personally 
handled. Give the citations, if the cases were reported, and the docket number and 
date if unreported. Give a capsule summary of the substance of each case. Identify 
the party or parties whom you represented; describe in detail the nature of your 
participation in the litigation and the final disposition of the case. Also state as to 
each case: 

(a) the date of representation; 

(b) the name of the court and the name of the judge or judges before whom the 
case was litigated; and 

(c) the individual name, addresses, and telephone numbers of co^ounsel and of 
principal counsel for each of the other parties. 

Sandra Lov et al v. Citv of Cleveland et al. 

Citations if Reported: None 

Docket Number: Case No. C74-253 

Date: Filed March 25. 1974 

Capsule Sumniar)': Title VII sex discrimination suit regarding threatened layoffs. 

Parties Represented: Nine individual plaintiffs, female Cleveland Police officers. 

Nature of My Participation: Under the super\ision of the Women's Law Fund, I 
qualified as a Legal Intern under procedures of the U.S. District Court, N.D.OH. I argued 
equitable relief in court before Judge Thomas Lambros and assisted in all aspects of 
preparation of the case. The Cleveland PoUce Department had segregated all women 
officers into the Women's Department. Through a series of ca.ses, women were being 
brought onto basic patrol. At that point in the process, these women officers were 
threatened with lay-off. 

Final Disposition of the Case: The plaintiff won equitable relief. 

(a) the date of representation: 
January 1 ihrrugh March 29, 1974 

(b) the name of the court: 

U.S. District Court. Noihern District, Ohio 

the name of the judge or judges before whom the case was litigated: 
Hon. Thomas Lambros, Judge 



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JUDGE LESLEY BROOKS WELLS Page 15 



18. Litigation, continued: 

(c) the individual name, addresses, and telephone numbers of co-counsel and of 
principal counsel for each of the other parties: 

Lead Counsel Jane Picker, Esq. (21 6) 687-2528 

for Plaintiffs: Cleveland Marshall College of Law 

Cleveland Stale University 

Cleveland. OH 44115 

Counsel for Defendants: Malcolm Douglas, Esq. (216)664-2680 

Cleveland Law Department 
City Hall - Lakeside Avenue 
Cleveland, OH 44114 



In Re .Tason Brown 

Citations if Reported: None 

Docket Number: Case No. 82JUV 1125 

Date: August 11, 1982; November 29, 1982 

Capsule Summary: Dependency adjudication and reunification plan hearing regarding 
young child of a deaf mother and deaf-mute father. Their older children had been 
permanently removed from them, adopted out of state, whereabouts unknown, for 
reasons these indigent parents did not know. We conducted the hearings with two kinds 
of interpreters since the mother could use American sign language but the father could 
only lip-read. 

Parties Represented: Phyllis Brown, the mother I eventually arranged for the Legal 
Aid Society, Ralph Rudd, to represent Jay Brown, the father. 

Nature of My Participation: My clients had challenging communication barriers and 
were terrified of the social service and legal systems to whom they had lost their older 
children. Preparing them and the court for a hearing had uncommon aspects. They 
could not use telephone, butTDY was arranged. 

Final Disposition of the Case: The court found that the child suffered no physical or 
psychological abuse or neglect and "that the parents are blameless." The Welfare 
Department was "urged to use every method at their disposal to effectively communicate 
with the parents." 

(a) the date of representation: 

In court August 11, 1982 and November 29, 1982 

(b) the name of the court: 

Court of Common Pleas, Juvenile Division, Lake County, Ohio 



128 



JUDGE LESLEY BROOKS WELLS Page 16 



18. Litigation, c ontinued: 

the name of the judge or judges before whom the case was litigated: 

Hon. Richard A. Hoose. Judge 

(c) the individual name, addresses, and telephone numbers of co-counsel and of 
principal counsel for each of the other parties: 

Counsel for Jay Brown: Ralph Rudd, Esq. (814)231-8424 

(now) 500 E. Marylyn, D-49 
State CoUege, PA 16801 

Guardian ad Litem: James Fairell, Esq. (216)352-0441 

#H-301 New Market Hall 
Painesville, OH 44077 



Marvel Smith v. George H. Hardv 

Citations if Reported: None 

Docket Number: Case No. D65142, Vol. 897, Pg. 855-8. 

Date: March 14, 1983 

Capsule Summary: This post-decree support and visitation litigation was bitter and 
complex, involving long distance visitation and college expenses for three children, 
both of whose parents had remarried, relocated and assumed additional obligations. 

Parties Represented: The out-of-state father, George H. Hardy 

Nature of My Participation: Sole counsel 

Final Disposition of the Case: After two days of trial, a tailor-made full settlement 
was reached and ordered into effect. 

(a) the date of representation: 

In trial February 24 through February 25, 1983 

(b) the name of the court: 

Court of Common Pleas, Cuyahoga County, Domestic Relations Division 
the name of the judge or judges before whom the case was litigated: 
Hon. Gregory C. Fuss, Referee 



129 



JUDGE LESLEY BROOKS WELLS Page 17 



18. Litigation, continued: 

(c) the individual name, addresses, and telephone numbers of co-counsei and of 
principal counsel for each of the other parties: 

Counsel for Plaintiff: Larry S. Gordon Esq. (216) 781-5245 

Maryel Smith Berkman, Gordon, Murray & Palda 

The Illuminating Bldg. 

Public Square 

Cleveland. OH 44113 



Edward T. O'Neill vs. David V. Raggone. CWRU and the Andrews Foundation 

Citations if Reported: None 

Docket Number: 82-041934-CV 

Date: April, 1982 

Capsule Summary: The plaintiff. Dean of the Library Science School at Case Western 
Reserve University ("CWRU"), alleged that a conspiracy between the University 
President, CWRU and the Andrews Foundation, had deprived him of his position. 

Parties Represented: President David V. Raggone and CWRU. 

Nature of My Participation: Associate counsel with Jim Huston as lead counsel. 

Final Disposition of the Case: A settlement agreement was signed 12/27/82 between 
Plaintiff. CWRU and Present Raggone; the case was dismissed with prejudice at 
plaintiffs costs. 

(a) the date of representation: 
April through December of 1982 

(b) the name of the court: 

Court of Common Pleas, Cuyahoga County 

the name of the judge or judges before whom the case was litigated: 

Hon. Ann Dyke, Judge 

(now, Court of Appeals, 8th Dist. OH) 



130 



JUDGE LESLEY BROOKS WELLS Page 18 



18. Litigation, continued: 

(c) the individual name, addresses, and telephone numbers of co^ounsel and of 
principal counsel for each of the other parties: 

Lead Counsel: James Huston. Esq. (401)847-2316 

(now) 2 Summer Street 

Newport, RI 02840 

Counsel for Plaintiff: Todd M. Raskin, Esq. (216)248-7906 

Mazanec, Raskin & Ryder Co. LPA 
34305 Solon Road 
Solon. OH 44139 

Counsel for Defendant Charles F. Clarke Esq. (216)479-8551 

The Andrews Foundation: Squire Sanders & Dempsey 

4900 Society Center 

Cleveland. OH 44114-1304 



Stenger Realty Co. v. .lohn P. Cannell. Robert S. Wedwaldt. Susan L Wedwaldt 
and Law rence S. Supelak 

Citations if Reported: None 

Docket Number: Case Nos. CV 20279 and CV 33399 

Date: May 12. 1982 

Capsule Summary: These consolidated cases arose out of divorce proceedings and 
involved real estate foreclosure and specific performance actions between hostile 
ex-spouses, a mortgagee bank and real estate brokers. After a jury was impaneled in the 
consolidated cases, these cases were resolved by an in-court settlement. 

Parties Represented: Defendant - Third Party Plaintiffs, Wedwaldts 

Nature of My Participation: Lengthy negotiations with parties on the issues which led 
to the specific performance action failed. As sole counsel for the Wedwaldts. who lived in 
Florida. I prepared the case for uial and served as trial counsel for them. 

Final Disposition of the Case: In court settlement of all issues, cases dismissed with 
prejudice at plantiffs cost 

(a) the date of representation: 

November 20th. 1980. through May 12th. 1982 

(b) the name of the court: 

Court of Common Pleas. Cuyahoga County 



131 



JUDGE LESLEY BROOKS WELLS Page 19 



18. Litigation, continued: 

the name of the judge or judges before whom the case was litigated: 

Hon. Burt Griffin, Judge 

(c) the individual name, addresses, and telephone numbers of co-counsel and of 
principal counsel for each of the other parties: 

Counsel For Plaintiff: Michael Molnar, Esq. (2161)252-3502 

4088 W. 229th St. 
Fairview Park, OH 44126 

Counsel For Defendant Richard Brown. Esq. (216)696-5200 

Supelak: Roudebush, Brown & Ulrich 

635 NCB Building 

Cleveland. OH 441 14 



Harvey M. Rodman v. Annette Rodman 

Citations if Reported: None 

Docket Number: Case No. DR 124439 and CA 45457 

Date: Hearing April 15, 1982; Judgment, May 11, 1982 

Capsule Summary: This was a bitterly contested post-divorce decree proceeding 
involving fraud, misrepresentation, perjury, and support obligations, followed by an 
appeal. The Plaintiff, an internationally-known scientist, through his counsel, stone- 
walled and refused all normal cooperation throughout discovery. After judgment 
following trial. Plaintiff appealed, to no avail. 

Parties Represented: Defendant Annette Rodman 

Nature of My Partidpation: I represented a divorced woman in efforts to enforce her 
divorce decree and to modify some of its provisions. Eventually, after an uncommonly 
hostile series of pretrial and trial hearings, the Court granted her relief. 

Final Disposition of the Case: Judgment for Appellee Annette Rodman. 

(a) the date of representation: 

April 1981 through May of 1982 



132 



JUDGE LESLEY BROOKS WELLS Page 20 



18. Litigation, continued: 

(b) the name of the court: 

Court of Common Pleas, Domestic Relations Division, Cuyahoga County and Court of 
Appeals, Eighth Appellate District 

the name of the judge or judges before whom the case was litigated: 

Hon. Samuel Asad, Trial Referee; Hon. Herbert R. Whiting, Judge 

(c) the individual name, addresses, and telephone numbers of co-counsel and of 
principal counsel for each of the other parties: 

Counsel For Plaintiff: George Braun, Esq.. deceased 



Susan M. Corvo v. Cuvahoga County et al 

Citations if Reported: None 

Docket Number: Case No. C82-3679 

Date: Filed December 22, 1982 

Capsule Summary: The female Deputy Director of Cuyahoga County's equal 
employment opportunity office was passed over for a promotion to Director of the county 
equal employment opportunity office. No vacancy was posted. When a male was hired 
for the position she filed a Title VII sex discrimination suit seeking injunctive and 
declaratory relief, promotion, back pay, remedies for retaliation, fees and costs. Because 
of her expertise, she participated actively in statistical research prior to and in preparation 
for litigation. 

Parties Represented: Plaintiff Susan M. Corvo 

Nature of My Participation: Until I was appointed to the Common Pleas Court in 
March, 1983, 1 handled all aspects of this case. We began with efforts to resolve the 
case through informal procedures and negotiations; then filed suit when necessary. 
Discovery and pre-trial proceedings went well and negotiations continued with lean 
trial preparation on both sides, sparing unnecessary expense. 

Final Disposition of the Case: The case was settled on September 6, 1983 by James I. 
Huston, Esq. who succeeded me as counsel when I was appointed Common Pleas Judge. 
Plaintiff received back pay, transfer to an agreed position and attorney's fees. 

(a) the date of representation: 

December 22, 1982 through March. 1983 

(b) the name of the court: 

U.S. District Court, Northern District of Ohio 



133 



JUDGE LESLEY BROOKS WELLS Page 21 



18. Litigation, continued: 

the name of the judge or judges before whom the case was litigated: 

Hon. John Manos, Judge 

(c) the individual name, addresses, and telephone numbers of co-counsel and of 
principal counsel for each of the other parties: 

Counsel For Defendant: Patrick J. Murphy, Esq. (21 6) 443-779 1 

Asst. County Prosecutor 
Justice Center 
Cleveland, OH 44113 



State ex rel Cleveland Heights Municipal Court v. Marjorie Wright. Mavor. et al 

Citations if Reported: None 

Docket Number: Case No. 76-1073, Supreme Court of Ohio 

Date: Filed September 2 1 , 1 976 

Capsule Summary: The original Action in Mandamus was filed in the Ohio Supreme 
Court when the City of Cleveland Heights, through action of its Council, unilaterally 
transferred to the Cleveland Heights Municipal Court, the Violations Bureau, without 
employees and without operating funds. The Bureau had been operated by the City with 
seven employees at a cost of half a million dollars per year. Simultaneously, the city 
removed the police officer assigned as Court Bailiff. These actions, taken after a new 
judge defeated her twenty-year predecessor, left the busiest municipal court in the State 
(byYilings per judge) unable to meet payroll through the year. 

Parties Represented: Cleveland Heights Municipal Court and Judge Sara Hunter, 
Plaintiff-Realtors 

Nature of My Participation: I was sole counsel to the Court originally as we attempted 
to negotiate a resolution with the City to prevent a shutdown of the Court. 1 brought on 
as co-counsel an experienced litigator and negotiator, Bemie Direnfeld, to assist with a 
negotiated resolution. We made no progress and so filed an Action in Mandamus in the 
Ohio Supreme Court as we continued negotiating. Some progress was made. This year 
the Judge will retire after eighteen years of service. 

Final Disposition of the Case: Dismissed. 

(a) the date of representation: 

Filed November 21. 1976 

(b) the name of the court: 
The Supreme Court of Ohio 



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JUDGE LESLEY BROOKS WELLS Page 22 



18. Litigation, continued: 

the name of the judge or judges before whom the case was litigated: 

Justices of the Ohio Supreme Court 



(c) the individual name, addresses, and telephone numbers of co-counsel and of 
principal counsel for each of the other parties: 

Co-Counsel: Bernard E>irenfeld. Esq.. deceased 

Counsel for Defendants: Jules N. Koach. Esq. (216) 241-2500 

Leader Building 
Cleveland. OH 44114 

For State of Ohio: William J. Brown, Esq. (216) 787-3030 

Ohio Attorney General 
Stale Office Tower 
Cleveland. OH 44114 



Arlene M. Berke. et al v . Sportsmen's Club. Inc. et al 

Citations if Reported: None 

Docket Number: Case No. 76 CI F1681; Ohio Civil Rights Commission 
Complaint No. 2823 

Date: Case filed May 12. 1976; Complaint filed February 17, 1987 

Capsule Summary: Breach of contract and sex discrimination in public accommodations 
suit by women who paid defendants for an advertised trip to the Bahamas for themselves 
and their spouses. Three days before the scheduled flight, plaintiffs were notified they 
could not participate because it was a "Stag Junket". Nothing in the newspaper ads had 
mentioned exclusion of women or of married women. 

Parties Represented: Plaintiffs Arlene M. Burke. Sally Roseman. and Judith Shamis. 

Nature of My Participation: I was lead Counsel and tried with case with my partner. 
Beverly Moft'et, Esq. as co-counsel. We also represented the plaintiffs in the Ohio Civil 
Rights Commission proceedings where we obtained a Conciliation and Consent Order. 

Final Disposition of the Case: Judgment for plaintiffs with compensatory and punitive 
damages plus attorney fees; Conciliation Agreement and Consent Order in Plaintiff's 
favor in Ohio Rights Commission action. 

(a) the date of representation: 

May of 1976 through March 30, 1977 



135 

JUDGE LESLEY BROOKS WELLS Page 23 



18. LitigatiQni coiitinugd: 

(b) the name of the court: 

The Shaker Heights Municipal Court, Ohio, and the Ohio Civil Rights Commission 
the name of the judge or judges before whom the case was litigated: 

Hon. Manuel M. Rocker, Judge 

(c) the individual name, addresses, and telephone numbers of co-counsel and of 
principal counsel for each of the other parties: 

Counsel for Defendant Leonard P. Gilbert, Esq. (no telephone number 

1 366 Hanna Building currently listed) 

Cleveland. OH 44115 

Co-Counsel: Hon. Beverly Moffet, Chief Referee (216) 443-8836 

One Lakeside Court House 
Cleveland, OH 44113 



Deane C. .Toines v. Benjamin F. Bailar. Postmaster General et al 

Citations if Reported: None 

Docket Number: Case No. C76-136 

Date: Filed February 10, 1976 

Capsule Summary: A fifty-eight year old female customer service representative with 
eighteen years of service and outstanding evaluations sought promotion to a position 
level held by few women in the U.S. Postal Service: Customer Service Representative, 
Senior. A male who was promoted had rated lower on all announced criteria. USPS failed 
to process plaintiffs administrative remedies. She brought suit for injunctive and 
declaratory relief, promotion, back pay, relief from retaliation, fees and costs. 

Parties Represented: Plaintiff Deane Joines 

Nature of My Participation: As co-counsel with my partner, Beverly Moffet, Esq., I 
was responsible for conducting hearings, depositions and trial. We both did research and 
jointly prepared the case, each participating in phases of discovery and settlement 
negotiations. Due to the vast amount of paperwork maintained by the USPS, discovery 
in preparation for suit was complicated. 

Final Disposition of the Case: Full settlement on September 20. 1977 

(a) the date of representation: 

Case filed February 10, 1976, representation through September 20, 1977 



136 

JUDGE LESLEY BROOKS WELLS Page 24 

18. IJtigation. continued: 

(b) the name of the court: 

U.S. District Court, Northern District of Ohio 

the name of the judge or judges before whom the case was litigated: 
Hon. Frank J. Battisti, Judge 

(c) the individual name, addresses, and telephone numbers of co-counsel and of 
principal counsel for each of the other parties: 

Counsel for Defendant: Richard Froelke. Esq. (216)886-3031 

Regional Labor Counsel, USPS 
433 Van Buren Street, Room 901 
Chicago, IL 60699 

Joseph A. Cipollone, Esq. (216) 522-4336 

Assl. U.S. Attorney 
400 U.S. Court House 
Cleveland, OH 44114 



19. Legal Activities: Describe the most significant legal activities you have pursued, 
including significant litigation which didn't progress to trial or legal matters that 
did not involve litigation. Describe the nature of your participation in this question, 
please omit any information protected by the attorney-client privilege (unless the 
privilege has been waived.) 

As Attorney/Director of the ABAR in Civil Rights Litigation Support Center, with 
staff 1 trained and provided federal litigation resources to lawyers in fourteen (14) states 
and five (5) Federal Circuits. 

When time permits, 1 lecture and teach law and urban policy as an adjunct assistant 
professor, pro bono. In the College of Urban Studies, I bring law to graduate students 
in economics, sociology, psychology, business, environmental science and urban 
planning. 

When I was in general civil practice, much of my work involved matters outside 
litigation such as work for Judson Park Retirement Center, small business, tax and estate 
planning matters. We represented plaintiffs and defendants. 



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JUDGE LESLEY BROOKS WELLS Page 25 



Senate Judiciary Committee Questiomiaire 
n. Financial Data and Conflict of Interest (Public) 

List sources, amounts and dates of all anb'dpated receipts from deferred income 
arrangements, stock, options, uncompleted contracts and other future benefits 
which you expect to derive from previous business relationships, professional 
services, f>''m memberships, former employers, clients and customers: 

• PERS, Ohio public employee vested retirement benefits of $64,000: eligible to receive 
account balance disbursements on resignation or retirement. 

Please describe arrangements you have made to be compensated in the future for 
any financial or business interest: 

None 



Explain how you will resolve any potential conflict-of-interest, including the 
procedure you will follow in determining these areas of concern. Identify the 
categories of litigation and financial arrangements that are likely to present 
potential conflict-of-interest during your initial service in the position to which you 
have been nominated. 

I know of no present conflict situations. In my ten plus years as a state trial judge, staff 
and 1 have scanned the docket regularly for potential conflicts. For example, for many 
years no one from my former firm appeared before me and we continue to disclose the 
prior association immediately to all parties. I have no stocks, investments or business 
interests. Full disclosure, divestment, and recusal could be proper if conflict situations 
occur. I follow the Code of Judicial conduct 



Do you have any plans, commitments, or agreements to pursue outside employment, 
with or without compensation, during your service with the court. If so, explain: 

No 



List sources and amounts of all income received during the calendar year preceding 
your nomination and for the current calendar year, including all salaries, fees, 
dividends, interest, gifts, rents, royalties, patents, honoraria, and other items 
exceeding $500 or more: 



138 



FINANCIAL DISCLOSURE REPORT 



A-A^e Ai- 



Raport R*qulrad by UM lUilca 
RaCora Act of 1969, Pub. L. Vo. 
101-194. Nov«Bb«r JO, 1989 
(i U.S.C.A. Xpp. 6, SSlOl-1131 



1. p«r»on Raportlng ILaai n«»», Jlrat. »ld<ll« Initial) 
WELLS, LESLEY BROOKS 



4. Tltia (Artlcla III Judgaa Indlcata actlva or 

•aolor atatua; Maglatxata Judgaa indicata 
fuil- or part-tlaa) 

Nominee, Judge, U.S. District Court, 
Northern District of Ohio 



7. Cbaabara or OfClca Mdxaaa 

Judge Lesley Brooks Wells 
Justice Center, 16-B 
1200 Ontario Street 
Cleveland. Ohio 4A113 



2. Court or Organization 

Nominee, U.S. District Court, 
Northern District of Ohio 



3. Data of Raport 

11-23-93 



S. Raport Typa <chack approprlata typa) 
X HOBlnatlon. Data 11-1 9-93 

Initial Ajuiual Final 



6. RaportlBg Parlod 

1-1-92 to 
10-31-93 



8. On tba baala of tha InfomatloD contalnad lo tula R«port, It 
la, lo my oplDloo. lo coapllaaca wltb appllcabla lava and 
ragulatlona 



Ravlawlog Officer Slgnatura 



IMPORTANT NOTES: The instructions accompanying this form must be followed. Complete all parts, 
checking the NONE box for each section where you have no reportable iorormatJon. Sign on last page. 



I. POSITIONS. (Reporting individual only, see pp. 7-8 of Instructioos.) 

POSITION NAME OF ORGANIZATION/ENTITY 

NONE (No raportabla poaltlona) 

Trustee Chatham College, Pittsburgh, P.4 
Counselor, Harold Burton Chaster Anerican Inns of Court, No. 91 



Trustee (until 2-92) 



Rose Marv Center for Children 



Trustee (until 2-29-92) 



Miami University, Oxford, OH 



II. AGREEMENTS. (Reporting indis-idual only, see p. 8-9 of Instruciiocs.) 
DATE PARTIES AND TER.V1S 



D 



NONE [Ho reportable agreeoenta) 



to be determined PERS, Public Employee Retirement System of Ohio, eligible to receive 

account balance disbursement 



III, NON-INVESTMENT INCOME. (Reponing individual and spouse; see pp. 9-12 of Insinictions.) 

DATE SOURCE AND TYPE GROSS INCOME 

(Honorana only) 

NONE (Ho reportable non-lnveataeat Incooe) 

1 

1/1/92 - 12/31/92 Ohio: Judicial salary 



\/l/92 - 12/31/92 Cuyahoga County, Ohio: Judicial salary 



1/1/93 - 10/29/93 Ohio: Judicial salary 



1/1/93 - 10/22/93 Cuyahoga County, Ohio: Judicial salary 



(youn, not spouse's) 



$ 72,651.5':. 

- 13,407.98 

5 60,481.66 

5 12,352.12 

$ 



139 



FINANCIAL DISCLOSURE REPORT (cont'd) 



» ■•■ of Person fUporclng 

WELLS, LESLEY BROOKS 



DmXM of RapOTL 

11-23-93 



IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment. 



D 



(Includes those to spouse and dependent children: ose the parentheticals *(S)* and '(DC)* to Indicate reportable 
reimbursements and gifts received by spouse and dependent children, respectively. Sec pp.13-15 of Instmctioiu.) 

SOURCE 
NONE (No aucb raportablo 

n7a 



DESCRIPTION 
or gifts} 



V. OTHER GIFTS, (includes those to spouse and dependent children: use the parentheticab '(S)' and "(DC)' to 



lepei 
indicate other gifts received by~ spouse and dependent children, respectively. Sec pp.15-16 of Instnicttons.) 



n 



SOURCE 



DESCRIPTION 



VALUE 



NONE 

X/A 



(No lucb raporxabla qttXM) 



VI. LIABILITIES, (includes those of spouse and dependent chUdren; Indicate where applicable, person responsible 



for liability by using the parenthetical "(S)" for separate liability of spouse, "(J)" for joint liability of reporting 
individual ana spouse, and '(DC)' for liabUit\ of a dependent child. See pp.16-18 oflnstructioDS.) 



H 



CREDITOR 



NONE (Ho raporxabl* llabllltloa) 



DESCRIPTION 



VALUE CODE* 



• VU.DE CODES: 



J - Sli.OOO or !■•• 

II • 9250,001 to SSOO.OOO 



K - $13,001 to SSO.OOO L • $S0,O01 to $100,000 H • $100,001 to $390,000 

o • SS0O,001 to SI, 000,000 P • Horo than $1,000,000 



140 



P^ 



*T 



^i 



FINANCIAL DISCLOSURE REPORT (cont'd) 



Naa* oC ParaoD Raporcl&g 

WELLS, LESLEY BROOKS 



Dare of Raport 

11-23-93 



VII. INVESTMENTS and TRUSTS -- income, value, transactions, (includes those of spouse 

and dependent children; see pp. 18-27 of Instructions.) 



paacriptloQ oC A«s«t» 

IndUiM, xtuir* •triiU<:«l>l«, o>™«r of 


B. 

lacona 

durlOQ 

rapoping 

pariod 


C. 

Oroaa valoa 

at end of 

raportlng 

parlod 


0. 
Traaaactlooa during raportlng parlod 




ing Indlviaual cad tpouM, "(31 tor 
••p«z>t< o«ii«r.lilp By •poii.«, '(DC)" 
for owii«£»lUp oy a«pao<3«Dr child. 

Plac* *(X)* mVfL •«cb u»«t. 
•xaapc tna pTleLr.dlsclosur*. 


(1) 

Coda' 
(»-B) 


12) 

(iT. 

aiv., 

raat p£ 


<1) 

Coda' 
(J-P) 


(2) 

Valua 

Nathod^ 

Coda-" 

(O-V) 


iyp. I. 


11 not ttxttspt froB (il«clo»ur« 1 




b4;;'uu. 

maxgvr, 

radwsp- 

tlonT 


iiia: 

Hontii. 

Day 


(3) 

Valoa^ 
coda' 
(J-P) 


Cain, 
coda' 
(»-8) 


(It prlv»t« 
tru) lection] 




NONE (Ro nporubla 
locoa*. aaaau, or 

tranaact-lona 1 






















PERS of Ohio 


None 




L 


T 


None 












2 






















3 






















4 






















5 






















6 






















7 






















a 






















9 






















10 






















11 






















12 






















13 






















14 






















IS 






















16 






















n 






















la 






















19 






















20 






















1 locon/Cala Co<l»ai l-Sl.OOO or l«»a B-Sl.OOl to J2,500 C-S2,501 to 5,000 [>-S5,001 to S15.000 
tumm ml. Bl 4 D41 E-S14.001 to S50.000 F-$S0,001 to S'.OO.OOO C-S100,00'. to 5'.,0::.P00 9-Hora than 51.000.000 




3 Valua Coa«a. J-Sl5,40l or laaa K-S15,001 to SSO.OOO L-S40,0(ll to SlilCOOO >f 5100,001 to 5250,000 
(Saa Col. CI 4 031 11-5250.001 to 5500.000 05500,001 to 51^000,000 P-Mora t^an 51.000,000 




3 Valoa Hatliod Codaat Q-Appralaal Jt«Coat (raal aatata oiUy) 3-Aaaaa«Bant T^Caah/MjLTtot 
{8«a Col. C3) U-Book Vain* v-othar w«latlsatad 






Pcu^..»*1 




• FINANCIAL DISCLOSURE REPORT (cont'd) 



VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate pan of Re^) 



NONE 



IX. CERTIFICATION. 

In comoliano: wih the provisions of 2S U.S.C. § 455 and of Adnsory Opinion No. 57 of the Advisory Committee on 
Judicial Acii\'iues. and to the best ol my knowledge a; the lime after reasonable inquiry, 1 did not perform any adjudicatory 
function in anv litigation during the period covered by this report in which I, my spouse, or my minor or dependent children 
had a finanaal interest, as defined in Canon 3C(3)(c), in the outcome of such litigation. 

I ccnih that all information given above (including information pertaining to my spouse and tninor or dependent children, 
if anv) lb accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was 
withheld because it met applicable suiutory provisions permitting non-disclosure. 



I funher cenifv' that earned income from outside employment and honoraria and the acceptance of gifts which have been 
reported are in compliance with the provisions of 5 U-S.CA. app. 7. § 501 et. sea., 5 U.S.C. § 7353 and Judicial Conference 
regulations. 




■o-Ai fTeils, Juage 




Date 



U-23-93 



Signature 

^Lesley Bro-ot^s 

NOTE; ANY1NDIV©i^AL WHO KNOWINGLY AND WHfULLY FALSIFIES OR FAILS TO FILE THIS REPORT 
MAY BE SUBJECT TO CrVIL^V^tT CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, § 104, AND IS U.S.C § 1001.) 



FILING INSTRUCTIONS: 



Mail signed original and 3 additional copies to: 



Judicial Ethics Comminee 
Administrative Office of the 

United Slates Couns 
Washington. DC 20544 



142 



^4<, ZD 



Judge Lesley Brooks Wells Financial Statement 
Net Worth 

October 31, 1993 

Provide a complete, currenl financial net worth statement which itemizes in detail all assets 
(including bank accounts, real estate, securities, trusts, investments, and other financial holdings) 
all liabilities (including debts, mortgages, loans, and other financial obligations) of yourself, your 
spouse, and other immediate members of your household. 



ASSETS 






LIABILITIES 




Cash on hand and in banks 


$2,500.00 




Notes payable to banks - secured 


$0 00 


US Govern securities - add schedule 


$0.00 


Notes payable to banks - unsecured 


$0.00 


Listed secunues - add schedule 


$0.00 


Notes payable to relauves 


SO 00 


Unhsted secunues - add schedule 


$0 00 


Notes payable to others 


$0.00 


Accounts and notes receivable: 


SO.OO 


Accounts and bills due 


$0.00 


Due from relatives and freinds 




Upaid income tax 


$0 00 


Due from others 




Other unpaid lax and interest 


$0.00 


Doubtful (judgement) 


(S.<i.0O0 0O) 


Real estate mortgages payble 




Real esute owned - add schedule* 


$14.'i.(XX)0O 


• -add schedule (Thud Federal S&L) 


$103,000.00 


Real esute mongaees receivable 


SO 00 


Chattel mortgages and other hens payable 




Autos and otier personal property 


ss.ooooo 


Other Debts - itemize 




Cash value - life insurance 


SO.OO 






Other assets - itemize 




Star VISA 


$5.000 00 


Boats 


S5.000.00 






Household Eoods 


$35.000 00 






Jewelrv 


$4,000.00 


TOTAL LIABILITIES 
NET WORTH 

TOTAL LIABILITIES AND 
NET WORTH 


$108,000.00 


Vested pension PERS 


$64,000.00 


S160,500 00 








TOTAI. ASSETS 


$268.500 00 


S268.500.00 










CONTINGENT LIABILITIES 






GENERAL LNFORAIATION 




.An endorser, comaker or guarantor 


$0.00 




Are any assets pledged'' (Add schedule) 


NO 


(Jn leases or contracts 


SO.OO 


Are you defendant in any suits or 




Legal Claims 


$0.00 


leeal actions? 


NO 


Provision for Federal Income Ta.x 


$0.00 


Have you ever taken bankruptcy? 


NO 


Other special debt 


SO.OO 







•Residence: 16926 East Park Drive, Qeveland, OH 44119 



143 



JUDGE LESLEY BROOKS WELLS Page 31 



6. Have you ever held a position or played a role in a political campaign?: 

Yes. 

If so, please identify the particulars of the campaign, including the candidate, dates 
of the campaign, your title and responsibilities: 

• Campaign Manager, Mary O. Boyle for State Representative, 1978 

• Various campaigns in Ohio, 1974 - 1983 

• Candidate: Judge, Court of Common Pleas. Cuyahoga County, elected 1984, 1986, 1988 

• Justice, Ohio Supreme Court, unsuccessful candidate, 1992 Primary 



144 



JUDGE LESLEY BROOKS WELLS Page 32 



Senate Judiciary Committee Questionnaire 



III. General (Public) 

1. An ethical consideration under the Canon 2 of the American Bar Association's Code 
of Professional Responsibility calls for "every lawyer, regardless of professional 
prominence or professional workload, to find some time to participate in serving the 
disadvantaged." Describe what you have done to fulfill these responsibilities, listing 
specific instances and the amount of time devoted to each.: 

At present, I serve four hours every weekend on an anonymous mental health crisis 
intervention hotline for the Free Medical Clinic. Occasionally I teach law and urban 
policy, pro bono, as an adjunct assistant professor at Cleveland State University. 

I served as an officer of the Cleveland Legal Aid Society from law school graduation 
until I completed my service as President. 

In 1981 - 82, as Vice Chair of the Reorganization Committee of the Cleveland Bar 
Association, I was responsible with others for conceiving and implementing a 
pro bono program, CASE, for participation by all Cleveland area attorneys. The Bar 
Association's Statement of Commitment, which I drafted, is as follows: 

"Affirming our profession's commitment to equal justice for all persons and the 
individual responsibility of lawyers as officers of the Court, the Bar Association of 
Greater Cleveland asks each lawyer to examine and act upon his or her individual 
professional obligation to provide legal services to those unable to afford them. 
Join with your fellow lawyers to ensure that no one, for lack of funds, is denied 
right or justice." 

For this work I received the Merit Service Award of the Cleveland Bar Association. 

For three years, 1984-1987, 1 traveled throughout Ohio as Chair of the Governor's Task 
Force on Family Violence. The Task Force focused on child abuse, elder abuse, and 
domestic violence. We made fifty four (54) recommendations to the Governor, 
Legislature, state and local agencies. Fifty three (53) of our recommendations were 
implemented. 

I have served the disadvantaged in numerous organizations. I served as Trustee of the 
Urban League of Cleveland, 1989 - 1990 and of Rose Mary Center from 1986 - 1990. 
Rose Mary Center is a residential treatment and education facility for children aged 
four to sixteen who are dual-diagnosed with multiple physical and learning disabilities. 
Home care is not available to these children. 

As a member of Case Western Reserve University School of Medicine's Center for 
Biomedical Ethics Advisory Board, 1986 - present, 1 serve those disadvantaged by 
medical catastrophe or crisis. This is an outgrowth of prior volunteer work in inner 
city emergency rooms. 



145 



JUDGE LESLEY BROOKS WELLS Page 33 



1. Serving the disadvantaged, continued: 

Mental health patients caught in the misdemeanor criminal justice system pose special 
problems which I worked to resolve through the Federation for Community Planning and 
the Cleveland Bar Association. I served on the Citizen's Advisory Board of the Cleveland 
Psychiatric Institute. Through the Legal Aid Society, I served as a volunteer advocate 
inside one of our state mental hospit^, Fairtiill Psychiatric Institute. 

I have served as a board member of several organizations designed to address 
disadvantages specific to women: Women's Equity Planning Project, WomenSpace, 
United Way Task Force on Women. I was Chair of the Legal Caucus of the National 
Women's Political Caucus as well as the state and local Women's caucuses. 

2. The American Bar Association's Commentary to its Code of Judicial Conduct states 
that it is inappropriate for a judge to hold membership in any organization that 
invidiously discriminates on the basis of race, sex or religion. Do you currently 
belong, or have belonged to any organization wlJch discriminates - through either 
formal or membership requirements or the pract.cal implementation of 
membership policies? If so, list, with dates of membership. What you have one to 
try to change these policies?: 

Brownie and Girl Scouts in the 1940's. 



Is there a selection commission in your jurisdiction to recommend candidates for 
nomination to the federal courts?: 

No 

Please describe your experience in the entire judidal selection process, from 
beginning to end (including the circumstance which led to your nomination and 
interviews in which you participated): 

Initially 1 applied by letter. Curriculum Vitae and a list of two dozen references; people 
who know me well from diverse times and perspectives. Senator Metzenbaum and 
Senator Glenn each interviewed me, separately, twice. I completed the comprehensive 
judicial application provided for me by Senator Metzenbaum and furnished both Senate 
offices with a full response. A team of four, two staff members from each Senator's 
office, interviewed me on a wide range of legal and professional topics. 

On May 7, 1993, the Senators recommended to President Clinton that he appoint me 
to a vacancy on the Federal District Court, Northern District of Ohio. 

The office of White House Counsel provided me forms, waivers and fingerprint charts 
for information relevant to White House, Justice Department. ABA, FBf and Senate 
review of my qualifications, background and experience. All requested information was 
provided by me to the White House. 



146 



JUDGE LESLEY BROOKS WELLS Page 34 



3. Judicial selection process, continued: 

I was contacted and interviewed by representatives of the Justice Depanment, FBI 
and ABA in Washington and Cleveland. Additional information was provided them as 
requested. 

On November 19. 1993 I was advised by Bernard Nussbaum, Esq., Counsel to The 
President, that President Clinton had nominated me to be U.S. Judge, Northern District of 
Ohio and that he had sent my name to the U.S. Senate for confirmation proceedings. 

4. Has anyone involved in the process of selecting you as a judicial nonunee discussed 
with you any specific case, legal issue or question in a manner that could be 
reasonably interpreted as asking how you would rule on such case, issue or 
question: 

No 

5. Please discuss your views on the following criticism involving "judicial activism:" 

The role of the Federal judiciary within the Federal government, and with society 
generally, has become the subject of increasing controversy in recent years. It has 
become the target of both popular and academic criticism that alleges that the 
1 judicial branch has usurped many of the prerogatives of other branches and levels 

of government. 

Some of the characteristics of this "judicial activism" have been said to include: 

a. A tendency by the judiciary toward problem-solution rather than grievance- 
resolution: 

b. A tendency by the judiciary to employ the individual plaintiff as a vehicle for the 
imposition of far-reaching orders extending to broad classes of individuals: 

c A tendency by the judiciary to impose broad, affirmative duties upon governments 
and society: 

d. A tendency by the judiciary toward loosening jurisdictional requirements such as 
standing and ripeness: 

e. A tendency by the judiciary to impose itself upon other institutions in the manner of 
an administrator with continuing oversight responsibilities: 

Traditionally courts confine what they say to the facts before them. A judge is out of line 
when she or he injects into a case a problem or issue which is unnecessary to the 
decision. 

It is said judges should not make law. The principle is sound but in reality judges 
sometimes cannot avoid "making law." If a particular case raises an issue of 
interpretation and there is no precedent to apply to the facts under nare decisis, then 
whether the Court answers yea or nay to a question "makes law." Great restraint should 
be exercised, but the case must be decided. 



147 

JUDGE LESLEY BROOKS WELLS Page 35 



"Judicial activism", continued: 

Judges dispose of cases; they are not equipped or staffed to administer institutions. Thus 
a judge is singularly ill-fitted to exercise continuing oversight Having no staff, judges 
must "act through surrogates. Where remedies are due, judges should craft them leanly and 
narrowly to confine them to proper judicial limitations. 

Any analysis of standing must be careful so as not to deny without good cause a 
person's access to the courts. Docket considerations, however compelling, should 
not in themselves obstruct legitimate access to the courts. As a doctrine limiting judicial 
review, standing determines who can litigate under the Article HI cases and controversies 
requirement of the U.S. Constitution. The ripeness doctrine requires injury in fact or 
significant threat of imminent harm. Ripeness, like moomess, is involved when 
determining whether an issue may be litigated. 



148 



JUDGE LESLEY BROOKS WELLS 



Affidavit 



I, A/T^^^y S^OK^ U/^J-LS . do swear that the information provided in 
this statement is, to the best of my knowledge, true and accurate. 



(DATE) ' 





(NAME) 



"^M^^ 



(NOTARY) 



149 

I. BIOGRAPHICAL INFORMATION (PUBLIC) 

1. Full name ! (include any former names used.) 
Marjorie Osterlund Rendell (n6e Marjorie May Osterlund) 

2. Address ! List current place of residence and office address. 

Home: 3425 Warden Drive 

Philadelphia, PA 19129 

Office: Duane, Morris & Heckscher 

One Liberty Place, 42nd Floor 
Philadelphia, PA 19103-7396 

3. Date and place of birth: 
12/20/47 - Wilmington, DE 

4. Marital Status (include maiden name of wife, or husband's 
name): List spouse's occupation, employer's name and 
business addre8s(es). 

Married: Hon. Edward G. Rendell 

Mayor, City of Philadelphia 
Room 215 - City Hall 
Philadelphia, PA 19107 

5. Education : List each college and law school you have 
attended, including dates of attendance, degrees received, 
and dates degrees were granted. 

University of Pennsylvania 

Attended 1965-1969; B.A. degree received May 1969 

Georgetown University Law Center * 

Attended 1970-1971 (no degree; transferred to Villanova upon 

marriage) 

Villanova School of Law 

Attended 1971-1973; J.D. degree received May 1973 

6. Employment Record : List (by year) all business or 
professional corporations, companies, firms, or other 
enterprises, partnerships, institutions and organizations, 
nonprofit or otherwise, including firms, with which you were 
connected as an officer, director, partner, proprietor, or 
employee since graduation from college. 



14497.1 



- 1 - 



150 



Employment : 
1973-1978 

1972-pre8ent 



University of Pennsylvania 
Development Department; Assistant to 
Director of Annual Giving 

Duane, Morris & Heckscher 
Slimmer 1972 - Summer law clerk 
1972-1973 - part-time law clerk 
1973-1981 - full time associate 
1981-pre8ent - partner 



Other (boards) 



1973-1978 

Philadelphia Bar Association 

Board of Directors, Young Lawyers 
Section 

Late 1970s - Present 

University of Pennsylvania 
(various advisory boards) 

197R - Present 

Visiting Nurse Association 

of Greater Philadelphia 
Visiting Nurse Society 

Late 198Qs - Present 

East Falls Advisory Board of 
Chestnut Hill National Bank 
Pennsylvania's Ceunpaign for Choice 

1Qq:> - Present 

Academy of Vocal Arts ■» 

Avenue of the Arts, Inc~. 

Market Street East Improvement Association 

Philadelphia Bar Foundation 

Philadelphia Friends of Outward Bound 

Military Service ; Have you had any military service? If so, 
give particulars, including the dates, branch of service, 
rank or rate, aerial number and type of discharge received. 

No. 

Honors and Awards ; List any scholarships, fellowships, 
honorary degrees, and honorary society memberships that you 
believe would be of interest to the Committee. 



14497.1 



- 2 - 



151 



Phi Beta Kappa at University of Pennsylvania. 

Philadelphia College of Textile and Science 

Doctor of Laws - Honorary Degree awarded in May 1992 

9. Bar Aesociations ! List all bar associations, legal or 
judicial-related committees or conferences of which you are 
or have been a member and give the titles and dates of any 
offices which you have held in such groups. 

American Bar Association 
Pennsylvania Bar Association 
Philadelphia Bar Association 

Board of Directors, Young Lawyers Section (1973-78) 
American Bankruptcy Institute 

Eastern District of Pennsylvania Bankruptcy Conference 
Philadelphia Bar Foundation (Board member) 
Alternative Dispute Resolution Committee 

of the Eastern District Bankruptcy Conference 

Mediation Division 

10. Other Memberships ; List all organizations to which you 
belong that are active in lobbying before public bodies. 
Please list all other organizations to which you belong. 

Organizations active in lobbying: None. 

Other Memberships : 

Academy of Vocal Arts 

Avenue of the Arts, Inc. (Vice-Chair) 

Bala Golf Club 

Chestnut Hill National Bank/East Falls Advisory 

Board 
Market Street East Improvement Association 
Pennsylvania's Campaign for Choice 
Philadelphia Bar Foundation 
Philadelphia Friends of Outward Bound 
Forum of Executive Women 
International Women's Forum ^ 
University of Pennsylvania 

Athletic Advisory Board (Associate Trustee) 

Trustees ' Council of Penn Women 

Women's Athletic Board 
Vesper Club 
Visiting Nurse Association of Greater Philadelphia 

(Vice Chair of Board of Trustees) 
Visiting Nurse Society (Board of Managers) 

11. Court Admission : List all courts in which you have been 
admitted to practical with dates of admission and lapses if 
any such memberships lapsed. Please explain the reason for 
any lapse of membership. Give the same information for 



14497.1 



- 3 - 



152 



administrative bodies which require special admission to 
practice. 

U.S. Court of Appeals for the Third Circuit (4/27/78) 
U.S. District Court for the Eastern District 

of Pennsylvania (3/18/75) 
Supreme Court of Pennsylvania (11/15/73) 

12. Published Writings ! List the titles, publishers, and dates 

of books, articles, reports, or other published material you 
have written or edited. Please supply one copy of all 
published material not readily available to the Committee. 
Also, please supply a copy of all speeches by you on issues 
involving constitutional law or legal policy. If there were 
press reports about the speech, and they are readily 
available to you, please supply them. 

Publications: 

Contributing author of seminar materials published in 
connection with annual seminar presentations; drafted 
sections on Secured Creditor Claims and Adequate Protection 
in all editions. The most recent editions are: 

Developments in Reorganization and Commer cial Finance Law — 
1991 and 1992 (Tenth Annual Seminar) (378 pps.) 
Duane, Morris & Heckscher 
Reorganization and Finance Section 
Copyright 1992 Duane, Morris & Heckscher 



Developments in Reorganization and Commercial Finance Law — 
1990 and 1991 (Ninth Annual Seminar) (305 pps.) 
Duane, Morris & Heckscher 
Reorganization and Finance Section 
Copyright 1991 Duane, Morris & Heckscher 



Developments in Bankruptcy Reorganization and Finance: 
(A 1990 Annual) (289 pps.) 
Duane, Morris & Heckscher 
Reorganization and Finance Section ^ 
Copyright 1990 Aspen Publishers, Inc. * 



1989 



I am also the author of unpublished materials incorporated 
into approximately twenty presentations given at seminars in 
which I participated over the past several years on various 
bankruptcy, creditors rights and real estate issues. These 
seminars included an annual seminar, "Developments in 
Reorganization and Commercial Finance Law, " presented every 
year since 1982 by the Reorganization and Finance Section of 
Duane, Morris & Heckscher in several cities, including 
Philadelphia, Wilmington, Boston, and New York, to public 
audiences comprised primarily of clients and commercial 
lenders. 



- 4 - 



153 



13. Health ; what is the present state of your health? List the 
date of your last physical examination. 

Excellent. Most recent physical examination: April 1992. 

14. ffudicial Office : State (chronologically) any judicial 
offices you have held, whether such position was elected or 
appointed, and a description of the jurisdiction of each 
such court. 

None. 

15. Citations : If you are or have been a judge, provide: 

(1) citations for the ten most significant opinions you have 
written; (2) a short summary of and citations for all 
appellate opinions where your decisions were reversed or 
where your judgment was affirmed with significant criticism 
of your substantive or procedural rulings; and (3) citations 
for significant opinions on federal or state constitutional 
issues, together with the citation to appellate court 
rulings on such opinions. If any of the opinions listed 
were not officially reported, please provide copies of the 
opinions . 

Not applicable. 

16. PnhTlc Office ; State (chronologically) any public offices 
you have held, other than judicial offices, including the 
terms of service and whether such positions were elected or 
appointed. State (chronologically) any unsuccessful 
candidacies for elective public office. 

Committeewoman for the Republican Party, 
30th Ward, 20th Division from 1972-1976. 

17. T.egal Career; 

a. Describe chronologically your law practice and % 

experience after graduation from^law school including; 

1. whether you served as clerk to a judge, and if so, 
the name of the judge, the court, and the dates of 
the period you were a clerk; 

Not applicable. 

2. whether you practiced alone, and if so, the 
addresses and dates; 

Not applicable. 

3. the dates, names and addresses of law firms or 
offices, companies or governmental agencies with 



14497.1 



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154 



which you have been connected, and the nature of 
your connection with each. 

1972-pre8ent Duane, Morris & Heckscher 

Summer 1972 - Summer law clerk 
1972-1973 - part-time law clerk 
1973-1981 - full time associate 
1981-present - partner 

1. What has been the general character of your law 
practice, dividing it into periods with dates if 
its character has changed over the years? 

My practice has always focused on business and 
commercial law, commencing with general corporate, 
banking and securities work from 1973 to 1975, and 
bankruptcy and reorganization and finance 
specialty from 1975 to the present. My practice 
has focused on the debtor-creditor relationship, 
in and out of bankruptcy proceedings, involving 
extensive negotiation and varying amounts of 
litigation over the years. In the late 19708 and 
mid-19808, I was involved in commercial collection 
litigation and extensive workout negotiation in 
bankruptcy proceedings of debtor clients as well 
as creditor clients in and out of bankruptcy 
proceedings . The amount in controversy was 
usually in the range of $2-10 million. Since the 
mid-1980s, my work has also included many larger, 
more complex matters, involving primarily 
negotiation of amounts due and owing to clients in 
the multi-million dollar range, with emphasis on 
negotiation of complex issues and less active 
litigation. Many of my more recent cases have 
either been resolved out of court or through out 
of court negotiations in an otherwise consensual 
bankruptcy proceeding. Much of my time has been 
spent in drafting of agreements and documents/ 
including pleadings, for such workouts and ' 
bankruptcy proceedings. I hBve also been engaged 
in loan restructures and documentation of loans 
and other financial agreements in similar workout 
or problem loan situations. 

2. Describe your typical former clients and mention 
the areas, if any/ in which you have specialized. 

My typical clients over the years have been banks 
and insurance companies, unsecured creditors and 
creditors' committees, as well as debtors in 
workouts and bankruptcy proceedings. I would 
estimate that 80% of my time has been spent 
representing secured creditors. I have 
specialized in issues relating to the rights of 



- 6 - 



155 



secured creditors, including but not limited to 
issues of perfection, lender liability, and 
fraudulent conveyances. I have also tried many 
relief from stay motions and complaints to 
conclusion of behalf of secured creditors. 

c. 1. Did you appear in court frequently, occasionally, 
or not at all? If the frequency of your 
appearances in court varied, describe each such 
variance, giving dates. 

In examining my practice since 1988, I find that 
the number of court appearances has changed 
radically in 1992 and 1993. My husband became 
Mayor of Philadelphia in January of 1992, and I 
have delegated many of the court appearances to 
others; also, during 1992, my primary focus was on 
two major cases, both of which involved out of 
court restructurings of amounts in excess of 
$100 million of indebtedness; in these cases we 
represented, in one case, the bank group, and in 
the other, the subordinated debenture group. 
Also, during this time period, my department of 
the firm (the Reorganization and Finance Section) 
has delegated much of the commercial litigation to 
a special group of attorneys in our Litigation 
Department which routinely does this work with and 
for our section's attorneys. During the prior 
four years, namely, from 1988 through 1991, I 
appeared regularly in court in any given year on 
matters in which we represented the major secured 
creditor of a company in chapter 11. There were 
probably five to ten such cases in any given year. 
Also during this time period, I represented the 
trustee in a chapter 11 proceeding, and appeared 
regularly in at least two complex chapter 11 
proceedings in which we represented different 
classes of indebtedness. I believe that dUring 
1988 through 1991 I appeared in court anywhere 
from three to eight days per month. 

Court appearances were more frequent during the 
previous time, namely, the time period from 1980 
through 1988. More of the cases which I handled 
involved individual secured creditor rights, 
rather than complex cases, and matters such as the 
right of the secured creditor to take back the 
collateral pursuant to a hearing for relief from 
the stay were tried to conclusion frequently. I 
appeared in court very regularly, perhaps as many 
as two to three days per week. 



- 7 - 



156 



What percentage of these appearances was in: 

(a) federal courts; 

Most appearances were in federal courts 
(95-100%) 

(b) state courts of record; 

Seldom (0-5%); appeared only in connection 
with execution on or enforcement of 
judgments, or opening of judgment 
proceedings . 

(c) other courts. 
0% 

What percentage of your litigation was: 

(a) civil; 
100% 

(b) criminal 

0% 

State the number of cases in courts of record you 
tried to verdict or judgment (rather than 
settled), indicating whether you were sole 
counsel, chief counsel or associate counsel. 

My experience has been primarily in the bankruptcy 
courts in which a chapter 11 case is pending. 
Many contested matters and adversary proceedings 
are brought before the court by way of complaint 
or motion, which are heard by the court, non-jury, 
following the Federal Rules of Civil Procedure 
(made applicable by the Federal Rules of 
Bankruptcy Procedure) as wej.1 as the Federal Rules 
of Evidence, usually in hearings lasting from one 
to three days. It is difficult to state "cases" 
that have been "tried to verdict or judgment" 
because, in each instance, the matters involved 
hearings on fraudulent conveyances, relief from 
stay, preference actions, motions to dismiss, and 
the like. Many of these were tried to conclusion, 
but not all led to the end of the case or total 
resolution of a matter: I have handled my own 
cases and except in a few instances in which I was 
assisted by an associate, have been sole and chief 
counsel in matters I have handled. I have 
appeared and litigated in over 35 bankruptcy 
matters . 



14497.1 



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157 



5. What percentage of these trials was: 

(a) jury. 
0% 

(b) non-jury. 
100% 

18. Litigation : Describe the ten most significant litigated 
matters which you personally handled. Give the citations, 
if the cases were reported, and the docket number and date 
if unreported. Give a capsule summary of the substance of 
each case. Identify the party or parties whom you 
represented; describe In detail the nature of your 
participation in the litigation and the final disposition of 
the case. Also state as to each case: 

(a) the date of representation; 

(b) the name of the court and the name of the judge or 
judges before whom the case was litigated; and 

(c) The individual names, addresses, and telephone numbers 
of co-counsel and of principal counsel for each of the 
other parties. 

Please see Exhibit A attached hereto. 

19. Legal Activities: Describe the most significant legal 
activities you have pursued, including significant 
litigation which did not progress to trial or legal matters 
that did not involve litigation. Describe the nature of 
your participation in this question, please omit any 
information protected by the attorney-client privilege 
(unless the privilege has been waivedX. 

I have been involved in many significant legal activities 
related to my practice area as well as the practice of law 
in general. I have been an active participant in seminars 
focusing on various areas of bankruptcy and creditors rights 
law, including real estate, leveraged buyouts, preferences, 
foreclosure strategies, and the impact of bankruptcy issues 
on state trial proceedings. I speak annually at the Temple 
Law School Forxim, addressing students on such issues as the 
nature of the practice of bankruptcy and the role that debt 
plays in our society. 



U497.1 



- 9 - 



158 



I am also a regular speaker at our annual bankruptcy 
department seminars which showcase developments in this area 
of the law. 

I am an active member of the Eastern District of 
Pennsylvania Bankruptcy Conference, formed five years ago to 
foster education, communication and relationrhips among 
bankruptcy lawyers in the area We now have over 
450 members, and sponsor dinners semi-annually and a two-day 
educational retreat each year. I am a regular participant 
and usually a facilitator at the educational programs. My 
partner, David Sykes, is currently the chairman of the 
conference . 

I have recently served on a committee to explore and 
implement alternative dispute resolution by means of 
mediation in our bankruptcy court system. I have served as 
a mediator in our district court mediation program and, in 
response to a request from our bankruptcy judges, am helping 
to formulate a local bankruptcy rule to implement such a 
program in the bankruptcy court suited to the specific needs 
and unique aspects of the system. 

My bar-related activities include current involvement in the 
Philadelphia Bar Foundation, a fundraising arm of the 
Philadelphia Bar Association which raises money for grants 
to law-related projects throughout the city. I have been 
active in soliciting funds for these projects and 
considering programs worthy of support. 

As a younger lawyer I was an advocate for disadvantaged 
children under a progreun sponsored by the Support Center for 
Child Advocates, a program which provides attorneys to 
represent the interests of abused children at the charging 
stage and to interface with social workers and relatives. I 
was also elected to the board of the Toung Lawyers Section 
of the Philadelphia Bar Association and served for several 
years on various committees, one of which explored and 
proposed a revamping of sheriff's sale procedures for' 
abandoned housing. ; 



159 

II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 



List sources, amounts and dates of all anticipated receipts 
from deferred income arrangements, stock, options, 
uncompleted contracts and other future benefits which you 
expect to derive from previous business relationships, 
professional services, firm memberships, former employers, 
clients, or customers. Please describe the arrangements you 
have made to be compensated in the future for any financial 
or business interest. 

Upon termination of my relationship with Duane, Morris & 
Heckscher, my capital, in the approximate amount of $56,000, 
will be returned to me, and I will receive a termination 
payment of approximately my average compensation for the 
past two years, to be paid upon termination over up to two 
years, at my option. I intend to move my HRIO and 401K 
funds to an independent IRA. 

Also, I anticipate receiving income from the rental of a 
vacation home that my husband and I own, which averages 
$12,000-$14,000 (gross) per year. 

Explain how you will resolve any potential conflict of 
interest, including the procedure you will follow in 
determining these areas of concern. Identify the categories 
of litigation and financial arrangements that are likely to 
present potential conf licts-of-interest during your initial 
service in the position to which you have been nominated. 

I intend to disqualify myself from hearing matters 
involving: the City of Philadelphia; Meridian Bancorp., 
Inc.; the Visiting Nurse Association of Greater 
Philadelphia; the University of Pennsylvania; and entities 
in which I have a "financial interest" pursuant to 28 U.S.C. 
S 455. I will follow the dictates of 28 U.S.C. S 455 as to 
disqualification due to a conflict regarding any oth6r 
matters or interest. ,. 

I will need to establish a policy relating to disclosure and 
waiver, or disqualification, as to persons or entities 
appearing before me who have been contributors to my 
husband's political campaigns; beyond a certain dollar 
amount or degree of support, I would probably disqualify 
myself, but do not know of many persons or entities expected 
to appear before me who would fall into such a category. 

I will try to strike a balance between the ethical aspects 
of the situation and the practicalities of the 
administration of justice. In all instances I will follow 
the Canons of Judicial Ethics. 



14497.1 



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160 



3. Do you have any plans, commitments, or agreements to pursue 
outside employment, with or without compensation, during 
your service with the court? If so, explain. 

No. 

4. List sources and amounts of all income received during the 
calendar year preceding your nomination and for the current 
calendar year, including all salaries, fees, dividends, 
interest, gifts, rents, royalties, patents, honoraria, and 
o^her items exceeding $500 or more (if you prefer to do so, 
copies of the financial disclosure report, required by the 
Ethics in Government Act of 1978, may be substituted here.) 

Please see copy of Form AO-10 attached hereto. 

5 . Please complete the attached financial net worth statement 
in detail (Add schedules as called for). 

Attached. 

6. Have you ever held a position or played a role in a 
political campaign? if so, please identify the particulars 
of the campaign, including the candidate, dates of the 
campaign, your title and responsibilities. 

I have played an active, but not official, role in various 
campaigns of my husband, Edward G. Rendell. He served as 
District Attorney for the City of Philadelphia for eight 
years commencing in 1978. He ran unsuccessfully in the 
primary for Governor of Pennsylvania in the spring of 1986, 
and unsuccessfully in the primary for Mayor of Philadelphia 
in the spring of 1987. He was successful as a candidate for 
Mayor of Philadelphia in the primary held in May of 1991, as 
well as in the fall general election in November of 1991, 
and is currently Mayor of Philadelphia for the term 
commencing January 1992 to December 31, 1995. 



14497.1 



161 

III. GENERAL (PUBLIC) 



An ethical consideration under Canon 2 of the American Bar 
Association Code of Professional Responsibility calls for 
"every lawyer, regardless of professional prominence or 
professional workload, to find some time to participate in 
serving the disadvantaged." Describe what you have done to 
fulfill these responsibilities, listing specific instances 
and the amount of time devoted to each. 

My pro bono and community service activities have been in 
the form of my active service on the boards of various 
organizations. My longest community service association has 
been with the Visiting Nurse Association of Greater 
Philadelphia (VNA) , having served on its board and headed 
many of its committees over the past fifteen years. The VNA 
is the only homebound home care entity which provides 
services to the indigent in the Philadelphia area, and I 
have been personally involved in fundraising and other 
efforts for the poor and indigent of Philadelphia in this 
way. The organization prides itself on its mission of 
providing care to those unable to pay, the quality of its 
caring, which is exceptional. 

I have also been actively involved on various boards at the 
University of Pennsylvania, with a focus on helping today's 
student through mentoring and other counselling programs. 
Many female students I have counselled are on scholarship 
and need the active support and encouragement of a role 
model to help them pursue their education, and I feel I have 
been a constructive influence for many such women. 

Recently, I have become a leading contributor of time and 
energy to the civic project known as Avenue of the Arts, 
Inc., which is a non-profit corporation dedicated to 
developing a cultural district in center city Philadelphia. 
I am the vice chairman of the board of directors and 'play a 
leadership role in this entity, which %will enhance economic 
development that will improve economic conditions in the 
adjacent neighborhood and the city at large. 

At a time when our public schools are tempted to curtail 
arts programs due to fiscal constraints, many of our 
citizens are looking to Avenue of the Arts to help instill 
an appreciation for the arts in our children through many 
educational programs to be sponsored there and a new High 
School for the Creative and Performing Arts to be 
constructed. This project will have an impact on our city 
for years to come. 

The American Bar Association's Commentary to its Code of 
Judicial Conduct states that it is inappropriate for a judge 

- 13 - 



162 



to hold membership in any organization that invidiously 
discriminates on the basis of race, sex, or religion. Do 
you currently belong, or have you belonged, to any 
organization which discriminates — through either formal 
membership requirements or the practical implementation of 
membership policies? If so, list, with dates of membership, 
what you have done to try to change these policies? 

I do not belong to any organization that discriminates on 
the basis of race, sex or religion in its admission 
policies. The golf club to which I belong does impose some 
distinctions between men and women in policies regarding 
usage of club facilities. 

3. Is there a selection commission in your jurisdiction to 
recommend candidates for nomination to the federal courts? 
If so, did it recommend your nomination? Please describe 
your experience in the entire judicial selection process, 
from beginning to and (including the circumstances which led 
to your nomination and interviews in which you 
participated) . 

The selection commission established in my jurisdiction by 
Senator Harris Wofford recommended me, along with four other 
candidates, for nomination as a result of a formal selection 
process. In early June, I contacted the Chairman of the 
Commission, President Patricia McPherson of Bryn Mawr 
College, to obtain the application form to be completed for 
submission in order to be considered for this position. I 
submitted a complete application and was contacted for an 
interview, which consisted of a one-half hour interview with 
two members of the Commission. Thereafter, I was contacted 
for a further interview before the entire Commission, which 
took place on July 6, 1993. Thereafter, I believe that the 
Commission provided Senator Wofford with my name and the 
names of other individuals from whom he would select a 
nominee. On July 27, 1993, Senator Wofford recommended me to 
the President for this judicial position. Investigations 
conducted by the Federal Bureau of Investigation and \he 
American Bar Association have been con\pleted, and I was 
interviewed by attorneys at the Justice Department in 
Washington in early November. 

4. Has anyone involved in the process of selecting you as a 
judicial nominee discussed with you any specific case, legal 
issue or question in a manner that could reasonably be 
interpreted as asking how you would rule on such case, 
issue, or question? If so, please explain fully. 

No. 

5. Please discuss your views on the following criticism 
involving "Judicial activism." 



- 14 - 



163 



The role of the federal judiciary within the federal 
government, and within society generally, has become the 
subject of increasing controversy in recent years. It has 
become the target of both popular and academic criticism 
that alleges that the judicial branch has usurped many of 
the prerogatives of other branches and levels of government. 

The role of the federal judiciary is limited by the 
Constitution, and the separation of powers which is its 
hallmark, to the interpretation and enforcement of existing 
laws. In the process of euch interpretation and 
enforcement, the role of the federal district courts is 
further limited by the nature of their jurisdiction, which 
is limited jurisdiction under Article III of the 
Constitution, and established precedent, which is 
controlling. The district court judge is charged with the 
resolution of distinct matters at issue before him or her in 
this context. The judge must resolve only those issues 
before him or her and not seek to solve problems or craft 
solutions broader than necessary to the resolution of the 
instant matter. The expansion of jurisdictional limits or 
modification of principles of jurisprudence is a matter for 
the legislature, not the judiciary, to undertake. 



164 



Exhibit Jk 



Signif leant: Lltlqatad Mattare 



My trial experience has been gained primarily, although not 
exclusively, in the bankruptcy coiurt system, in which the "case" 
is a reorganization proceeding, and adversary matters, sometimes 
involving actual trials, are heard by the court. X have 
litigated in the bankruptcy courts locally and throughout the 
country in at least 35 cases.. The following are examples from 
ten cases in which matters redsed by notion or con^laint were 
litigated by me, except as noted, as sole trial counsel, several 
of which resulted in reported decisions. 

1. Bartholomew, et al. v. Wori-h«iiiy»r»n Mational Bank, at al. 

[United States District Court for the Eastern District of 
Pennsylvania, Civil Action No. 64-1940 (1975); United States 
Court of Appeals for the Third Circuit, No. 77-2217 (1978)] 

Summary 

Suit by purchaser of vacation lot against banks who financed 
purchase, on basis of Truth-in-Lending, Interstate Land Sales 
Full Disclosure Act, and usury law violations. 

One of the defendants, Americcm Bank and Trust Co. of Pa. 
(now Meridian Bank). 

iBBuea Litigated 

Whether: (i) financing of the purchase of a vacation lot 
was the loan or use of money for purposes of usury law 
violations; (ii) banks that finance a purchase of a lot are held 
liable for violations of the Interstate LanH Sales Full 
Disclosure Act; and (iii) Truth in Lending Act violations could 
be asserted after one year from the date of the land sale 
contract. While I did not argue the matter before the District 
Court or the Third Circuit, I was involved in the legal strategy 
and was responsible, with counsel for Merchants National Bank, 
for the pleadings in and briefing of the matter, especially on 
appeal to the Third Circuit (584 F.2d 1288). 

(continued) 

14500.1 Litigated Matters - page 1 



165 



Significance of Iss ues/mtimate Disposition 

The court decided in the negative as to all of the issues 
referred to above, issues of great significance to banks and 
other entities that finance such purchases, granting summary 
judgment in favor of our client. 

Judge 

Hon. John P. Fullam, Judge, United States District Court for 
the Eastern District of Pennsylvania. 

Hon. James Hunter, III, Judge, authored opinion for United 
States Court of Appeals for the Third Circuit. 

other Counflcl 

Counsel for defendant Merchants Bank and Trust Co. of Pa.: 

John E. Flaherty, Jr., Esquire 

Dechert, Price & Rhoads 

4000 Bell Atlantic Tower 

1717 Arch Street 

Philadelphia, PA 19103-2793 

(215) 994-2128 

Counsel for plaintiffs: 

Edward C. Toole, Jr., Esquire 

(215) 241-1814 

Michael J. Glasheen, Esquire 

(215) 241-1821 

Clark, Ladner, Fortenbaugh & Young 

2005 Market Street 

2l6t Floor 

Philadelphia, PA 19103 



145.00.1 



Litigated Matters - page 2 



166 



2. In re Winslow Center ABBOciatcs 

[United States Bankruptcy Court for the Eastern District of 
Pennsylvania, Bky. No. 82-00020-G; Adv. No. 82-2662] 

Chapter 11 proceeding of New Jersey partnership which owned 
a shopping center. 

Client 

Provident Mutual Life Insurance Coii^>any, the mortgagee. 
iBBuas I.it:igatad 

(1) Relief from Stay requested based upon erosion of 
secured creditor's equity cushion. 32 B.R. 685 (Bankr. E.D. Pa. 
1983); relief granted. 

(2) Rights of secured creditor to post-petition rentals 
recognized under title theory. 50 B.R. 679 (Bankr. E.D. Pa. 1985). 

(3) Objected to debtor's attorney's request for fees from 
assets subject to mortgagee's lien. 57 B.R. 317 (Bankr. E.D. Pa. 
1986); payment of fees denied. 

Significance of IssugB/Oltimate DiBposition 

Decision relating to the extent of the interest of the 
mortgagee in post-petition rents as cash collateral was one of the 
first such decisions decided under New Jersey law; this issue 
thereafter became the subject of much litigation in our district and 
elsewhere, commencing with the case of in re T.M. Carlton House 
Partners. Ltd. ^ 91 B.R. 349 (Bankr. E.D. Pa. 1988), and addressed 
most recently by U.S. District Court Judge Bartle in In re SeSide 
Co.. Ltd. f 152 B.R. 878 (E.D. Pa. 1993). Also, the decision has 
often been cited for its limitation of the ability of debtor to 
charge fees against secured creditors' collateral to only^those fees 
that benefitted secured creditor. 

Our client was granted relief from the stay and proceeded to 
foreclose on its collateral. Also, it was able to collect and apply 
rents from the shopping center tenants to reduce the debt due to it. 

Judge 

Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy 
Court for the Eastern District of Pennsylvania. 

(continued) 

14S00.1 Litigated Hatters - page 3 



167 



Of-hftr Couneel 

Counsel for Committee of Equity Holders: 
Leonard Goldberger, Esquire 
Wolf, Block, Schorr & Solis-Cohen 
Packard Building, 12th Floor 
15th and Chffstnut Streets 
Philadelphia, PA 19102-2678 
(215) 977-2578 

Debtor's Counsel: 
David Fishbone, Esquire 
Ciardi, Fishbone & DiDonato, PC 
1900 Spruce Street 
Philadelphia, PA 19103 
(215) 546-4370 

Counsel for Trustee: 
Robert H. Levin, Esquire 
Adelman Lavine Gold S Levin, PC 
1900 Two Penn Center Plaza 
Philadelphia, PA 19102-1799 
(215) 568-7515 



uspo.i 



Litigated Matters - page 4 



168 



3. In re Reading Tiibe Corporation and Laeh Holdinqs Limited ^ 
DebtorB . [United States Bankruptcy Court for the Eastern 
District of Pennsylvania, Case Nob. 87-00429-T and 87-00430-T. ] 

Summary 

Chapter 11 proceeding of copper tube manufacturer. 

ClifiJXt 

Meridian Bank, primary secured creditor, as well as the 
government agencies participating in its loan. 

iBBueB Litigated 

(1) Challenged propriety of debtor-in-possession financing where 
debtor failed to prove that it had searched for available financing 
elsewhere; financing denied. 72 B.R. 329 (Bankr. E.D. Pa. 1987). 

(2) Initiated and litigated Motion for Appointment of a Trustee 
based upon allegations of fraud, mismanagement and self-dealing of 
company's shareholders. Discovery ruling reported at 73 B.R. 99 
(Bankr. E.D. Pa. 1987). 

Significance of Is sues/Ultijnate Disposition 

The Motion for Appointment of a Trustee became a trial of issues 
of alleged fraud and gross mismanagement conducted on an expedited 
basis, with discovery encompassing 20 to 25 days over 3 months and the 
trial itself lasting for several days during a 3-week period in May 
1987. Extensive expert testimony as to financial dealings was 
presented. The matter was settled before conclusion of the trial, 
paving the way for the plan of reorganization with favorable treatment 
of our client's claims, and release of all claims against our client, 
including lender liability. 

Judge 

Hon. Thomas M. Twardowski, Bankruptcy Judge, United States 
Bankruptcy Court for the Eastern District of Pennsylvania. 

Other Counsel 

Debtor's Litigation Counsel: 
Louis Lustenberger, Esquire 
Donovan & Leisure 
30 Rockefeller Plaza 
New York, NY 10112 
(212) 632-3290 

(continued) 

1450P.1 Litigated Matters - page 5 



169 



Debtor's Bankruptcy Counsel: 

Bruce Frankel, Esquire 

Angel & Frankel 

366 Iladison Avenue 

New York, NT 1017-3191 

(212) 286-0100 



For Creditors Committee: 

Charles Phillips, Esquire 

Baskin Leisawitz Heller Abramowitch, P.C. 

2201 Ridgewood Road, Suite 400 

Wyomissing, PA 19610 

(215) 372-8427 

For Union/Employees' Committee: 

John Gough, Esquire 

Montgomery, McCracken, Walker & Rhoads 

Three Parkway, 20th Floor 

Philadelphia, PA 19102 

(215) 655-7200 



14500.1 



Litigated Matters - page 6 



170 



4. In re DninHnlrw V. clvitella [United States Bankruptcy Court for 
the Eastern District of Pennsylvania, Case No. 80-01083K] 

SiiimmiT-y 

Chapter 11 proceeding of apartment complex. 

The debtor. 

iBBuaa Litiqatad 

Rebuffed constant attempts of three secured creditors to 
cause case to be dismissed, converted, or to file their ovm plan 
of reorganization. 

Successfully reorganized debtor and distributed one hundred 
cents on the dollar to unsecured creditors in Plan of 
Reorganization. 

Resulted in frequently-cited reported decision holding that 
Disclosure Statement must be based on statements of fact, not 
opinion. 14 B.R. 151 (Bankr. E.D. Pa. 1981); reconsideration 
denied, 15 B.R. 206 (Bankr. E.D. Pa. 1981). 

Significance of iBSues/Ultimate Disposition 

The client was a widow whose son was managing the complex. 
The personal, business, legal and strategic aspects were very 
challenging. The secured creditors were extremely aggressive and 
constantly commencing litigation to try to take over the 
property. We were able to prevail over them and confirm a plan 
providing 100% payment for creditors — a rare result in a 
bankruptcy case. 

Judge 

Hon. William King, Judge, United States Bankruptcy Court for 
the Eastern District of Pennsylvania. 



(continued) 



14580.1 Litigated Matters - page 7 



171 



Qt.P"^ Counsel 

(Each of the following represented a secured creditor) 

Rush T. Haines, Esquire 
Drinker, Biddle & Reath 
1100 PNB Building 
Broad and Chestnut Streets 
Philadelphia, PA 19107 
(215) 988-2944 

Neal D. Colton, Esquire 
Dechert, Price & Rhoads 
4000 Bell Atlantic Tower 
1717 Arch Street 
Philadelphia, PA 19103-2793 
(215) 994-2515 

Matthew Siembieda, Esquire 

(215) 569-5609 

Samuel Becker, Esquire 

(215) 569-5527 

Blank, Rome, Comisky & McCauley 

Four Penn Center Plaza 

Philadelphia, PA 19103 



Litigated Matters - page 8 



172 



5. In re Ram Manufacturing I nc. and Ampro Corp.. Debtors 

[United States Bankruptcy Court for the Eastern District of 
Pennsylvania, Bky. Nos. 83-00101-G and 83-00102-G; Adv. No. 
83-0039-G) 

Summary 

Chapter 11 proceeding of electronics manufacturer. 

Client 

Meridian Bank, secured creditor. 

iBBues Litigated 

Whether Meridian was entitled to relief from stay due to 
lack of adequate protection. 32 B.R. 960 (Bankr. E.D. Pa. 1983); 
reconsideration denied 36 B.R. 822 (Bankr. E.D. Pa. 1984). 

Significance of Is sues/Ult imate DispoBition 

The bankruptcy court found that accounts receivable arising 
from pending lawsuits were too uncertain to be considered for 
purposes of adequate protection, and proper valuation standard for 
company which had ceased operations was distress value. Given the 
lack of adequate protection and lack of debtor's equity in the 
property, relief from the stay was granted our client so it could 
proceed to foreclose on the property. 

JUSigfi 

Hon. Emil F. Goldhaber, Chief Judge, United States Bankruptcy 
Court for the Eastern District of Pennsylvania. 

Other CouhBel 

For debtor: 

Thomas B. Rutter, Esquire 

Rutter, Solomon & DiPiero 

The Curtis Center, Suite 750 » 

Philadelphia, PA 19106 \ 

(215) 925-9200 

For trustee: 

Donald M. Collins, Esquire 
Stradley, Ronon, Stevens & Young 
2600 One Commerce Square 
Philadelphia, PA 19103-7098 
(215) 564-8080 



Litigated Matters - page 9 



I 



173 



6. Tn re Center for the Blind [United States Bankruptcy Court for 
the Eastern District of Pennsylvania, Case No. 79-8ie-EG] 

Chapter 11 proceeding of non-profit corporation serving the 
blind. 

Client 

The debtor. 

TamiftB T.ifci9at« »rf/Siffnifieance of iBBUes/UltlinBte DiBDQBJtiQD 

This case was not adversarial, but was unique in that we 
confirmed a plan providing for the transfer and continuation of 
the Center's endowment, subject to Orphan's Court approval (which 
was obtained) intact for the benefit of the intended 
beneficiaries, i.e., the blind, and payment to unsecured 
creditors of approximately fifteen cents on the dollar. 

Judge 

Hon. Emil F. Goldhaber, Chief Judge, United States 
Bankruptcy Court for the Eastern District of Pennsylvania. 

other Counsel 

For Rudolphy Residence: 

Christopher H. Gadsden, Esquire 

Drinker, Biddle & Reath 

1100 PNB Building 

Broad and Chestnut Streets 

Philadelphia, PA 19107 

(215) 988-2780 

For Attorney General, Commonwealth of Pennsylvania: 
James Sutton, Esquire 
(Current address unknown) 

For Unsecured Creditors: 
Lawrence Lichtenstein, Esquire 
Buchanan Ingersoll 

Professional Corporation 
1200 Two Logan Square 
18th S. Arch Streets 
Philadelphia, PA 19103-6933 
(215) 665-3923 



14500.1 



Litigated Matters - page 10 



174 



7. In re Philadelphia Athletic Club [United States Bankruptcy 
Court for the Eastern District of Pennsylvania, Bky. No. 
80-02028-G; Adv. No. 82-0146-G) 

Summary 

Chapter 11 proceeding of athletic club facility in Center 
City Philadelphia. 

Clifint 

Trustees of Central States, Southeast and Southwest Areas 
Pension Funds, Victor Palmieri & Co. as Investment Manager, 
primary secured creditor. 

iBBuas Litigated 

Initiated a motion for relief from the stay and entered into 
a stipulation providing for automatic relief from stay upon the 
happening of certain events. Upon defaults by the debtor, relief 
from stay was to be automatically enforceable. Debtor failed to 
make a timely payment and contested such immediate relief in an 
injunction proceeding. 20 B.R. 322 (Bankr. E.D. Pa. 1982). 

Significance of iBsues/Ultimate Disposition 

The court gave effect to the terms of the Stipulation, 
giving automatic relief to our client, which then foreclosed on 
this major real estate asset at a sheriff's sale. 

The court's opinion is often cited as authority for 
enforcement of court-approved stipulations, especially relating 
to relief from stay for secured creditors otherwise forestalled 
from executing on property which constitutes their collateral. 
The case was perhaps the first of a long line of cases involving 
single-asset debtors where the courts have been viewing the 
rights of single-asset real estate debtors somewhat more 
summarily than those of other complex businesses in need of 
reorganization. 

Judge 

Hon. Emil F. Goldhaber, Chief Judge, United States 
Bankruptcy Court for the Eastern District of Pennsylvania. 

(continued) 



Litigated Matters - page 11 



I 



175 



other Counsel 

Debtor's Counsel; 

Pace Reich, Esquire 

Clark, Ladner, Fortenbaugh & Young 

2005 Market Street, 2lBt Floor 

Philadelphia, PA 190.03 

(215) 241-1330 

Counsel for Partners of Ovmer of Debtor: 

Stuart H. Savett, Esquire 

Savett, Frutkin, Podell & Ryan, PC 

320 Walnut Street, Suite 508 

Philadelphia, PA 19106 

(215) 923-5400 

Counsel for Trustee: 
Melvin Lashner, Esquire 
Lashner & Lashner 
1604 Locust Street 
Second Floor 
Philadelphia, PA 19103 
(215) 732-9229 



14SP0.1 



Litigated Matters - page 12 



176 



8. In re Bates Energy Corp. [United States Bankruptcy Court for 
the Northern District of Ohio, Case No. B-86-476-Y] 

Siimmiiry 

Objection of creditor client, the Bethlehem Corporation, to 
the proposed sale of assets of Bates Energy Corp. in Chapter 11 
proceedings 

Bethlehem Corporation, a major unsecured creditor. 
iBBuee Litigated 

Client believed that the proposed sale of assets was for the 
benefit of insiders of the company. I traveled to Youngstown, 
Ohio in June of 1986 on a few days' notice and put on a case 
during four days of hearings to try to show insider dealings and 
preferences, sham transactions, undercapitalization, and 
detriment to creditors . 

Significttnce of iBgueg/Ultimate DiBpoeitipa 

The court approved the sale over objection. Court approval 
of a sale of assets of a debtor company presents a difficult 
predicament for a bankruptcy judge where the court is to examine 
with scrutiny transactions involving insiders, but the company 
has little prospect for reorganization without such a sale. 
While the case itself may not appear to be significant, what was 
significant at the time, and since that time, was the fact that I 
put on a substantial case to prove insider dealing on a few days ' 
notice, without the luxury of depositions, discovery and the 
like. Notwithstanding the fact that I was not successful, I 
believe I raised serious doubts about the sale that should have 
been sufficient tc warrant its not being approved. 

Judge 

Hon. William T. Bodoh, Judge, United States Bankruptcy Court 
for the Northern District of Ohio. 



(continued) 



J4S00.1 Litigated Matters - page 13 



177 



rH-her Counael 

Our local counsel: 
Jeffrey Baddeley, Esquire 
Squire, Sanders & Denipsey 
1800 Huntington Building 
Cleveland, OH 44115 
(216) 687-8500 

Debtor's Counsel: 

David J. Naftzinger, Esquire 

Thompson, Hine & Flory 

1100 National City Bank Building 

Cleveland, OH 44114 

(216) 566-5500 

Counsel for Mellon Bank (secured creditor) 

Eric A. Schaffer, Esquire 

Reed, Smith, Shaw s> McClay 

James H. Reed Building 

Mellon Square 

435 Sixth Avenue 

Pittsburgh, PA 15219 

(412) 288-3131 



14500.1 



Litigated Matters - page 14 



178 



9. In re Mart:a Group [United States Bankruptcy Court for the 
Eastern District of Pennsylvania, Bky. No. 83-01276-G; Adv. 
No. 83-1145-G] 



Chapter 11 debtor of appliance wholesale cooperative. 

Cliimt 

Emerson Quiet Kool Corporation, seller/consignor of 
appliances to the debtor. 

laauea Lifciqated 

The validity of consignment and/or secured creditor 
relationship as between Emerson Quiet Kool and the debtor. 

Siynlfieanc* of iBaueB/Dltimate Disposition 

The court was called on to determine who should suffer the 
consequences of an improperly filed financing statement: the 
debtor, who contributed to the improper filing by dealing with 
Emerson under a prior name, or the secured creditor, who should 
have made certain that its interest could be determined from a 
search of relevant records. The court determined that the onus 
should be imposed on the secured creditor, who had the burden of 
showing that the discrepancy in debtor's name was not "seriously 
misleading." Also, consigned goods delivered after notice of 
filed financing statements are not property of the estate. 
33 B.R. 634 (Bankr. E.D. Pa. 1983) 

Judge 

Hon. Emil F. Goldhaber, Chief Judge, United States 
Bankruptcy Court for the Eastern District of Pennsylvania. 

Other Counsel 

% 
Counsel for Debtor: 
Pace Reich, Esquire 
Clark, Ladner, Fortenbaugh & Young 
2005 Market Street, 21st Floor 
Philadelphia, PA 19103 
(215) 241-1330 

(continued) 



Litigated Matters - page 15 






179 



Counsel for Creditors Committee: 
David S. Hope, Esquire 
Stradley, Ronon, Stevens & Young 
2600 One Conmierce Square 
Philadelphia, PA 19103-7098 
(215) 564-8168 

Counsel for other secured creditor: 
Howard T. Classman, Esquire 
Blank, Rome, Comisky & McCauley 
Four Penn Center Plaza 
Philadelphia, PA 19103 
(215) 569-5568 



Msoo.i Litigated Matters - page 16 



180 



10. Schweibert v. Schweibert [Philadelphia Court of Common 
Pleas, September Term, 1975; No. 4769; Civil Action - 
Equity) 

HiiimniiT-y 

Suit in the Court of Common Pleas of Philadelphia County by 
a wife against her psychiatrist husband for enforcement of the 
terms of a separation agreement. 

Defendant husband. 

iBSues Litigated 

The matter was ultimately settled, but not without 
substantial discovery and negotiation involving the interplay of 
equity, domestic relations, and the meaning of legal terms and 
conditions in accordance with their intent. 

Significance of IsBues/Ultimate Disposition 

The legal issues were less significant than the learning 
experience for me, personally, to be dealing with a dispute of 
this nature in a commercial context. The matter was ultimately 
satisfactorily resolved by negotiation of a definitive agreement 
that had the clarity lacking in the originally negotiated 
separation agreement. The significance to the client was 
probably much greater than the significance of any other matter I 
have worked on. 

Judge 

Hon. Calvin Wilson, Judge of the Court of Common Pleas for 
the County of Philadelphia. 



other CouHBel 

Jerome Charen, Esquire 
(current address unknown) 



revised in LAH 12/3/93 1:45 pm 

PORHElt RAKE! WTSt (MDOl.iai.CTJOOaniF.Sn rtMMJ. 10/03/t] 

14S00.1 Litigated Matters - page 17 



181 



FINANCIAL DISCLOSURE REPORT JS5r>;.r:.«^»riMj 



■•part » i l ii <r » ^ ^ tte BxUea 
'rtora kct of >••>, »uti. L. la. 



II v.i.c^. Avp. t, iiioi-ua) 



I Itnrrm tUtx i 



tint. BlMU lalUal) 



FEWPgLL. M»riorl« O. 



1. GDOt 

anlt*a states Olstriet Court 
for to* Bastarn Siatrict 
of Pannaylvanla 



a. ana mt Mfact 



11/29/93 



4. UUa (ArUcl* III ]«<fM Imtiamxm mnxi* or 

>[odoa,^UnrteS"statas Siatrict 
Court for tna Eaatarn Sistric 
of Pannsylvania 



ct 



X _^w. ,^ 11/19/93 
IBltlal __ ■Mill __ WtaH 



1/1/92 - 11/1/9; 



'iRfana, Morria i'Siackacbar 
Ob* Llbarty Plaea, 42nd rioor 



thiladalphia, fA 19103-7396 



X; It 





thtTtONEfcs te aadi atetiaa «hHc TOO tete ao' 



*D parti, 
itpartablflBfcfattan. j^ jw Jon ii^ge. 



I. POSITIONS. (Rqxntiat indivldnil oii))r, tee pp. 7^8 of Inttniaions.) 

yOSrnON NAME OF ORGANIZATlON/ENTrrV 



n 



NONE llo rapotUUa foaltloaa) 



PLEASE SEE ATTACHMENT 



II. AGREEMENTS. (Reporting indnidua] only, tee p. 8-9 of Instructions.) 
J2ME PARTIES AND TERMS 



n 



NONE (Bo svportabl* affraaaasta) 
9/1/93 (c) On or about September 1, 1993: Oral agreement 



between Duane, Morris t HecKachar and Marjorie 0. 



Rendell, whereby Duane, Morris s Heckscher 



III h.ie^k.t it.n.i^r\^ii^k.rr t^tf\r\il^ ICOntinuea on ATTACHHENT) 

ill. NON-INVESTMENT INCOME. (Rqmning indiviifua] and tponse; iee pp. 9-U of Instructions.) 



n 



DATE 
(Honoruia only) 



SOURCE AND TYPE 



GROSS INCOME 
(youis, not spouse's) 



NONE (la wportatla aaa-lnaataan Smom) 



VI 


-12/31/92 


1/1 


-10/31/93 


1 


4 



Duane, Morris fi Beckscher 
Partner (gross) compensation 



Duane, Morris S Heckscher 
Partner (gross) compensation 



City of Philadelphia 
Compensation to Mayor (S ) 



(continued on ATTACHMENT] 



$ 


179,662.00 


$ 


133,333.30 


s 


s 



182 



FINANCIAL DISOjOSURE REPORT (cosi'd) 



RENDELL, Marjori* O. 



Bau of tmpon 
11/29/93 



IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment 

~ ' ' " ! ID toeoat nd iiiiintiBt ckDteae ate Ibe avtotbctkili *(B)' and *(PC)* to tndlcMt i Miauite 
I ad (Uli wtBtttit tj Wfaam nZ dcpcodcot chUdio. Wi| »ii L I I »« <> . Bm ppJ3-U €< ImOiiakM.) 

SfiEBa PESomnoN 




V. OTI-IER GIFTS. (iDcluda tbow to ipoose and depeodcnt cfalldnn; om the puatiMtleals '(S)* and '(DC)* to 

■ "■ 1 depo * -. . _ 



Indicate other fUU rccclvtd by ipoiue aod dependeol children, r wp ectlvely. See pp.l5-li of Instmcttoot.) 



n 



SOURCE 
NONE (SO aaok nperuUa (Itu) 



DESCRIPTION 



VALUE 



NOT APPLICABLE 



Vi. LIABILITiES. (Indada tboie of ipooie and dependent efaOdrenj indicate when applicable, penoo rcxpoosttiic 
for Uibllity by nslns the parenthetical *(S)' for (epante Uabllltv of noDse, *(J)* for Joint lUblUty of icportlns 
Individual and tpousc, anT'(DC)' for Uablllty of a dependent chUd. ^ pp.l£-18 of^lnftnictloot.) 



n 



CREDITOR 
NONE (00 1 



DESCRgnON 



VALUE CODE' 



Meridian Bank (j) 



Meridian Bank (J) 

Cape Eavlngc Bank (J) 
(refinancea by 
"Home Savinga Bank 
in May 1992) 



Line of 


Crediti 


personal 


Line ot 
debt 


Credit, 


campaign 


One-hall 


of Bort 


gage 


on 


vacatior 
used as 


duplex 
vacatior 


(one unit 
homei one 


ranted to othera) 





9 -• Iii9,«w ar iMi . I • us.aoi «■ «M,eoo <t • «te,ooi v> tieo.eoo » • «ioo,ooi «■ <iM,afO 

a • «i5o,ooi to •sao.soo « - asae.oo> <a ti>ooo,eoo t • nan tau (1,000,000 <',v'' 



183 



FINANCIAL DISCLOSURE REPORT (cont'd) 



wa of r«r«OA teporclsg 
KENDELL, Marjorie 0. 



Oat* or toport 
11/29/93 



VIL INVESTMENTTS and TRUSTS - income, value, transactions. 

and li i fwi r lrnt chfldra; nc pp. U-rr af l uni ii utom .) 







■RT 



*os. 



au,-fc 



«rasi valva 

St aoA ef 



TUT 






-nr 



i .C f * , >^ i j?kV * 



i: 



If stfV aBuayx Ina «iael««u« 



■UT" 



TO 



'^l 



I — I w<yB '*!,'Trr 



teine* Caor^a Co. KD BSG 



!)ONE 



Kk BFA KTFM GTD KTG CTF 
rWMA 



40NE 



MA HFA HSG Sr B 

Ereq 2000 10.4% TECA 



10NE 



Aaericon Tel S Tel 



div. 



General Electric 



div. 



Public Service Enterprise 



div. 



KP TaxExempt Honey Market 



div. 



DMC T/F Income Trust PA 
(J) 



div. 



buy 



.1/17 '92 



Unit Trust Muni Inv Tr 
Fd PA ser 14 (J) 



int 



°Muni Inv Tr 



iB£_ 



KP Tax Exempt Money 
Market (J) 



div 



Huffy Corp (dc) 



div 



Meridian Baneorp (dc^ 



div 



Toys R Ue (dc) 



div 



KP Govt Income Fd (dc) 



div 



YV T^y^ty Tnr-nwg Fd (de) 



div 



XP Cash Reserve Money 
M)ct (dc) 



div 



CTF Acrl Tsy Sr W 
11/15/98 (dc) 



NONE 



E I Dupont (dc) 



div 



Hulfy Corp. (dc) 



div 



(see a tach id con 



inua:ion page) 



laaomt/Otla CMMi a^l.aoo at laai 



V«lu«^dut 



■ J-SU.OOC ai i««a 



T-a>B.ooi tc iieo.aeo 



e^2,«oi to s<ooo D'H.mi to ris.ooo 



H cooa to iieo.aeo »*s>eo.eoi to ii.doo.doo »-Mor« th«e ii.ooo.oec 



<««. eel, ei «B3t ii^MO.Bai to tioe.oeo o-iioo.eoi te ii.bdo.boo ywo uit. ii.doo.doo 

YnSTStSSrSSSmSi SHt^SUn lMo«t tnal wuto only J cUHiunt ^ ..s>c*u/iuxkat 



J VUao MUatf coteai ^A^^oiul 

(••• em. a) ^»isok «*im 



'^■'i rrn 



184 



FINANCIAL DISCLOSURE REPORT (eoat'd) 



RQIDELI., Marjorie O. 



Data of topen 
11/29/93 



VIL INVESTMEhfTS and TRUSTS - Income, value, transactions 

mA <i|»ilm tMMwei mm py. IfcT if iMrmllim) 



> . • - '^ mt ■■■■II T^'r :-'-: 




COWTINUATION PAGE 



Maridian Bancozp (dc) 



KP Cash Raserve Money 
Mkt (dc) 



5034 Asbury Avenue 
Ocean City, NJ (J) 



Duane, Morris t HecKscher 
capital account 



401-K at Vanguard Fidu- 
ci ary Co., Valley Forge 



HS-10 Provident Capital 
Mgint., Inc., Phila. 



IKA - National Home Life 
Assurance Co. 



IRA - Delaware Group (S) 



401-K at Vanguard (S) 



IRA - National Home Lxte 
Assurance Co. (S) 



Trusts: See ATTACHMENT 



div 



div 



int 



NONE 



NONE 



NONE 



NONE 



NONE 



NONE 



A 



1 HI— irctii «»«Mi •■ii.eoo ar iMt »ii,en w w,t«« f«i,ioi *• i,m« aHt.Mi u iii.eoo 



5 (a.^giiJ ! * "' ' !:m:iagUi;'" — KlUiSi K W.i^ — !:iU!tR ' aMli?SS4°^^ t:nM.artl'iSIg:S8l 









T>Cu£/MaTkat 



185 



FINANCIAL DISCLOSURE REPORT (cont'd) 



tUMm o< Pmrmoa toperUAp 
JUNDELL, Harjorle O. 



tet* of Itapcrt 
11/29/93 



VIII. ADDITIONAL INFORMATION or DCPLANATIONS. 



IX. CERTIFICATION. 

Id oonpliaoce widi the provisions of 2S U5.C t 455 and of Advisory Opinion No. 57 of tbe Advisory Cbmminee on 
Judidsl Activities, and to the best of my knowledge at tbe time after reasonable inquiry, I did not perform any adjadicatory 
function is any litigation during the period covered by this report is which I, my spouse, or my minor or dependent childrea 
had a financial interest, as de&sed in Canon 3C(3)(c), in the outcome of such litigatioiL 

I certify that all isformation given above (including information pertaining to my spouse and minor or dependent children, 
if any] is accurate, true, and complete to the best of my knowledge and beiiet, and that any information not reported was 
withheld because it met applicable sututory provisions permitting noD.disclosure. 

I further oeniiy that earned income from outside employment and honoraria and the acceptance of gifts irtiicb have been 
reported are is compliance with the provisions of 5 U.S.CA. app. 7, { SOI el seq., 5 U.S.C t 7353 and Judicial Conference 
regulations. 



Signature , 



NOTE: ANY 
MAY BE SUBJECT 




Due 



11/29/93 



RENDELL 
AL WHO KNOWINGLY AND WILFWiY FALSIFIES OR FAILS TO FILE THIS REPORT 
AND CRIMINAL SANCnONS (5 U.S.CA. APP. 6, t 104. AND 18 U.S.C S IWl.) 









RLINO INSIRUCnONS: 


MaD 


signed ori^nal 


and 3 additional 


copies to: 


Judicial Ethics Oommirtee 
Administrative Office of the 

United Slates Conns 
Washiogton. DC 2QS44 



186 



Marjorie O. Rendell 



Attachment to 

Financial Diaclosura Report 

dated Hovenber 29, 1993 



I. POSITIONS. 
I>ir«ctori 



Associate 
Trustee: 



Officer: 



Partner: 



Philadelphia Bar Foundation 
Acadeay of Vocal Arts 
Avenna of th* Arts, Zae. 
Bast Falls Advisory Board 

of the Chestnut Bill National Bank 
Market Street Bast la^rovenent 

Association 
Pennsylvania's Can^aign for Choice 
Philadelphia Friends of Outward Bound 
Visiting Nurse Association of 

Greater Philadelphia 
Visiting Nurse Society 



University of Pennsylvania, by reason 
of serving on the Athletic Advisory 
Board 

Visiting Nurse Association of 

Greater Philadelphia (Vice Chair) 
Avenue of the Arts, Inc. (Vice Chair) 

Duane, Morris & Hecks cher 



II. AGREEMENTS. ^ 

(continued) is to pay to Marjorie 0. Rendell, upon 
withdrawal from partnership, a termination payment equal to the 
average compensation received by her in calendar years 1991 and 
1992 (approximately $200,000), in one lump sum, or in two annual 
installments, at her option; terms now being reduced to %^iting. 
Partnership capital of Marjorie O. Rendell will also be returned 
upon withdrawal. 



ITJlS.l 



187 
Marjorie 0. Rendell 



Attachnent to 

Financial Oi* closure Report 

dated Movenber 29, 1993 



ZZI. MON-ZNVESIMEHT ZNCOME. 
(continued) 



I wee offered two honoraria during the reporting period, 
both of idiich were given instead, at my request, to Avenue 
of the Arts, Inc. (a non-profit entity which is developing a 
cultural district in Center City Philadelphia), as follows: 

Phi Beta Kappa Society, 

Philadelphia Chapter 5/92 $100.00 

Newcomers Club, 

Bryn Mawr, PA 9/93 $125.00 

As Mayor of Philadelphia, my spouse has been offered 
honoraria on many occaBions during the reporting period. He 
did not accept any honoraria during such period, but 
requested instead that contributions be made to the City of 
Philadelphia's Department of Recreation or to Avenue of the 
Arts, Inc. 



VII. INVESTMENTS AND TRUSTS. 

% 

While reporting person and spouse believe they are residual/ 
contingent beneficiaries of two family trusts, they have no 
current beneficial interests in, and receive no current 
income (or principal) distributions from, either of such 
trusts. 



17713.1 



188 



RKANOAL STATCMENT 
>?ET WORTH 



HASJORIE 0. RENDELL 
October 31, 1993 



Plovide t cenffctt, cvitM flMAcU BM ««fft ittttmeat whkh iienUtts In deun 
all tstett OncludLnt btflk aecouau, lul csuic, leeoridet, ttttstt, Inveitments. ind ether finaftdil 
lio1di»|i) all UablUtiet Onclttdlnf debtt, mongtie*. loam, tad Mhcr financial eblit«dent) of 
yeuncif, your ipeuse, and other inuncdiatc membeit of your bouiehold. 



Assns 1 


UABUTSS 


CWk«kw«M<iita*i 








tltmffMH»\iaa tiaatt • 
















lh>«Wii>5ifcWii ■«— il 






> 




^Q.Ad- 






N«.MiMi».M« 
























AmomU m< mui iMtlnUc 


' 






AmmmimCKSi*!* 








»Mft»mNUd<r«i«MKM<i 








UapiUintoMiu 








Z>iK bom odim 




. 




OOiv wptid ttx Mrf inttiwt 








Deabtfiil 








•cMid* (Sched. 2) 


140, 0( 







&»«] C4Utt ewnU-kdd Mh«au!« (Sched. 2) 


i60,000 






ChtBtl •wnmu in4 vlhtr Km pty. 








ItMl tiulc merlittu rstWikl* 








Oihu tfcbtJ-ittmlM: 








AwiM uii eOicr ptneet: praptfiy 


25,000 














Cm(i TiJut-Uft intvtnci 
















0>)m *ij:u-i»miu: 
















ERISA/IRA Plans 


193,000 








« 






























Ttti] SikaiilM 


547,0 


10 










V 


KttWetft 


394,9 


7 




Tout AMila 1 , 


41,947 






Tettl SiUIUu Hid M •>«« X , 


241,9 


7 




COVTINCENT UABnJTSS 








CEKEIUL ISTOXMATION 








Ai totami, aonukfr cr guuiBlDC 


0. 






At* aty UM'J f)«d|«<r (Ad) (dMd. 


no 






OBluMtarcMtaclc 









An yM icbBlinl Ir. Mgr loiti « bill 


no 






tttdQiIiM 









Ht«t Ten um Wbi bar^rvpc^f 


no 






rwvIilM for Fttfcnl Inoomi Tu 

















Oitar ipMU 4<U 


» 1 








^_ 





• 525,000 home equity line of 

credit availability at Meridian Bank 



189 

SCHEDOU: 1 
Securities - Values as of 10/31/93 

Mar-^oric O. Rendell 



American Telephone 

& Telegraph 
General Electric 
Massachusetts Housing 

Finance Agency 

(Dec. 1998) 
Massachusetts Housing 

Finance Agency 

(Dec. 2000) 
Prince Georges County, 

Maryland (Dec. 1997) 
Public Service 

Enterprise Group 



(Common Stock) 
(Common Stock) 

(Municipal Bonds) 



(Municipal Bonds) 

(Municipal Bonds) 
(Common Stock) 



$ 11,500,00 
19,400.00 



6,249.40 

5,286.50 
6,778.10 
6,725.00 

$ 55,939.00 



Mflrjorie Pt Rgndgll 

As Custodian for Jesse T. Rendell (depen dent child) 



Huffy Corp. 
Kidder Peabody 

Government Income Fund 
Kidder Peabody 

Equity Income Fund 
Meridian Bancorp 
Toys 'R' Us 



(Common Stock) 

(Mutual Fund) 

(Mutual Fund) 

(Common Stock) 

(Common Stock) 



$ 647.63 

2,627.96 

5,174.69 
3,050.00 
2,808.75 

$14,309.03 



(continued) 



19007.1 



190 



Edward G. Rendell <apouBe> 
As Custodian for Jesse T. Rendell ^dependent child^ 



Certificate of Accrual 
of Treasury Security 
(due November 1998) 

E . I . DuPont de Nemours 

Huffy Corp. 

Meridian Bancorp 



(Government Bond) 

(Common Stock) 
(Common Stock) 
(Common Stock) 



$ 3,870.35 

4,762.50 

981.25 

3,050.00 



$12,664.10 



Edward G. and Marjorie O. Rendell < jointly > 



DMC Tax Free 

Income Trust 
Municipal Investment 

Trust: 

Pennsylvania series 14 

Pennsylvania series 13 



(Mutual Fund) 



(Unit Trust) 
(Unit Trust) 



$ 3,124.00 



2,872.20 
538.38 



$ 6,534.58 



19007.1 



191 



SCHEDULE 2 



Real Estate Oimed and Mortgagee 



Property 



YaliiS 



Mortgag e 



3425 Warden Drive 
Philadelphia, PA 



$210,000 



$160,000 



b. 5032 Asbury Avenue 
5034 Asbury Avenue 
Ocean City, NJ 



$170,000) 
$180,000) 



$180,000 



Both mortgages held by 
United Savings Bank, Philadelphia, PA 



192 



UNITED STATES SENATE 

COMMITTEE ON THE JUDICIARY 

QUESTIONNAIRE FOR JUDICIAL NOMINEES 



I. BIOGRAPHICAL INFORMATION (PUBLIC) 

1. Full name (include any former name used.) 
Thomas Ignatius Vanaskie 



2. Address: List current place of residence and office 
address (es) . 



Current Place of Residence: Office Address; 

Elliott, Vanaskie & Riley 
Clarks Green, PA 600 Penn Security Bank Bldg 

127 N. Washington Ave. 
Scran ton, PA 18503 



3. Date and place of birth. 

November 11, 1953 
Shamokin, PA 



4. Marital Status (include maiden name of wife, or 
husband's name). List spouse's occupation, 
employer's name and business address (es). 

I am married to the former Dorothy ("Dot") G. Williams. 
Dot is currently a part-time student at Keystone Junior 
College in LaPlume, PA. She devotes a siibstantial (unount 
of her time to matters involving our children at our Lady 
of Peace School in Clarks Green, Pennsylvania. 



5. Education ; List each college and law school you 



193 



have attended, including dates of attendance, 
degrees received, and dates degrees were granted. 



College; 



1971 to 1975 — Lycoming College, Williamsport, PA 
B.A., Magna Cum Laude, May, 1975 



Lav School: 



1975 to 1978 — Dickinson School of Law, Carlisle, PA 
J.D., C\im Laude, June 1978 



6. Emplovment Record ; List (by year) all business or 
professional corporations, companies, firms, or 
other enterprises, partnerships, institutions and 
organizations, nonprofit or otherwise, including 
firms, with which you were connected as an officer, 
director, partner, proprietor, or employee since 
graduation from college. 

Summer of 1975 - following the completion of college and 
prior to the start of law school, I worked as a 
construction laborer. I cannot recall the name of the 
firm by which I was employed. 

Summer of 1976 - Internship as law cleric to the Honorable 
Genevieve Blatt, Pennsylvania Commonwealth Court, 
Harrlsburg, PA, and Internship at the Dickinson School of 
Law Library, Carlisle, PA. 

1976 to 1977 School Year - Internship in the Law Bureau 
of the Pennsylvania Public utility Commission, 
Harrisburg, PA. 

Summer of 1977 - summer Associate at Dilworth, Paxson, 
Kalish & Kauffman, Philadelphia, PA 

1977-1978 School Year - Legal Research Consultant to 
Clarence D. Bell (Delaware County) , Minority Chairman of 
the Consumer Affairs Committee, State Senate, Harrisburg, 
PA. 

September, 1978 to September 1980 - Law Clerk to the 
Honorable William J. Nealon, then Chief Judge of the 
United States District Court for the Middle District of 
Pennsylvcmia . 

September, 1980 to January 1986 - Associate in the 
Scranton Office of Dilworth, Paxson, Kalish t Kauffman. 



194 



January 1, 1986 through March 19, 1992 - Partner, 
Dilvorth, Pazson, Kalish & Kauffman. (In charge of the 
firm's Scranton office since January, 1987.) 

March 20, 1992 to the Present - Vice-President and Member 
of the Board of Directors of Elliott, Vanaskie t Riley, 
a Partnership of Professional Corporations, in charge of 
its Scranton, PA Office. 



7. Military Service ; Have you had any military 
service? If so, give particulars, including the 
dates, branch of service, rank or rate, serial 
number and type of discharge received. 

I have not had any military service. 



8. Honors and Awards ; List any scholarships, 
fellowships, honorary degrees, and honorary society 
memberships that you believe would be of interest 
to the Committee. 

M. Vashti Burr Award - Scholarship given annually 
by the Dickinson School of Law's faculty to the 
student deemed to be "most desezrving" having in 
mind his economic needs and the excellence of his 
industry and scholarship. 

"Book Award" for highest grade in Torts I. 

Member of the Dickinson Law Review Editorial Staff 
- Selection based upon ranking in the top ten 
percent of my class after the first year of law 
school. (Final rank was fourth in class of 140 
students. ) 

Member of the Dickinson Law School Appellate Moot 
Court Board - Selection based upon performance in 
legal writing and appellate moot court practice. 

Member of the Dickinson School of Law International 
Law Moot Court Team - Selection based upon academic 
performance. 

Member of the Dickinson School of Law's Woolsack 
Society - membership based upon outstanding 
academic achievement. 

Article published in the inaugural edition of the 
American Students of International Law Society 



195 



International Law Journal - Selection based upon 
competitive writing process. 

1974 - James A. Flnnegan Award - The highest award 
given by the James A. Flnnegan Fellowship 
Foundation. Selection Is based upon a competitive 
essay contest, academic performance, and personal 
recommendations. The award provided a six week 
Internship with a state governmental agency In 
Harrlsburg, PA. 

1974-1975 - Member and President of the Lycoming 
College Chapter of Omlcron Delta Epsllon, a 
National Economics Honor Society. 

1975 to present - Member of Phi Kappa Phi Honor 
Society. 

1975 - Lycoming College "Chieftain Award" - Given 
annually to the College Senior who. In the opinion 
of the students and faculty, had contributed the 
most to Lycoming College through support of school 
activities; had exhibited outstanding leadership 
qualities; had worked efficiently and effectively 
with the members of the college community; had 
evidenced a good moral code; and whose academic 
rank was In the upper half of the senior class. 
(Graduated Magna Cum Laude with a G.P.A. of 
3.87/4.00, majoring In political science with a 
concentration In economics.) 

1975 - Lycoming College "Tomahawk Award" - Given 
annually to the "outstanding male athlete" at 
Lycoming College. 

1974 - Selected to the First Team of the College 
Division Academic All-American Football Team; First 
Team of the Middle Atlantic Conference Football 
Team; Honorable Mention on the Associated Press All 
American Football Teeun, College Division; Honorable 
Mention on the Associated Press All State Football 
Team for both colleges and universities; Honorable 
Mention on the Associated Press All East Football 
Team In the College Division. 

1993 - Inducted into the Shamokin, Pennsylvania 
Chapter of the Pennsylvania Sports of Hall of Fame. 

1990 - Selected as a Member of "Who*s Who in 
Practicing Attorneys." 

1993 - Recipient of the Our Lady of Lourdes 



196 



Regional High School Alxunni Association Board of 
Governors' Award for significant contributions to 
the alimni organization. 



9. Bar Associations t List all bar associations, legal 
or judicial-related committees or conferences of 
which you are or have been a member and give the 
titles and dates of any offices which you have held 
in such groups. 

I am a member of the following bar associations and 
professional organizations: 

LacXawanna Bar Association 

Pennsylvania Bar Association 

American Bar Association 

Pennsylvania Trial Lawyers Association 

American Trial Lawyers Association 

Northeastern Pennsylvania Trial Lawyers Association 

Federal Bar Association 

American Judicature Society 

Z have served as Chair of the Continuing Legal Education 
Committee of the Lackawanna Bar Association from 1991 to 
the Present. 

Z was elected a member of the Board of Directors of the 
Lackawanna Bar Association in 1993. 

Zn 1993, Z was appointed as a member of the Board of 
Directors of the Northeast Pennsylvania Trial Lawyers 
Association. 

Zn 1992, Z was appointed to the Lawyers* Advisory 
Committee for the United States District Court for the 
Middle District of Pennsylvania. 

Zn 1993, Z was appointed to the Civil Justice Reform Act 
Committee for the United States District Court for the 
Middle District of Pennsylvania. 



10. Other Memberships ; List all organizations to which 
you belong that are active in lobbying before 
public bodies. Please list all other organizations 
to which you belong. 

American Bar Association, Pennsylvania Bar Association, 
Pennsylvemia Trial Lawyers Association and American Trial 



197 



Lawyers Association are active in lobbying before piiblic 
bodies. 

I served as President of Our Lady of Lourdes Regional 
High School Alumni Association from its establishment in 
1990 to May, 1993. I remain a member of the Board of 
Governors of the Alumni Association. 

I am a member of the Glen Oak Country Club, Clarks 
Summit, PA, and of the Paupack Hills Golf & Country Club, 
Greento%m, PA. 

Through my firm, I maintain memberships in the Scranton 
Area Chamber of Commerce, the Scranton Area Fotindation, 
and the Economic Development Council of Northeastern 
Pennsylvania. 



11. Court Admission : List all courts in which you have 
been admitted to practice, with dates of admission 
and lapses if any such memberships lapsed. Please 
explain the reason for any lapse of membership. 
Give the same information for administrative bodies 
which require special admission to practice. 

November 27, 1978 - Pennsylvania Supreme Court. 

November 3, 1980 - United States District Court for the 

Middle District of Pennsylvania. 

March 25, 1982 - United States District for the 

Eastern District of Pennsylvania. 

June 16, 1982 - United States Court of Appeals for 

the Third Circuit. 

April 18, 1983 - The Supreme Court of the United 

States. 



12. Published Writings ; List the titles, publishers, 
and dates of books, articles, reports, or other 
published material you have written or edited. 
Please supply one copy of all published material 
not readily available to the Committee. Also, 
please supply a copy of all speeches by you on 
issues involving constitutional law or legal 
policy. If there were press reports about the 
speech, and they are readily available to you, 
please supply them. 



198 



Comment, The State Sovereignty Doctrine Since National 
League of Cities v. Usery ; A New Constitutional 
Interpretation under the Commerce Clause, 81 DICK. L. REV. 
599 (1977). 

The European Patent Convention: State Sovereignty 
Surrendered to Establish a Supranational Patent, 1 A8IL8 
INTERNAT'L L.J. 73 (1977). 



I provided the "Civil Practice Update" at the 1990 
Lackawemna County Bench Bar Conference. The materials I 
prepared in connection with that conference consisted of 
case summaries covering approximately 100 decisions 
involving civil litigation matters under both Federal and 
State lav announced in the previous 12 months. 

In December of 1990 I provided a lecture titled "Federal 
Practice Update" at a seminar sponsored by the 
Pennsylvania Trial Lawyers Association in Scranton, 
Pennsylvania. 

In December of 1992 I made a presentation on the subject 
of "Trial Preparation" at a seminar sponsored by the 
Pennsylvania Trial Lawyers Association. 

Two Copies of the law review articles and one copy of the 
course materials I prepared accompany this <juestionnaire. 

13. Health : What is the present state of your health? 
List the date of your last physical examination. 



Excellent 
June 29, 1993 



14. Judicial Office ; State (chronologically) any 
judicial offices you have held, whether such 
position was elected or appointed, and a 
description of the jurisdiction of each such court. 

None . 



15. Citations : If you are or have been a judge, 
provide: (1) citations for the ten most 
significant opinions you have written; (2) a short 
summary of and citations for all appellate opinions 
where your decisions were reversed or where your 
judgment was affirmed with significant criticism of 
your substantive or procedural rulings; and (3) 



199 



citations for significant opinions on federal or 
state constitutional issues, together with the 
citation to appellate court rulings on such 
opinions. If any of the opinions listed were not 
officially reported, please provide copies of the 
opinions. 

Not applicable. 



16. Public Office ; State (chronologically) any public 
offices you have held, other than judicial offices, 
including the terms of service and whether such 
positions were elected or appointed. State 
(chronologically) any unsuccessful candidacies for 
elective public office. 

None. 



17. Legal Career ; 

a. Describe chronologically your law 
practice and experience after graduation 
from law school including: 

1. whether you served as clerk to 
a judge, and if so, the name of 
the judge, the court, and the 
dates of the period you were a 
cleric; 

Sept. 1978 to Sept. 1980 - Lav 
Cleric to the Hon. William J. 
Nealon, then Chief Judge of the 
U.S. District Court for the 
Kiddle District of 
Pennsylvania . 



2. whether you practiced alone, 
and if so, the addresses and 
dates ; 

I have not been engaged in the 
practice of lav by myself. 

3. the dates, names and addresses 
of law firms or offices, 
companies or governmental 

8 



200 



agencies with which you have 
been connected, and the nature 
of your connection with each; 

September, 1980 through 
December, 1985 - Associate in 
the Scranton, PA office of 
Dilworth, Pazson, Kalish & 
Kauffman. Our Scranton address 
was 600 Penn Security Bemk 
Bldg., 127 N. Washington Ave., 
Scranton, PA. 

January l, 1986 to March 19, 
1993 - Partner in the Scranton 
Office of Dilworth, Paxson, 
Kalish & Kauffman. I was in 
charge of the Dilworth Scranton 
office from January 1, 1987 to 
March 19, 1992. 

March 20, 1992 to the Present - 
Vice-President and member of 
the Board of Directors of 
Elliott, Vanaskie t Riley, a 
Partnership of Professional 
Corporations, in charge of its 
Scranton, PA Office. 



b. 1. What has been the general character 
of your law practice, dividing it 
into periods with dates if its 
character has changed over the 
years? 

The general character of my law 
practice has been general civil 
litigation, with particular emphasis 
in complex contract, commercial, 
environmental, employment, and 
products liability litigation. 
Prior to 1985 I was involved in some 
criminal defense matters. Since 
1985, however, I have restricted my 
practice to non-criminal defense 
matters. A small percentage of my 
practice has also been devoted to 
general representation of some small 
businesses. 



201 



2. Describe your typical former 
clients, and mention the areas, if 
any, in which you have specialized. 

Former clients include: 

Individuals in employment 
discrimination, trade secret, 
restrictive covenant, contract, 
commercial, products liability, and 
personal injury litigation. 

- Closely-held companies in commercial 
and contract litigation. 

Large publicly held companies in 
contract, commercial, and products 
liability litigation. 

American sxibsidiaries of foreign 
corporations in environmental, 
employment, and products liability 
litigation. 

A municipal authority in contract 
litigation. 

A legislatively established 
insurance organisation for no-fault 
automobile insurance benefits in 
statutory interpretation and 
insurance coverage litigation. 



c. 1. Did you appear in court frequently, 
occasionally, or not at all? If the 
frequency of your appearances in 
court varied, describe each such 
variance, giving dates. 

I have appeared in court frequently, 
having practiced in each of the 
three Federal District Courts in 
Pennsylvania, the Bankruptcy Court 
for the Middle District of 
Pennsylvania, the Bankruptcy Court 
for the Southern District of 
Florida, the United states Court of 
Appeals for the Third Circuit, the 
United States Supreme Court, the 
Pennsylvania Supreme, Superior and 
Commonwealth Courts, and the trial 

10 



202 



courts in Lehigh, Schuylkill, 
Northampton, Luzerne, Monroe, 
Laclcavanna, Pike, Wayne, Lancaster, 
Cumberland, Wyoming, Bradford, 
Dauphin, Lycoming, Philadelphia and 
Westmoreland Counties. I have also 
represented clients in matters 
pending before the Pennsylvemia 
Environmental Hearing Board luid the 
Pennsylvania Board of Claims. 



2. What percentage of these appearances 
was in: 

(a) federal courts; 
50% 

(b) state courts of record; 
45% 

(c) other courts. 
5% 



3. What percentage of your litigation 
was: 

(a) civil; 

Since 1985, one hiindre4 percent of 
my litigation has been civil 
litigation. Prior to 1985, 
approximately ninety- five percent of 
my practice was devoted to civil 
litigation and five percent of my 
practice devoted to criminal defense 
work. 

(b) criminal. 
See answer to (a) . 



4. State the number of cases in courts 
of record you tried to verdict or 
judgment (rather than settled) , 

11 



203 



indicating whether you were sole 
counsel, chief counsel, or associate 
counsel . 

I have tried to verdict or judgment in 
courts of record tvelve cases. In four 
of those cases I served as sole counsel; 
in six of those cases I served as lead 
counsel; and in the remaining two cases I 
served as associate counsel. 

I have served as lead counsel in taking 
over litigation following trials or 
arbitration hearings in at least six 
other separate matters. I was involved 
in the representation of these matters 
until final judgment. 

I have served as lead or sole coxmsel in 
approximately twenty cases that went to 
final judgment based upon case- 
dispositive motions, with approximately 
fifteen of those cases decided on the 
basis of a summary judgment record that 
included extensive discovery. 

Finally, I have served as lead or sole 
counsel in a number of cases that were 
settled following the start of trial or 
after the completion of extensive pre- 
trial discovery and the final pre-trial 
conference . 



5. What percentage of these trials was: 

(a) jury; (b) non-jury. 

Of the cases in which I have been 
involved that have been tried to verdict 
or judgment, two have been jury trials 
and ten have been non-jury trials. 
Approximately six cases were settled 
following the selection of juries and the 
commencement of trial. 



18. Litigation : Describe the ten most significant 
litigated matters which you personally handled. 
Give the citations, if the cases were reported, and 
the docket number and date if unreported. Give a 
capsule summary of the substance of each case. 

12 



204 



Identify the party or parties whom you represented; 
describe in detail the nature of your participation 
in the litigation and the final disposition of the 
case. Also state as to each case: 

(a) the date of representation; 

(b) the name of the court and the name of the 
judge or judges before whom the case was 
litigated; and 

(c) the individual name, addresses, and 
telephone numbers of co-counsel and of 
principal counsel for each of the other 
parties. 

A. Raqnar Benson, Inc. v. Bechtel Power Corp, 651 P. 
Supp. 962 (M.D. Pa. 1986), aff 'd mem. , 833 F.2d 303 (3rd 
cir. 1987) - Ragnar Benson, Inc. claimed that Bechtel 
Power Corporation ("Bechtel") had delayed its 
construction of cooling towers at the Limerick Nuclear 
Generating Station, located near Pottstown, Pennsylvania, 
allegedly resulting in Ragnar Benson incurring 
substantial cost overruns. I represented Bechtel, which 
counterclaimed to recover overpayments it had made to 
Ragnar Benson. Ragnar Benson's claims totaled more than 
$750,000. Bechtel *s counterclaim sought $250,000. 
Litigation involved thousands of records pertaining to 
construction of the cooling towers over a three year 
period. The case was tried in May of 1986 to the 
Honorcddle R. Dixon Herman of the Middle District of 
Pennsylvania. I bandied the examination and cross- 
examination of all witnesses, as well as presentation of 
all arguments and preparation of Requests for Findings of 
Fact and Post-Trial Briefs. Following a two wee)c trial. 
Judge Herman rejected Ragnar Benson's claims and awarded 
judgment in favor of Bechtel on its counterclaim. See 
651 F. Supp. 962 (M.D. PA). On appeal, the Third Circuit 
affirmed, without opinion. Serving as my associate 
coiinsel at trial was John L. Heaton, Esq., 521 
Transportation and Safety Building, Harrisburg, PA 17120, 
(717) 787-5473. Opposing counsel was Joseph Conway, 
Esq., 2510 One PPG Place, Pittsburgh, PA 15222, (412) 
471-8300. 

B. Czerw V. Grove Manufacturing Company , Docket No. 83- 
CIV-6005 - Plaintiff's husband was killed when the 
hydraulic firetruck ladder he was occupying in fighting 
a fire in Taylor, Pennsylvcmia contacted a high voltage 
line. I represented Grove Manufacturing company, the 
manufacturer of the ladder. Defense of this claim 
involved coordination of expert testimony from mechanical 

13 



205 



and electrical engineers as well as professional 
firefighters. Following a two week jury trial in 
Lackawanna Coxinty before the Honorable 8. John Cottone in 
October of 1988, a jury returned a verdict in favor of 
Grove Manufacturing Company. No appeal was taken. I was 
lead counsel at trial and conducted examination of all 
witnesses, jury selection and all arguments. I was 
assisted by Kevin C. Quinn, Esq. of my firm. Opposing 
counsel were Patrick E. Dougherty, Esq., Dougherty, 
Mundy, Leventhal & Price, 459 Wyoming Avenue, Kingston PA 
18704, (717) 288-1427, Paul J. Drucker, Esq., Jablon, 
Epstein, Wolf & Drucker, Bellevue, 9th Floor, 200 8. 
Broad Street, Philadelphia, PA 19102, (215) 922-7100, and 
Marianne Gilmartin, Esq., Lenahan t Dempsey, Kane 
Building, N. Washington Ave., Scranton, PA 18503, (717) 
346-2097. 

C. Tiiwm tr. Llinas , Docket Ho. 86-13E - I represented 
Dr. Lawrence Tama in this action to enforce a covenant 
not to compete in a contract between Dr. Tama and his 
independent contractor. Dr. Llinas. The defendant 
claimed the right to pay liquidated damages of $50,000 in 
satisfaction of a two year restrictive covenant. Several 
attorneys had informed Dr. Tama that he could not enforce 
the restrictive covenant. Following a three day trial in 
July of 1986, Judge Williams, Senior Judge in Bradford 
County, enjoined Dr. Llinas from breaching the 
restrictive covenant. On appeal, the Pennsylvania 
Superior Court affirmed. Docket No. 00493HB686 of 1986. 
I was lead counsel and conducted the examination of all 
witnesses and argximents to the court. Opposing counsel 
was Howard Levinson, Esq., Rosenn, Jenkins & Greenwald, 
15 south Franklin street, Wilkes-Barre, PA 18701, (717) 
826-5600. 

D. United States v. Tabor Court Realtv. Scott F. Linde 
Party to the Agreement of Sale . 943 F.2d 335 (3rd Cir. 
1991), cert, denied . 117 L.Ed. 2d 413 (1992). - I 
represented Scott Linde, who had contracted to purchase 
approximately 600 acres of land in Lackawanna County from 
the court- appointed Receiver of the Raymond Colliery 
Companies. The total consideration was approximately 
$1.5 million. Linde had conditionally assigned his 
interests under this Agreement of Sale to Carrier Coal 
Enterprises. Following a hearing in January of 1989, the 
Honorable Malcolm Muir of the Middle District of 
Pennsylvania concluded that the assignment improperly 
interfered with the court-directed bidding process on the 
property in question. I represented Linde on appeal to 
the United States Court of Appeals for the Third Circuit. 
Carrier Coal Enterprises elected not to appeal. In order 
to prevail on appeal we had to establish that the 

14 



206 



district court had abused its discretion. In October of 
1989, the Third Circuit, in an unreported opinion, agreed 
with our position and reversed and remanded the matter to 
the district court for further hearings. Following a two 
day trial in April of 1990, the district court concluded 
that Linde had not acted improperly in entering into the 
assignment. There then ensued litigation between Linde 
and Carrier Coal Enterprises as to whether the Assignment 
remained in effect. The district court ruled in favor of 
Linde, but the Third Circuit reversed and remanded the 
matter once again. See 943 F.2d 335 (3rd cir. 1991). 
The Supreme Court denied certiorari. 117 L.Ed. 2d 413 
(1992). On the second remand the district court foxind in 
favor of Carrier Coal Enterprises, and the Third Circuit 
affirmed without opinion. Opposing counsel were Thomas 
P. Brennan, Esq., Gallagher, Brennem & Gill, 300 First 
Eastern Plaza, 60 Pxiblic Square, Wilkes-Barre, PA 18701 
(717) 824-3208, and Joseph G. Ferguson, Esq., Rosenn, 
Jenkins & Greenwald, 15 8. Franklin Street, Wilkes-Barre, 
PA 18701 (717) 826-5600. 

E. EcXerslev V. WGAL-TV. Inc. . 831 F.2d 1204 (3rd Cir. 
1987). - This litigation, brought in the Middle District 
of Pennsylvania under the Employee Retirement Income 
Security Act, was the sec[uel to a settlement of 
litigation in the Eastern District of Pennsylvania 
concerning Mr. Eckersley's entitlement to a bonus based 
upon the net profit realized on the sale of a 
Massachusetts television station. We claimed that the 
amount received in settlement should be included in the 
calculation of Mr. Eckersley's retirement pension. Judge 
Kosik of the Middle District of Pennsylvania ruled in 
favor of the defendant. On appeal, however, the United 
States Court of Appeals for the Third Circuit agreed with 
our position and reversed the district court ruling. See 
831 F.2d 1204 (3rd Cir. 1987). Opposing counsel was K. 
Jane Fankhanel, Esq., Fulbright and Jaworski, 666 Fifth 
Avenue, 31st Floor, New York, Mew York 10103, (212) 318- 
3000. 

P. Stark V. Pennsylvania National Mutual Casualty 
Insurance Company . Docket No. 23 of 1987 - Donna Stark, 
a member of the Honesdale Borough Police Force, was 
involved in a high speed chase of a reckless driver. The 
police cruiser occupied by Officer Stark spun out of 
control and slammed into a parked vehicle. The vehicle 
Officer Stark was chasing was uninsured at the time of 
the accident. We brought an action against the uninsured 
motorist carrier for the Borough of Honesdale, which 
defended on the ground that it enjoyed the Borough's 
workers' compensation immimity. This defense was based 
upon Pennsylvania Supreme Court precedent pre-dating the 

15 



207 



1984 Pennsylvania Motor Vehicle Financial Responsibility 
Act. In May of 1989, the Hon. Robert Conway of the Court 
of Common Pleas of Wayne County ruled in favor of the 
insurance company. We appealed to the Pennsylvania 
Superior Court (Docket Nos. 01601-PHL-89 and 01602-PHL- 
89), arguing that the Pennsylvania Supreme Court 
precedent was no longer applicable in light of the 1974 
legislation. The Superior Court agreed, xruling in 
Officer Stark's favor on this issue in 1990 in an 
unpublished opinion. The insurance company was 
unsuccessful in its efforts to have the Pennsylvania 
Supreme Court hear the case. My representation in this 
matter began in 1987 and continues to the present. 
Opposing counsel is Howard Levinson, Esq. , of Rosenn, 
Jenkins & Greenwald, 15 S. Fremklin Street, Wilkes-Barre, 
PA 18701, (717) 826-5600. 

6. Allegheny County Sanitary Authority v. United States 
Bnvi ro^iw ental Protection Agency » et al. » 557 F.Supp. 419 
(W.D. Pa. 1983), affld, 732 F.2d 1167 (3rd Cir. 1987) - 

This action was brought in the United States District 
Court for the Western District of Pennsylvania to 
determine the entitlement of the Allegheny County 
sanitary Authority ("ALCOSAN*') to a multi-million dollar 
grant under the Federal Water Pollution Control Act. A 
principal issue in this litigation was whether the state 
environmental agency charged with administering the 
federal funding program was amenable to suit for alleged 
violations of the Federal Water Pollution Control Act. 
In an Opinion reported at 557 F.Supp. 419 (W.D. Pa. 
1983), the Hon. Hubert I. Teitelbaum ruled against 
ALCOSAN. The Third Circuit, in an Opinion reported at 
732 F.2d 1167 (3rd Cir. 1984), affirmed the trial court. 
I served as co-counsel in this litigation with Gov. 
Robert P. Casey. I was principally responsible for the 
preparation of the trial and appellate court briefs. 
Following the Third circuit decision, I assumed the role 
of lead counsel in this litigation, which was eventually 
decided in 1987 on a summary judgment motion. The trial 
court ruling on the summary judgment motion is not 
reported. Opposing counsel included Dean Diinsmore, Esq., 
United States Department of Justice (202) 633-2216; 
Mazine Woelfling, Esq. (717) 787-3483, now a member of 
the Pennsylvania Environmental Hearing Board; and James 
J. Kutz, Esq. , Eekert, Seamans, Cherin & Mellott, One 
South Market Square Building, 213 Market Street, 
Harrisburg, PA 17701. This matter was handled between 
1982 and 1987. 

H. Precision National Plating Services. Inc . v. United 
States P wtyi fftTiw ental Protection Agency - I served as lead 
counsel, representing Precision National Plating 

16 



208 



Services, Inc. ("Precision"), in litigation concerning 
the Environmental Protection Agency's "emergency powers" 
provisions under the Comprehensive Environmental 
Response, Compensation and Liability Act, as amended 
("CERCLA"), and the Safe Drinking Water Act. EPA had 
threatened to issue unilaterally an Administrative Order 
that could have resulted in Precision incurring hundreds 
of thousands of dollars in investigative and remedial 
actions that were not compelled by any imminent threat to 
public health or the environment. Initially, ve brought 
an action in the United States District Court for the 
Eastern District of Pennsylvania for immediate injunctive 
relief. No. 90-6813. Although ruling against Precision 
on jurisdictional grounds, the Hon. J. William Ditter 
expressed sympathy with Precision's "plight," observing 
that the record revealed that Precision had responded to 
all reasonable requirements imposed upon it by state 
environmental agencies and that the matter of which EPA 
was complaining certainly did not appear to involve an 
imminent threat to public health or the environment. 
1990 W.L. 191968 (E.D. PA 1990). Subsequently, EPA 
issued an Administrative Order, purporting to exercise 
its "emergency powers" under both CERCLA and the Federal 
Safe Drinking Water Act. Because jurisdiction over 
orders issued under the Safe Drinking Water Act is vested 
in the appellate courts, we caused to be filed a Petition 
for Review with the United States Court of Appeals for 
the Third Circuit. (Docket No. 91-3158.) Following our 
briefing of issues involving the proper exercise of the 
"emergency powers" provisions and EPA's authority to 
effectively enforce compliance with administrative orders 
through the threat of acczrual of substantial monetary 
penalties, EPA and Precision resolved the dispute in 1991 
on terms favorable to Precision yet protective of pviblic 
health and safety. Opposing counsel was Karen Kellen, 
Esq. , United States Environmental Protection Agency, 
Region III (3RC22), 841 Chestnut Building, Philadelphia, 
PA (215) 597-9800. 

I. Scranton Redevelopment Authority v. Pennsylvania 
Department of Transportation . Pa. Board of Claims Docket 
No. 658 — This action arose out of condemnation of 
properties in South Scranton. The Pennsylvania 
Department of Transportation ("PennDOT") had used the 
Scranton Redevelopment Authority as a condemnation agency 
to acquire a number of properties along a proposed right- 
of-way. PennDOT later scrapped its plans for the 
highway, and did not sign a proposed written contract 
with the Scranton Redevelopment Authority for the 
acquisition of the properties in question. An action was 
brought before the Pennsylvania Board of Claims, seeking 
to impose liability on promissory estoppel and contract 

17 



209 



theories. PezmDOT defended on the ground that no written 
contract between it and the Redevelopment Authority 
existed. We were retained following the Board of Claims 
trial to prepare proposed findings of fact, conclusions 
of law, and a memorandum of law. I was the principal 
drafter of our filings, which were submitted in 1983. 
The Board of Claims ruled in our favor in 1984. The 
matter was subsequently settled in 1985 on appeal to the 
Commonwealth Court, resulting in a substantial recovery 
for the financially distressed City of Scranton. I 
served as co-counsel on this matter with Governor Robert 
P. Casey and James W. Brown, Esq. 225 Main Capital Bldg., 
Harrisburg, PA 17120, (717) 787-5403. opposing counsel 
was Spencer Manthorp, Esq. , then Chief Coiinsel for 
PennDOT, Department of Transportation, Room 313, 
Transportation & Safety Building (717) 787-2063. 

J. Maid Rite Steak Co. v. United States , 643 F. Supp. 
1162 (M.D. Pa. 1986). — I, along with Morey M. Myers, 
Esq., represented Maid Rite SteeiX Co. ("Maid Rite") in an 
action challenging the Internal Revenue Service's denial 
of Maid Rite's attempt to obtain an investment tax 
credit. The principal owners of Maid Rite had 
erroneously claimed the investment tax credit at issue on 
their personal tax returns. An examination of the 
owners' tax returns disclosed that the owners were not 
entitled to the tax credit. Thereafter, Maid Rite 
attempted to claim the credit, but it was denied by the 
Internal Revenue Service. I was principally responsible 
for preparation of a brief in support of our s\immary 
judgment motion. The Hon. William J. Nealon ruled in 
favor of Maid Rite, concluding that the owners had not 
made a binding irrevocable tax credit election by 
erroneously and in good faith claiming the investment tax 
credit themselves. The court also ruled that, even if 
such election was binding, the Internal Revenue Service 
abused its discretion in refusing to permit the taxpayers 
to amend their return. The court's decision is reported 
at 643 F.Supp. 1162 (M.D. PA 1986). Opposing counsel was 
Stephen Carlton, (202) 724-6514, United States Department 
of Justice. Co-counsel was Morey M. Myers, Schnader^ 
Harrison, Segal g Lewis, First Eastern Bank Bldg., 
Scranton PA (717) 342-6100. 

19. Legal Activities ; Describe the most significant 
legal activities you have pursued, including 
significant litigation which did not progress to 
trial or legal matters that did not involve 
litigation. Describe the nature of your 
participation in this question, please omit any 
information protected by the attorney-client 
privilege (unless the privilege has been waived.) 

18 



210 



I served as lead counsel in a Civil RICO action 
concerning the efforts of a healthcare provider to 
circumvent Certificate of Need requirements to establish 
a radiation therapy center. Powers v. WiH ifl]ft**p?rt 
Hospital « et al. (M.D.Pa./ Docket 89-0059) I represented 
a radiation oncologist whose practice was threatened by 
the establishment of the competing radiation therapy 
center. Defendants were represented by prominent 
Philadelphia, Pittsburgh and Atlanta law firms. I 
coordinated extensive discovery efforts. The case, along 
with parallax litigation in the Middle District of 
Pennsylvania, the Pennsylvania Commonwealth Court, and 
the Pennsylvania Department of Health, ultimately 
settled. 

I 

A significant litigation matter which settled on the eve 
of trial was Condella v. Duo Fast Corporation (Lackawanna 
Coiinty, Docket 88-CIV-6187) . This was a products 
liability case in which I represented the plaintiffs. 
William Condella was severely injured when a nail from a 
nail gun discharged through his skull, embedding below 
the scalp line. Fortunately, Mr. Condella had not 
sustained severe neurological impairment. Extensive 
discovery yielded information concerning a design defect 
in the nail gun and negligent conduct on the part of the 
companies in charge of the construction site. The case 
was eventually settled under terms that will pay Mr. and 
Mrs. Condella more than $4.6 million. 

I provided pro bono representation to a local non-profit 
gymnastics training center in connection with its efforts 
to, secure a building at which to conduct its activities 
for the youth of this area. 

From 1991 to the present I have served as Chair of the 
Continuing Legal Education Committee of the Lackawanna 
Bar Association. In that capacity, I developed a program 
of monthly continuing legal education programs presented 
to members of the Lackawanna Bar Association. We have 
also invited students and professors of local 
universities and colleges to attend our presentations. 
I have also participated in the development of continuing 
legal education programs that satisfy the requirements 
for mandatory continuing legal education on ethics 
issues. 

I have served as a member of the Middle District of 
Pennsylvania Lawyers' Advisory Committee. The Committee 
meets with the Chief Judge of the District on a quarterly 
basis. Members of the Committee also attend the Third 
Circuit Judicial Conference. The Committee serves as an 

19 



211 



advisory group with respect to procedural and other 
practice-related issues. For example, during the time 
that I have served on the Committee we have provided 
advice with respect to the establishment of a Law student 
Practice Rule. 

In March of 1993 I was appointed to the Civil Justice 
Reform Act Committee for the Middle District of 
Pennsylvania. Our group meets on a periodic basis and 
has finalized a Civil Justice Reform Act Plan for the 
Middle District. 



20 



212 



UNITED STATES SENATE 

COMMITTEE ON THE JUDICIARY 

QUESTIONNAIRE FOR JUDICIAL NOMINEES 



II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 



1. List sources, amounts and dates of all anticipated 
receipts from deferred income arrangements, stock, 
options, uncompleted contracts, and other future 
benefits which you expect to derive from previous 
business relationships, professional services, firm 
memberships, former employers, clients, or 
customers. Please describe the arrangements you 
have made to be compensated in the future for any 
financial or business interest. 

Pursuant to a letter agreement dated August 12, 1993, my 
former law firm, Dilworth, Paxson, Kalish & Kauffman, has 
agreed to pay me a total of $5,000 in 1994 in four 
quarterly installments. This payment, as well as a 
$1,500 payment received in October of 1993, is in 
recognition of the fact that the recent settlement of a 
contingent fee case resulted in a substantial fee to the 
Dilworth law firm. 

Discussions pertaining to payment of a sum certain in 
recognition of my contributions to my present firm during 
1993 and as compensation for the value of my interest in 
the firm are presently ongoing. It is hoped that any 
payments will be completed prior to my departure from the 
firm. If not, both sides have agreed that any payments 
will be completed within 3 years of my departure, and no 
payments will be contingent upon the occurrence of any 
event or outcome of any litigation. 



Explain how you will resolve any potential conflict 
of interest, including the procedure you will 
follow in determining these areas of concern. 
Identify the categories of litigation and financial 
arrangements that are likely to present potential 
conflicts-of-interest during your initial service 
in the position to which you have been nominated. 



In determining those situations that mandate 
disqualification or require a careful evaluation of the 
circumstances to determine whether recusal is warranted, 
I will be guided by the Canons of the Code of Judicial 

21 



213 



Conduct of United States Judges, statutes governing 
disqualification of United states Judges, 28 U.S.C. §§144 
and 455, advisory rulings of the Committee on Codes of 
Conduct of the Judicial Conference of the United States, 
and applicable case law. 

I anticipate that during my initial service in the 
position to which I have been nominated conflicts of 
interest will arise if cases in which either the Dilworth 
law firm or my present law firm are counsel of record for 
any parties. I will establish a procedure by which I 
will not be assigned cases in which either of these law 
firms represent the complaining party for an appropriate 
period of time after the completion of any financial 
arremgements involving each of the firms. I will also 
establish a screening procedure to insure prompt recusal 
for that period of time once it is determined that either 
firm is involved in the litigation on behalf of a 
defendant. 

Mandatory, non-waivable disqualification is essential 
where, inter alia, the judge has "a personal bias or 
prejudice concerning a party, or personal Icnowledge of 
disputed evidentiary facts concerning the proceedings," 
28 U.S.C. §455(b)(l); or "[wlhere in private practice he 
served as a lawyer in the matter in controversy or a 
lawyer with whom he previously practiced law served 
during such association as a lawyer concerning the 
matter, or the judge or such lawyer has been a material 
witness concerning it." 28 U.S.C. §455(b)(2). A 
screening procedure will be established to determine 
whether mandatory non-waivable disqualification grounds 
exist. If such grounds exist, prompt notification of my 
recusal will be made to counsel for all parties. 

In those instances when litigation is assigned to me that 
involves parties previously represented by me or my law 
firm in matters luxrelated to the assigned case, the fact 
of my or my law firm's prior representation of a party to 
the litigation will be promptly and fully disclosed, and 
I will recuse myself if any party objects to my continued 
involvement in the litigation. Even if no party objects, 
I will recuse myself if I conclude that a reasonable 
person possessing Icnowledge of all the circumstances 
would "harbor doubts about [my] impartiality." Huff v. 
Standard Life Ins. Co. . 683 F.2d 1363, 1369 (11th Cir. 
1982) . 

I also recognize that it is my obligation to inform 
myself about personal and fiduciary financial interests 
of not only myself, but also my spouse eind minor 
children, to avoid the appearance of impartiality. See 28 

22 



214 



U.S. §455(c). In this regard, there are no "financial 
arrangements" to which I am presently a party, other than 
those involving my former and present lav firms, that I 
perceive are likely to present potential conflicts-of- 
interest during my initial service as a district court 
judge. 



3. Do you have any plans, commitments, or agreements 
to pursue outside employment, with our without 
compensation, during your service with the court? 
If so, explain. 

No. 



4. List sources and amounts of all income received 
during the calendar year preceding your nomination 
and for the current calendar year, including all 
salaries, fees, dividends, interest, gifts, rents, 
royalties, patents, honoraria, and other items 
exceeding $500 or more (If you prefer to do so, 
copies of the financial disclosure report, required 
by the Ethics in Government Act of 1978, may be 
substituted here.) 

See the attached Financial Disclosure Report, Form 
AO-10, Rev. 1/93. 



5. Please complete the attached financial net worth 
statement in detail (Add schedules as called for) . 



See attached. 



6. Have you have held a position or played a role in a 
political campaign? If so, please identify the 
particulars of the campaign, including the 
candidate, dates of the campaign, your title and 
responsibilities . 

I have served as Counsel to Governor Robert P. Casey's 
Campaign Committee since 1986. My responsibilities 
included communication with the Pennsylvania Bureau of 

23 



215 



Elections and rendering advice on the Pennsylvania 
Campaign Finance Law. I reviewed Campaign Expense and 
Contribution Reports for compliance with Pennsylvania 
law. 

I previously served on the Finance Committee for Gerald 
Stanvitch, a candidate for the Mayor of Scranton in 1993. 



24 



216 



UNITED STATES SENATE 

COMMITTEE ON THE JUDICIARY 

QUESTIONNAIRE FOR JUDICIAL NOMINEES 



III. GENERAL (PUBLIC) 



1. An ethical consideration under Canon 2 of the 
American Bar Association's Code of Professional 
Responsibility calls for "every lawyer, regardless 
of professional prominence or professional 
workload, to find some time to participate in 
serving the disadvantaged." Describe what you have 
done to fulfill these responsibilities, listing 
specific instances and the amount of time devoted 
to each. 

I have accepted appointments to represent indigent 
criminal defendants and indigent federal and state 
prisoners. The most recent occasion was in 1987 
and 1988, when I was appointed by the United States 
Court of Appeals for the Third Circuit to represent 
an inmate at the State Correctional Institution in 
Huntingdon, Pennsylvania, contesting his long term 
incarceration in "administrative segregation." I 
devoted more than 100 hours to the pursuit of that 
appeal . 

I accepted an appointment by the Third Circuit to 
represent an indigent prisoner in appealing from a 
federal court conviction ( United States v. 
Frankenberry , 696 F.2d 239 (3rd Cir. 1982)), and an 
appointment by the district court to represent an 
indigent defendant in a federal court trial. In 
each instance I devoted substantially more than 100 
hours in representing those clients. 

I have also accepted other court appointments to 
represent indigent defendants that did not proceed 
to trial. 

I have served pro bono as counsel to a non-profit 
corporation providing gymnastics training to 
hundreds of children in our area. Our 
representation was instrumental in establishing 
this non-profit training facility. I have 
volunteered for the Laclcawanna Bar Association pro 
bono project. I have provided pro bono 
representation to a n\imber of persons of low or 
moderate income who were unable to afford legal 

25 



217 



representation . 

I have served as a volunteer on the United Way 
Allocations Panel for Lackawanna County. 

I have served as a coach in Little League Baseball 
and youth basketball progreu&s. 

I helped establish and served as President of Our 
Lady of Lourdes Regional High School Alumni 
Association, which has been instrumental in raising 
money to fund scholarships for needy students. 
Since 1990, I have devoted well in excess of 200 
hours to the establishment of what is now a very 
successful alumni organization. 

I have volunteered as a speaker at youth programs 
at my children's grade school and have served as a 
moderator on class trip progreu&s. 

I have devoted more than 50 hours in establishing a 
successful ongoing CLE program for the Lackawanna 
Bar Association. 

Z devoted considerable time in preparing for and 
delivering presentations on continuing legal 
education matters to the members of the Lackawanna 
Bar Association. 

The American Bar Association's Commentary to its 
Code of Judicial Conduct states that it is 
inappropriate for a judge to hold membership in any 
organization that invidiously discriminates on the 
basis of race, sex, or religion. Do you currently 
belong, or have you belonged, to any organization 
which discriminates — through either formal 
membership requirements or practical implementation 
of membership policies? If so, list, with dates of 
membership. What you have done to try to change 
these policies? 



I have never belonged to any organisation which 
discriminates on the basis of race, sex or 
religion. 



Is there a selection commission in your 
jurisdiction to recommend candidates for nomination 

26 



218 



to the federal courts? If so, did it recommend 
your nomination? Please describe your experience 
in the entire judicial selection process, from 
beginning to end (including the circximstances which 
led to your nomination and interviews in which you 
participated) . 

Senator Harris Wofford established a Merit 
Selection Committee for the judicial vacemcies in 
the Middle District of Pennsylveuiia. The Committee 
was comprised of 11 persons, who came from a 
variety of backgrounds. I participated in the 
process established by that Committee, which 
included completion of a detailed questionnaire 
(not unlike this questionnaire) ; an initial 
Interview by a three-person panel of the 11 member 
Committee; submission of a writing sample; and a 
second interview conducted by the entire ll-member 
Committee. The Merit Selection Committee 
recommended me and 5 other applicants, from more 
them 60 applicants, to Senator Wofford. Senator 
Wofford selected me as his recommendation for one 
of the two judicial vacancies in the Middle 
District of Pennsylvania 

I was evaluated by the American Bar Association 
Standing Committee on the Federal Judiciary. The 
evaluation process included completion of a 
detailed questionnaire; submission of evidence of 
legal writing ability; interviews of judges and 
colleagues by a member of the ABA Committee; and an 
interview of me by that member of the ABA 
Committee. I have been informed that a siibstantial 
majority of the Committee approved a "well- 
qualified'* rating, the strongest affirmative 
endorsement provided by the Committee, while a 
minority approved a "qualified" rating. 

I have undergone an extensive background 
investigation by the Federal Bureau of 
Investigation. The investigation included 
completion of a detailed questionnaire and 
interviews of neighbors, friends, professional 
colleagues, judges, and others. 

I have also completed questionnaires of the 
Department of Justice, and I have participated in 
extensive interviews with attorneys in the 
Department of Justice. 

Has anyone involved in the process of selecting you 
as a judicial nominee discussed with you any 

27 



219 



specific case, legal issue or question in a manner 
that could reasonably be interpreted as asking you 
how you would rule on such case, issue, or 
questions? If so, please explain fully. 



No. 



5. Please discuss your views on the following 
criticism involving "judicial activism." 

The role of the Federal judiciary within the 
Federal government, and within society generally, 
has become the subject of increasing controversy in 
recent years. It has become the target of both 
popular and academic criticism that alleges that 
the judicial branch has usurped many of the 
prerogatives of other branches and levels of 
government . 

Some of the characteristics of the "judicial 
activism" have been said to include: 



a. A tendency by the judiciary toward problem- 
solution rather than grievance-resolution; 

b. A tendency by the judiciary to employ the 
individual plaintiff as a vehicle for the 
imposition of far-reaching orders extending to 
broad classes of individuals; 

c. A tendency by the judiciary to impose broad, 
affirmative duties upon governments and 
society ; 

d. A tendency by the judiciary toward loosening 
jurisdictional requirements such as standing 
and ripeness; and 

e. A tendency by the judiciary to impose itself 
upon other institutions in the manner of an 
administrator with continuing oversight 
responsibilities. 



It is imperative that a district court judge recognize 
that it is the judiciary's mandate to adjudicate 
disputes, and not to "solve problems." Disputes must be 
adjudicated by application of the governing law to the 
facts presented, not by re-writing the law or by 

28 



220 



considering hypothetical facts. Where legislation 
requires a particular result, the legislation may not be 
re-vritten to achieve what an individual judge considers 
to be a "more appropriate" result. 

The judiciary should not employ "the individual plaintiff 
as a vehicle for the imposition of far-reaching orders 
extending to broad classes of individuals." Although a 
decision in an individual case may have applicability to 
others, the extent to which that decision is applicable 
to others must await presentation of appropriate 
controversies and consideration of particular factual 
nuances that may distinguish one case from another. 

Furthermore, cases should be heard and decided only when 
brought by those having the requisite stake in the 
outcome and where there exists the necessary adversity of 
interests among the litigants. Otherwise, the doctrines 
of standing and ripeness are perceived as mechanisms by 
which litigation becomes a vehicle for "problem-solving" 
as opposed to concrete dispute adjudication. 

While the judiciary should refrain from "impos[ing] 
itself upon other institutions in the manner of an 
administrator with continuing oversight 
responsibilities," there are some limited instances when 
such action is appropriate. As a litigator, I have seen 
the necessity to establish continuing judicial oversight 
where resolution of a dispute involves regulation of the 
conduct of the parties. Continuing oversight 
responsibilities have long been recognized as appropriate 
where conduct of private parties or governmental entities 
imperils the economic or individual rights of affected 
parties. 

In short, Z believe it is the mandate of the judiciary to 
resolve concrete disputes presented by parties having the 
requisite adversity of interests and stake in the outcome 
of the litigation. Where necessary, the relief decreed 
by the judiciary must be adequate to safeguard the rights 
of the prevailing parties without resulting in excessive 
judicial entanglement in the other bremches of 
government. 



Z9 



221 



MTIPAYIT 



I ~T~H-cMA^ :r. l/AA//iS/^^t^ , do swear that 

the information provided in this statement is, to the best of my 
knowledge, true and accurate. 



Nov. /^. n^z 



(DATE) 



'TJZ.^J iA^^^~J^ 



(NAME) 



/[JuLyuoM f. AUMyCZ^ 



(NOTARY) 



30 



222 



FINANCIAL DISCLOSURE REPORT 



»« tiun Raqolrvd »r <»■ nttica 

tMSoim Act of 1919, Pub. L. lo. 

101.194, »llif riT 10, 19(9 

a u.a.c.A. App. e, (iioi-112) 



1. Parsoa Rsportiag (I^asl oAaa, tint., alddl* lolci«l) 

Vanaskie, Thomas I. 


2. Court or Organliatlon 


3. OaL* of Raport 

11/18/93 


4. Title (Article III ^\icgmn Indlcaca «ctlv« or 

aenlor status: Mdglttra^a Judgaa indicate 
fui-- or par'-tuiel 


5. Report "Typm (chacfc appropriata typa) 
X KoBlMtlon, Data 11/17/93 
Inltlai Annual Pioal 


6. Raporclng Pazlod 

1/1/92 to 10/31/ 


7. CTiABbmzt or Offiza Adorata 

12'? N. Washington Ave. 

600 Penn Security Bank Bldg. 

Scranton, PA 18503 


8. On tna Daaia of tna loforaatloo coouload io CAia daport. It 
la, Xa sy opinion. In coapllanca wltA applicabla lawa and 
ragulatieoa 

Reviawlng Offlcar Slonatura 


IMPORTANT NOTES: The instructions accompanying this form must be foUowftL Complete all parts, 
checking the NONE box for each section where you have no reportable information. S^ on last page. 



93 



I. POSITIONS. fReponing individual only; see pp. 7.s of Instructions.) 

POSITION NA.ME OF ORGANtZATlON/ENnTY 

I I NONE (So reporubla poalclona) 

1/1/91-3/20/92 Partner Dilworth, Paxson, Kalish b Kauffman 



3/21/92-Present Director 



Elliott, Vanaskie & Riley 



5/91-Present Director 



Our Lady of Lourdes Regional Bigh School Aluinni Assoc. 



i! AGREEMENTS. (Reporting individual only, s..s p. S-9 of Inilructions.) 
O^'I'H I'ARTIES .\.ND TERMS 



.om; 



\3 raportAbla jgreamanca) 



A.) 8/12/93 Agreement with Dilworth, Paxson, Kalish & Kauffman requiring payment tc -e of 
55,000 in 4 quarterly installments during 1994. 



B.) Participant in Dilworth, Paxson, Kalish & Kauffman Retirement plan 

■!. ..C-.\- .. H3TMENT INCOME. ,.:.^ 



Da; 



soL'RCE A\ -> -•?■; 



al and spouse; see pp. 9-12 of In»;ru^'. 

r.X' '- \COME 
l\>;.r^ • -pouse's) 



••iiini.-rar'.j . ?a\.) 

I I M).\E 

1/1/92-3/20/92 Dilworth, Paxson, Kalish i Kauffman (Parntership Income) 543,.. ■ 



rd=crtabla -or.-'.nveataont i.-.c..:«' 



3/21/92-12/31/92 Elliott, North, Siedzikowski & Vanaskie, P.C. (Salary) $ 122. -tS 



1/1/93-10/31/93 Elliott. North. Siedzikowski & Vanaskie. P.C. (Salary) Slil.-- 
4 

in/q-^ Dilworth, Paxson, Kalish i Kauffman (contract payment) S l.sc : 



223 



FIN;Q<CIAL disclosure report (cont'd) 



UaMm of Pttrson fl«portla9 
Vanaskie, Thomas r. 



Mta at 



% i.r.~ 



^ii • 



IV. REIMBURSEMENTS and GIFTS- transportation, lodging, food„^ntQrtainment 

(Includes those to spoa»e and dependent children: use the parentheticals "(S)" and "(pC)' to Lndlcate reportable 
reimbursemenlx and gifts received by spouse and dependent chiidren, respectively. See pp.13-15 of Inslructjoiu.) 

SOUKCE _ DESCRIPTION. , ...^ „ . _ . - ^.— — 



Q 



' NONE (No such rttportabla r«labur««a«nt.a gx glftaj 
EXEMPTED 






■9? -..^^l«r« -ttfi! 




- 


■w^/-^ •" C!.H aV0 










^_.^. . „« 


■^«»i -:*#i- /^«ms«n r^v*f>*— ^' . 




_ -- 


^■•s, .. -^?»»»# :'-« '^■»-' - 


,.. ---.»_., ;^,,- 



V. OTHER GIPTS. (includes those to spons» and depfndrnt fhlhtot' lisF'the pareiitEetiaUs "(S)' and '(DC)' to 
^^ indicate other gifts received by spouse and dependent children, leiptct lt ely. 



Q 



SOURCE 

^ I NONE (NO sucB caporubla glft«) 



DESCRIFIB3N 



^ee'Pp.15-16 of Instructions.) 

VALUE 



EXEMPTED 



-_ $_ 



VI. LIABILITIES, (includes those of spouse and dependent children; indicate where applicable, person R-vp<insible 
for liability by using the parenthetical "(S)" for separate liabilitv of spouse, "(J)" for Joint liability of rxjjorting 
individual and spouse, and '(DC)* for liability of a dependent child. See pp.L6-l8 of^Instnictions.) 



n 



CREDITOR 



NONE iHo reportabla llabilltlaa} 



DESCRIPTION 



\ M M CODE* 



1 2/92 Loan from my retirement account under the Dilworth, Paxson, Kalish 
& Kauffman Retirment Plan^ 



VALUI COOIS: J - SIS.OOO or laaa I - S15,0Ol to S50.000 I • 350,001 to SIOO.OOO M • 5100.00: 
H ■ 5250,001 to 5500,000 o • $500,001 to SI,0C0.000 P - Mora tttan 51,000,000 



224 



FINANCIAL DISCLOSURE REPORT (canfd) 



■•■• of Fftrvoa RapordDQ 

Vanaskie , Thomas J - 



^A.iT.r.^h'^ 



D«c« Of Raport 

11/18/93 



VII. INVESTMENTS and TRUSTS - income, value, transactions, (includes those of spouse 

and dependent children; see pp. lft.27 of Instructions.) 



CXBcrlprlon of A«a*ts 

(liieliidlng trust *m—ZM) 

Indicate, wbara appllcabla, ovn«r of 
cha aaBat Cry ualag tJia oAranthacical 
"(J)' far lolnt ownar»hlp of report- 
ing indiviauai And Bpouaa, *[Sj"' for 
■•p«r«ta owfiaratup by apouaa, *(DC)" 
for owns «nip Dy dapaiulant calld. 

Plac* '(X)' afCftT aACh aaavt 
cxaapt iroB prlojr discloaura. 


B. 

Incon* 

during 

raportlng 

parlotf 

1 


c. 

Oroaa valoa 
at end of 


0. 
Traaaaetlona during raportLog parlod 


IK 
coaa' 

l»-B) 


(2) 

dij.; 

raat ox 
lot.r 


(I) 

Valoa? 
Coda'' 
(J-P) 


(2) 

valua 

Matnod,. 

Coda^ 


buy, a* 11. 
aargar. 

tlonT 


It nov aj(»«pt troB dlacloaura | 


LIL: 

Hontb- 

Day 


(3) 

Valoa, 

Coda^ 
tJ-Pl 


(«) 

Gain, 
coda' 


Tdantlty of 
bavar/aallar 
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1/1/92 - 12/31/92 - 


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Dilworth, Paxson, 




















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1/1/93 - 10/31/93 


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A 


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rsaa Col. B^ t D«) E-S15.001 to SSO.OOO F-SSO,001 to S'.OO.OOO C-5'.00,001 to 51,000,000 S-Mor« If- : :00 


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(Saa Col. C2) U-BooH Valoa v^othar w-Sitlaatad 



225 



FINANCIAL DISCLOSURE REPORT (cont'd) 



\mmm of P«r*an lUporrlag 

Vanaskie, Thomas I. 



Oat* oC ] 

11/18/93 



VIII. ADDITIONAL INFORMATION or EXPLANATIONS. (ia<uci«< 



pait of Report.) 



VII. 


Investments 


m 


my 


retirement 


account 


are self-dj.rectedt 


bu^^are not 


owned individually 


by 


me 


or my 


spouse. 


"An 


accpunt statement, f 


or the 


month 


ending 


September 30, 


1993 


... the 


most 


current 


statement' in my possession. 


is- attached 


hereto 


as 


Exh 


ibit 


"A". 


The 


account statement ' identifies 


the 


investments 


in my retirement, account as, 


i)XlO/31/93._"t":-' 


























-" - • . ^-i ^ x; z^ ■ I . .1 


. .., - 




^_ 



--■'-■■' - ■ :.-. 




IX. CERTIFICATION. .- .r . ■ - - -^ ■ 



In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisoiy Committee on 
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory 
function in any btigation during the period covered by this report in which I, my spouse, or my minor or dependent children 
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation. 

I certify that all information given above (including infurmaiion pertaining to my spouse and minor or dependent children, 
if any) is accurate, true, and complete to the best of my knowledge and belief, and thai any information not reported was 
withheld because it met applicable statutory provisions pi.rmitiing non-disclosure. 

I further certify thai earned income from outside (.t^n'.'vnLni and honoraria and the acceptance of gifts which have been 
reported are in compliance vnth the provisions of 5 L > i \ jpo. 7, § 501 et. seq., 5 U.S.C. § 7353 and Judicial Cooferenoe 
re<>ulations. 



Signature l_ 



Date 



NOTE: ANY LNDIVTDUAL WHO KNOWINGLY 
.\1AY BE SUBJECT TO CIVIL ANT) CRLMINAL S A 



■^ I L FULLY FALSIFIES OR FAILS TO RLE THIS REPORT 
■ NS (5 U.S.C.A. APP. 6, § 104, AND 18 US C. !) UX)1.) 



RLING '^STRUCnONS: 



Mail signed original and 3 additional copies u< 



Judicial Ethics Committee 
Administrative Office of the 

United States Courts 
Washington, DC 20544 



226 




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your hOUSlhOid. L -h ^ ' ~p ■ 



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Real estate owned ia lln^^ted to our pejrsoaaljresidence located, 
at 102 Possun Hay, Clarks Green, Pennsylvania. 

The real estate mortgage payable is secured by our residence 
and is payable to Greentree Mortgage C6npanyt,^7600 ^omas Parkway, 
Mount Laurel, New Jersey. 

The secured note is payable to Mellon Bank, N.A., Scranton, 
Pennsylvania . 

The note payable to banks-unsecured, is payable to PNC Bank, 
Scranton, Pennsylvania. " 1- 

The notes payable to others is payable to' William Eynon, 
Dunmore, Pennsylvania. •- - • . t,!_ 

Accounts and bills due are as follows: 

Prinerica Mastercard - $ 4,900.00 

Citibank VISA - "T. Ibt . 00 '' "" - .r-., - 

Sears - 500.00 

Bon-Ton - 100.00 

J.C. Penney - 100.00 

The chattel mortgage is the note secured by an autcnnobilc and 
payable to PMC Bank of Scranton, Pennsylvania. 



230 



UNITED STATES SENATE QUESTIONNAIRE FOR JUDICIAL NOMINEES 
I. BIOGRAPHICAL INFORMATION (PUBLIC) 

1. Full name (include any former names used.) 

Helen Georgena Roberts Berrigan (nickname: Ginger) 

2. Address: Place of residence and office: 

Home: 4319 Hamilton Street, New Orleans, La. 70118 
Office: Suite 2150 Energy Centre, 1100 Poydras Street, 
New Orleans, Louisiana, 70163-2150 

3. Date and place of birth: 

April 15, 1948, New Rochelle, New York 

4. Marital Status ; (include maiden name and husband's name. 
List spouse's occupation, employer's name and business 
address) 

Married: Joseph E. Berrigan, Jr. My husband is an 
attorney and the senior partner of the law fiirm of 
Berrigan, Litchfield, Schonekas, Mann & Clement, Suite 
2150 Energy Centre, 1100 Poydras Street, New Orleans, 
La. 70163-2150. 

5. Education ; List each college and law school you have 
attended, including dates of attendance, degrees 
received, and dates degrees were granted. 

University of Wisconsin, 1965-69, B.A. 1969 in Psychology; 

American University, Washington, D.C., 1970-71, M.A. 
1971 in Communications; 

Louisiana State University, 1974-77, J.D. 1977 in Law. 

6. Employment Record ; List (by year) all business or 
professional corporations, companies, firms or other 
enterprises, partnerships, institutions and organi- 
zations, nonprofit or otherwise, including firms, with 
which you were connected as an officer, director, 
partner, proprietor, or employee since graduation from 
college. 

1978-present - Associate attorney, law firm of Gravel 
Brady & Berrigan, New Orleans, Louisiana; 

1990-1993 - Contract attorney with the Jefferson Parish 
Indigent Defender Board, Gretna, Louisiana; 



231 



Page 2 

6. Employment Record ; 

1984-present - Of counsel to the law firm of Berrigan, 
Litchfield, Schonekas, Mann & Clement, New Orleans, 
Louisiana; 

1977-1978 - Staff attorney, Governor's Pardon, Parole and 
Rehabilitation Commission, Baton Rouge, Louisiana; 

1975-1977 - Law clerk, Louisiana Department of 
Corrections; 

1973-1974 - Assistant to Charles Evers, civil rights 
leader and Mayor of Fayette, Mississippi; 

1972-1973 - Legislative aide (part-time, unpaid), 
Senator Joseph E. Biden, D-Delaware, United States 
Senate, Washington D.C.; 

1971-1972 - Staff researcher (part-time, unpaid) , Senator 
Harold E. Hughes, D-Iowa, United States Senate, 
Washington D.C.; 

1971 - Graduate assistant. Department of Communications, 
American University, Washington, D.C.; 

1970 - Administrative secretary, Boston College, Chestnut 
Hill, Massachusetts; 

1969 - Staff Assistant, University of Wisconsin Extension 
Madison, Wisconsin. 

7. Military Service : Have you had any military service? No. 

8. Honors and Awards ; List any scholarships, fellowships, 
honorary degrees, and honorary society memberships that 
you believe would be of interest to the Committee. 

None. 

9. Bar Associations ; List all bar associations, legal or 
judicial related committees or conferences of which you 
are or have been a member and give the titles and dates 
of any offices which you have held in such groups. - 

1977-present - Louisiana State Bar Association; 1983, 
Chairman of the Criminal Law Section. 

1986-present - Bar Association, Federal Fifth circuit. 



232 



Page 3 

9 . Bar Associations : 

1985-present - Louisiana. Association of Criminal Defense 
Lawyers; 1988-1993, Board of Directors; 
1990, Defense Attorneys Assistance 
Committee. 

1987-present - Louisiana Sentencing Commission, Member 
(appointed by Governor) . 

1988-1990 - New Orleans Association for Women 

Attorneys; Board Member, 1988-1989; 
Program Chairman, 1988-1989. 

1986-1988 - Louisiana Capital Defense Project, 

President. 

10. Other Memberships : List all organizations to which you 
belong that are active in lobbying before public bodies. 
Please list all other organizations to which you belong. 

1989-present - Committee of 21, President of the Board, 
1990-92; 

1989-present - American Civil Liberties Union of 
Louisiana, President, 1989-1993; 
Vice-President, 1993-present ; 

1990-present - Forum for Equality, Member of the Steering 
Committee, 1991-present ; Chairman-Elect, 
1992-1993; Chairman, 1993-present; 

1990-present - Amistad Research Center, Tulane 
University, Member of the Board. 

11. Court Admission ; 

List all courts in which you have been admitted to 
practice, with dates of admission and lapses if any such 
membership lapsed. Please explain the reason for any 
lapse of membership. Give the same information for 
administrative bodies which require special admission to 
practice. 

Court Date of Admission 

1. Louisiana Supreme Court 10/05/77 



233 



Page 4 



11. 



12, 



Court Admission : 

2. United States District Court 
Western District of Louisiana 

3. United States District Court 
Middle District of Louisiana 

4. United States District Court 
Eastern District of Louisiana 

5. United States Court of Appeals 
Fifth Circuit 

6. United States Army Court of 
Military Review 

7. United States Court of 
Military Appeals 



10/15/79 

11/26/79 

1/26/83 

10/01/81 

10/06/81 

7/31/80 



Published Writings : List the titles, publishers, and 
dates of books, articles, reports, or other published 
material you have written or edited. Please supply one 
copy of all published material not readily available to 
the Committee. Also, please supply a copy of all 
speeches by you on issues involving constitutional law or 
legal policy. If there were press reports about the 
speech, and they are readily available to you, please 
supply them. 

Louisiana Criminal Trial Practice . 2nd Edition, Harrison 
Publishing Company, Norcross, Georgia, 1992; 

Louisiana Criminal Trial Practice Formulary , co-compiled 
with Julian R. Murray, Jr., Harrison Publishing Company, 
Norcross, Georgia, 1990; 

Louisiana Criminal Trial Practice , co-author with Julian 
R. Murray, Jr. , Harrison Piiblishing Company, Norcross, 
Georgia, 1984; 

"The Purpose of Punishment", Blueprint for Social 
Justice . Loyola University Institute for Human Relations, 
1987; 

"Edward Livingston and American Penology" 37 Louisiana 
Law Review 1037 (1977). 

I have frequently been a speaker in continuing legal 
education seminars sponsored by the Louisiana State 



234 



Page 5 



University Law Center, Tulane University Law School, 
Loyola University Law School, the Louisiana Judicial 
College, the Louisiana State Bar Association and the 
Louisiana Association for Criminal Defense Lawyers. In 
connection with my civic and community activity, I have 
been a speaker for several groups such as the Junior 
League of New Orleans and the YWCA, and have also 
appeared on various programs on public television. 

13. Health ; What is the present state of your health? List 
the date of your last physical examination. 

My health is good. My last general exam: April, 1993. 

14. Judicial Office : State (chronologically) any judicial 
offices you have held, whether such position was elected 
or appointed, and a description of the jurisdiction of 
each such court. 

I have not previously held judicial office. 

15. Citations : If you are or have been a judge, provide: 
(1) citations for the ten most significant opinions you 
have written; (2) a short summary of and citations for 
all appellate opinions where your decisions were reversed 
or where your judgment was affirmed with significant 
criticism of your substantive or procedural rulings; and 
(3) citations for significant opinions on federal or 
state constitutional issues, together with the citation 
to appellate court rulings on such opinions. If any of 
the opinions listed were not officially reported, please 
provide copies of the opinions. 

Not applicable. 

16. Public Office : State (chronologically) any public 
offices you have held, other than judicial offices, 
including the terms of service and whether such positions 
were elected or appointed. State (chronologically) any 
unsuccessful candidacies for elective public office. 

In 1987, I was appointed by the Governor of Louisiana to 
serve on the Louisiana Sentencing Commission^ The 
commission was created by the Louisiana Legislature to 
promulgate sentencing guidelines in felony cases. I 
still sei-ve on that Commission, having been reappointed 
twice by successive governors. Republican and Democrat. 
I have never been a candidate for elective office. 



235 



Page 6 



17. Legal Career : 



Describe chronologically your law practice and 
experience after graduation from law school including: 

1. whether you served as clerk to a judge: 
I have not served as a clerk to a judge. 

2. whether you practiced alone: 
I have not practiced alone. 

3. The dates, names, addresses of law firms or 
offices, companies or governmental agencies 
with which you have been connected and the 
nature of your connection with each; 

After graduating from law school in May, 1977, 
I worked for a year as a Staff Attorney for the 
Governor's Pardon, Parole and Rehabilitation 
Commission. This Commission was created to 
study the state corrections system and make 
legislative and administrative recommendations 
for improvement. The Commission no longer exists. 

In October, 1978, I joined the law firm of 
Gravel, Roy & Burnes as an associate attorney. 
I have remained with that law firm to the 
present time. The partnership and title of the 
firm have changed several times and is most 
recently Gravel, Brady & Berrigan. 

There is a New Orleans branch where I am the 
sole attorney. The address is Suite 2150, 
Energy Centre, 1100 Poydras Street, New 
Orleans, Louisiana 70163-2150. 

Since approximately 1985, I have been "of 
counsel" to the law firm of Berrigan, 
Litchfield, Schonekas, Mann & Clement, Suite 
2150, 1100 Poydras Street, New Orleans, La. 

In January, 1991, I contracted with the 
Jefferson Parish Indigent Defender Board to 
handle appeals of indigent criminal defendants. 
This contract expired in June, 1993. The 
address is 217 Derbigny Street, Gretna, 
Louisiana 70053. 



236 



Page 7 



B. 1. What has been the general character of your law 
practice, dividing it into periods with dates: 

The general character of my practice is and has 
been criminal defense. This includes pretrial 
and trial proceedings, federal and state, 
misdemeanor and felony. It also includes post- 
trial work, criminal appeals, post-conviction 
writs, and administrative matters such as 
pardon, parole, prison transfers, and 
professional licensing as it is affected by 
criminal conviction. I have handled 
approximately 550 cases in my career. 

B. 2. Describe your typical former clients, and 

mention the areas, if any, in which you have . 
specialized. 

My "typical" client is a person who is 
criminally accused or convicted, is indigent or 
borderline indigent, usually with poor 
educational and work skills and frequently of a 
minority group. However, I have also handled 
so-called white collar cases which involved 
businessmen who are well-educated, skilled and 
until that point reasonably successful. 

As indicated above, my area of specialty is 
criminal defense. 

C. 1. Did you appear in court frequently, 

occasionally, or not at all? If the frequency 
of your appearances in court varied, describe 
each such variance, giving dates. 

I appear in court on a regular basis. This 
includes pretrial proceedings, trial work and 
post-conviction court appearances. I also 
appear before administrative bodies such as the 
Pardon Board, Parole Board or licensing boards. 

2. What percentage of these appearances was in: 

1. Federal courts: approximately 20% ; 

2. State courts of record: approximately 80% ; 

3. Other courts: Minimal. 



237 



Page 8 



C. 3. What percentage of your litigation was: 

1. Civil; ,2. Criminal; 

Virtually all of my practice has been in 
criminal law. Some aspects of that litigation 
however use civil rather than criminal 
procedural rules; such as habeas corpus and 
administrative proceedings such as pardon, 
parole and professional licensing. Early in my 
career, I handled a number of civil cases which 
were relatively simple - uncontested divorces, 
separations, curatorships . On two occasions, I 
did handle contested personal injury suits and 
on one occasion, contested anti-trust litigation. 

4. State the number of cases in courts of record 
you tried to verdict or judgment (rather than 
settled) , indicating whether you were sole 
counsel, chief counsel, or associate counsel. 

I have been involved in 3 3 cases that were 
tried to verdict. I was sole counsel in 11 of 
them; chief counsel in 6 more and associate 
counsel in the remaining 16. 

5. What percentage of these trials was: 
a) jury; b) non-jury; 

31 of the 3 3 we;re jury trials. 

18 . Litigation : 

Describe the ten most significant litigated matters which 
you personally handled. Give the citations, if the cases 
were reported, and the docket nvaaber and date if 
unreported. Give a capsule summary of the substance of 
each case. Identify the party or parties whom you 
represented; describe in detail the nature of your 
participation in the litigation and the final disposition 
of the case. Also state as to each case: 

a. the date of representation; 

b. the name of the court and the name of the judge 
or judges before whom the case was litigated; and, 

c. the individual name, addresses, and telephone 
numbers of co-counsel and of principal counsel 
for each of the other parties. 



238 



Page 9 
18 . Litigation : 

1, United States v. Otto Passman, 78-CR-30013, United 
States District Court, Western District of Louisiana, 
Monroe Division 

Congressman Otto Passman was indicted on charges of 
accepting illegal gratuities from Korean businessman/ 
lobbyist Tongsun Park in connection with Korean purchases 
of Louisiana rice. He was also charged with income tax 
evasion. The charges were brought in Washington D.C. by 
the Public Integrity Section of the United States 
Department of Justice. The case was subsequently 
transferred to Louisiana for trial. 

Our law firm represented Passman. I joined the firm a 
few months prior to trial and was immediately assigned to 
work on the case. I prepared extensive and detailed 
pretrial motions and also researched a great deal on 
Louisiana's rice industry, the structure and functioning 
of the Korean government and the history of trade 
between Louisiana and Korea. The trial itself lasted 
seven weeks. I prepared witness packets for use in 
direct and cross-examination and researched and drafted 
memorandums on legal issues that arose during trial. I 
also drafted the opening and closing arguments. Passman 
was acquitted of all charges. 

My senior partner, Camille Gravel, Jr. was Passman's 
attorney. His address is 71i Washington Street, 
Alexandria, Louisiana 71309; Phone. (318) 487-4501. Lead 
counsel for the Department of Justice was David Scott. 
There were also a Mr. Silverstein and a Mr. Cannon 
assisting him. All were with the Public Integrity Section 
of the Department of Justice; (202) 514-1412. The trial 
judge was Hon. Earl Veron, now deceased. 

2. Schwecrmann v. Edwards, et al. No. 223598, "F", 19th 
Judicial District Court, Parish of East Baton Rouge, 
State of Louisiana 

Schwegmann Giant Super Markets, a New Orleans grocery 
store chain, sued the Governor and other Louisiana public 
officials to have the state's "Beer Cash Law" declared 
unconstitutional. The law, La.R.S. 26:741, prohibits the 
extension of credit to beer retailers by wholesalers for 
purchases of beer. Schwegmann claimed the statue violated 
due process, equal protection, the freedom to contract, 
separation of powers and other provisions of the United 
States and Louisiana Constitutions. 



239 



Page 10 



2. Schwecmann v. Edwards, et al . No. 223598, "F", 19th 
Judicial District Court, Parish of East Baton Rouge, 
State of Louisiana 

I was appointed by the state Attorney General as a 
special assistant attorney general to help defend against 
the suit. The suit was filed in early 1978, shortly 
after I began practicing law. I did extensive research 
into the history of the law which related back to 
monopolistic trade practices whereby beer wholesalers 
gained control of retail outlets (bars, lounges, 
restaurants) through manipulation and control of credit. 
I also did in-depth research into marketing and marketing 
techniques, competitive and anti-competitive practices, 
and the financial structure and nature of the liquor 
industry generally and the beer industry in particular. 
With respect to the law, I also did thorough research 
into anti-trust law, regulation of the liquor industry, 
the police power, as well as more generic principles of 
constitutional and statutoiry law. 

I handled much of the pretrial pleadings and some of the 
depositions. At a later date, the case went to trial and 
the trial was handled by other attorneys. The trial 
court found the statute constitutional, as did the state 
court of appeals. The Louisiana Supreme Court declined 
to hear the case so the lower court judgment stood. The 
trial judge was Hon. Doug Moreau, 19th Judicial District 
Court. The opposing counsel were Michael Fontham and 
Richard Stanley, with Stone, Pigman, Walther, Wittmann & 
Hutchinson, 546 Carondelet Street, New Orleans, La. 
70130; phone (504) 581-3200. The state was represented 
at trial and subsequently by David Stewart, Ropes and 
Gray, 1001 Pennsylvania Avenue N.W. , Suite 1200-South, 
Washington D.C. 20004; phone (202) 626-3900. 

3. State of Louisiana v. Joev McDaniel . 410 So. 2d 754 
(La. 1982). 

This was my first jury trial as sole counsel. My client 
JOEY McDANIEL was charged in Grant Parish, 35th Judicial 
District Court, and in Rapides Parish, 9th Judicial 
District Court. The charges in Rapides parish were 
resolved by a guilty plea to a less serious offense.. 

We went to trial on the charge in Grant Parish. I 
objected to the jury instruction regarding the definition 
of "reasonable doubt". This instruction had been 
commonly used for years throughout the state. The judge 
overruled my objection and the instruction was given. 



240 



Page 11 



State of Louisiana v. Joev McDaniel . 410 So.2d 754 
(La. 1982). 

My client was convicted as charged. I raised that issue 
on appeal and the conviction was reversed on that basis. 
It was the first time apparently that this particular 
jury instruction had been challenged. 

McDaniel became a frequently cited case in subsequent 
chal-lenges to other similarly worded jury instructions. 
While those instructions were usually upheld and McDaniel 
distinguished, the United States Supreme Court finally 
struck them down in Cage v. Louisiana . Ill S.Ct. 328 (1990) 

The case was tried from February 23, 1981 through 
February 26, 1981. The judge at the trial was the Hon. 
W.T. McCain who is now deceased. The prosecuting 
attorney was Gregory N. Wampler who, unfortunately, is 
currently in federal prison. His address is #07929-035, 
FPC-El Paso, Post Office Box 16300, El Paso, Texas 79906. 

United States v. Edwin W. Edwards . Crim. No. 85-078, 
Section E (4) , United States District Court, 
Eastern District of Louisiana. 

Governor Edwin W. Edwards was indicted along with several 
others in the mid 1980 's for alleged fraudulent conduct 
in connection with the awarding of so-called 
"certificates of need" for construction of privately 
owned, for-profit medical facilities. 

Our firra was retained by Governor Edwards as co-counsel 
in his representation. My role was to research and 
prepare pretrial pleadings and memoranda, analyze and 
outline pretrial recorded statements by the witnesses, 
and prepare direct and cross-examination packets. I also 
researched and prepared memoranda on issues that arose 
during the trial. 

The first trial ended in partial acquittals for soiae 
defendants but was deadlocked 11-1 for acquittal as to 
the Governor and others. A mistrial was declared. My 
role in the second trial was essentially the same as in 
the first. This time the Governor and the others were 
acquitted of all charges. 

The first trial began on September 17, 1985 and ended in 
mistrial on December 18, 1985. The second trial began on 
March 24, 1986, and ended May 12, 1986. 



241 



Page 12 



United States v. Edwin W. Edwards . Crim. No. 85-078, 
Section E (4) , United States District Court, 
Eastern District of Louisiana. 

The prosecuting attorneys were then United States 
Attorney John Volz, and Assistant United States Attorney 
Robert Boitmann, United States Attorney's Office, 501 
Magazine Street, 2nd Floor, New Orleans, Louisiana 70130; 
telephone (504) 589-2929, and Pauline F. Hardin, now in 
private practice at Jones, Walker Law Firm, 201 St. 
Charles Avenue, New Orleans, Louisiana 70170; telephone 
(504) 582-8110. The co-counsel in both trials was 
Camille F. Gravel, Jr., 711 Washington Street, 
Alexandria, La. 71309, telephone (318) 487-4501. 

Chief counsel in the first trial was James Neal, Neal & 
Harwell, Suite 2000, First Union Tower, 150 4th Avenue 
North, Nashville, Tennessee 37219; telephone (615) 244- 
1713. Chief counsel in the second trial was Michael S. 
Fawer, 2311 Cedar Springs, Suite 250, Dallas, Texas 
75201; telephone (214) 953-1000. The judge in both 
trials was Hon. Marcel Livaudais, Jr. 

State V. Bedford Dovle Ruff . 504 So. 2d 72 (La. App. 
2nd Cir. 1987) 

Our client was BEDFORD DOYLE RUFF who was charged with 
second degree murder. Our defense was justifiable 
homicide. 

My senior partner, Camille Gravel, Jr., and I were co- 
counsel. I handled the pretrial investigation which 
involved lengthy interviews with numerous people familiar 
with the individuals involved, their relationships, as 
well as witnesses who were at or nearby when the incident 
took place. 

We waived a jury and elected to be tried by the judge. 
My senior partner and I shared the examination of 
witnesses. The trial judge found RUFF guilty as charged 
of second degree murder and sentenced him to mandatory 
life imprisonment. 

I handled the appeal and raised three issues. One was 
that RUFF should be acquitted because we had established 
justifiable homicide. My second issue was that RUFF 
should be acquitted of murder because the mitigating 
factors of the lesser crime of manslaughter were present. 
My third issue was that we were entitled to a new trial 



242 



Page 13 



State V. Bedford Doyle Ruff . 504 So. 2d 72 
(La. App. 2nd Cir. 1987) 



because the state had withheld exculpatory evidence 
contained in civil depositions with respect to the latter 
two issues, (assuming our claim of justifiable homicide 
was rejected) . The appellate court acquitted RUFF of 
murder on the basis that the mitigating facts of 
manslaughter had been proved, then remanded the case for 
a new trial on the withholding of the exculpatory evidence. 

The case was tried from March 3, 1986 through March 7, 
1986. The prosecutor was and still is the District 
Attorney, William Coenen, 108 Courthouse Square, 
Rayville, La. 71269, telephone (318) 728-3227. The trial 
judge was Hon. Glen W. Strong. My senior partner, 
Camille Gravel, Jr. is at 711 Washington Street, 
Alexandria, La. 71309, Phone (318) 487-4501. 

State of Louisiana v. Peter Hawist . #36,835 
11th Judicial District Court, Parish of Sabine. 

Our client, PETER HAWIST, was a soldier charged with 
first degree murder, carrying a possible death penalty if 
convicted. My senior partner, Camille Gravel, Jr. was 
lead counsel. I handled the majority of pretrial 
preparation with a young associate in the firm, Charles 
G. Gravel. 

During the trial itself, my senior partner and I shared 
the examination of witnesses and I also provided material 
to my partner for his examinations. The case was 
prosecuted by the District Attorney himself, Don Burkett. 

Prior to trial, the District Attorney was adamant about 
trying the case as first degree murder with exposure to 
the death penalty. Our defense was justifiable homicide. 
Towards the end of our presentation of the defense, the 
District Attorney disclosed to us that we had created a 
reasonable doubt in his mind and he could not in good 
conscience proceed with the prosecution. He then excused 
the jury and dismissed all charges against our client. 

The case was tried from March 28, 1988 until Mareh 31, 
1988 when charges were dismissed. The District Attorney 
was and still is Don Burkett whose address is Post Office 
Box 1557, Many, Louisiana, 71449. His telephone number 
is (318) 256-6246. The judge was the Hon. John Pickett, 
Jr. The address for my partner, Camille Gravel, is 711 
Washington Street, Alexandria, La. 71309, (318) 487-501. 



243 



Page 14 



State ex rel Lawrence v. Smith . 571 So. 2d 133 (La. 1990) 

In 1978 DAVID LAWRENCE -was convicted of second degree 
murder. His conviction and sentence were affirmed on 
appeal. I was not involved in any way in his initial 
trial or appeal. 

I was retained by LAWRENCE approximately ten years later 
to determine if he had any grounds to challenge his 
conviction. After a review of the evidence, I concluded 
LAWRENCE had been wrongfully convicted of murder when in 
fact the lesser crime of manslaughter had been committed. 

I filed an application for post-conviction relief on the 
above grounds. It was denied by the trial judge. I then 
applied for a supervisory writ to the Louisiana Supreme 
Court which was granted. After briefing and argument, the 
court ruled 6-1 that LAWRENCE be acquitted of murder and 
convicted instead of manslaughter. 



The case was remanded for re-sentencing, 
re-sentenced to 21 years imprisonment. 



LAWRENCE was 



The prosecutor in the post-conviction proceedings was Asa 
Skinner, Assistant District Attorney, Vernon Parish 
Courthouse, Leesville, Louisiana 71446; telephone (318) 
239-2008. The trial level judge was the Hon. Roy B. 
Tuck, Jr. 

State of Louisiana v. Rov Bennett . 610 So. 2d 120 (La. 1992] 

Roy Bennett was convicted of a crime. That conviction was 
overturned by the Court of Appeals, rehearing was denied, 
and the State's timely application to the Louisiana 
Supreme Court was rejected. Bennett was set for retrial 
over a year after the Court of Appeals denied rehearing. 
The defendant contended however that the one year statute 
of limitations had run and he could not be retried. The 
trial court denied the motion, trial proceeded and 
Bennett was again convicted. On appeal, the appellate 
court reversed the conviction, agreeing with the 
defendant that prescription had run. Rehearing by the 
State was denied. 

I was contacted then by the District Attorney's Office 
and retained to prepare an application for a supervisory 
writ on behalf of the prosecution to the Louisiana 
Supreme Court. 



244 



Page 15 

8. State of Louisiana v. Roy Bfennett , 610 So. 2d 120 (La. 1992) 

In Louisiana, the State Jias one year from the grant of a 
new trial to then coitunence that trial . The issue was 
when that one year period began, whether it began with 
the reversal on appeal, or upon the denial of rehearing, 
or upon the denial of the application for supervisory writs. 

The .issue involved detailed research into the 
constitutional and legislative history of criminal 
appellate jurisdiction and procedure in Louisiana, and a 
comparative analysis with civil appellate procedure. I 
used the legislative and constitutional history of 
criminal appellate jurisdiction to argue that the 
legislature intended the rules of prescription to be the 
same for criminal and civil jurisdiction and that the 
failure to expressly say so statutorily was a legislative 
oversight. 

The Louisiana Supreme Court accepted the case, reversed 
the Court of Appeal, and held that the statute of 
limitation in criminal cases commenced with the denial of 
any application for supervisory review. 

The District Attorney was and is William Tilley, the 
Assistant District Attorney is Asa Skinner, Vernon 
Parish Courthouse, Leesville, Louisiana 71446; (318) 239- 
2008. Defense counsel was Richard Burnes, 711 Washington 
Street, Alexandria, Louisiana 71301; (318) 445-0462. 

9. State of Louisiana v. Michael Wilson . No. 91-4535 
24th Judicial District Court, Parish of Jefferson 

Michael Wilson is an indigent indicted for first degree 
murder in Jefferson Parish. Attorney MARK MOLTING from 
the Jefferson Parish Indigent Defender Board was 
appointed to represent him. Over the subseguent months, 
NOLTING met frequently with Wilson and filed numerous 
pretrial motions. 

Ten months after NOLTING was appointed, the trial judge 
summarily dismissed NOLTING as Wilson's attorney, and 
appointed another lawyer outside of the Indigent Defender 
Board. No reasons were given. NOLTING and Wilson 
objected to the dismissal. 

As an appellate attorney on contract with the Jefferson 
Parish Indigent Defender Board, I filed an Application 
for Writ of Certiorari with the Fifth Circuit Court of 
Appeal (No. 92-K-614) . I argued that the dismissal of 



245 



Page 16 



State of Louisiana v. Michael Wilson . No. 91-4535 
24th Judicial District Court, Parish of Jefferson 



NOLTING breached Wilson's right to counsel, and set a 
dangerous precedent in undermining the independence of 
appointed counsel. I cited American Bar Association 
standards. United States Supreme Court jurisprudence and 
detailed case law from other states where other trial 
courts had tried to likewise "fire" public defenders with 
whom they were displeased. 

The appellate granted the writ, reversed the trial judge 
and reinstated NOLTING as Wilson's attorney. 

The attorney who had been appointed by the trial judge to 
replace NOLTING then filed an Application for Writ of 
Certiorari with the Louisiana Supreme Court (No. 92-KK- 
2434). The District Attorney's office then joined in the 
Application for Writ. The Supreme Court summarily 
granted the writ, set aside the ruling of the appellate 
court and reinstated the trial court's dismissal of 
NOLTING as Wilson's attorney. I immediately filed an 
Application for Rehearing, presenting essentially the 
same factual analysis and legal argument that I had 
presented to the appellate court. The rehearing was 
granted and by a 6-1 decision the Court reversed itself 
and reinstated the ruling of the 5th Circuit upholding 
NOLTING 's continued representation of Michael Wilson. 

The prosecuting attorney was Dorothy A. Pendergast, 
Assistant District Attorney, 5th floor. Courthouse 
Annex, Gretna, La. 70053; phone (504) 368-1020. The 
attorney whom the trial judge tried to appoint to replace 
NOLTING was Camilo K. Salas, III, 201 St. Charles Avenue, 
Suite 3500, New Orleans, La. 70170; (504) 582-1500. The 
trial judge was the Hon. Ernest V. Richards, IV. 

10. State ex rel Mims v. Butler . 601 So. 2d 649 (La. 1992) 

Ira Joe Mims was convicted on the same day in 1978 of two 
felonies based on separate incidents. In 1985, he was 
convicted of another felony and was then adjudicated a 
third time felony offender and sentenced to an enhanced 
punishment under Louisiana's habitual Offender Law. On 
post-conviction, Mims contended that under Louisiana's 
Law, a person's offender status is enhanced only if each 
offense in seguence occurred after conviction for the 
earlier offense. The trial court had allowed the third 
offender adjudication even though Mims' second felony 
offense occurred before the was convicted of the first. 



246 



Page 17 

10. State ex rel Mims v. Butler . 601 So. 2d 649 (La. 1992) 

The appellate court affirmed and so did the Louisiana 
Supreme Court on initial hearing. 

On rehearing, a number of other entities became involved 
as Amicus Curiae, including the 24th Judicial District 
Indigent Defender Board which I represented. The case 
required an analysis of the history of Louisiana's 
Habitual Offender Law including its various statutory 
amendments and their interplay with the jurisprudence 
interpreting the statutes. The goal was to determine 
legislative intent in light of the ambiguous language of 
the statue itself and the statutory and jurisprudential 
history. 

Rehearing was granted and the lower court's decisions 
were reversed. The court found that the statute did 
require the sequential offense-conviction-offense before 
a person could be adjudicated an habitual offender. 

Elizabeth Cole and Terry Albritton of the Tulane Law 
Clinic, Tulane University, New Orleans, Louisiana 70118, 
Telephone number (504) 865-5153, represented Mims. The 
state was represented by Catherine Estopinal, Assistant 
District Attorney, First Judicial District Court, 
Shreveport, Louisiana 71101, Telephone number (318) 226- 
6826. Amicus Briefs were filed by Lennie Perez, 729 
Royal Street, Baton Rouge, Louisiana 70802, Telephone 
number (504) 387-1287, on behalf of the 19th Judicial 
District Public Defender Office; G. Paul Marx, Post 
Office Box 3622, Lafayette, Louisiana 70502, Telephone 
number (318) 232-9345, on behalf of the 15th Judicial 
District Public Defender Office; John LaVern, 326 Pujo 
Street, Suite 505, Lake Charles, Louisiana 70602, 
Telephone number (318) 436-1718, of the 14th Judicial 
District Public Defender Office; Paul Adams, Jr., 1645 
Nicholson Drive, Baton Rouge, Louisiana 70802-8143, 
Telephone number (504) 343-0171, of the Louisiana 
District Attorney's Association; and, Robert Glass, 228 
Lafayette Street, New Orleans, Louisiana 70130, Telephone 
number (504) 581-9065, on behalf of the Louisiana 
Association of Criminal Defense Lawyers. The trial judge 
was Hon. Carl Stewart, First Judicial District Cour-t. 



247 



Page 18 

19 . Legal Activities : 

Describe the most significant legal activities you have 
pursued, including significant litigation which did not 
progress to trial or legal matters that did not involve 
litigation. Describe the nature of your participation in 
this question, please omit any information protected by 
the attorney-client privilege (unless the privilege has 
been ^waived. ) 

Probably my most significant legal activity outside of 
litigation is the researching and annual updating of my 
book, Louisiana Criminal Trial Practice . This is a one 
volume, nearly 600 page, compilation of the statutory and 
jurisprudential law of criminal procedure in this state, 
from arrest, through pretrial and trial matters, 
including all evidentiary issues, and ending with post- 
conviction relief and administrative release. It is a 
book widely used throughout the state by prosecutors and 
judges as well as defense lawyers. 

I have also had a large pardon and parole practice where 
I represent prisoners hoping to obtain early release 
through these administrative remedies. It requires not 
only a thorough knowledge of the original facts of the 
offense (which in many cases occurred many years before) 
but total familiarity with the individual prison's 
programs, disciplinary policies and housing arrangements 
and total familiarity with the inmate's daily activities, 
in work, recreation and optional programs such as 
athletics, education and vocational training. 



248 



II. FINANCIAL DATA AND CONFLICT OF INTEREST (PUBLIC) 

List sources, amounts" and dates of all anticipated 
receipts from deferred income arrangements, stock, options 
uncompleted contracts and other future benefits which you 
expect to derive from previous business relationships, 
professional services, firm memberships, former employers, 
clients, or customers. Please describe the arrangements 
you have made to be compensated in the future for any 
financial or business interest. 

I have an Individual Retirement Account (IRA) which I 
contributed to over a period of several years. The current 
balance is approximately $23,100. I also have a more 
recent Retirement Plan Account which I have contributed to 
over more recent years. The current worth of that is 
approximately $42,200.00. Those are intended to provide 
income beginning after the age of sixty. 

Explain how you will resolve any potential conflict of 
interest, including the procedure you will follow in 
determining these areas of concern. Identify the 
categories of litigation and financial arrangements that 
are likely to present potential conf licts-of-interests 
during your initial service in the position to which you 
have been nominated. 

I would fully disclose to all parties in the case of any 
facts that might constitute a conflict. I would refer the 
conflict issue to another judge if it cannot be resolved 
with parties. The initial conflicts of interest I might 
have would be if I had previously been the attorney for a 
particular litigant. I don't anticipate any conflicts 
regarding continuing financial arrangments as I will have 
none. 

Do you have any plans, commitments, or agreements to 
pursue outside employment, with or without compensation, 
during your service with the court? 

No. 

List sources and amounts of all income received during the 
calendar year, including all salaries, fees, dividends, 
interest gifts, rents, royalties, patents, honoraria, and 
other items exceeding $500.00 or more (If you prefer to do 
so, copies of the financial disclosure report, reguired by 
the Ethics in Government Act of 1978, may be substituted 
here. ) 

See Financial Disclosure Report. 



249 



Page 2 



Please complete the attached financial net worth statement 
in detail (Add schedules as called for) . 

Financial Net Worth Statement is attached with schedules. 

Have you ever held a position or played a role in a 
political campaign? If so, please identify the 
particulars of the campaign, including the candidates, 
dates -of the campaign, your title and responsibilities. 

I have participated in a number of political campaigns over 
the past 25 years, virtually all at the basic volunteer 
level - canvassing, phone banking, putting up signs. 

These included candidates for governor (Mississippi and 
Louisiana), Louisiana State Legislature, Louisiana judicial 
seats, and local mayor, city council and school board 
races in New Orleans. I held no position and had no title. 

The only campaign in which I had a title was as Finance 
Chair in a local race for Criminal District Court Judge on 
behalf of a candidate who was defeated. 



250 



FINANCIAL DISCLOSURE REPORT 



Report Raqolrvd by tiie ItJilca 
nmtorm Act of 1989, Pub. L. Mo. 
101-194, Rovaabu 30, 1989 
(5 O.S.C.A. App. 6. StlOl-112) 



1. FotvoD (teportlng (Last nana, first, alddle Initial) 



2. Coort or Organlxatioa _ 

UoiVd S+c^^s I>>st^'cV Cout-V 



3. Data of Report 

Nov. \'^, 



4. Title (Axticlv III judges Indicate active or 

•an lor status; Magistrate judges Indicate 
full- or psrt-tina) 



^. Report Type (chock approprlata type) 
_l^ Nonlnatlon. Date MOM. VS . V*^*^^ 
Final 



f Initial 



Annnal 



6. Raportlng Parlod 

-^3 preserrA 



7. Chaal>ata or office Addraaa 

Hoc ^oit<^ra.i SWet-V 

Ne.vj:> Cirlto-'^'Sj Le>o"ib'>.«».n€^. -loifcB-A'So 



e. On the baala of tha Inforaatlon contaload In tbla Report, it 
la. In ay opinion, in coapllanca wltb applicable laifa aod 
requlatlona 



Reviewing Officer slgnatore 



IMPORTANT NOTES: The instructions accontpartying this form must be followed. Complete all parts, 
checking the NONE box for each section where you liave no reportable Inrormation. Sign on last page. 



POSITIONS. (Reporting individual only, see pp. 7-8 of Instructions.) 

POSITION NAME OF ORGANIZATION/ENTITY 



I NONE (Ho reportable positions) 

af Coonse\ 



I. AGREEMENTS. (Reporting individual only; see p. 8-9 of Instructions.) 
DATE PARTIES AND TERMS 



Berriotxn Daj>;r,\«y.y. Li^ KCicU Olsein|Schot.e:t<w< 

^grrigtxn Ll^xi^flOti, Sc-ViongUro.S HourMn <»■ Clgin»i«»A- 

LQui^iQ.n<x. RjataOQ-W^ ^C- r.rinMnQ,i E>e.-CcnSf LQ.U)vje.rS 



Ccov,Vi»,«td .x+IdU.) 



X 



NONE (Ro reportable agreeoents) 



II. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.) 

DATE SOURCE AND TYPE GROSS INCOME 

(Honoraria only) (yours, not spouse's) 



D 



NONE (Ho reportable non-lnveetment Incoee) 



Cr<xxelj Broujg gjvf^ E)e-rriQQ.r> CigCja.\ ■vees\ $ (Q/. 3<X> . 



^Ber^^^go■o^Do■nle■l«.or ^ , UVc^Ae. ^i (M«a->. Sct^Qx-Vrtu * VAann $ (S^ a.^onr»e.j 
?ii»rviiyt.r« V-i-tcWifielA^ Sc-Vior>e.Vtv^j Hann » Cltwen'V $ fe.'S o.Horneju 

S 



251 



FINANCIAL DISCLOSURE REPORT (cont'd) 



NaB« of Person Reporting 

Helen G. B- 



em gc 



Date of Iteport 

MOV.. \«1, \«\qi 



V. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment. 

(Indades those to spouse and dependent children; use the parenthetlcals "(S)' and '(Dp* to Indicate rrportaMe 
relmbureements and gifls received by spouse and dependent children, respectively. See pp.13-15 of Inatmctioiu.) 



z\ 



SOURCE DESCRIPTION 

NONE (No auch reportable ralmburaeMnta or gifts) 



EXEMPT 



'. OTHER GIFTS, (includes those to spouse and dependent children; use the parenthedcab '(S)' aod "(DC)" to 
Indicate other gills received by spouse and dependent children, respectively. See pp.l5-li of InMrncUont.) 



H 



SOURCE 

NONE (No auch reportable qlfta) 



DESCRIPTION 



VALUE 



EXEKPT 



DESCRIPTION 



I. LIABILITIES. (Includes those of spouse and dependent children; indicate where applicable, person 
for llaMilty by using the parenthetical '(S)' for separate liability of spouse, '(])' For Joint liability of 
individual and spouse, and '(DC)' for liability of a dependent child. See pp.lfr-lS oflnstructlons.) 

3 



CREDITOR . 
NONE (He raportabla llabllltlea) 



responsible 
reporting 



VALUE CODE* 



^OQ.^lor^ Q■^ Hor^ggqe G^rporo. hoo f s'^ rea.1 e.&->To.A€ >»or-^9n.9e 

Qr..>,-.ra .» Reii.tf^ViQ.1 Hor>-ga-gg^ S ') re£x.\ et-t-a.t^ y>. .-^ r-t-ga.<^<e 



K 
_tSL 



H. 



VXUn CODUI } • (is, 000 or l*ae K - JlJ.OOl to SSO.OOO L - SSO.OOl to $100,000 M • ll««,001 t6 t2M<bM 

a > SlSO.OOl to SSOO.OOO O - $500,001 to $1,000,000 7 ■ Hor* Uun $1,000,000 



252 



I 



FINANCIAL DISCLOSURE REPORT (cont'd) 



RUB* of Person Roportlng 



Data of Report 
Mom. V«\, \'^'^2> 



yil. INVESTMENTS and TRUSTS - income, value, transactions, (indades those of spoii«e 

and dependent children; see pp. 18-27 of lnslructk>n.s.) 



(InelMitis trust aaseta) 

tttiiemft «rh*r« •peiie«bl«, ovnftr of 
tS« «s«*t BY uaififf.U* pdr«nth«U.csl 




C. 

Orooa valiM 
• t «nd oC 


D. 
Traauotloiu 4nrln« t«portla« period 


loo IttdiviaDJil And apog8«, '(Sl^ for 
••ft«£at« ownaraUp by apousay ^(DC)" 
tor ovnanhlp By aap^ndant child. 

I^lao* *(X1* «(t«£ each «««<1 
•XMtpt trto prior dlacloaur*. 


(11 


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,Typ« 

'Si?:: 


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(j-p) 


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Heath- 
Mr 


(1) 

'548' 
(j-f) 


(4) 

(CSi 


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locoaa, aaaata, or 
tranaart.lnnal 










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1 Inc3csM/0*ln Ca«Mi Ik-(1,000 or !•■• I'^l.OOl to Sl.JOO C<S2.S01 to S.OOO I>>i>,001 to $13,000 
(MM Col. ki t D«l E-jii,oot to ssa.ooo F-iSB.ooi to iioo.oeo o-sioo.ooi to ii, 000,000 etton oim tliQJf'JJf ■ 


TTOMSii.1 J-}lj;iJ66 or ImI (i.|l!,»6i toh«.*«4 " l.ha.ial to JlM.Mi h-JlM.Ml lo IJSi.JM 

IStm col. CI ( D>l H-SISO.OOI to SSOO.OOO O-tSOO.OOl to SI. 00" »«« r-marm tlx> ll.OOO.OOO 


(M* Cal. at U—Bok V.loa 




k-Coot 


It;.! 1 


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5St 


ukytUttiat 1 



FINANCIAL DISCLOSURE REPORT (cont'd) 



253 



Name of Pecson Reporting 



Dat* of Raport 

Mom. W,l'HS3 



VIII. ADDITIONAL INFORMATION or EXPLANATIONS, (imiicaie part of Report.) 

BoQ.rE> o-(- t>irfo4-DY-1^^ PresiA&r.V Covr>ry.rWee <Jr ^\ . 

Prg'SiA.'nt; Vice- Pre.Si<^en-V lP>YnfrigQ.rn Cv m > Li.i,er^g ■S O moo a-f L ft U i s. nJ-WC^ 

ftfstit-iA o-P D't'ec-Vor-S 'Rmer\fQi-i C>0' \ Li be r-Vne-s Uhiov^ 

^fr^Vipr, SVfi»ring Co m m lUee ^ C\ncnr- ForuTvi ^or '^'^<3.\\\<^ 

■j>,^an^A r.1^ DireiL-VDY-_& PVrv^,s+r.A Reseo-«-cVi Ce^rVe.r- . 

Pr,n.r-A e-P V^iY-cr ■Ut-.'^ J Ufc-^- fc^ "Hie ^ecoi-cj 



R^n.r-A o-f- D>yecAoc3 Sooe-4-M^ of Qroencmn ■», I m- RcQovpnj CSopO. j 



IX. CERTIFICATION. 

In compliance with the provisions of 28 U.S.C. § 455 and of Advisory Opinion No. 57 of the Advisory Committee on 
Judicial Activities, and to the best of my knowledge M the time after reasonable inquiry, I did not perform any adjudicatory 
function in any litigation during the period covered by this report in which I, my spouse, or my minor or dependent children 
lad a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation. 

I certify that all information given above (including information pertaining to my spouse and minor or dependent children, 
f any) is accurate, true, and complete to the best of my knowledge and belief, and that any information not reported was 
withheld because it met applicable statutory provisions permitting non-disclosure. 

I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been 
reported are in compliance with the provisions of 5 U.S.C.A app. 7, § 501 et. seq., 5 U.S.C § 7353 and Judidal Conference 
regulations. 

Si^ature l^\caU^ (^ . ^\.<LW--^^^^^^ Date M^^'^.^-^S 

NOTE: ANY INDIVIDUAL WHO KNOWINGLY AND WILFULLY FALSIRES OR FAILS TO FILE THIS REPORT 
MAY BE SUBJECT TO CIVIL AND CRIMINAL SANCTIONS (5 U.S.C.A APP. 6, § 104, AND 18 U.S.C S 1001.) 



FILING INSTRUCTIONS: 

Mail signed original and 3 additional copies to: Judicial Ethics Committee 

Administrative OfBce of the 

United States Courts 
Washington, DC 20544 



254 



NET WORTH 



PidYidt I coffiplele. cuf rrni finincial nti worth jUtement which ilemizej in detail ill iJjelJ (indue 

r'i rca! *it*t»- «»«'Jf''''^- '"J>i». invtiimtnli. »ft<j o(her (in»ncijl hold(ngi) all liabilities (includi' 

* ^^p^j ;ajni. and olbe'- financial obligalionj) o( yourjeH, your spouse, and oiher ImmedlaU mei 



A^SCTS 



CUti 0-1 I*"* «nS '" ft*"** 

U.S. C9««<nf •"' jsc\jnort— •<J'S 

Unlin»< i*:urttl»*— -«(Jd »£*'»dul»C8) 
Aeccu.io eri notrt fttBVibie: 

Dui fTOrtl (ti»fiv*i tnd ln»ndl 

Doubtful 
R«ii »n«t« o»^id tat ►cKtrfi'ifCc) 
R<(| «Ul« moitj»|»« f»C»i»«6le 
Autoi «n<» <"''•' ?«'*o'<«l property 
C*tK v«l««— '•'• InturinCB 
0^^«'■ «»»*u— ««mlt«: C I>) 



2o ooe 



i -o- 



l| I07O03 



gg<??5 



— o — 



-0 ~ 



TerUI •IMM 



1 



ajNTINCCNT UXaiLITItS 

Ax •<^4orv•r, csf^attr or (uinnior 
On iMui er cDivtcn 

r^rm.tion (or r>Oar(l {near* r«( 
Ott\(r t»«<UI dcet 



^47 OOP 



- O — 



3!ooo 



AtZOO 



aiid^ 



li9iJ>3t 



-o- 



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oo 



tfO 



1 



oo 



oo 



UABlimES 



Noiat paytbit to UnM »»cur»d 
Ns(*t »«y(bU lo h»<ilo»— OM^eurwl 
Notn payaW* ts r«Ut/««* 
Notn par*fat« to erthtr* 
Acoournx artd MMt ou* 
Unpaid Irtconw Ui 
OUvir unpaid Ui ind lnncv«« 
K«tl *ittt* moctKifn p*v*P<»~«dd 
»cA»<Juta iaj 

par<bi« 
mtitf dtM* — lli/nlit: 



— o - 



-o — 



-o — 



ToUi lUbllitlM 

Natwortn 

Tout fl»blllU»i «nd ^«^ worth 



CCNUUL INrORMATIOK 




A/* any 4*A«t* pl«3|adl (AOd Kh^ 
Ul*.> 

An you difartdirrt In any Mts or 

Usai acoontt' 
Ht«« }OU avw tikan banvupiey? 



!- 



Nd 



*6 



OO 



NO 



JJO 



255 



Financial Net Worth Statement / Schedules; 

Listed Securites - Schedule (A) ; 

IBM - 393 Shares 

Cascade Natural Gas - 3 53 Shares 

Citicorp - 320 Shares 

Salomon Bros. Fund Inc. - 1081 Shares 

T. Rowe Price Growth Stock Fund-1063 Shares 

Tri-Continental Corp. - 1210 Shares 

Unlisted Securities - Schedule (B) : 

Liberty Financial Services, Inc. 

New Orleans, Louisiana, 10% Cumulative 

Preferred Stock 

Liberty Financial Services, Common Stock 
Real Estate Owned - Schedule fC) ; 



Description 

4 319 Hamilton Street 

New Orleans, La. (4-Plex) 

6515-17 Center Street 
New Orleans, La. (double) 

Unit 82, Bocage Condo 
Baton Rouge, La. 



Market Value 
$ 240,000.00 

$ 120.00.00 

$ 57,000.00 

$ 50,000.00 



2213-15 Gen. Taylor St. 
New Orleans, La. (4-Plex) 

National Mortgage Corp. 

Colorado Blvd. , Denver, 



$ 


19,551. 


,75 


$ 


9,354. 


,50 


$ 


11,120, 


.00 


$ 


15,134. 


.00 


$ 


21,598, 


.31 


$ 


30.250. 


.00 



$107,003.56 



$ 38,825.30 



S 19.260.00 
$ 58,085.30 



Mortgage 

- - 

- - 

$ 24,000.00 

$ 41,569.00 

, 1355 South 
Colo. 80233 



$ 80,000.00 



$ 85,241.00 



1708-10 N. Broad Street 
New Orleans, La. (4-Plex) 

American Residential Mortgage Corp. 

P.O. Box 85804, San Diego, Ca. 92186-5804 



1632 Esplanade Ave. $ 120,000.00 $132,213.00 

New Orleans, La. (8 Apartments) 

Equitable Real Estate, 5775 E. Peachtree 
Dunworay Road, Suite 400, Atlanta, Ga. 303 



Total: 



$ 677,000.00 



$283,023.00 



256 

Financial Net Worth Statement / Schedules: 

Other Assets - Schedule (D) : 

(1) TTEES - Helen G. Roberts u/w 
Jerry McCord Roberts Art. 6th 
as amended (trust established 

.by deceased mother) $120,414.00 

(2) Helen G. Roberts Retirement Plan Account: 

Liberty Bank & Trust Co. , 

New Orleans, La. $ 24,519.00 

Dreyfus Family of Funds $ 18,914.00 

IRA Hibernia National Bank 
New Orleans, La. 

$ 23,103.00 

(3) Joseph E. Berrigan, Jr. (husband) 

Profit Sharing Plan - Prudential 
Securities, $230. OOP. 00 

$416,950.00 



257 



III. GENERAL (PUBLIC) 

1. An ethical consideration under Canon 2 of the American Bar 
Association's Code of Professional Responsibility calls for 
"every lawyer, regardless of professional prominence or 
professional workload, to find some time to participate in 
serving the disadvantaged". Describe what you have done to 
fulfill these responsibilities, listing specific instances 
and the amount of time devoted to each. 

During my first years of practicing law, I was based in 
Alexandria, Louisiana. The system there for providing 
counsel to indigents was to appoint attorneys from the 
local bar on a rotating basis. While we were authorized 
to submit a bill for reimbursement on our services, I 
never did and instead did the work for free. I estimate I 
was involved in about 100 cases on that basis, both 
criminal and civil. 

Since moving to New Orleans in 1984, I have continued to 
provide pro bono or near pro bono services to many people 
on a regular basis. I estimate that 30-40% of my legal 
practice and time has been in the type of work. These 
encompass all ranges of primarily criminal representation 
including a number of death penalty cases at the trial and 
appellate levels. I was also on contract to handle 
criminal appeals for indigents in the neighboring Jefferson 
Parish from 1990 until June 1993. Although my contract 
ended in June, I have continued to represent about a dozen 
of the individuals on a pro bono basis as well. 

In connection with my community work, I have participated 
in various fundraising efforts and speaking programs to 
assist the disadvantaged, primarily the poor and various 
minority groups. For example, a couple of years ago I was 
YWCA Role Model and in that capacity spoke to young women 
in our urban public schools. As another example, last year 
I co-chaired a major fundraiser on behalf of Lazarus House, 
a residential facility affiliated with the New Orleans 
Catholic Archdiocese which houses AIDS victims who are no 
longer able to live independently. I have also participated 
in prison programs and workshops to hopefully assist 
inmates in rehabilitating themselves. 

2. The American Bar Association's Commentary to its Code of 
Judicial Conduct states that it is inappropriate for a 
judge to hold membership in any organization that 
invidiously discriminates on the basis of race, sex, or 
religion. Do you currently belong or have belonged to any 
organization which discriminates, through either formal 
membership requirements or the practical implementation of 
membership policies? 

No. 



258 



Page 2 



3. Is there a selection commission in your jurisdiction to 
recommend candidates for nomination to the federal courts? 
If so, did it recommend your nomination? 

I know of no Selection Commission in my jurisdiction which 
recommends candidates. 

Please describe your experience in the entire judicial 
selection process, from beginning to end (including the 
circumstances which led to your nomination and interviews 
in which you participated) . 

After the election of President Clinton, my two senior law 
partners recommended me for a federal judgeship to 
Senators Breaux and Johnston. 

I also obtained recommendations from members of th6 legal 
community, political organizations, labor and business 
leaders and minority representatives. 

Subsequent to being recommended by the two senators, I 
filled out various forms and was interviewed by officials 
in the Justice Department, the F.B.I, and the American Bar 
Association. 

4. Has anyone involved in the process of selecting you as a 
judicial nominee discussed with you any specific case, 
legal issue or question in a manner that could reasonably 
be interpreted as asking how you would rule on such case, 
issue, or questions. If so, please explain fully. 

No. 

5. Please discuss your views on the following criticism 
involving "judicial activism." 

Under our system of separation of powers, the legislature 
has the responsibility of promulgating the general laws and 
policies affecting society as a whole. The judiciary is a 
separate branch of government with an entirely different 
responsibility. The courts are mandated to resolve 
particular conflicts between individual parties who have a 
specific genuine dispute. The parties should clearly be 
entitled to a legal resolution of their problem -at that 
time or else the court should decline the case. The 
courts are to apply the constitution and the general law to 
that specific dispute emd decide which party is entitled 
to prevail. The decision amd remedy should be limited to 
those particular parties. The reasoning behind the decision 
should likewise be narrowly confined to the type of 
conflict set forth in the case. 



5. 



259 



Page 3 



The courts do have a unique responsibility of determining 
the constitutionality of statutes and laws, as promulgated 
and as applied. However even in those situations, the 
court's role should generally be confined to that basic 
decision, leaving the legislature and executive branch to 
respond with whatever affirmative steps need be taken to 
restore constitionality. 



260 



AFFIDAVIT 



lation provido^ in this statement is, to 1 



I. ^^^^ f V-^'-^^^^^fy— , do swear that the 

information providod in this statement is, to the best of my 
knowledge, true and accurate. 



(Date) (NJme) 



^v^Vl. 



(Notary) 
ARTHUR S. MANN. Ill 

Public. Parish of Orlaaru. SM* of U. 
■ hMd tar VU. 



261 



I. BIOGRAPHICAL INFORMATION (PUBLIC) 

1. Full name (include any former names used.) 
Tucker Lee Melancon 

2. Address: List current place of residence and office address (es). 

Residence 604 North Monroe Street 

Marksville, Louisiana 71351 

Office P. 0. Box 211 

Marksville, Louisiana 71351 

3. Date and place of birth. 

February 3, 1946 
Bryan, Texas 

4. Marital status (include maiden name of wife, or husband's name). 
List spouse's occupation, oiployer's name and business address (es). 

Katherine Ascher Melancon. 
Hcroemaker. 

5. Education : List each college and law school you have attended, 
including dates of attendance, degrees received, and dates degrees 
were granted. 

Louisiana State University, Baton Rouge, Louisiana, 

1964-1968, Bachelor of Science, May 25, 1968 
Tulane University School of Law, New Orleans, Louisiana, 

1970-1973, Juris Doctor, May 11, 1973 

Summer schools attended: 

Louisiana State University at Alexandria, Alexandria, 

Louisiana, 1965 and 1966 
Loyola University, New Orleans, Louisiana, 1969 
Louisiana State University School of Law, Baton Rouge, 

Louisiana, 1971 

I also attended Loyola University School of Law, Night Division, 
New Orleans, Louisiana, for a brief period in the fall of 1968. I 
resigned due to the demands of my teaching profession. 

6. Employment Record : List (by year) all business or professional 
corporations, coir^^nies, firms, or other enterprises, partnerships, 
institutions and organizations, nonprofit or otherwise, including 
firms, with which you were connected as an officer, director, 
partner, proprietor, or atployee since graduation from college. 



-1- 



262 



1968-1969 Science/Physical EducatiOTi Teacher 
Jefferson Parish School Board 
Gretna, Louisisuna 

1973-1975 Associate 

Knoll & Knoll 
Attorneys at Law 
Marksville, Louisiana 

1975-1983 Member, Board of Directors, Secretary-Treasurer, 
Avoyelles Holdirg Company, Inc., dA>/a, 

Brieirwaod Motel 
Bunkie, Louisiana 

1975-1983 Solo law practice 

Marksville, Louisiana 

1976-1987 Manber, Beard of Directors, Secretary-Treasurer 

Mar -Dan Enterprises, Ltd., d/b/a, Melancon Funeral 

Home cind Melancon Mcnument Cotpany 
Bunkie, Loiiisiana 

1976-1979 Manber, Board of Directors 

W. Belmont Townsend Memorial Foundation, 

Inc. (ncHi profit corporation), d/b/a, 

Epps House 
Bunkie, Louisicina 

1978-1980 Member, Board of Directors, Secretary-Treasurer, 
E-Z Shop of Alexandria, Inc., d/b/a E-Z 

Shop 
Marksville, Louisiana 

1980-1981 Manber, Board of Directors, Secretary-Treasurer, 
Son of Son, Inc., d/b/a, Mike Anderson's Seafood 

Restaurant 
Mcinsura, Louisieina 

1984-present Managing Partner 

Melcincon & Rabalais 
Attorneys at law 
Marksville, Louisiana 

1985-1987 Member, Board of Directors, Secretary-Treasurer, 
Laco Premium Plan, Inc., d/b/a, Laoo, 
Mcurksville, Louisiana 

1987-1988 Manber, Board of Directors, Secretary-Treasurer, 
Southeast CentreLl Louis icuia Premium Fincince 

Cotipany, d/b/a, SBCLA 
Marksville, Louisicina 



-2- 



263 



1989-1992 Matter, Advisory Beard 

Catalyst Old River Hydroelectric Partnership 
Vidalia, Louisiana 

1992-present Mannber, Board of Directors 

Catalyst VidaLLia Corporation 
New York, New York 

7. Military Service ; Have you had aiiy military service? If so, 
give partiCTilars , including the dates, branch of service, rank 
or rate, serial number and type of disdiarge received. 

No. 

8. Honors and Awards ; List any sdioiarships , fellowships, honorary 
degrees, and honorary society menfaerships that you believe would 
be of interest to the Ccnmittee- 

Not applicable. 

9. Bar Associations ; List all bar associations, legal or judicial- 
related catmiittees or conferences of vAiich you are or have been a 
member and give the titles and dates of any offices which you 
have held in such groups. 

Avoyelles Parish Bar AssociaticKi, President, 1977-1978 
Louisiana State Bar Association, House of Delegates, 

1973-1975, 1990-present 
Bar Association of the Fifth Federal Circuit 
Louisicuia Trial Lawyers Associaticsi, President's 

Advisory Board, 1979-1980, 1985-1986, 1987-1988, 

1990-present 
American Trial Lawyers Association 
American Inns of Court, Alexandria-Pineville Chapter 
American Judicature Society 

Louisiana Workers' Conpensatioi Advisory Board, 1990-1991 
Ccranittee to Study Backlog in the Ocurts of Appeal, 

First and Third Circuits, by aK»intniait of the Louisiana 

Supreme Court, 1991 

10. Other memberships ; List eLll organizaticms to \i^idi you belong 
that are active in lobbying before public bodies. Please list all 
other organizations to vrtiich you belong. 

Louisiana Trial Lawyers Association 
Aroericcin Trial Lawyers Association 
The Environmental Defense Fund 

The National Eagle Scouts Association 

The New Orleans Track Club( running club, no facilities, race sponsor) 

Louisiana Public Broadcasting 



-3- 



264 



11. Court admissions ; List all cxiurts in which you have been admitted 
to practice, with dates of admission and lapses if any such 
memberships lapsed. Please explain the reason for any lapse of 
membership. Give the same infornation for administrative bodies 
which require special admission to practice. 

Louisiana State Bar, October 5, 1973 

United States District Court, Eastern District of Louisiana, 

Novenber 13, 1974 
United States Court of Appeals, Fifth Circuit, 

July 26, 1979 
United States District Court, Middle District of Louisiana, 

October 8, 1980 
United States District Court, Western District of 

Louisiana, September 16, 1985 
United States Supreme Court, November 4, 1985 
United States District Court, District of 

Nevada on a single case basis, petition filed 

February 4, 1992 

12. Published Writings ; List the titles, publishers, and dates of 
books, articles, reports, or other published material you have 
written or edited. Please supply one copy of all published 
material not readily available to the Ccnndttee. Also, please 
supply a copy of all speeches by you on issues involving 
constitutional law or legal policy. If there were press reports 
about the speech, and they are readily available to you, please 
supply them. 

None. 

13. Health : What is the present state of your health? List the date 
of your last physical examination. 

Excellent. My last physical examination was on May 12, 1992 

14. Judicial Office : State (chronologically) any judicial offices you 
have held, whether such position was elected or appointed, and a 
description of the jurisdiction of each such court. 

None. 

15. Citations ; If you aure or have been a judge, provide; (1) citations 
for the ten most significant opinions you have written; (2) a short 
sunmary of and citations for all appellate opinions v^iere your 
decisions were reversed or where your judgment was affirmed with 
significant criticism of your substantive or procedural rulings; 
and (3) citations for significant opinions on federal or state 
constitutional issues, together with the citation to appellate 
court rulings on such opinions. If any of the opinions listed 
were not officially reported, please provide copies of the 
opinions . 

Not applicable. 



-4- 



265 



16. Public Office : State (chrcxxslogically) amy public offices you 
have held, other than judicial offices, including the terms of 
service and whether sadti positions ware elected or appointed. 
State (chronologicailly) euiy unsuccessful candidacies for 
elective public offioe. 

I vras appointed by the Bunkie, Louisiana, City Council to serve on 
the BunJcie Airport Authority from 1974 to 1978. 

I was appointed by the Assistant Secretary of Labor of the State of 
Louisiana to serve on the Louisiana Workers' Condensation Advisory 
Board from 1990 to 1991. 

17 . Legeil Career ; 

a. Describe chronologically your law practice and e^qierience 
aft-^T graduaticMi from law school including: 

1. whether you served eis clerk to a judge, euid if so, 
the name of the ju^, the court, and the dates 
of the period you were a clerk; 

Not applicable. 

2. whether you practiced alone, and if so, the addresses 
and dates; 

May 15, 1975 to August 1980. 

116 East Mark Street 
Marksville, Louisiana 71351 

3. the dates, names and addresses of law firms or offices, 
companies or governmental agencies with vrfiich you have 
been connected, cind the nature of your connection with 
each; 

August 1, 1973- 

May 14, 1975 Associate 

Knoll & Knoll 

Attorneys at Law 

P. 0. Box 426 

Marksville, Louisiana 71351 

Gaieral civil practice, including plaintiffs' 
personal injury emd vrorkers' ccn^jensation 
litigation, reed, estate, domsstic 
relations , successions (probate), cind 
oonmercial practice. 



-5- 



266 



May 15, 1975- 
Deceitiber 31, 1983 



Solo Practitioner 
116 East Mark Street 
Marksville, Louisiana 71351 
(associate Rodney M. Rabalais 
hired in 1980) 

General civil and criminal practice, 
including plaintiffs' personal injury 
and workers' compensation litigation, 
felony and misdemeanor criminal defense, 
(1975-1980), real estate, dcroestic 
relations, successions (probate), and 
CCTimercial practice- 



January 1, 1984- 
present 



Managing Partner 
Melancon & Rabalais 
Attorneys at Law 
Marksville, Louisiana, 71351 

General civil practice, plaintiff and defense 
with cin emphasis on personal injury and 
workers' compensation litigation, and also 
including conmercial litigation, corporate 
law, doTvestic relations, successions 
(probate), and real estate. 

1, What has been the general character of your law practice, 
dividing it into periods with dates if its character 

has changed over the years? 

While I still handle plaintiffs' personal injury cases, successions 
(probate), and a number of corporate clients, over the last two 
years my practice has become more defense oriented. (Currently 
the majority of my time is devoted to defense work for Guarantee 
Mutual Life Insurance Company; the Louisiana Sheriff's 
Risk Management Program; Imperial Fire & Casualty Insurance 
Company; the State of Louisiana, Department of Transportation 
& Development; and the Avoyelles Parish Sheriff's Department. 
My prior practice is listed in my response to question 17(a)(3). 

2. Describe your typical former clients, and mention the 
areas, if any, in which you have specialized. 

The Avoyelles Parish Sheriff's Department (The Law 

Enforcement District of the Parish of Avoyelles, 

State of Louisiana), general counsel 
Louisiana Sheriff's Risk Management Program, liability 

defense 
Guarantee Mutual Life Insurance Company, workers' 

compensation defense 



-6- 



267 



Imperial Fire & Casualty Insurance Conpany, liability 
defense 

State of Louisiana, D^artment of Transportation 
& Development and D^artment of Public 
Safety and Corrections, lieibility defense 

c. 1. Did you appear in court frequently, occcisioncilly, or not 
at all? If the frequency of your appearances in court 
varied, describe eacii such variance, giving dates. 

I have appeared regularly in court. However, in the leist 
two to three years, I have appeared somewhat less 
frequently because of the changing nature of my 
practice; the increasing amount of defense vrork; 
the ranoval of workers' condensation ceises 
from state district courts to the 
Office of Workers' Con^pensation 
Administration; and the hiring of em eissociate. 

2. What percentage of these a^jecurances was in: 

(a) federal courts; 
1% 

(b) state courts of record; 
94% 

(c) other courts. 

Louisiana Office of Workers' Conpensation Administration, 
workers' compensation trials and related natters — 5%. 



3. What percentage of your litigation was: 

(a) civil; 

99% 

(b) crimincd. 
1% 

4. State the number of cases in courts of record you tried 
to verdict or judgmait (rather than settled), indicating 
whether you were sole counsel, chief counsel, or 
associate counsel. 

300 to 400 cases as sole counsel, approximately 
20 cases as aissociate counsel. 



-7- 



268 



What percentage of these trials was: 
(a) jury; 



(b) non-jury. 

99% 

18. Litigation : Describe the ten most significant litigated matters 
which you personally handled. Give the citations, if the cases 
were reported, and the docket number and date if unreported. Give 
a capsule summary of the substance of each case. Identify the party 
or parties whom you represented; describe in detail the nature of 
your participation in the litigation and the final disposition of 
the case. Also state as to each case: 

(a) the date of representation; 



(b) the name of the court and the name of the 
judge or judges before v^cxn the case was 
litigated; and 



(c) the individual name, addresses, and telephone 
numbers of co-counsel and of principal counsel 
for each of the other parties. 

The cases I selected in response to this question 

are significant only to the parties I represented and 

to me. However, they are representative of my 

practice and of my litigation experience. A summary of the 

information requested for each case, in reverse chronological order, 

is attached hereto as Appendix I. 

19. Legal Activities : Describe the most significant legal activities 
you have pursued, including significant litigation which did not 
progress to trial or legal matters that did not involve litigation. 
Describe the nature of your participation in this question, please 
omit any information protected by the attorney-client privilege 
(unless the privilege has been waived). 

In 1990 I was appointed to the Louisiana Workers' Condensation 
Advisory Board by the Assistant Secretary of Labor. The Board 
was set up pursuant to Louisiana Revised Statute 23:1291B. (14) 
and consisted of five members. The Board's role was to 
assist the Director of the Office of Workers' Compensation 
Administration in the development and implementation of 
policies and procedures for the Workers' Compensation 
Administrative Hearing Process that was removed from the 
state district courts in 1990. 



-8- 



269 



A sunmary of four cases I handled that were 
settled after litigation was instituted, but prior to 
trial, in chronologiccil order, is attached hereto as 
Appendix II. 



II. FINANCIAL DATA AND CDNFLICr OF INTEREST (PUBLIC) 

List all sources, amounts cind dates of all anticipated receipts from 
deferred income arrangements, stock, options, uncompleted contracts 
and other future baief its which you expect to derive fron previous 
business relationships, professional services, firm memberships, 
former anployers, clients, or customers. Please describe the 
arrangements you have made to be compensated in the future for 
any financial or business interest. 

a. I intend to dissolve my law partnership, 
Melancon & Rabalais, with my law 

partner, Rodney M. Rabalais, in strict adherence to 
and compliance with Cannons of the Code of Conduct for 
United States Judges and all rules and regulations 
of the JudicicLl Conference of the United States and of the 
American Bar Association that relate thereto. The 
details of the agreement to dissolve the partnership 
have not yet been determined, but I would expect to 
receive periodic ccnpensation for the sale of my 
interest in the partnership. 

b. As part of my firm's fee for representing the plaintiffs 
in a wrongful death action in 1989 I received New York 
Life Insurance Conpany annuity policy no. FP200509, 
annuitant's no. 1A10530 providing the following 
annuity benefits stream: Annuity payment of 
$2,193.35 per month beginning 01/02/2001, payable 
while I am living, or until at least 240 such 
payments have be&n made. 

c. Through inheriteince and investment, I have royeilty 
and working interest ownership in gas and oil wells 
operated by Campac Eighty-Two Limited Partnership, 
Jeems Bayou Production Corporation, Brammer 
Engineering, and Fina that will produce future 
income. 

Explain how you will resolve any potential conflict of interest, 
including the procedure you will follow in determining these 
areas of concern. Identify the categories of litigation and 
financial arrangements that are likely to present potential 
conflicts-of -interest during your initial service in the 
position to which you have been nominated. 



-9- 



270 



I will not sit on or participate in amy case in which 

my law partner, Rodney M. Rabalais, or anyone 

associated with my law partner has an interest. 

I will not sit on any case involving a former 

client for the period prescribed by the 

Code of Conduct for United States 

Judges. I will not sit on any cases involving 

a person, corporation, or partnership with 

vi*iich I have a business or financial interest. 

By aiploying the foregoing procedure, 

I do not anticipate any conflicts of interest 

during my initial service on the bench. Should a 

conflict arise I will follow the guidelines of the 

Code of Conduct for United States Judges. 

3. Do you have any plans, cornutments, or agreenents to pursue 
outside employment, with or without compensation, during 
your service with the court? If so, explain. 

No. 

4. List sources and amounts of all inccne received during the 
calendar year preceding your nanination and for the current 
calendar year, including all salaries, fees, dividends, 
interest, gifts, rents, royalties, patents, honoreiria, 

and other itenns exceeding $500 or more (if you prefer to 
do so, copies of financial disclosure report, required 
by the Ethics in Government Act of 1978, may be substituted 
here ) . 

My Financial Disclosure Report is attached hereto. 

5. Please ccmplete the attached financial net vorth statanent in 
detail (Add schedules as called for). 

My Financial Statement is attached hereto. 

6. Have you ever held a position or played a role in a political 
campaign? If so, please identify the particulars of the 
campaign, including the candidate, dates of the campaign, 
your title and responsibilites. 

Yes. 

1992 State wide Co-Chair, Louisiana Democratic Party 
"Victory Fund '92"; 

1990 Fifth Congressional District of Louisiana 

Ctoordinator, Senator J. Bennett Johnston's 
U. S. Senate re-election campaign; 



-10- 



271 



1986 District coordinator. Congressman Jc*in Breaux's 

U. S. Senate Campaign; 
1984 Eighth Congressional District of Louisiana, 

co-coordinator for Mondeile/Ferrciro ticket; 
1984 Eighth Congressional District of Louisiana 

coordinator for Senator Gary Hart 

Since 1985 in my capacity as Democratic National Ccnniitteenan , I have 
made appearances with or on b^iailf of numerous Danocratic candidates 
for national, state, and local office. 

III. GaiERAL (POBLIC) 

1. An ethical consideration under Canon 2 of the American Bar 
Association's Code of Professional Responsibility calls for 
"every lawyer, regardless of professional prominence or 
professional workload, to find scsne ti m e to participate in 
serving the disadvantaged." Describe what you have done to 
fulfill these responsibilites, listing specific instances 
and the amount of time devoted to each. 

Due to the nature of my firm's practice and the size of the 
city and parish (county) which we serve, pro bcxio legad. work is 
regularly provided to pec^le who cstfinot afford to retain an 
attorney on a walk in basis. My firm and I eilso participate 
in a program sponsored by Acadiana Legal Service Corporaticxi, 
formerly Central Louisiana Legal Services, Iik:. in 
providing legal services for people who cemnot aif ford to 
retain an attorney in civil cases at a nominal hourly 
rate of $25.00 for work performed out of court and $35.00 
for court aRjearamces with a maximum fee of $250.00 per case. 
Prior to establishment of an indigent defaider systan 
for criminal defendants in Avoyelles Parish, Louisiana, 
I voluntarily participated in the court sponsored 
indigent defender program. The amount of time devoted 
to pro bono and Acadian Legal Services varies, but would 
average 4 to 6 hours per month. 

2. The American Bar Association's Conmentary to its Code of Judicial 
Conduct states that it is inappropriate for a judge to hold 
manbership in any organization that invidiously discriminates 

on the basis of race, sex, or religicm. Do you currently 
belong, or have you belonged, to any organization v*iich 
discriminates — through either formal membership requiranents 
or the practical implonentation of manfaership policies? If 
so, list, with dates of manbership. What you have done to 
try to change these policies? 

No. 

3. Is there a selection commission in your jxirisdiction to recommend 
candidates for nomination to the federal courts? If so, did it 
recatinend your nomination? Please describe your experience in 
the entire judicial selection process, from beginning to end 



-11- 



272 



(including the circumstances which led to your nomination and 
interviews in which you participated) . 

There is no selection ccnmission for Louisiana. I met with 
Senator John Breaux and Senator J. Bennett Jc*inston. I also spoke 
with Congressmen William Jefferson, Billy Tauzin, Cleo Fields, 
Jiimiy Hays, and Governor Edwin Edwards. I was contacted by the 
Clinton Administration, filled out various forms, interviewed at 
the Etepartment of Justice, interviewed by an agent of the Federal 
Bureau of Investigation and interviewed by a representative of 
the American Bar Association. 

4. Has anyone involved in the process of selecting you as a judicial 
ncminee discussed with you any specific case, legal issue or 
question in a tianner that could reasonably be interpreted as 
asking how you would rule on such case, issue, or question? 

If so, please explain fully. 

No. 

5. Please discuss your views on the following criticism involving 
"judicial activism." 



The role of the Federal judiciary within the Federal government, 
and within society generally, has beccme the subject of increasing 
controversy in recent years. It has become the target of both 
popular and academic criticism that alleges that the judicial 
branch has usurped many of the prorogativos(sic) of other branches 
and levels of government. 



Sane of the characteristics of this "judicial activism" have been said 
to include: 

a. A tendency by the judiciary toward problem-solution rather 
than grievance-resolution; 



A tendency by the judiciciry to ^nploy the individual 
plaintiff as a vehicle for the imposition of far- 
reaching orders extending to broad classes of 
individuals; 



A tendency by the judiciary to impose broad, affirmative 
duties upon governments and society; 



d. A tendency by the judiciary toward loosening jurisdictional 



-12- 



273 

requirsnents sudi as standing and ripeness; and 



e. A tendency by the judiciary to inpose itself upon other 
institutions in the manner of em administrator with 
continuing oversight responsibilities. 



The United States Constitution's establishment of three 
separate and co-equeil brauiches of government is the cornerstone 
of our Republic. If the Judicial Brainch is to fulfill its 
constitutional role, I believe traditioneil jurisdictional 
requiranents such eis stemding and ripeness must be adhered to. 

While the Judicial Breinch heis the duty to ensure that the 
actions of the Legislative and Executive Branches meet 
constitutional standards, I believe the proper role of the 
Judiciary is to resolve the dispute of the parties before 
the Court in a manner so that the decision eiffects, to the 
extent possible, only the parties. That is not to say, with 
the canplexities of human society, situations do not eirise 
where in reaching a resolution of the dispute between the 
parties a court's decision will not have far-readiing effects. 
That a decision may have feir-reaching effects should not deter 
the Court from resolving the dispute of the parties before it, 
if jurisdictional requirements are met. In resolving the dispute 
between the parties the doctrine of Stare Decisis should be 
followed vrtien ^pliceLble. 

My e^qjerience eis a lawyer in dealing with oourts with 
continuing oversight responsibilites has been limited, but has 
led me to believe that such procedure should be used sparingly 
emd only as a last resort. Care must be taken to assure that 
the overseeing court is not usurping administrative or legislative 
power. Rather than assisting in resolving disputes and 
encouraging settlanent, my personal experience has been that 
additional litigation has resulted, attorney's fees and related 
e^qpenses are increased, and disputes that could and should be 
resolved by parties are not. 



-13- 



274 



APPENDIX II 
CASE #2 

NAME OF CASE : 

Caxol Ann Lachney Turner, et ail vs. United States Fidelity & Guarantee 
Insurance Canpany, et al 

CX)URr AND CASE DOCKET NO. : 



Twelfth Judicial District Court of LouisicUia 
Suit #87-U31-A 

United States District Court 
Western District of Louisiana 
Alexandria Division 
Suit #87-0441 

PERIOD OF REPRESENTATION ; 

October 15, 1986 to March 23, 1989 

PARTY I REPRESENTED AND NATURE OF MY PARTICIPATION IN THE LITIGATION ; 

Carol Ann Lachney Turner, individually and as duly appointed Natural Tutrix 
of her minor children, Tanisha Sheree Turner, Nacmi Anganette Turner, Jason 
Edvgard Turner & Hillary Scott Turner, and Scdarina Turner Deville, sole 
counsel 

NAME, ADDRESS AtP TELEPHONE NUMBER OF COUNSEL FOR EACH OTHER MAJOR PARTY ; 

Leunry A. Stewart 

Stafford, Stevrart & Potter 

P.O. Box 1711 

Alexandria, LA 71309 

(318) 487-4910 

Attorney for United States Fidelity & Guarcuity Caipany 

Madison C. Moseley 

Blue, Williams & Buckley 

3421 North Causeway Boulevard 

9th Floor 

Metairie, LA 70002 

(504) 831-4091 

Attorney for Northfield Insureince Company 

* There were several other counsel for other defendants, but those listed 
above were the attorneys for the major defendants. 



-2- 



275 



APPENDIX II 
CASE #2 - PAGE 2 

SUMMARY OF THE CASE ; 

This wrongful death action arose out of an accident that occurred on 
October I, 1986. My clients' husband and father was killed when he drove a 
truck into the side of cin 18 wheeler truck-trailer that was straddling the 
road after becoming stuck on the shoulder of the road while attempting to 
nake a U turn. The deceased's truck was struck from the recir by a 
Volkswagen, which resulted in the death of the driver and severe injury to 
a passenger. The two cases were consolidated for trial purposes. There 
was a serious question eibout the defendants' liability because of the 
status of the truck driver, enployee or independent contractor. Several 
days prior to trieil, my clients' claims were settled by structvared 
settlaient and cash with a total value of $587,500.00. 



-3- 



276 



APPENDIX II 
CASE #3 

NAME OF CASE ; 

Mathilda Gaspard Prevot, individxially and as Natural Tutrix of the Minor, 
Julie Ann Prevot, and Mary Elizabeth Prevot, as Natural Tutrix of the 
Minor, Sarah M. Lee Prevot vs. Government Einployee's Insurance Cotpany 

COURT AND CASE DOCKET NO. : 



Twelfth Judicial District Court of Louisiana 
Suit #87-14628-A 

PERIOD OF REPRESENTATION ; 

October 1, 1987 to April 1, 1989 

PARTY I REPRESENTED AND NATURE OF MY PARTICIPATION IN THE LITIGATION ; 

Mathilda Gaspard Prevot, individually, amd as Natural Tutrix of the minor, 
Julie Ann Prevot, sole counsel 

NAME, ADDRESS AND TELEPHONE NUMBER OF COUNSEL FOR EACH OTHER PARTY ; 

Nelson M. Lee 

P.O. Box 88 

Bunkie, LA 71322 

(318) 346-2364 

Attorney for Mary Elizabeth Cecil Prevot, as Natural Tutrix for the minor, 

Sarah M. Lee Prevot 

Russell L. Potter 

Stafford, Stewart & Potter 

P.O. Box 1711 

Alexandria, LA 71309 

(318) 487-4910 

Attorney for Government Employees Insurance Conpany 

SUMMARY OF THE CASE ; 

This wrongful death action arose out of the death of my clients' husband 
eind father and two other men in a single car accident that occurred on 
August 30, 1987. No witnesses to the accident could identify which of the 
three men was driving the vehicle at the time of the accident. Conflicting 
claims were made by the heirs of each of the three men. Separate suits 
filed by the three men's heirs were consolidated for trial. Several days 
prior to trial, my clients' claims were settled by structured settlement 
and cash with a total value of $400,000.00. 



277 



APPENDIX II 
CASE #4 

NAME OF CASE ; 

James J. Ponthier vs. Bill Belt, in his Capacity as duly Elected Sheriff of 
Avoyelles Parish, Louisiana 

COURT AND CASE DOCKET NO.: 



Twelfth Judicial District Court of Louisiana 
Suit #90-5111-8 

PERIOD OF REPRESENTATION ; 

NovOTber 2, 1989 to November 30, 1991 

PARTY I REPRESENTED AND NATURE OF MY PARTICIPATION IN THE LITIGATION ; 

James J. Ponthier and Phyllis Ponthier - sole counsel 

NAME, ADDRESS AND TELEPHONE NUMBER OF COUNSEL FOR EACH OTHER MAJOR PARTY ; 

Donald C. Brown 

Woodley, Williams, Fenet, Palmer, Boudreaux & Norman 

P.O. Drawer EE 

Lake Charles, LA 70602-3731 

(318) 433-6328 

Attorney for Bill Belt & Louisiana Sheriff's Risk Management Program 

Allen T. Usry 

Usry & Weeks 

P.O. Box 6645 

Metairie, LA 70002 

(504) 833-4600 

Attorney for Bill Belt & Louisiana Sheriff's Risk Management Program 

SUMMARY OF THE CASE ; 

This personal injury ccise curose as a result of the escape of three inmates 
frati the Avoyelles Parish Jail in Marksville, Louisicina, and the encounter 
that plaintiff, his wife and children had with the inmates at plaintiff's 
home on the night of the escape. As a result of the encounter, plaintiff 
suffered psychiatric/psychological damages due to a pre-existing 
psychological condition. The Ccise was settled several days before the 
trial for the sum of $130,000.00. After the conclusion of this case, I was 
retained as attorney for the Avoyelles Parish Sheriff's Department and the 
Louisiana Sheriff's Risk Management Program. 



-5- 



278 



FINANCIAL DISCLOSURE REPORT 



Report Required by t>.e T'ir.:zs 
Relorm Act of 1985, Pub. 1. No 
101-194. November 3?, 1?=5 

(S u s.c-A. Aup. €. ioi-::i 



Person Sei>orti.r.o i L-^s" r.aine, first , middle in it;, a 



MELANCON, TUCKER L. 



4. Title lArticie III judges indicate active or 

senior status ,- Magistrate judges indicate 
full- or part-time) 

NOMINEE-ARTICLE III JUDGE 



7. Chambers or Office Address 

ROOM 201, FEDERAL BUILDING 
2 01 JACKSON STREET 
MONROE, LOUISIANA 71201 



2, Cc-rz or Organization 



USDC FOR W.DIST OF LA- MONROE 



5 Report Type (check appropriate type) 
•/ Nomination, Date ll/ie/93 
^ :.-.itial Annual Final 



Daze of =»=orc 



D 11/19/93 



6 - Reporting Pericd 

1/1/92-11/19/913 



On ;he basis of the information contained in this Report, i; 
is, in my opinion, in compliance with applicable laws and 
regulations 



Reviewing Officer Signature 



IMPORTANT NOTES: The inslructions accompanying ihis form must be followed. Complete all parts, 
checking the NONE box for each section where you have no reportable information. Sign on last page. 



I. POSITIONS. (Reporting individual only; see pp. 7-8 oflnstructions.) 



n 



POSITION 

NONE (No reportable positions) 



MANAGING PARTNER 



TRUSTEE 



CONSULTANT 



NAME OF ORGANIZATION /ENTITY 

MELANCON & RABALAIS. ATTORNEYS AT LAW 

MELANCON & RABALAIS PEN & PROF SHARING TRUST 
KEROTEST MANUFACTURING CORPORATION 



II. AGREEMENTS. (Reporting individual only, see pp. 8-9 of instructions.) 

DATE PARTIES AND TERMS 



Q 



NONE (No reportable agreements) 



III. NON-INVESTMENT INCOME. (Reporting individual and spouse; see pp. 9-12 of Instructions.) 



DATE 

{Honoraria only) 



n 



SOURCE AND TYPE 

NONE (No reportable non- investment income) 



GROSS INCOME 

(yours , nc: spouse" s) 



1992 MELANCON & RABALAIS. ATTORNEYS AT LAW-NE T BUSINESS INCOME $ 141711.00 

1993 MELANCON U RABALAIS. ATTORNEYS AT LAW-GR OSS BUSINESS INCOME $ 246500.00 

19 92 CATALYST OT.D RIVER HYDRO ELEC LTD PTN-BO ARD OF ADVISOR FEES $ 2500.00 

1992/93 CATALYST VTDALIA CORPORATION -BOARD OF DIRECTORS FEES $ 17000.00 

19 92 MARATHON OIL COMPANY - OIL ROYALTY $ 578^,00 



279 



FINANCIAL STATEMENT 

NETT WLKi'H 

NC3VQ1BER 1, 1993 



Provide a complete, cnricnt financial net wonh sutement which itemizes In detail 
all assets (including HanV- accounts, real estate, securities, tnsts, investments, and other financial 
holdings) all liabilities Ondnding debts, mongages, loans, and other financial obligations) of 
yourself, your spouse, and other Immediate memben of your household. 





ASSETS 






UABlUnES 


Cub oa band and in banb 


25 


000 


00 


Nolea pa/able to baab-aaeurcd 








VS. Cevusfflcnt Meuridt*—adi 
(cbedal* 
















Lined Keuritia— add jchcduli 


16 


931 


33 


Notn payabl* Is relatives 


35 


858 


2 




1 Unlittcd iceuritici-add achedul* 


55 


693 


16 


Nolu payaUa ts elhea 










Ascoonu and neiet xeeivablc; 








Aeeennu aod bOlt du« 










Dm bom nlativti and ftiandf 








Unpaid iaeaaia lax 










Due fitsin othcra 








Oihtr nnpaid lax and intenat 










DoubtfJl 








Real aalale mangagca payaUe-add 
achedult 


191 


601 







Real ealate ewncd-add achedult 


390 


809 


22 


Ousel mottgagea aid other Ueiu pay. 
abla 










Real ctuie niorl<a(e> recchrabl* 








Other debu-iioniza: 










Aulet and ether peneoa! property 


202 


900 


00 












Cub value-life iniuraiiei 


4 


716 


77 






























Tnrlivirlial R°HihihiI A 1 1 i»il»,,T»Tigim 



















& Pinfit Sharing A i.i.i.iiiLb & ftmity 


300 


556 


36 












113 


890 


00 


Total Sabmtiat 


227 


459 




MXTETldl IllttiLtiibi 


J' 












NetWoift 


883 


037 


5( 


ToUl AtUtM 


1.110 


4'?fi 


94 


Teul liabmtist an] net »onh 


1,110 


496 


8- 




CO.VnNCENT UABlLinES 








GENERAL INFORMATION 










As eodarter, comaker or guarantor 


81 


930 


78 


Are any aaaeti pledged? (Add ached, 
ult.) 


No 








Ob Icaaet or oon»acU 


KriMP. 






Are yea deteodant in aey tolu or legal 
acdoniT 


No 






Legal Qiisu 


NONE 






Hare you ever taba banfavpieyj 


No 






nrevuion tot Fedeti] Incomt T« 


NOTE 














OjMr tpeeUl debt 


NONE 


== 













280 



TUCKER L. MELANOON & KATHEEUNE ASCHER METANOON 
FINANCIAL STATEMENT 
NET V«QRTH 
November 1, 1993 



ASSETS 



I. LISTED SECURITIES 

1. Fifty (50) shares of Life Insurance Conpany 

of Alabama, $5.00 par value, as of 

12/10/92 775.00 

2. One hundred nine (109) shares of Life 

Insurcince Conpany of Alabana, $1.00 par 

value, as of 12/10/92 218.00 

3. Five hundred ten (510) sheures of American 

General Corporation comnon stock 14,988.90 

4. 36.7 shares of Janus Twenty Fund, Inc. 949.43 

TOTAL VALUE OF LISTED SECURITIES $ 16,931.33 

II. UNLISTED SECURITIES 

1. Twenty-five (25) shares of Mar-Dan Enterprises, 

Ltd., d/b/a, Melancon Funeral Hone & Monument 

Company, Bunkie, Louisiana, r^resenting 

twenty-five per cent (25%) of the 

outstanding stock 50,000.00 

2. Fifty- two (52) shares of Mansura Bancshares, 

Inc., Mansura, Louisicuia 693.16 

3. Ninety (90) shares of Southeast Central 

Louisiana Premium Finance (Zcmpany, 

Cottonport, Louisicina, representing ten 

per cent (10%) of the outstanding stock 5,000.00 

TOTAL VALUE OF UNLISTED SECURITIES $ 55,693.16 

III. REAL ESTATE OWNED 

1. Camp and 4 lots. Second Wcurd, 

Avoyelles Parish, Louisiana 15,000.00 

2. 62.39 acres, Allen Parish, Louisiana 

undivided 33.33% interest 8,318.66 

3. 14.25 acres. Union Parish, Louisiana 

undivided 33.33% interest 2,375.00 

4. 80 acres, Desoto Parish, Louisiana 

undivided 6.667% interest 2,134.40 



281 



5. 50 acres, Desoto Parish, Louisicina 

undivided 6.667% interest 1,333.33 

6. 40 acres, Desoto Parish, Louisiana 

undivided 33.33% interest 5,333.33 

7. 80 acres, Desoto Parish, Louisiana 

undivided 1.6% interest 512.00 

8. 238.5 acres. Red River Parish, Louisicina 

undivided 1.2% interest 1,045.00 

9. 22.63 acres, Avoyelles Parish, Louisiana 

undivided 50% interest 5,657.50 

10. Family home located at 604 North Monroe 

Marksville, Louisiana 150,000.00 

11. Unit #A of the 122 East Mark Street 

Condominium, Marksville, Louisiana 100,000.00 

12. Condcminium, San Diego, California 99,000.00 

13. Lot located in Section 10, T9S, 

R5E, St. Martin Parish, 

Louisiana 100.00 

TOTAL VALUE OF REAL ESTATE OWNED 390,809.22 



282 



TUCKER L. MELANOON & KATHERINE ASCHER MEEANCON 
FINANCIAL STATEMENT 
NBI WCKTH 
NOVEMBER 1, 1993 



LIABILITIES 

I. REAL ESTATE MORTGAGES PAYABLE 

1. Cottonport Bank, Cenla Branch, Marksville, 

Louisiana 62,947.14 

2. Great Western Savings, Northridge, 

California 18,803.60 

3. Hibernia NationeLL Bank, Alexauidria, 

Louisiana 93,992.06 

4. Future Holder, Betty Lee Circle, 

San Diego, California 15,858.27 

TOTAL REAL ESTATE MORTGAGES PAJaBLB $ 191,601.07 



283 



APPENDIX I 
CASE #1 



NAME OF CASE ; 

Rachel Littleton Charrier vs. Oak Haven Nxirsing Hone, Inc. 

TRIAL COURT AND CASE DOCKET ^P. 

Twelfth Judicial District Court of Louisaina, docket #89-3993 

CITATION OF CASE IF REPORTED ; 

Not applicable. 

PARTY I REPRESENTED AND NATURE OF MY PARTICIPATION IN THE LITIGATION ; 

Plaintiff, Rachel Littleton Charrier, sole counsel 

DATE OR DATES OF TRIAL 

March 8, 1991 

NAME OF JUDGE BEFORE WHOM CASE WAS TRIED ; 

Honorable Harold J. Brouillette, Judge, Twelfth Judicial District Court, 
Division "B" 

NAME, ADDRESS, AND TELEPHONE NO. OF CO-OOUNSEL ; 

Not applicable. 

NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL F(» EACH OTHER PARTY ; 

Joseph Kutch 
P. 0. Box 8028 
Pineville, Louisiana 71360 
(318) 442-4989 

SUMMARY OF THE CASE ; 

This workers' canpensation claim arose out of a June 8, 1989 accident. 
Suit was filed on October 25, 1989, resulting in defendant's insurer 
agreeing to pay past due medical travel expenses, statutory penalties, and 
attorney's fees. Defendant's insurer continued to pay weekly workers' 
compensation cind other benefits due under the Louisiana Workers' 
Canpensation Act until it failed to timely pay a charge for physical 
therapy services rendered to plaintiff. On January 7, 1991, a Rule to Show 



-1- 



284 



APPENDIX I 
CASE #1, PAGE 2 



Cause Why Mediceil Expenses Under the Louisiana Workers' Compensation Act 
Should Not be Paid, for Peialties, Interest, and Attorney's Fees was filed. 
Extensive discx>very was conducted including taking the deposition of the 
adjuster hcmdling the claim for the insurer and the deposition of the 
branch claims manager. Numerous other discovery requests, including 
Subpoena Duces Tecum for interned, documents amd medical records. Request 
for Admissions, and Interrogatories, were filed. Defendants, through their 
attorney, filed a Motion for Sanctions agadnst me alleging that the sixty 
day time period set out in the Louisiana Workers' Compensation Act for 
payment of medical expenses after receipt had not elapsed when I filed 
plaintiff's Rule. The defendcints cilso filed Exceptions of No Cause of 
Action and in the alternative, Prenaturity. In response to defendant's 
Motion for Saxictions, I filed an amswer eu»d request for reasonable expenses 
eind attorney's fees. 

FINAL DISPOSITION OF THE CASE ; 

The trial on the merits of the Rule was conducted on Mcurch 8, 1991. 
Judgment was rendered in plaintiff's favor dismissing defendant's 
Exceptions, granting judgment in favor of plaintiff for medical expenses 
incurred, finding defendants arbitrary and capricious in failing to timely 
pay plaintiff's medical expenses and awarding attorney's fees. Defendant's 
request for sanctions was denied auid sanctions were greuited in favor of 
plaintiff and me against defendants and their attorney for expenses 
incurred in defending the Motion for Sanctions. 



-2- 



285 



APPENDIX I 
CASE #2 

NAME OF CASE ; 

State of Louisiana, through the Departnient of Health & Human Resources, 
Office of Fandly Security in the interest of Codi Chenvert vs. Dale Clark 

TRIAL COURr AND CASE DOCKET NO. 



Twelfth Judicial District Court of Louisiana, docket #88-2503-A 
Court of Appeal, Third Circuit, State of Louisiana, docket #91-6 

CITAnON OF CASE IF REPORTED ; 

Not applicable — not designated for publication. 

PARTY I REPRESENTED AND NATURE OF NK PARTICIPATION IN THE LITIGATION ; 

Defendant, Dale Clark, sole counsel 

DATE OR DATES OF TRIAL 

October 23, 1990 

NAME OF JUDGE BEFORE WHOM CASE WAS TRIED ; 

Honorable Michael J. Johnson, Judge Twelfth Judicial District Court, 
Division "A" 

NAME, ADDRESS, AND TELEPHONE NO. OF CO-COUNSEL : 

Not applicable. 

NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL FOR EACH OTHER PARTY ; 

Carl Koehler, Staff Attorney 
State of Louisiana 
900 Murray Street 
Alexandria, Louisiana 71301 
(318) 487-5202 

SUMMARY OF THE CASE ; 

The State of Louisiana filed suit against the defendant to establish 
paternity and support for a minor child allegedly born out of a sexual 
relationship with the child's mother. Defendant admitted having one act of 
sexual intercourse with the child's mother, but denied that he was the 
father of the child, that he had ever acknowledged he was the father of the 
child, or that he had offered money to the mother of the child or the 



-3- 



286 



APPENDIX I 
CASE #2 

grandmother of the child to assist with medical eiqjenses incurred in 
connection with the birth of the child. Suit was filed on September 16, 
1988. Defendant was ordered to undergo a blood test by the court. The 
blood test resulted in a ocmbined paternity index of 104 to 1 eind a 
probability of paternity of 99.05% as compared to an untested, unrelated 
man of the North American Caucasian population. The depositions of the 
mother and severed of her witnesses were taken. 

FINAL DISPOSITION OF THE CASE : 

After several delays, tricil on the merits was conducted on October 23, 
1990. At the close of the State's case, judgment was rendered in favor of 
defendant. On Novanber 27, 1990, the State filed a Motion to Appeal the 
trial court's decision with the Court of ^^jpeal. Third Circuit of the State 
of Louisiana. The Court of Appeal considered the matter without argument 
on briefs submitted by the parties and on May 12, 1992, in a percuriam 
opinion, upheld the tried court. 



-4- 



287 



APPENDIX I 
CASE #3 

NAME OF CASE ; 

Johnny H. Dauzat vs. Mardel Products Co., Inc. 

TRIAL COURT AND CASE DOCKET NO. 

Twelfth Judicial District Court of Louisiana, docket #90-4258-A 

CITATION OF CASE IF REPORTED ; 

Not applicable. 

PARTY I REPRESENTED AND NATURE OF MY PARTICIPATION IN THE LITIGATION ; 

Defendant, Mardel Products Co., Inc., sole counsel 

DATE OR DATES OF TRIAL 

August 7, 1990 

NAME OF JUDGE BEFORE WHOM CASE WAS TRIED ; 

Honorable William A. Culpepper, retired Judge, Third Circuit Court of 
Appeal, sitting ad hoc by appointment of the Louisiaina Supreme Court. 

NAME, ADDRESS, AND TELEPHONE NO. OF 00-OOUNSEL : 

Not applicable. 

NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL FOR EACH OTHER PARTY ; 

Thomas R. Wilson 

P. 0. Drawer 1630 

Alexandria, Louisiana 71309-1630 

(318)442-8658 

SUMMARY OF THE CASE ; 

This workers' compensation case arose as a result of an alleged back injury 
suffered by plaintiff on August 25, 1989, while making a delivery of wood 
products for defendant. Plaintiff filed suit on January 24, 1990, after 
going through the administrative procedure then in effect with the 
Louisiana Office of Workers' Ccrnpensation Administration. Several 
depositions were taken including plaintiff's deposition and plaintiff's 
treating physician's deposition; extensive interviews with fact witnesses 
and co-vrorkers were conducted. 



-5- 



288 

FINAL DISPOSITION OF THE CASE : 

Trial of the matter tcok place on August 8, 1990, euid Written Reasons for 
Judgment were handed dcwn on September 26, 1990. Judgment was signed on 
October 3, 1990, dismissing plaintiff's claim at his cost. 



-6- 



289 



APPENDIX I 
CASE #4 

^^AME OF CASE ; 

Ronald J. Dalgo vs. Martco Partnership 

TRIAL COURT AbO CASE DOCKET NO. 

Twelfth Judicial District Court of Louisiana, docket #89-3430 
Third Circuit Court of Appeal, State of Louisiana, docket #90-272 

CITATION OF CASE IF REPORTED ; 

Not designated for publication. 

PARTY I REPRESENTED AND NATURE OF M^ PARTICIPATION IN THE LITIGATION ; 

Plaintiff, Ronald J. Dalgo, sole counsel 

DATE OR DATES OF TRIAL 

October 31, 1989 

NAME OF JUDGE BEFORE WHOM CASE WAS TRIED ; 

Honorable William A, Culpepper, retired Judge, Third Circuit Court of 
;^3peal, sitting ad hoc by appointment of the Louisiana Supreme Court 

NAME, AEPRESS, AND TELEPHONE NO. OF OO-OOUNSEL ; 

Not applicable. 

NAME, ADE»ESS, AND TELEPHONE NO. OF COUNSEL FOR EACH OTOER PARTY ; 

John F. Wilkes, III 

ONEBANE, DONOHOE, BERNARD, TORIAN, DIAZ, MCNAMARA, & ABELL 

P. 0. Drawer 3507 

Lafayette, Louisicina 70502 

(318)237-2660 

SUhlARY OF THE CASE ; 

This workers' compensation claim arose as a result of an injury to 
plaintiff's left knee which occurred on May 3, 1988. He vas struck by the 
carriage of a piece of equipment on which he had been working causing a 
three inch laceration to his knee. Plaintiff vras initially seen by 
defendant's company doctor, a general practitioner, who referred him to an 
orthopaedic surgeon. Plaintiff was then referred to a second orthopaedic 



-7- 



290 



APPENDIX I 
CASE #4, PAGE 2 



sxorgeon who specializes in knee surgery. The oon^any orthopaedist also 
referred plaintiff to a psychologist to participate in a pain and trauma 
nanagsnent program. Weekly worters' ootnpensation benefits were paid to 
plaintiff from the date of his injury until March 10, 1989. 

On May 30, 1989, suit was instituted on plaintiff's behalf seeking 
reinstatenent of weekly compensation benefits, reimbursement of medical 
expenses incurred by or on b^alf of plaintiff, penalties, and attorney's 
fees. Pre-trial discovery consisted of eighteen depositions, three of 
which were medical depositions amd fifte«i fact depositions. The medical 
depositions indicated plaintiff suffered from Reflex Sympathetic E)ystrophy 
in his left knee secondary to the trauma he eiqperienced on May 3, 1988. 
Medical testimony also indicated Reflex Synpathetic E)ystrophy was a little 
known malady involving the sympathetic nerve systan usually secondary to 
trauma, resulting in oonsteint eind sometimes excrutiating pain. 

FINAL DISPOSTION OF THE CASE 

The trial on the merits of this matter was conducted on October 31, 1989; 
Written Reasons for Judgment were filed on December 15, 1989, and formal 
judgment was signed on January 11, 1990 dismissing plaintiff's suit at 
plaintiff's cost. On Jemuciry 19, 1990, a Devolutive /^jpeal was filed with 
the Court of ;^3peal. Third Circuit, State of Louisicina. Argument of the 
appeal took place on August 27, 1991 euid on October 2, 1991, judgment vas 
rendered affirming the tried, court's decision. 



-8- 



291 



APPENDIX I 
CASE #5 

NAME OF CASE ; 

Charles Gene Kelone vs. Insurance Conpany of North Alter ica/Aetna 
Insurance Company 

TRIAL COURT AND CASE DOCKEr NO. 

Tvgelfth Judicial District Court of Louisiana, docket #86-9123-A 

CITATION OF CASE IF REPORTED ; 

Not applicable. 

PARTY I REPRESENTED AND NATURE OF My PARTICIPATION IN THE LITIGATION ; 

Plaintiff, Charles Gene Kelone, sole counsel 

DATE OR DATES OF TRIAL 

June 16, 1989 

NAME OF JUDGE BEFORE WHOM CASE WAS TRIED : 

Honorable B. C. Bennett, Jr., Judge, Twelfth Judicial District Court, 
Division "A" 

NAME, ADDRESS, AND TELEPHONE NO. OF OO-OOUNSEL ; 

Not applicable. 

NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL FOR EACH CTHER PARTY ; 

Ronald J. Fiorenza 

PROVOSTY, SADLER, & DEIAUNAY 

P. 0. Drawer 1791 

Alexandria, Louisiana 71309-1791 

(318) 445-3631 

SUI^IARY OF THE CASE ; 

Plaintiff filed a workers' compensation suit on June 10, 1986 as a result 
of injuries sustained on August 18, 1985. Plaintiff's weekly workers' 
compensation payment was only $120.00 based on his pre-injury wage as a 
nechanic. After suit was filed, plaintiff was paid all benefits to which 
he was entitled under the Louisiana Workers' Compensation law. The suit 
renained in inactive status until March 14, 1989 v*ien I received a 
telephone call from defendant's adjuster advising that he wanted to settle 



-9- 



292 



APPENDIX I 
CASE #5, PAGE 2 

plaintiff's claim. If the claim was not settled, he vas going to reduce 
plaintiff's weekly benefit to $30.66 based on a job market survey that he 
had had conducted. On March 16, 1989, defendant reduced plaintiff's 
workers' compensation benefit to the sum of $30.66 per week. On March 28, 
1989, a Rule to Show Cause why Weekly Workers' Corpensation Benefits should 
not be Reinstated, for Penalties, Interest, and Attorney's Fees was filed. 
The trial on the Rule was conducted on June 6, 1989. A judgment Wcis 
rendered in favor of plaintiff ocn^jelling defendant to reinstitute weekly 
workers' compensation benefits to plaintiff at the rate of $120.00 per week 
from March 16, 1989. The insurer was cast with the statutory penalty and 
ordered to pay attorney's fees. 

FINAL DISPOSITION OF THE CASE ; 

As a result of the judgment rendered on the Rule, a settlement conference 
was initiated with defendant's adjuster and attorney, and an amicable 
settlement of plaintiff's claim wais reached. 



-10- 



293 



APPENDIX I 
CASE #6 

NAME OF CASE ; 

Charles W. Pixley, d/b/a, Shelter Mortgage Ccxipany vs. Gulfco 
Investment Group, Inc. 

TRIAL COURT AND CASE DOCKET NO. 



Twelfth Judicial District Court of Louisaina, docket #85-7844-A 
Third Circuit Court of ^peal, State of Louisiana, docket #86-1142 

CITATION OF CASE IF REPORTED ; 

Not applicable. 

PARTY I REPRESEIJrED A^D NATURE OF MY PARTICIPATION IN THE LITIGATION ; 

Defendant, Gulfco Investment Group, Inc., lead counsel 

DATE OR DATES OF TRIAL 

July 17 and July 18, 1986 

NAME OF JUDGE BEFORE WHOM CASE WAS TRIED ; 

Honorable Edwin L. Laf argue, Judge Ad Hoc, Twelfth Judicial District Court, 
Division "A", sitting by appointment of the Louisiana Supreme Court. 

NAME, ADDRESS, AND TELEPHONE NO. OF CO-OOUNSEL ; 

Guy Marvin 

Vice-President & General Counsel 

Independent Life and Accident Company 

One Independent Drive 

Jacksonville, Florida 32276 

(904) 358-5600 

NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL FOR EACH OTHER PARTY ; 

Stephen M. Irving, lead counsel 
645 Napoleon Street 
Baton Rouge, Louisiana 70802 
(504) 346-8774 

Andrew B. Ezell, co-counsel, current address unknown. 



-11- 



2d4 



APPENDIX I 

CASE #6 - PAGE 2 



SUMMARY OF THE CASE: 



On September 4, 1985, plaintiff filed suit against defendant for breach of 
contract alleging damages of $4,784,000.00. Plaintiff was a producer of 
mortgage locins and pursuant to contract entered into between the parties 
defendant was to purchase mortgage loans from plaintiff that met certain 
criteria. On Decanber 10, 1985, defendeint filed a Reoonventional Danand 
against plaintiff in the sum of $24,378.00 for money collected by plaintiff 
for the benefit of defendant cind converted to his own use. Extensive 
discovery was conducted prior to trisLL. 

FINAL DlSPOSmcyi OF THE CASE ; 

A two day judge trial resulted in a verdict in favor of defendeint rejecting 
plaintiff's denands at plaintiff's cost eind greuiting judgment on 
defendant's Reoonventional Denand in the sum of $20,054.70. Plaintiff 
appealed the district court judgmait to the Third Circuit Court of Appeal. 
Action on plaintiff's c^ipeal was stayed due to his filing of bankruptcy. 
After the bemkruptcy stay was lifted, a nuisance value settlement was paid 
to plaintiff to end the litigation. 



-12- 



295 



APPENDIX I 
CASE #7 

NAME OF CASE ; 

Alvin Jouglard, et ux vs. CNA Insursmce Company 

TREAL COURT AND CASE DOCKET NO. 

Twelfth Judicial District Court of Louisiana, docket #85-8189-B 

CITATION OF CASE IF REPORTED ; 

Not applicable. 

PARTY I REPRESENTED AND NATURE OF MSf PARTICIPAnON IN THE LTTIGATICW ; 

Plaintiffs, Alvin Jouglard and Bertha Jouglard, sole counsel 

DATE OR DATES OF TRIAL 

January 13, 1986 

NAME OF JUDGE BEFORE WHOM CASE WAS TRIED ; 

Honorable Harold J. Brouillette, Judge, Twelfth Judicial District Court, 
Division "B" 

NAME, ADDRESS, AND TELEPHONE NO. OF OO-COONSEL ; 

Not applicable. 

NAME, ADDRESS, AND TELEPHONE NO. CF COUNSEL FOR EACH OTHER PARTY : 

Sam N. Poole, Jr. 

GOLD, SIMON, WEEMS, BRUSER, SHARP, SUES & RUM3EII. 

P. 0. Box 6118 

Alexandria, Louisiana 71307-6118 

(318) 445-6471 



-13- 



296 



APPEtOIX I 
CASE #7, PAGE 2 

Einployee's parents filed a workers' ccxnpensation suit for death benefits 
arising from the September 5, 1985 death of plaintiffs' twenty-six year old 
son. The claim was denied by employer's worker's compensation insurer 
forcing me to file suit on November 12, 1985. Rather extensive fact and 
medical discovery had to be conducted by deposition in what appeared to me 
to be a rather routine worker's compensation claim. The employer's 
insurer, CNA Insurance Conpany, continued to deny coverage up until the 
actual morning of trial when defendant offered to pay the statutory maximum 
per parent survivor's benefit and the statutory maxixttum funeral benefit. 
Based on my advice, my clients elected not to accept the defendant's offer 
and the case was tried. 

FINAL DISPOSITION OF THE CASE ; 

Judgnent was rendered in favor of plaintiffs for the statutory maximum 
death benefit for each parent, the statutory maximum funeral benefit, 
msdical expenses incurred in the treatment of the deceased prior to his 
death, statutory penalties of twelve percent on the foregoing and 
attorney's fees. 



-14- 



297 



APPENDIX I 
CASE #8 

NAME OF CASE ; 

State of Louisicina vs. Glenn Dauzat 

TRIAL OOURT AND CASE DOCKET MO. 

Twelfth Judicial District Ccxirt of Louisiana, Criminal Docket #42,521 
Supreme Court of Louisaina, Docket #67,002 
Supreme Court of Louisiana, Docket #80-0-2999 

CITATION OF CASE IF E^EPORTED ; 

380 So. 2d 1376 (1980) 
382 So. 2d 966 (1980) 

PARTY I REPRESEOTED AND NATURE OF My PARTICIPATION IN THE LITIGftnON ; 

Defendant, Glenn Dauzat, oo-oounsel 

DATE OR DATES OF TRIAL 

Numerous appearances including Pre-Tried euid Post Trial Motions and an 
ajpearance in the Loiiisiana Suprate Court. Jury trizd conducted June 25 
and 26, 1980. 

NAME OF JUDGE BEFORE WHOM CASE WAS TRIED ; 

Honorable Jannes N. Lee, Judge, Twelfth Judicial District Court, Divison ■". 

NAME, ADDRESS, AND TELEPHONE NO. OF OO-OOUNSEL ; 

Donedd R. Wilson 
GAHARAN & WILSON 
P. 0. Box 1356 
Jena, Louisiana 71342 
(318) 992-2104 

NAME, AIX)RESS, AND TELEPHONE MO. OF OOUNSEL PC» EACH CriHER PARTY ; 

Honorable Eddie Knoll, District Attorney 

P. 0. Box 426 

Marksville, Louisiana 71351 

(318) 253-6587 

Assistant District Attorney Cliff E. Laborde, III 

Laborde & Neuner 

P. 0. Drawer 52828 

Lafayette, Louisiana 70505-2828 

(318) 237-7000 



-15- 



298 



APPENDIX I 

CASE #8 - PACE 2 



SUMMARY OF TOE CASE: 



Defendant was charged with four cxjunts of "Simple Criminal Damage to 
Prc^rty." The prc^jerty that my client was accused of damaging consisted of 
tractors, combines, welding machines, various farm equipment attachments, 
amd a four-vrtieel drive pick-up. The damage to the equipment, which 
exceeded $80,000.00, vras done by ramming and driving certain of the 
equipment into other equipment. There were four sepeirate and distinct 
piles of equipment located in a field, thus the four different counts for 
which my client was indicted by the Grand Jury. Numerous pre-trial and 
post-trial motions were filed including a Writ of Certiorari, which was 
initially granted by the Louisiana Supreme Court, but was later dismissed. 
The writ was based on the exclusion of blacks in the selection of the Grand 
Jury. 

FINAL DISPOSITION OF THE CASE ; 

The trial on the merits was conducted on June 25 and 26, 1980, resulting in 
a jury verdict of "Guilty" on two of the four counts and "Not Guilty" cxi 
the other two counts. Subsequent to defendant's conviction, he v«s charged 
with attempting to jump bail. An appeal of the jury verdict »as filed with 
the Louisicina Supreme Court. Based on a plea bargain with the District 
Attorney on the attempt to jump bail, defendant served a six month sentence 
concurrently with the two eighteen month oonsecutive sentences he was 
ordered to serve on the counts for which he had been convicted. 
Defendant's appeal was dismissed. 



-16- 



299 



APPENDIX I 
CASE #9 

NAME OF CASE ; 

Elaine Dozier Rednon Vs. Firenan's Fund Americein Life Insurance Canpany 

TRIAL COURT AND CASE DOCKET NO. 

Twelfth Judicial District Court of Louisiana, docket #37,656 

CITATION OF CASE IF REPORTED ; 

Not applicable. 

PARTY I REPRESENTED AND NATURE Cff MSf PARTICIPATION IN THE LITIGATION ; 

Plaintiff, Elaine Dozier Redmon, sole counsel 

DATE OR DATES OF TRIAL 

August 29, 1978 

NAME OF JUDGE BEFORE WHOM CASE WAS TRIED ; 

Honorable Earl Edwards, Judge, Twelfth Judicieil District Court 

NAME, ADDRESS, AND TELEPHONE NO. OF OO-OOONSEL ; 

Not applicable. 

NAME, ADDRESS, AND TELEPHONE NO. OF COUNSEL PC» EACH OTHER PARTY ; 

James A. Bolen, Jr. 

BOLEN, ERWIN, JC«NSON & COLEMAN, LTD. 

P. 0. Box 906 

Alexandria, Louisiana 71309-0906 

(318) 445-8236 

SUMMARY OF THE CASE ; 

Plaintiff filed suit to recover benefits due under a life insurance policy 
as a result of the death of plaintiff's husband by gunshot. The issue 
before the court was whether the shooting was accidental or suicide. The 
Ave 'elles Parish Coroner and the Avoyelles Parish Sheriff's D^artment had 
ruled plaintiff's husband's death a suicide and there was strong 
circamstantial evidence to indicate suicide, but no suicide note was found. 
Defendant denied the claim and suit was filed on March 7, 1978. 



-17- 



300 



APPEM)IX I 

CASE #9 - PAGE 2 



FINAL DISPOSITION OF THE CASE: 



The matter was tried on July 24, 1978. Written Reasons ware hcinded down on 
August 29, 1978, cind judgment signed that day. Judgment was rendered in 
favor of plaintiff and against defendant for the full amount of the policy 
of insurance or the sum of $15,000.00 with legal interest frcm date of 
judicicil danand and for all costs. 



-18- 



301 



APPENDIX I 
CASE #10 

NAME OF CASE ; 

Phyllis Prevot vs. Nelson Williams, Jr. 

TRIAL OOUOT AND CASE DOCKET MO. 

Twelfth Judicial District Court of Louisiana, docket #31,880 
Third Circuit Court of Appeal, State of Louisiana, docket #4804 

CITATION OF CASE IF REPORTED ; 

306 So. 2d 377 (La. App. 3 Cir. 1975) 

PARTY I REPRESENTED AND NATURE OF MX PARTICIPAnON IN THE LITIGftTION ; 

Plaintiff, Phyllis Prevot, sole counsel 

DATE OR DATES OF TRIAL 

Nuiterous appearances including Pre-Trial Motions, Exceptions, Post Trial 
Motions and Appeal. Tried, conducted March 15, 1974, Appeal eurgued 
December 2, 1974. 

NAME OF JUDGE BEFORE WHOM CASE WAS TRIED ; 

Honorable Earl Edwards, Judge, Twelfth Judicicil District Court 

NAME, ACPRESS, AND TELEPHONE NO. OF OXPUNSEL ; 

Not applicable. 

NAME, ADDRESS, AND TELEPHONE NO. OF OOOtEEL FOR EACH CTTHER PARTY ; 

Richard V. Bums 

P. 0. Box 650 

Alexandria, Louisiana 71309-0650 

(318) 442-4300 



-19- 



302 



APPENDIX I 

CASE #10, PAGE 2 

SU^MARY OF THE CASE ; 

Plaintiff filed a suit for legal separation on July 3, 1972. Defendant 
subsequently filed a second suit for divorce based on the grounds of 
adultery. On January 9, 1973, defendant filed an answer to plaintiff's 
original petition for separation and a reconventional demand for divorce 
based on the grounds of adultery. On November 6, 1973, trial was set for 
December 11, 1973. Plaintiff was represented by attorney Maxwell Bordelon 
at the time of the institution of her suit for separation. On November 20, 
1973, Mr. Bordelon filed a Motion withdrawing as counsel of record for 
plaintiff. No notice of Mr. Bordelon 's withdrawal as counsel of record was 
sent to plaintiff because Mr. Bordelon did not have the Houston address 
where plaintiff was residing. On December 11, 1973, the case was called 
for trial. Plaintiff made no appearance at the trial. Defendant, 
represented by counsel, presented his case on the Reconventional Darand and 
the Court granted a divorce to defendant on the grounds of adultery and 
awarded custody of the parties' three minor children to defendant, subject 
to reasonable visitation privileges in favor of plaintiff. 

In December 1973, plaintiff who was residing in Houston, Texas, had 
consulted a Texas attorney concerning the possibility of having her case 
transferred from Louisiana to Texas for her convenience. On Deca±)er 10, 
1973, the Texas attorney attempted to contact Mr. Bordelon to inquire as to 
the status of plaintiff's case and to notify him that plaintiff was then in 
the hospital and would not be able to attend the trial that was set for the 
next day. Mr. Bordelon could not be reached and did not return the Texas 
attorney's telephone call until December 12, 1973. On December 14, 1973, I 
was contacted by plaintiff's mother and retained by her later that day. I 
was inforned that plaintiff had bseen unable to attend the trial on December 
11, 1973 because of her hospitalization following an accident in Houston. 
Based upon the infomation I received from plaintiff's mother and fron Mr. 
Bordelon, an application for a new trial was filed on December 14, 1973. A 
hearing was held on the application on December 28, 1973, and a judgment 
granting a new trial was signed on January 8, 1974. 

FINAL DISPOSITION OF THE CASE ; 

The trial on the merits was held on March 15, 1974, after which a divorce 
was granted in favor of defendant based on the adultery of plaintiff and 
the custody of the three minor children was granted to plaintiff. The 
judgitent was signed on March 22, 1974. Defendant filed an application for 
a new trial on March 27, 1974 v*iich was heard and denied on ;^ril 2, 1974. 
Defendant filed an appeal with the Third Circuit Court of Appeal for the 
State of Louisiana. The appeal was argued on December 2, 1974. The 
judgment of the trial court was affirmed at defendcint's cost. 



-20- 



303 



II 

NAME OF CASE ; 

Cliff G. Stinson, et al vs. Chevron D.S.A. , Inc., et clL 

COURT AND CASE DOCKET ^P. ; 

United States District Court, Western District of Louisiana 
Lafayette-Opelousas Division 
Civil Action #84-1910-0 

PERIOD OF REPRESENTATION ; 

March 22, 1984 to October 7, 1985 

PARTY I REPRESENTED A^P NATURE OF MY PARnCIPATICfti IN THE LITIGATION ; 

Cliff G. Stinson, Dorothy May Slocum Stinson, Gwendolyn Stinson Coutee, 
Steve Stinson eind Rebecca Stinson, lead counsel 

NAME, ADDRESS AND TELEPHONE NUMBER OF OO-OOONSEL ; 

Carol J. Aymond, Jr. 
235 Southwest Main Street 
Bunkie, lA 71322 
(318) 346-6613 

NAME, ADDRESS AND TELEPHONE NUMBER OF OXINSEL FOR EACH OTOER MAJOR PARTY ; 

Michael W. Adley 

Juneau, Judice, Hill & Adley 

P.O. Drawer 5769 

Lafayette, LA 70505-1769 

(318) 235-2405 

Attorney for Dixie Lynn Field Drilling Ccnspany, Inc. 

Alem K. Breaud 

Roy, Ceurmouche, Bivins, Judice/ Haike & Breaud 

P.O. Drawer Z 

Lafayette, LA 70502 

(318) 233-7430 

Attorney for Trams it Casualty Insursmce Conpany 

SUMMARY OF THE CASE ; 

This seeuian's case eurose eis a result of an injury that occurred while 
plaintiff. Cliff E. Stinson, was being transported from a drilling platform 
on which he had been working to a crew boat. Tte case was settled, in two 
stages. A total settlement of $865,000.00 was reached in the case, 
$665,000.00 being paid l^ Dixie Lynn Field Drilling Coipany, Inc. and 
$200,000.00 being paid by Transit Casualty Insurance (ixipany with 
$50,000.00 being repaid to Dixie Lynn Field Drilling pursuant to a "Mary 
Carter" Agreement. 

-1- 



304 

CHARLES A VANIK 

'i'ASHiscroN DC 20004 * 










rXF^JsrA-. 



305 



February 4, 1994 



STATEMENT OF LADRACK D. BRAY 

OPPOSING THE CONFIRMATICHI 
OF JUDITH ROGERS 



I am %n:iting to express my opposition to the confirmation of Judith 
Rogers as a federal appeals judge. 

I am an African American lawyer practicing in the District of Colum- 
bia. The position I take against the confirmation of Judge Rogers 
is based on my experience and knowledge as an appellate litigator 
in the District of Columbia (D.C. ) Court of Appeals and on my obser- 
vations of cases regarding other independent African American la%fyers 
litigated in the Court of Appeals zmd the Court's treatment of those 
cases. More specifically, my position evolves from the facts and 
circumstances surrounding three cases (two civil and one criminal) I 
litigated on behalf of African American clients in the D.C. Court of 
Appeals, which caused me to become intimately involved in the appel- 
late process and with the Court's appellate conduct and behavior. Two 
of the cases were quite complex and involved significant records and 
expert witnesses. 

I believe that Judge Rogers is unable or lack the desire to treat poor 
African American litigants, including children, represented by inde- 
pendent African American lawyers in a fair, just, and impartial (or 
non-discriminatory) manner. 

I also question her character as it pertains to her supervision and 
knowledge of fraudulent practices by D.C. Court of Appeals personnel, 
and her refusal to take actions to discourage or condemn such conduct. 
Further, I question her character as it pertains to her supervision 
and knowledge of conduct or practice which bespeaks of obstruction of 
justice, and her refusal to demonstrate that steps are being taken to 
prevent such conduct, which in at least one instance could mean (and 
could have meant) saving lives of District citizens. 

One significant example of the discriminatory conduct of the D.C. 
Court of Appeals under the leadership of Judge Rogers is a wrongful 
death-medical malpractice case involving eight (8) African American 
children as plaintiffs (including one child who was bom only hours 
before her mother was killed--there was evidence not only of gross 
negligence, but also of brutality, i.e., beating, surrounding the 
death- -and the mother never got to hold the child before she was kil- 
led) (Alj;Ce_^heffl^ld^_jet^_al^;;__v\_^Distrij^ un- 
published), whereby the D.C. Court of Appeals affirmed a directed 
verdict (denied a jury decision) in view of admissions by hospital 
doctors that the mother's death was at least negligently caused by 
an overdose of morphine administered by hospital personnel, and other 
evidence; there also was a suppression of evidence of multiple deaths 
(probably of African Americans) on the Obstetrics and Gynecology ward 



306 



of the D.C. General Hospital linked to the use of the drug Stadol 
on patients, which likely resulted In more deaths, and evidence that 
Stadol was a new drug and that the hospital experinented on Onita 
Sheffield's (the deceased) body with the drug without her consent. 

Onita Sheffield entered D.C. General Hospital in good health and 
solely for the purpose of giving birth. She left dead with brain 
daiaage. He argued and proved that the trial judge's directed verdict 
was intentional, deliberate, and invidious. 

In Colbert v. Georgetown Dniversity , 623 A, 2d 1244 (D.C. 1993), Judge 
Rogers, as a member of the panel, held that admissions of negligence 
by a doctor to a family member is prima facie evidence of medical 
malpractice and the issue must be submitted to the jury. In Sheffield , 
there was admissions by a doctor to family members, but the D.C. 
Court of Appeals did not so hold (and even though Judge Rogers was 
not a panel member, she could have, sua sponte, called for a hearing 
by the full court if she felt an injustice had been done and if she 
felt that the holding she made in Colbert should have been made in 
Sheffield ) . The important question is why didn't the Court of Appeals 
so hold? In the Colbert case, the plaintiff's attorney was white; in 
the Sheffield case, the plaintiff's attorney was black. Was race a 
factor? Based on my experience and knowledge in and of the D.C. Court 
of Appeals, I believe it was. 

I continue to hope and believe, on behalf of Mrs. Alice Sheffield and 
the Sheffield children, and myself, that justice will be done, and 
that we all shall receive relief. We have continued to keep Onita 
Sheffield's estate open. 



Respectfully submitted. 




lurack D. Bray, Esq. -J \ 



Laurack D. Bray, Esq 

P.S. Enclosed are copies of two civil rights complaints filed in the 
D.C. Federal courts on behalf of the Shef fields and Sceva Kendall 
( a criminal matter). None of the plaintiffs, the Shef fields or 
Kendall, were granted hearings on the Complaints. Therefore, there 
were no determinations as to the merits of the allegations made. The 
federal judge granted the judges judicial immunity against claims of 
racial discrimination, so the judges never answered the charges or 
allegations. 

The question for the Senate, as to Judge Rogers' confirmation, is: 
if the allegations are true, and I contend that they are, should 
Judge Rogers be confirmed? 



307 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLWiBIA 



ALICE SHEFFIELD 

Individually and as Personal Representative 
on Behalf of the Estate of Onita Sheffield, 
Deceased and on Behalf of Angel Kay Sheffield, 
Taraeca Shawntee Sheffield, Onita Sheffield, 
Star Angel Sheffield, James L. Nicks, Lafayette 
Sheffield, Daniel Thompson Sheffield, and Tony 
Sheffield, Children of the Deceased and Real 
Parties in Interest 

Plaintiffs , 



Serve at i 1118 Eight Street, N.E. 
Washington, D.C. 20002 



HENRY F. GREENE 

Individually and as Judge of the Superior 
Court of the District of Columbia 

Serve *ti District of Columbia Courthouse 
500 Indiana Avenue, NW Rm 
Washington, D.C. 20001 

and 

JAKES BELSON, JOHN FERRE::, and ANNICE WAGNER 

Individually and as Judges of the District 
of Columbia Court of Appeals 

Serve ati District of Columbia Courthouse 
District of Columbia Court of 
Appeals 6th Floor 
500 Indiana Avenue, NW 
Washington, D.C. 20001 



CA No. qi-as^6 



308 



and 

DISTRICT OF COLWiBIA 

As a municipality and Party-Defendant in the 
underlining or primary lawsuit (in the Superior 
Court 'of the District of Columbia) 

SERVE AT« Kayor Sharon Pratt Dixon 
District Building 
1300 Pennsylvania Avenue, NW 
Washington, D.C. 20001 



Defendants, 



COr-IPLAINT 

DECLARATORY JUDGMENT AND OTHER RELIEF 
AND INJUNCTIVE RELIEF 



Jurisdiction 
1. Jurisdiction of this Court is invoked under or pursuant to 
28 U.S.C. sees 1331, 13^3, 2201 and 2202t k2 U.S.C. sees. I98I , 
1983, 1985, and 1988j and the United States Constitution, Fifth 
Amendment and Seventh Amendment. 

Parties 
1. The parties are as identified in the above-captioned title 
as Plaintiffs and Defendants. 



2 - 



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Brief Statement of the Facts > 

Plaintiffs allege that a brief statement of the pertinent 
facts for a proper understanding of this case is as follows « 

1. This case involves the wrongful death of a 32-year old poor, 
African-American or Black, female, inmate -pat lent who died on the 
ward of J.C. (District of Columbia) Genera?. Hospital only hours 
after giving birth to a healthy baby girl. 

2. As a result of the deceased's death and events surrounding 
the death, Alice Sheffield (mother of the deceased), on her own 
behalf and on behalf of the deceased's estate and the deceased's 
children, filed suit in the Superior Court of the District of Co- 
lumbia charging the District of Columbia (hereinafter "District") 
and several of its officers and employees with multiple claims or 
acts of legal misconduct involving constitutional, federal, and 
local law and charging them under both wrongful death and survival 
act statutes. 

3. Before trial, the District defaulted : (l) by filing untimely 
Answers to Plaintiffs' Complaint; (2) by filing untimely Responses 
to Plaintiffs' discovery requestsi and (3) by filing incomplete 
and evasive discovery responses after it finally responded to 
Plaintiffs' discovery requests (after being granted four^i) ex- 
tensions of time within which to file discovery responses). 
Plaintiffs, on at least two occasions, moved for a default judg- 
ment against the District (to include its officers), but the trial 
judge denied the motions. 

k. At trial, after the trial judge had previously disposed 
of several claims, there remained 16 Counts, that ist Count I 



310 



(wrongful death-based on multiple actions); Count II (medical 
malpractice-based on an overdose morphine injection); Count III 
(negligence-based on the deceased's fall from her hospital bed to 
the floor); Count IV (assault and battery-based on physical acts 
perpetrated against the deceased, including hitting and/or kicking 
and shackling or handcuffing her extremities to the hospital bed); 
Count V {kZ U.S.C. sec. I983 claim- charging deprivation of sub- 
stantive due process, e.g., liberty and others related to the 
handcuffs); Count VII (intentional infliction of emotional dis- 
tress-based on the correctional officer watching the deceased suf- 
fer and doing nothing to help her); Count IX (negligence-by hospi- 
tal personnel regarding handcuffs); Count XI (negligent training- 
D.C. Department of Corrections-correction officer); Count XII 
(negligent training-D.C . General Hospital-hospital personnel); 
Count XIII (medical malpractice-negligent administration of the 
drug Stadol and battery for administering it without the deceased's 
consent); Count XIV (intentional spoiliation of evidence- the de- 
ceased's medical records directed towards the overdose morphine 
injection); Count XV (cruel and unusual punishment-based on a 
failure, on the part of the correction officer, to respond to the 
deceased's serious medical need); Count XVI (fraudulent conceal- 
ment-based on the Defendants' concealment of the deceased's medi- 
cal records); Count XVIII (U2 U.S.C. sec. 1985-conspiracy to cover- 
up evidence); Count XXI (deprivation of liberty interest in the 
family unit based on the deceased's death); and Count XXII (loss of 
life-pursuant to k2 U.S.C. I9B3- a survival claim based on federal 
law). Except when otherwise precluded by the trial judge, Plaintiffs 



- U 



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produced substantial evidence (for several Counts, more than 
substantial evidence) to support each Count. 

5. Plaintiffs' (to include the decedent) entire litigation 
team (with the exception of two individuals) consisted of African- 
Americans, that is, the decedent, the Plaintiffs (deceased's 
mother and children), Plaintiff's counsel. Plaintiff's expert 
witnesses and their lay witnesses. Plaintiffs' counsel was (is) 

a sole practitioner and litigated the entire case himself (i.e., 
not connected with a white law firm or another (white) lawyer ) . 
Plaintiffs offered the testimony of six lay witnesses (and one 
other witness's testimony was not admitted--albeit erroneously, 
Plaintiffs contend) and five expert witnesses (one out-of-state 
medical/health expert who came from California and testified as 
to consent and informed consent) (and including three adverse ex- 
pert witnesses, including the District's medical examiner). 

6. After Plaintiff's case-in-chief, the trial judge, sua 
sponte (or voluntarily), moved for a directed verdict (as the 
District was prepared to put on its case-in-chief and did not 
make a formal motion or request for a directed verdict) and en- 
tertained Plaintiffs' opposition to the motion as to each remain- 
ing Count. 

7. After completion of Plaintiffs' oral opposition to the direct- 
ed verdict, the trial judge directed a verdict as to all remain- 
ing Counts. at trial. Thereafter, Plaintiffs noted a timely appeal. 

8. At several points throughout the above-mentioned litigation, 
Plaintiffs, through counsel, charged the trial judge with bias, 
prejudice, and invidious discrimination, based on his conduct dur- 
ing pre-trial and trial, and indeed, at one point had moved for his 



312 



recusal (through a motion, and, subsequently--after the motion 
was denied, through a Writ of Mandamus) based on his three-year 
extra-judicial relationship with defense counsel and on his 
suggesting motions for defense counsel to file (and his, there- 
after, granting the sairae ss id motions). 

Count I . 
k2 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFFS' SEVENTH 

A^:Ei€)r.:ENT constitutional right to a trial by jury. 

1. Plaintiffs allege that Defendant Judge Henry F. Greene of 
the Superior Court of the District of Columbia, under color of 
District of Columbia law (as a judicial officer of the District 
of Columbia Superior Court), deprived Plaintiffs herein of their 
Seventh Amendment constitutional right to a trial by jury by im- 
properly and with ill will directing a verdict in favor of Defen- 
dant District of Columbia in the case of Alice Sheffield v. Dis - 
trict of Columbia, et. al. , CA NO. 9799-37- Specific evidence of 
the malice is: (1) Judge Greene himself initiated and made the 
motion for a directed verdict and not the District of Columbia 
(hereinafter "District"); the District, through its counsel, never 
made a motion for a directed verdict, was prepared to put on its 
case-in-chief, and placed the directed verdict decision in Judge 
Greene's hands; (2) Judge Greene developed animosity and hostili- 
ty towards Plaintiffs and their counsel (particularly their coun- 
sel) for not retaining an independent medical doctor (with Plain- 
tiffs choosing instead to rely on and/or utilize the District's 
medical doctor, i.e., the medical examiner, pursuant to District 
of Columbia case law--because the Plaintiffs found and/or deter- 
mined that an independent doctor was not necessary under the 



313 



circumstances of the particular case in question). At various 
times during the litigation Judge Greene continued to comment that 
things would have been a lot easier if Plaintiff had brought in 
an ind'ependent physician. Further, he forecast that Plaintiffs 
would not prevail on their wrongful death and medical malpractice 
claims before Plaintif'^'s had presented most of their evidence 
supporting those claims (i.e., a foregone conclusion); (3) Judge 
Greene made an intentional false statement on the record (stating 
that he was not aware of a controlling case--or, more specifically, 
that it was the first time that he had seen the case--when in 
actuality he had seen and referred to the case in another, and 
concurrent, medical malpractice trial (approximately one month 
prior thereto)), and assumed a false and fabricated argument or 
position in an attempt to preclude the Plaintiffs from utilizing 
the District's medical expert at trial. It was only because 
Plaintiff's counsel came to trial prepared with a memorandum of 
law that Defendant Greene eventually conceded and Plaintiffs were 
allowed to use the expert. (4) Defendant Greene himself concluded 
on the record that an overdose of morphine was a cause of death, 
and that the only remaining issue related to the morphine cause of 
death was how the deceased received the morphine injection (i.e., 
who gave her the morphine injection), which was clearly a jury 
question (assuming, for the sake of argument, that at that point 
it had not been proven who gave the deceased the morphine--Plain- 
tiffs believe it had been (hospital personnel). (5) In at least 
one other wrongful death case involving a poor, Black family 
(litigated at or about the same time as the herein case in ques- 
tion — Sheffield v. P.O. ) , Defendant Greene denied the family a 



314 



trial by jury (by dismissing the case with prejudice before trial, 
based on a discovery problem). 

Evidence of a planned directed verdict by Judge Greene is 
that he requested and received a U.S. Karshal to be present in 
the courtroom during this civil medical malpractice/wrongful death 
proceeding (which is an extraordinary move), anticipating that the 
Plaintiffs and/or their counsel would react with outrage, or other- 
wise inappropriately (or, rather, appropriately under the circum- 
stances of the case) to his directed verdict, and believing that 
he would need someone, perhaps, to control their behavior.' 

2. Plaintiffs allege further that Defendant Greene's reasons 
given for the directed verdict in favor of the District in the 
Sheffield case were either erroneous or immaterial based on District 
of Columbia (or other) law, the facts, and the evidence. 

3. Plaintiffs allege that they presented sufficient evidence 
for each Count of their Complaint and/or Amended or Second Amended 
Complaint to support a verdict in their favor (or, alternatively, 
toovercome a directed verdict for the Defendants); indeed, for 
several Counts Plaintiffs presented overwhelming evidence (in- 
cluding circumstantial evidence and reasonable inferences), suf- 
ficient to not only present a prima facie case, but also to prove 
their case by a preponderance of the evidence. 

For exeimple, as to Count II of the Second Amended Complaint 
(hereinafter references to "Counts" will refer to the Second Amended 
Complaint) (charging the District with negligently killing or other- 
wise causing the death of the deceased by injecting her with an 
overdose of morphine). Plaintiffs produced at least the following 
admitted evidence at triali (1) an admission by the District's own 



315 



medical doctor (in the medical examiner's office) that D.C. Gene- 
ral Hospital personnel had given the deceased the overdose of mor- 
phine and that the high level of morphine caused .the deceased's 
death,' (2) the District's own autopsy report (produced by its 
medical exeiminer and toxicologist) showing a high level of mor- 
phine in the deceased's system at the ti'^;e of her death and show- 
ing that the deceased suffered brain damage before she died, (3) 
testimony of the District's medical exajniner stating that the 
deceased died, at least, of an overdose of morphine, and that 
the hospital could have caused her death (she testified as to 
standard of care, i.e., normal dosej breach of the standard, i.e., 
too high a level? and causation, i.e., the high level of morphine 
caused the deceased death--at least one cause), (4) testimony of 
two witnesses to the afirementioned medical doctor's admission 
of the District's hospital personnel's responsibility for the 
deceased's death due to the overdose of morphine, (5) testimony of 
another witness who witnessed another District doctor state (and 
admit ) that, "that would not have happened (the deceased's death) 
if you hadn't given her (the deceased) the wrong medicine (mor- 
phine) "--this witness was hospitalized on the same ward and at or 
about the same time as the deceased at the time of the deceased's 
death; (6) evidence that the deceased was in good health after 
giving birth (and the baby was — and is — in good health as well — 
indicating that the overdose of morphine was given to the deceased 
after she gave birth); (?) evidence that the deceased was under 
constant surveillance at all times (by a correction officer) while 
on the ward of D.C. General Hospital; (8) evidence that the hospi- 
tal personnel were required to detoxify the deceased after she en- 
tered the hospital (which would have detected any contraindicated 



316 



drugs in her system, i.e., morphine), but the hospital did not 
detoxify her. (9) Evidence that District hospital personnel in- 
tentionally destroyed crucial medical records that would have pro- 
vided direct evidence that the hospital personnel injected -the de- 
ceased with an overdose of morphine (i.e., an inference could te 
drawn that the destroyed medical records containe'' specific in- 
formation showing that an injection of morphine was prescribed or 
ordered and showing who injected the deceased with the morphine )j 
(10) evidence that after the hospital personnel discovered or 
realized that the deceased had been given an overdose of morphine, 
they failed to give the deceased an antidote that could have pre- 
vented her death; and other testimonial and dencnstrative evidence 
that went to the morphine injection that Defendant Greene did not 
admit, but which Plaintiffs believe should have been admitted. 

Another example is Count XIII (the battery medical malprac- 
tice Count related to the injection of the drug "Stadol" ) . Plain- 
tiff produced at least the following admitted evidence i (1) hospi- 
tal medical record (Phyacian's Order Sheet) showing that the drug 
Stadol was ordered for the deceased by a District doctor; (2) 
medical record (Nurses' Progress Notes) showing that the drug 
Stadol was administered to the deceased; (3) testimony of Plain- 
tiffs' qualified expert on consent and informed consent (^;s. 
Dianne Jackson), based on her review of the deceased's medical 
records and her expertise on consent, that the deceased did not 
consent to the administration of the drug Stadol; (k) evidence that 
morphine and Stadol have similar qualities and effects and are 
contraindicated for each other (or for use with each other) and 
that Stadol is 8 times stronger than morphine; (5) evidence that 
both Stadol and morphine were in the deceased's body at the same 



317 



time through action of the District's employees; (6) direct evi- 
dence that an overdose morphine injection was a cause of death and 
powerful circumstantial evidence that Stadol was a cause of death; 
(7) evidence that Stadol was explicitly not recommended for use 
with or for the deceased (PDR - "Physician's Desk Reference"); (8) 
the deceased suffered the type of risks that the use of Sfdol 
could cause (i.e., respiratory depression); (9) evidence (PDR) 
that at the time of the Stadol injection into the deceased, the 
manufacturer itself did not know its exact mechanism (i.e., how 
it acted on the body or its system--al though the manufacturer did 
know "some" of its effects); (10) evidence (testimony by the 
District's medical examiner--Dr. Silvia Comparini) that there had 
already been several Stadol-related or caused deaths on the ward 
of D.C. General Hospital at the time of the herein deceased's 
death; (11) evidence (admission by the District's medical doctor-- 
Dr. Philip Santiago) that the District was experimenting on the 
herein deceased to determine what effect the Stadol would have on 
her body (because such said effects were widely unknown); (12) 
evidence that the deceased suffered brain damage before her death 
due to a lack of oxygen (which was caused by the morphine and Sta- 
dol injections); and (13) evidence that D.C. General Hospital was 
required to detoxify the deceased after she entered the hospital to 
ascertain if she had any contraindicated drugs (e.§. , morphine) in 
her body when she entered, but that the hospital failed to so 
detoxify her. 

A final example is Count XV, the Eight Amendment cruel and 
unusual punishment Count. As to this Count, Plaintiffs presented 
at least the following admitted evidence: (1) medical records, et. 



318 



seq . , showing that the deceased had recently given birth to a 
baby girl and was in post-partum recovery when the acts or con- 
duct to follow was established; (la) admission by District's 
police' officer that the deceased was diagnosed as dying from 
hemorrhaging — indicating that there were blood and blood clots 
from the deceased present (i.e., deceased wallowing in blood)? 
(lb) admission by a District doctor (Dr. Conrad Duncan) that the 
deceased was lying on the floor (in the hospital room) with her 
single extremity (left leg) shackled to the hospital bed when he 
entered the hospital room after being summoned by a nurse to res- 
pond to the deceased's suffering, and that at the same time, the 
female correction officer was present and sitting on a chair 
watching and doing nothing to assist the deceased; and that hos- 
pital staff had to order the correction officer to remove the 
shackles from the deceased's leg; (2) admission (medical record) 
showing that the District's nurse observed the deceased complain- 
ing of shortness of breath and requesting medicine for paint ob- 
served that the deceased left leg was handcuffed to the hospital 
bed while deceased was sitting on the bed and later that the de- 
ceased was sitting on the "floor" (she had apparently fallen) and 
her single extremity "remain(ed) cuffed" i observed that the 
guard (correction officer) was present; observed that the deceased 
was perspiring "profusely" and that the deceased was exhibiting 
white mucous foam from her mouth and thrashing about on the bed 
and on the floor; and observed a Code Blue being called; (3) ad- 
mission (medical record) by a different nurse showing decedent was 
perspiring profusely and complaining of shortness of breath; (U) 
a D.C. correction officer's log sheet showing that deceased was 
shackled and that she was vomiting; (5) testimony by Plaintiffs' 



319 



qualified expert (Ms. Dianne Jackson) that the use of metal 
handcuffs on inmate-patients is inhumane treatment; (6) testimony 
by the District's own penological expert (Mr. Hallem Williams) 
(Plaintiffs' adverse expert witness) that a correction officer is 
required to take steps to seek medical assistance for an inmate in 
emergency situations; (7) testimony by the District's own hospital 
administrator (Kr. John Dandridge, Jr. ) (Plaintiffs' adverse ex- 
pert witness) that the hospital (D.C. General Hospital) never uses 
metal restraints on patients as a means of proper patient care; 
(8) evidence (medical records and log sheet) that the correction 
officer observed the deceased suffer and never sought medical help 
or assistance for her or attempted to help the deceased herself 
for at least 1^ hours; (9) evidence (testimony of Plaintiffs' 
nurse-lawyer expert — Ms. Pamela Copeland) that the deceased was 
suffering from "severe respiratory distress" (during the time the 
correction officer was sitting and watching her suffer) j 
(10) some evidence that the deceased was battered physically 
by the correction officer; (11) evidence (testimony) that Dis- 
trict personnel (medical examiner's office) would not allow the 
Sheffield family to view the body before the autopsy--not even 
for purposes of identifying the body--the personnel simply showed 
the family two polaroid-type pictures of the head of the deceased 
(where the family might have discovered abuse or dajnage to the 
body); and (12) evidence (autposy report) that the deceased suf- 
fered brain damage before her death and died as a result of a lack 
of oxygen. 

k. Plaintiffs allege that they produced five (5) expert wit- 
nesses whom all produced significant testimony that supported 
Plaintiffs' case and„ imuQsed liability on Defendants. Included 



320 



among the experts were a medical doctor, a penologist, a nurse- 
lawyer, and a health consultant. The medical doctor (Dr. Compa- 
rini), at least, testified that the standard of care for a mor- 
phine injection was a "regular" dose, that as to the herein de- 
ceased the standard of care was breached because the level of 
morphine found in the deceased's blood was "too high", and that 
the overdose of morphine, at least, caused the deceased's death. 
The penologist (Mr. Williams) testified that the standard of care 
for action by a correction officer in an emergency situation on 
the hospital ward while guarding an inmate-patient was to seek 
medical assistance for an inmate-patient, and it was shown that 
the standard of care was breached by a demonstration that the cor- 
rection officer took no steps to aid the deceased herself or to 
seek aid, and that nonaction necessarily contributed to and caused 
the deceased's death due to a lack of oxygen (effects of the mor- 
phine and Stadol), and it also aggravated her existing condition 
at the time. The nurse-lawyer (Ks. Copeland) testified that the 
nursing personnel violated the standard of care for responding to 
the deceased's severe respiratory distress by not providing proper 
care for the deceased during her state of distress (such as by not 
taking vital signs timely, by not timely securing a more senior 
physician, and by not recognizing the symptoms of the deceased's 
distressed state). The health/medical consultant (Ms. Jackson) 
testified to the standard of care regarding obtaining consent 
(and informed consent) from a patient for the administration of 
certain drugs. Ms. Jackson testified that the standard of care 
of consent to the administration of the drug Stadol was "specific" 
consent by the deceased for the administration of the drug, that 
D.C. General's personnel violated the standard of care by not ob- 



321 



taining such "specific" consent (and therefore no consent). 
Plaintiffs (alleging battery medical malpractice as to the Stadol) 
proved, in addition to the lack of consent, that the deceased was 
given -a 2mg intramuscular dose of the' drug Stadol (through medical 
records, i.e., physician's order sheet, nurses' progress notes), 
that both Stadol and morphine were in the deceased's body at the 
same time, that Stadol and morphine have the same qualities and 
effects, that Stadol is 8 times stronger than morphine, and that 
morphine definitely was a cause of death, and that, therefore, 
Stadol had to, at least, contribute to the deceased's death (es- 
pecially when the two drugs are contraindicated for use with each 
other) . 

5- Plaintiffs allege further that Defendant Greene "acted out 
of personal motivation and. . . used his judicial office as an 
offensive weapon to vindicate personal objectives," that is, to 
deny Plaintiffs (particularly because they are poor and black) a 
money judgment and to deny Plaintiffs' black counsel (particularly 
because he was a sole practitioner and black) attorney fees. 
Plaintiffs allege that in least one other wrongful death case in- 
volving poor African-American children (or the death of such said 
children). Defendant Greene has alleged, through adopting the 
government's position, that the only person interested in pursuing 
the wrongful death claims was the attorney in the case (insinua- 
ting that no one else cares about the death of the children or 
about the liability for their death--even though the father, 
albeit incarcerated, continued to express an interest in the 
children's deaths and an interest in determining liability for 
their deaths) and insinuating that his only interest in the case 
was attorney fees. 



322 



Evidence that Judge Greene adhered to the same or a similar 
philosophy in the underlining herein case of Sheffield v. Dis - 
trict of Columbia, et. al .. CA NO. 9799-97 (hereinafter "Shef- 
field") is that at one point before delivering the directed ver- 
dict, Judge Greene stated to counsel, "the bottom line Mr. Bray, 
is that you are not going to get to the jury on any of your Counts." 
The Counts or claims were not Kr. Bray's (or counsel's), rather 
the claims were the Plaintiffs, yet Defendant Greene directed his 
statement to counsel as if counsel was bringing the suit (to col- 
lect attorney fees); and Defendant Greene was letting counsel know 
that he ( counsel )was not going to collect any fees, while at the 
same time totally disregarding the rights of the real parties (Krs. 
Sheffield and the children). Again, the same philosophy was ad- 
hered to here by Defendant Greene as was in the aforementioned case, 
that is, only Plaintiff's counsel was interested in pursuing the 
litigation and not the family (even though at one point in the 
trial, the court had to call a recess because Mrs. Sheffield broke 
down in tears over certain testimony concerning her deceased daugh- 
ter). 

6. Plaintiffs' allege further that the District itself did not 
move for a directed verdict in the trial court, rather. Defendant 
Greene, sua sponte, moved for and directed the verdict. Again, 
the District's counsel was prepared to and intended to put on his 
case-in-chief. 

7. Plaintiffs allege further that they were deprived of a trial 
by jury because the jury (in Sheffield ) did not make the decision 
(as to factual determinations, rights, liabilities, damages, or 
other) . 

7a. Plaintiffs allege that they have been and continue to 



323 



be injured by the denial of a trial by jury as guaranteed them 
by the Seventh Amendment of the United States Constitution, and 
as long as the right is denied, they will continue to suffer in- 
jury. ' 

8. Plaintiffs allege that Defendants Judges James Belson, 
John Ferren, and Annice Wagner, under color of District of Colum- 
bia law (as judicial officers of the District of Columbia Court 
of Appeals), by knowingly and willingly affirming Defendant 
Greene's improper directed verdict, in full view of the over- 
whelming evidence supporting Plaintiffs' case and the remaining 
points of reversible error (e.g., the trial court relying on an 
erroneous legal standard to support its decision), deprived the 
Plaintiffs-appellants of their constitutional right to a trial 
by jury. 

Count II 

k2 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFFS' STATUTORY 
RIGHT TO EQUAL TREATI^'JiNT (42 U.S.C. SEC. I98I) . 

1. Plaintiffs herein incorporate by reference all allegations 
set forth in Count I as if said allegations were set forth herein. 

2. Plaintiffs allege further that Defendant Greene acted under 
color of District of Columbia law in depriving them of their 
Federal statutory right, pursuant to 42 U.S.C. sec. I98I, of equal 
treatment (to that of white people) in obtaining and contracting 
for a jury trial and giving evidence pursuant thereto. 

2a. Plaintiffs allege that they are African-American (or 
black) and Defendant Greene is white. 

2b. Plaintiffs allege that the evidence that they submitted 
was fully qualified to be submitted to the jury for consideration 



324 



and/or decision. 

2c. Plaintiffs allege that Defendant Greene rejected their 
evidence (and did not allow it to be submitted to the jury) (i.e., 
directed verdict). 

2d. Plaintiffs allege that even if Defendant Greene's, reasons 
for rejecting Plaintiffs* evidence are deemed "articulable, legi- 
timate reasons", they were/are pretexual (for a discriminatory 
purpose ) . 

3. Plaintiffs allege further that they attempted to contract 
with the Superior Court of the District of Columbia for a jury 
trial, and that part of their attempt to so contract was payment 
of a specific consideration (sum of money) for a jury trial (which 
is not required for a non-jury trial) (with prepayment being waived). 

4. Plaintiffs allege that Defendant Greene, as an officer-agent 
of the Superior Court of the District of Columbia, refused to 

submit their evidence to the jury for consideration and/or deci- 
sion, and, therefore, refused them a jury verdict (i.e., a jury 
trial) because they were African-American and poor. 

Count III 

k2 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFFS' FIFTH 
AMENDMENT CONSTITUTIONAL RIGHT TO DUE PROCESS AND EQUAL PROTECTION 
OF THE LAW. 

1. Plaintiffs incorporate by referaxe all allegations asserted 
in Counts I and II as though they were herein asserted . 

2. Plaintiffs further allege that Defendant Greene, acting 
under District of Columbia law, willfully deprived them of their 
Fifth Amendment constitutional rights to due process and equal pro- 
tection of the law. 



325 



3. Plaintiffs allege that Defendant Greene deprived them of 
due process of law by, at least, depriving them of a fair and 
impartial trial by: (1) forcing Plaintiffs' counsel (by ordering 
him after he initially refused to do so) to reveal his litigation 
strategy for obtaining certain evidentiary matter from certain 
witnesses (i.e., how counsel would prove his case at trial) to 
he and defense counsel, and thereafter, using this information to 
prepare District witnesses for cross-examination (for example, 
discovering that Plaintiffs would rely on the Physician Desk 
Reference (PDR) for some evidence and would rely on the medical 
examiner as their expert and that the medical examiner would be 
required to rely on the PDR in order for the evidence to be ad- 
mitted, thereafter, preparing the medical examiner (Dr. Comparini ) 
to testify at trial that she doesn't rely on the PDR (albeit the 
PDR is universally relied upon by physicians as the primary ref- 
feral source for information on drugs and/or medications); (2) 
unconstitutionally supressing evidence by protecting District 
witnesses from from answering questions at trial that would have 
provided significant evidence regarding liability and negligence 
against the District (e.g., prohibiting counsel from questioning 
the medical examiner about her investigation of the death of the 
deceased); (3) falsely stating that he was not aware of a leading 
and controlling D.C. case, in order to prevent Plaintiffs from 
using the medical exajniner as an adverse medical doctor (in or- 
der to help defeat Plaintiffs' case)(NOTE« Plaintiffs' counsel 
came to trial prepared with a memorandum of law on the subject, 
consequently, the Plaintiffs were allowed to use the doctor as a 
medical expert); (U) interpreting a District expert witness's 
response to a cross-examination question for the jury; (5) tell- 



326 



ing the jury that the deceased's death was as a result of the 
theory set forth by the District and its medical examiner (prior 
to dismissing the jury); and (6) conspiring with the court repor- 
ters to alter the trial transcript for the purpose of impeaching 
Plaintiffs' counsel credibility and for denying Plaintiffs cer- 
tain relief at trial (e.g., benrh warrant) and on appeal. 

U. Plainti/fs allege that Defendant Greene, under color of law, 
deprived Plaintiffs of equal protection of the law by treating 
them (and their litigation team) differently, through disparate 
treatment, based on their race or color and economic state (i.e., 
black and poor). One example of the disparate treatment was Judge 
Greene's treatment of Plaintiffs' African-American health consul- 
tant expert as compared to a similarly-situated white expert. He 
deemed the white expert to be "clearly" qualified based on her 
education alone, although she had no advanced degrees. Conversely, 
he adjudged the black expert to be "marginally" qualified based on 
toth her education and experience, and even though she (the black 
expert) had two advanced degrees, in addition to her bachelors de- 
gree and other degrees, licenses, and credentials. 

5. Plaintiffs allege that Defendants Belson, Ferren, and Wagner, 
under color of District of Coliombia law, willfully deprived Plain- 
tiffs of their constitutional right to due process of law by deny- 
ing Plaintiffs an adequate, proper, and appropriate (under the cir- 
cumstances) review of their claims. That is, the Court issued an 
unconstitutional affirmance. 

5a. Plaintiffs allege that up to and through oral argument, 
the Sheffield case (App. No. 89-369) was screened and assigned a 
"Regular" status (and was placed on the "Regular" calendar), and, 
invariably , "Regular" calendar cases are published , regardless of 



327 



whether the decision below is affirmed or reversed. The Sheffield's 
Regular case was not published. Plaintiffs allege that the case 
was not published because the Defendants were intent on affirming 
the trial judge's decision and denying the Plaintiffs relief, des- 
pite the evidence and law, and it would have been impossible to 
publish an affirmance without falsifying and/or manipulating the 
evidence or facts, therefore, a Kemorandun Opinion and Judgment 
was submitted, which allows for conclusory findings without citing 
to specific evidence. 

5b. Plaintiffs allege that there was no substantive analysis 
of the legal standard (directed verdict) , of their claims, or of tY 
evidence Plaintiffs presented to demonstrate how the Court reached 
its conclusion. In essence, Plaintiffs allege, they did not re- 
ceive an appeal at all. What they received was merely a "symbol 
wihout substance." 

5c. Plaintiffs allege that as a result of the issuance of 
the KOJ rather than an analytical opinion, there wast (1) 'a cover- 
up of the very serious, gruesome, and perhaps, brutal acts committed 
by District employees against the deceased while she was undergoing 
recovery from childbirth and (2) a coverup of the serious miscon- 
duct on behalf of the trial judge during the trial proceedings, 
including violation of the Code of Judicial Conduct and, probably, 
violation of federal criminal law. 

6. Plaintiffs allege that the appellate Defendants, under color 
of law (D.C.), otherwise deprived them of equal protection of the 
law, by treating them and/or their case disparately different. 

6a. Plaintiffs allege that evidence of the disparate treat- 
ment can be arrived at by comparing another inmate-wrongful death 

- 21 - 



328 



case, Finkelstein v. District of Columbia , No. 88-648, en banc, 
June 5, 1991, with the Sheffield caset 

Similarities » (a) both cases involved allegations of 
wrongful death; (b) both cases involved prisoners or inmates; 
(c) both cases alleged a failure to respond to the needs of the 
deceased inmate by the respective correction officer contributed 
to the cause of the inmate's death; and (d) both cases were before 
the Court of Appeals on either a directed verdict (Sheffield) or 
a J.N.O.V. (Finkelstein), based partly on causation. 

Equal Protection Differences! In Sheffield , the deceased 
prisoner was black and the family's attorney was black; in 
Finkelstein , the deceased prisoner was white and the family's 
attorneys were white . 

DISPARATE TREATMENT by the herein appellate Defendants i 
(a) in Sheffield , the herein appellate Defendants (Belson, Ferren, 
and Wagner) voted to affirm the trial court's directed verdict; in 
Finkelstein , they voted to reverse the trial court's grant of a 
J.N.O.V.; (b) in Finkelstein , the herein panel sustained a ruling 
of an allocation of damages; in Sheffield , the panel sustained a 
ruling which provided for no damages . ♦*One other important simi- 
larity: both cases were suits against the District and the trial 
courts' judgments were decided in the District's favor. 
NOTEi in the Sheffield case, besides the failure to respond charge, 
there were three (3) medical malpractice claims and several other 
constitutional and tort claims, and much more evidence. 

7. Plaintiffs allege that the so-called "appeal" in the Sheffield 
case was merely a "symbol without substance," for in reality they 
did not receive an appeal at all. 

8. Finally, at least one judge of the D.C. Court of Appeals (at 

- ?? - 



329 



the time) thought the Sheffield case was important enough to 
request (and require) a response from the District to Plaintiffs' 
Petition for an Initial Hearing En Banc (albeit the Petition was 
ultimately denied), yet, the herein Defendants did not publish 
an analytical opinion, even though the case had been placed- on 
Regular calendar. 

Count IV. 

k2 U S.Cl SEC. 1983 AND DEPRIVATION OF PLAINTIFFS' RIGHT TO 
STATUTORY ATTORNEY FEES (42 U.S.C. SEC. 1988). 

1. Plaintiffs incorporate by reference all allegations in Counts 
I through III as though those allegations were set forth herein. 

2. Plaintiffs allege further that Defendants, each and all of 
thera herein named (except D.C.), under color of District of Colum- 
bia law, willfully deprived them of their statutory right to 
attorney fees, pursuant to U-2 U.S.C. sec. 1988. 

3. Plaintiffs allege further that as to appeal no. 89-369 (the 
object of this Complaint), they were the prevailing parties in' 
both the trial court and on appeal, and, therefore, are entitled 
1D attorney fees, based on their civil rights (sec. 1983) claims. 

k. Plaintiffs further allege that but for the erroneous direct- 
ed verdict depriving them of their constitutional right to a trial 
by jury, they would have prevailed at trial, and further, that 
based on the evidence of record at the time the verdict was direc- 
ted, they necessarily (and as a matter of law) were the prevailing 

parties. 

5. Plaintiffs further allege that Defendant Greene specifically 
and willfully deprived them of attorney fees by directing comments 
to their counsel indicating that counsel would not recover attorney 



330 



fees. 

6. Plaintiffs allege that Defendants Belson, Ferren, and Wagner 
deprived them of their statutory attorney fees by unconstitutional- 
ly affriming Defendant Greene's decision, which denied them at- 
torney fees, in full knowledge and awareness that Plaintiffs were 
the true prevailing parties in the trial court and on appeal. 

Count V. 

k2 U.S.C. SEC. 1985 (3) AND PLAINTIFFS' FIFTH AMENDMENT RIGHT TO 
EQUAL PROTECTION OF THE LAW. 

1. Plaintiffs incorporate by reference here all allegations 
made in Counts I through IV as though they were herein alleged. 

2. Plaintiffs further allege that all Defendants herein, under 
District of Columbia law, conspired, at least indirectly, to de- 
prive them of equal protection of the law as to their Seventh 
Amendment right to a trial by jury and their Fifth Amendment right 
to due process of law, based on their race or color (African-Ameri- 
can or black) regarding the civil case of Alice Sheffield v. Dis- 
trict of Columbia , CA NO. 9799-8? and App. No. 89-369- 

3. Plaintiffs allege that Defendant Greene acted in furtherance 
of the conspiracy by deliberately and with ill-will directing a 
verdict in favor of the District in view of Plaintiffs overwhelm- 
ing evidence supporting their case and against the District and by 
treating the Sheffield case differently from, at least, the case of 
Washington v. Washington Hospital Center , 579 A. 2d 177 (D.C. 1990) 
(in that case, he stated that the case would be submitted to the 
jury based on a party's admission (and 3 other supportive documents) 
alone), the Sheffield case had much more evidence than Washington 
(where liability was premised on a theory of causation) but 



331 



he did not submit it to the jury. 

U. Plaintiffs allege that Defendants Belson, Ferren, and 
Wagner acted in furtherance of the conspiracy by affirming De- 
fendant Greene's actions in full view, and awareness of the over- 
whelming evidence Plaintiffs produced and the serious misconduct 
by Defendant Greene in governing the trial proceedings; by not 
providing Plaintiffs with a due process and meaningful appeal 
(in essence, they had no appeal at all), especially when con- 
sidering the complexity (or seriousness) of several of the claims-- 
indeed, Plaintiffs' medical malpractice claim based on an over- 
dose of morphine was not even mentioned in the appellate Defen- 
dants' Memorandum Opinion and Judgment, and this was the most 
serious local law claim brought (and upon which Plaintiffs had 
the most evidence — which is why it was not mentioned. Plaintiffs 
contend); and by treating their appeal differently from that of 

Finkelstein which they voted to reverse (where Plaintiffs herein 

evidence 
had at least as much or moreAto support their claim of a failure 

to respond as in Finkelstein , supra). 

5. Plaintiffs allege that Defendant Greene conspired, at least 
indirectly, with the trial court reporters to alter the trial 
transcript in order to deny Plaintiffs equal protection to a due 
process fair trial and appeal. 

6. Plaintiffs allege that Defendant Belson and other members of 
the D.C. Court of Appeals conspired to assign Defendant Belson to 
sit on the panel and write the opinion in the Sheffield case for 
the purpose of denying Plaintiffs monetary damages and other re- 
lief. Evidence of this allegation is that in another and separate 
appeal involving the herein Plaintiffs, Defendant Belson dismissed 
an appeal of unquestionable final orders, which would have granted 

- 25 - 



332 



Plaintiffs monetary relief. His justification for refusing to re- 
view the final orders was that because there was a pending wrong- 
ful death action, whereby Plaintiffs might obtain monetary relief 
(if th'e action would be resolved in their favor), there was no 
need to grant Plaintiffs their rightful and statutory appeal of 
final orders because if the Plaintiffs recovered money in the 
Sheffield case that would supply them with all the money they might 
need for the matters which were the subject of the final orders. 
Thereafter, after being assigned to write the opinion in the 
Sheffield case, Defendant Belson (and the remaining appellant 
Defendants herein) denied Plaintiffs all relief. Consequently, 
Plaintiffs were denied relief in both the prior appeal and the 
Sheffield case (i.e., all relief), where but for Defendant Belson *s 
justification of the pending Sheffield case, their final orders in 
the prior appeal would have been required to be reviewed and they 
would have been granted relief (in all likelihood). 

6a. Plaintiffs allege that further evidence of a conspiracy 
to have Defendant Belson assigned to the Sheffield appeal (and to 
write the opinion) for the purpose of denying Plaintiffs relief is 
the fact that Defendant Belson had prejudged another (and differ- 
ent) appeal involving the herein Plaintiffs and was recused or 
removed from the appeal; therefore, he ought not have been assigned 
to the Sheffield case for that reason alone (and Plaintiffs had 
strongly recommended that he not be so assigned by asserting that 
he should be recused from the appeal--through a Petition for an 
Initial Hearing En Banc). 

7. Plaintiffs allege that they were in fact deprived of equal 
protection of the law and suffered injury therefrom, as identified 
here and in Counts I through IV. 

- 26 - 



333 



DECLARATORY RELIEF SOUGHT 

As declaratory relief, Plaintiffs request that the Court i 

1. Declare that Defendant Greene's, directed verdict (and the 
judgment pursuant thereto) in the case of Alice Sheffield v; 
District of Columbia, et. al. , CA NO. 9799-87, was unconstitutional 
as violative of the Seventh Amendment of the United States Con- 
stitution, which guarantees Plaintiffs the right to a trial by 
jury. 

2. Declare that Defendants Belson, Ferren, and Wagner's affir- 
mance of Defendant Greene's directed verdict judgment was unconsti- 
tutional as violative of the Fifth Amendment and Seventh Amend- 
ment of the United States Constitution. 

3. Declare that Defendant Greene exercised racial discrimina- 
tion against the Plaintiffs herein during the trial proceedings 
in violation of k2 U.S.C. sec. 198I (and sec. 1983)- 

U. Declare that Defendant Greene's conduct in governing the 
Sheffield case deprived Plaintiffs of Fifth Amendment constitu- 
tional rights to due process and equal protection of the law. 

5. Declare that the conduct (and treatment of Plaintiffs' appeal) 
of or by Defendants Belson, Ferren, and Wagner was unconstitutional 
as violative of Plaintiffs' Fifth Amendment rights to due process 
and equal protection of the law. 

6. Declare that all individual Defendants herein unlawfully 
deprived Plaintiffs of their statutory right to civil rights 
attorney fees, pursuant to 42 U.S.C. sec. I988 (and 1983) 1 in the 
Sheffield case on both the trial and appellate levels. 

7. Declare that the District of Columbia, in the Sheffield case, 
defaulted (nearly as a matter of law) and it was an abuse of dis- 

- 27 - 



334 



cretion for the trial court to refuse to enter a default judgment 
against the District. 



INJUNCTIVE RELIEF 

As injunctive relief, if necessary, Plaintiffs request* 

1. That the Court enjoin the Superior Court of the District of 
Columbia from denying Plaintiffs a trial by jury whereby the jury 
must return a verdict. 

2. That Defendant Greene be enjoined from governing any litiga- 
tion in the future involving the herein Plaintiffs. 

3. That the D.C. Court of Appeals be enjoined from denying the 
herein Plaintiffs a due process and equally protected appeal. 

k. That Defendants Belson, Ferren, and Wagner be enjoined from 
governing any litigation in the future involving the herein Plan- 
tiffs. 



OTHER RELIEF 

Plaintiffs request the following other relief i 

1. That the Court orders that the trial by jury, upon a grant of 
relief, take place in Federal court, rather than the Superior Court 
of the District of Columbia, especially since the case involves 
several Federal claims and could have been brought in federal court 

initially. 

2. That, alternatively, if the Court does not find a total de- 
fault by the District, the Court orders a trial on damages only 

- 28 - 



335 



as to fourC^) Counts of Plaintiffs' Second Amended Complaint, 
based on the fact that as to these specific Counts or claims 
(i.e., Counts I, II, XIII, and XV), the District could not offer 
a viable defense at trial that could defeat the claims. 

3. That the Court orders that Plaintiffs herein be paid civil 
rights attorney fees for the herein litigation. 
See the related cases of Sceva J. Kendall v. John Ferreri. et. al. , 

CA NO. and Laurack D. Bray v. James Belson, et. al. , 

CA NO. , filed concurrently herewith. 



!_"/> 2-, 



-*'-. ^L<-^^-<21 I-'' ^-^Ur.< 



LAURACK D. BRAY, ESQ. ' 
Counsel of Record for Plaintiffs 
624 17th Street, N.E. 
Washington, D.C. 20002 
(202) 397-7209 
#406336 



336 



UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 



SCEVA J. KENDALL 

Serve at: 2^23 l^th Street, N.E. #2 
Washington, D.C. 20002 



Plaintiff, 



JOHN FERREN, JOHN TERRY, AND MICHAEL FARRELL 

Individually and as Judges of the D.C. Court 
of Appeals 



Serve at: D.C. Court of Appeals 
D.C. Courthouse 
500 Indiana Avenue, N.W. 
Washington, D.C. 20001 



6th Floor 



Defendants , 



CA 



Nc'/z-^e 



COMPLAINT 
DECLARATORY JUDGMENT AND OTHER RELIEF 

Jurisdiction 
1. Jurisdiction of this court is invoked pursuant to 28 U.S.C. 
sections 1331, 13^3, 2201, and 2202; U2 U.S.C. section 1983? and 
the Fifth Amendment of the United States Constitution. 



Parties 

1. The Plaintiff is Sceva J. Kendall. 

2. The Defendants are John Ferren, John Terry, and Michael 
Farrell, being sued individually and as judicial officers of the 



337 

District of Columbia Court or Appeals. 

Statement of the Facts 
Plaintiff alleges that a brief statement of the pertinent 
facts is as follows t 

1. Mr. Sceva J. Kendall was convicted and sentenced in the Su- 
perior Court of the District of Coliunbia for possession with the 
intent to distribute cocaine (PWID). He noted a timely appeal. 

2. On appeal, Mr. Kendall, through his Brief, raised and argued 
five (5) issues which he asserted required reversal of his conviction 
and his acquittal i (1) whether the trial court erred in denying Mr. 
Kendall's motion to suppress the tangible evidence, where the ar- 
resting officers lacked probable cause to make a warrantless arrest? 
(2) whether the trial court erred in denying Mr. Kendall's motion 
for judgment of acquittal after close of all the evidence, where 
there was insufficient evidence at trial to prove him guilty of 
PWID beyond a reasonable doubt? (3) whether the trial court com- 
mitted reversible error in admitting hearsay testimony of the go- 
vernment's so-called informer? (k) whether admission of the so- 
called informer's testimony at trial violated the Confrontation 
Clause of the Sixth Amendment of the United States Constitution 
(and Mr. Kendall's right of confrontation), where Mr. Kendall was 
unable to cross-examine and/or confront the informant at trial? 

and (5) whether it was plain error (and, therefore, reversible er- 
ror) for the trial court to admit into evidence government's Ex- 
hibit #^, even in absence of objection thereto? Mr. Kendall ar- 
gued that all of the above-mentioned issues should have been de- 
cided in his favor and, consequently, would have required or caused 
his acquittal . 



338 



3. The Court of Appeals, through the identified Defendants 
herein, or vice-versa, denied Mr. Kendall oral argument on any of 
the issues raised, albeit he specifically requested oral argument j 
it apparently disregarded his Brief; and, acting positively on the 
governmert's "mysterious" motion to remand for a new trial, re- 
manded Mr. Kendall's case for a new trial, without deciding or dis- 
cussing the issues raised in his Brief on appeal (including the 
issue as to sufficiency of the evidence) and through an unpublished 
order without comment. 

♦NOTE: Mr. Kendall did oppose the government's motion (however, in 
his written request for oral argument, he stated that he would 

agree to a remand to enter a judgment of acquittal). 

k. On re-trial, after bond review, status, and motions, the 
government dismissed Mr. Kendall's case. 

Count I 

42 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFF'S FIFTH AMENDMENT 
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. 

1. Plaintiff alleges that Defendant Terry, Ferren, and Farrell, 
under color of District of Columbia (and District of Columbia Court 
of Ap Deals) law deprived him of his Fifth Amendment right to due 
process of law. That is, he was deprived of his liberty and the 
right to prove his innocence on appeal without due process of law. 

2. Plaintiff alleges that the above-named Defendants deprived 
him of his liberty and the right to prove his innocence on appeal 
without due process by precluding his appeal of issues that would 
have caused his acquittal, or, at least, a reversal without a remand 
for a new trial, which, in turn, would have caused his freedom from 
incarceration (and each day that he remained incarcerated after the 
order to remand for a new trial (rather than a reversal or a re- 
versal and remand to enter a judgment of acquittal) was a loss of 



339 



liberty without due process). 

3. Plaintiff alleges that his primary purpose for appealling 
his conviction was to prove his innocence, that is, that he did 
not commit the crime with which he was charged, and because he 
did not get to adoress the very issues that would have given him 
the opportunity to so prove his innocence, he was, in essence, de- 
prived of that purpose and the right of appeal directed thereto . 

4. Plaintiff alleges that he continues to suffer injury from his 
denied right to a due process appeal ajid from his denied right to 
prove his innocence of the crime with which he was charged because 
the record does not reflect that he was acquitted or that the 
government lacked probable cause to arrest him (which would go to 
sealing of his arrest record and civil actions). 

5. Further, Plaintiff alleges that the order to remand for a new 
trial, without more, was a denial of due process because it pro- 
vided no guidance or directions for the new trial as to avoid a re- 
petition of error. For example, see Clark v. United States , NO. 
89-700, D.C., June 21, 1991, where ". . . Clark is entitled to a 
new trial. We briefly address those of Clark's remaining claims of 
error which are likely to arise if and when the case is tried 

again." The remand was also retaliatory , see Sheffield v. D.C. , 
App. No. 89-369 (D.C. Court of Appeals) (based on counsel's conduct). 

6. Plaintiff alleges that he was denied due process by the here- 
in Defendants not acknowledging and relying on his Brief to deter- 
mine and/or decide the issues raised on appeal. 

7. Plaintiff alleges further that the Defendants knew when they 
remanded his case for a new trial without addressing the issues of 
his denied motions for supression of the tangible evidence and for 
judgment of acquittal and of plain error in admitting a government 
exhibit (i.e., sufficiency of the evidence to prove guilt) that such 



340 



conduct was at least improper, based on their ovm (i.e., D.C. 
Court of Appeals) case law. See, i.e.. Kind v. U.S . , 529 A. 2d 
29^ (D.C. App. 1987)(Mack, J., concurring) where "Under the Double 
Jeopardy Clause, remand for retrial is forbidden where the evidence 
presented in the original trial was insufficient to convict. (Ci- 
tation omitted). ... If asked , a reviewing court must always 
assure itself that retrial is constitutionally permitted under the 
Double Jeopardy Clause, and if we had not done so here , our remand 
for a new trial would be improper ." (Emphasis added). 



Count II 

42 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFF'S CONSTITUTIONAL 
RIGHT TO EQUAL PROTECTION OF THE LAW. 

1. Plaintiff incorporates by reference all allegations set forth 
in Count I as though they were herein alleged. 

2. Plaintiff alleges further that Defendants herein, under color 
of District of Columbia law, deprived him of equal protection of the 
law, by retaliating aga:nst him for his counsel's conduct ( Sheffield ) 

3. Plaintiff alleges that he was at least deprived of equal pro- 
tection by having his case being treated differently from the cases 
of Brown v. U.S. , No. 86-1276, D.C, May 8, I99I and Cauthen v. 
U.S. , No. 89-1216, June 7, 1991, where all three cases (including 
the Kendall case) involved anonymous tips, reasonable suspicion, 
and probable cause to arrest and where all three cases focused on 
the United States Supreme Court case of Alabama v. White , 110 S.Ct. 
2412 (1990) as being decisive or instructive. 

First of all, oral argument. In both Brown and Cauthen , Ap- 
pellants, through counsel, were granted oral argument. Mr. Kendall, 



341 



who specifically requested oral argument, was denied oral argument. 
In Cauthen, oral argument was performed in part by a white student 
counsel who requested and was granted the right to orally argue the 
case. In the Kendall case, Mr. Kendall had retained (i.e., paid 
and incurred costs) an attorney to r3present him on appeal, but the 
Court of Appeals denie^i his attorney the right to orally argue his 
appeal. His attorney was black. 

Second, appellant Briefs and the Court's reliance thereon. In 
neither Brown nor Cauthen did the appellants cite nor discuss 
Alabama v. White , supra (neither in their Table of Authorities nor 
their Argximent section of the Brief — i.e., nowhere in the Brief). 
But, in both cases, the Court perfonned an extensive discussion of 
White in its written opinion, with Cauthen going so far as to state, 
" Alabama v. White . ... on which appellant heavily relies " and 
" Appellant argues that the anonymous tip was inadequate under White 
because it contained no predictions as to anyone's future behavior 
. . . ." (Emphasis here and in original). If the Appellant in 
Cauthen indeed "heavily relie(d)" on White as the Court opinion in- 
dicates, he certainly did not do so in his Brief (he didn't even 
cite White — not to mention cite it as a case chiefly or principally 
relied upon). Conversely, Mr. Kendall's Brief specifically cited, 
discussed, and principally relied on White in urging reversal and 
Mr. Kendall's acquittal. Yet, the Defendants herein not only did 
not cite to or discuss White in their remand order, but they also 
totally disregarded Mr. Kendall's Brief and argiiments. 

Third, the published opinion. In both Brown and Cauthen , the 
Court published a written opinion (with analysis) discussing White 
extensively, especially in Brown . This causes Appellant's counsel 
in both cases to be acknowledged and credited with causing the re- 



342 



versal (based on and through their written and oral argument). In 
iVIr. Kendall's case, the Defendants' herein produced an unpublished 
order that cites no cases, not even White , and , that saime unpublish- 
ed order facially credits the government with a granted motion 
(even though argument in Mr. Kendall's Brief caused the "mysterious" 
motion) and makes it appear as if the government was the prevailing 
party on appeal and that the government did Mr. Kendall a favor in 
moving to remand . 

Mr. Kendall alleges that it is particularly striking that the 
court's discussion of White (and argument related thereto) in 
Brown mirrors the argument in his Brief (i.e., anonymous tip, re- 
liability, and credibility — notice the format of the argument in 
the Brown and Kendall cases). It is also striking that Defendant 
Ferren was a member of the majority panel in Brown who voted to pub- 
lish the opinion in that case. Yet, he did not so vote to publish 
(apparently) in the Kendall case, where Mr. Kendall himself (through 
counsel) (and not the Court) argued and/or discussed White specifi- 
cally. 

Finally, the majority panel in Brown (including Defendant 
Ferren) granted the Defendant's motion to suppress the evidence, but 
the panel in Mr. Kendall's case (including Defendant Ferren) voted 
to remand the case for a new trial (even though the facts in Mr. 
Kendall's case were more compelling for granting the motion to sup- 
press than in Brown because Mr. Kendall, in contrast to the Defen- 
dant in Brown - -where there was actual possession of contraband on 
the Defendant's person at the time of the arrest, did not possess 
any contraband on his person when he was seized, i.e., constructive 
possession). And, the Brown case was decided before the Kendall 
case. Brown was decided May 8, 1991 and Kendall , May 15. 1991* 



343 



k. Mr. Kendall alleges that part of the Defendants' motivation 
for their discriminatory actions in his case was retaliation (to- 
wards his appellate counsel, for counsel, on appeal, having 
charged a trial judge with racial discrimination--in a separate, 
civil appeal, see Alice Sheffield v. District of Columbia, et. al. . 
App. No. 89-369 (D.C. Court of Appeals)). See also related Complaint 
filed herewith, Alice Sheffield, et. al . v. Henry F. Greene, et. al. 

CA NO. (1991). NOTE: Because Mrs. Sheffield filed a 

Petition for Initial Hearing En Banc, all members of the regular 
Court of Appeals were required to read the Brief which contained 
the charge and discussion thereof. 

ka. Mr. Kendall alleges that other incidents of prejudicial 
actions that resulted from retaliation werei (1) after Mr. Kendall 
had moved for a release pending appeal and the motion had been de- 
nied (even though Mr. Kendall refuted all reasons the government 
had argued against the release), the order denying the motion was 
sent to a false address, so counsel for Defendant never received it 
and Mr. Kendall lost his ordinary right to move for a rehearing of 
the denied motion (i.e., time for so moving having expired without 
his knowledge); (2) after the court ordered Mr. Kendall's case re- 
moved from the March, 1991 argument calendar (i.e., the original 
briefing schedule canceled), that order was sent to a false address 
as well, so Mr. Kendall's counsel never received that order either; 
therefore, and consequently, the time passed for Mr. Kendall to 
move for a reconsideration of that action so that the case might be 
placed back on the original March, 1991 calendar; and (3) because 
the government conceded that his conviction would have to be vacated 
and the judgment reversed, Mr. Kendall filed a Petition for a Writ 
of Habeas Corpus renewing his request for a release pending appeal. 



344 



The Court of Appeals refused to materially act on his Petition 
(i.e., grant or deny it) until after appellate proceedings were 
complete and during re-trial proceedings, and then, acted to dis- 
miss the Petition for a lack of subject matter jurisdiction. 

Count III 

42 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFF'S FIFTH A^iEND^;EKT 
CONSTITUTIONAL RIGHT NOT TO BE SUBJECTED TO DOUBLE JEOPARDY. 

1. Plaintiff incorporates by reference each and every allega- 
tion set forth in Counts I and II, as though they were herein al- 
leged. 

2. Plaintiff alleges that Defendants herein, under color of 
District of Columbia law, willfully deprived him of his Fifth Amend- 
ment constitutional right not to be subjected to double jeopardy; 
and that he was so subjected to double jeopardy. 

3. Plaintiff alleges that because the Defendants did not act on 
or address the issue of insufficiency of the evidence on appeal, as 
they should have, it allowed the government the right to re-try him 
on remand, and it caused the trial court (on remand) to denj his 
motion to dismiss the case against him on double jeopardy grounds. 

k. Plaintiff alleges that he was subjected to a bond review hear- 
ing, a status hearing (at which the government made a plea offer 
which Plaintiff refused), and a motions (suppression) hearing (at 
which the government dismissed the case), which he would not have 
been subjected to if the Defendants would have reviewed the issues 
regarding sufficiency of the evidence, and, thereafter, would have 
found in his favor (and reversed and remanded to enter a judgment 
of acquittal or simply reversed--without a remand for a new trial). 



345 



Count IV 
1*2 U.S.C. SEC. 1983 AND DEPRIVATION OF PLAINTIFF'S RIGHT TO COSTS. 

1 . Plaintiff incorporates by reference each and every allegation 
set forth in Counts I and II, as though said allegations were herein 
alleged. 

2. Plaintiff alleges that Defendants herein, under color of 
District of Columbia law, deprived him of his right to costs pur- 
suant to Rule 39 of the D.C. Court of Appeals rules by designating 
the government as the prevailing party on appeal (i.e., granted 
motion to remand), when in actuality Plaintiff was the prevailing 
party (because he received the relief--a type--that he sought on 
appeal) . 

3. Plaintiff alleges that whether it is by grant of the govern- 
ment's motion to remand for a new trial or by direct reversal and 
remand for a new trial, the judgment was reversed and he was in 
fact, and as a matter of law, the prevailing party on appeal. 

k. Plaintiff alleges that in reference to Rule 39 's allowance of 
costs where the decision has been reversed on appeal, even if the 
remand for a new trial does not necessitate a reversal, a proper re- 
view of his issues raised on appeal would have required a reversal 
nonetheless . 



- 10 - 



346 



DECLARATORY RELIEF 

Plaintiff requests that the Court declare the following! 

1. That the Defendants' order to remand for a new trial in the 
case of Kendall v. U.S .. App. No. 90-378 (D.C. Court of Appeals) 
was unconstitutional as violative of the Fifth Amendment of the 
United States Constitution (on due process, equal protection, and 
double jeopardy grounds). 

2. That for purposes of Rule 39 costs, the decision in the Ken - 
dall case was reversed (or alternatively, Mr. Kendall wais the pre- 
vailing party), and therefore, costs shall be taxed against the 
appellee (United States). 



OTHER RELIEF 

Plaintiff requests the following other relief t 

1 . That the Court perform a de novo review of his Brief and the 
Record to determine whether a judgment of acquittal should have been 
entered on Mr. Kendall's behalf (and thereby determine his inno- 
cence regarding the charges against him). 

2. Order, pursuant to the Court's inherent power to do so, that 
Rule 39 costs include attorney's fees based on the circumstances of 
the treatment of his appeal; and, also, based on special events, orde 
that he be paid attorney's fees for all post -appeal matters (i.e., 
re-trial matters) if the Court finds that he should have been ac- 
quitted on appeal or that the evidence was insufficient to permit 

a re-trial. 

3. Order that Plaintiff be paid attorney fees for the herein 



347 



litigation. 

k. Order, if within the Court's jurisdiction, that Mr. Kendall's 
arrest record regarding the arrest and conviction in question here, 
be expunged or otherwise sealed based on 8 lack of probable cause 
by the arresting officers in the case to legally or constitutional- 
ly effectuate an arrest. 

See the related cases of Alice Sheffield, et. al. v. Henry F. 

Greene, et. al. , CA NO. , and Laurack D. Bray v. James 

Belson, et . al . , CA NO. , filed concurrently herewith. 




^^^^ . ^^ ^ns:^ . 

LAURACK D. BRAY, ESQ. (y ^~ 
Counsel of Record for PlVj\itiff 
624 17th Street, N.E. 
Washington, D.C. 20002 
(202) 397-7209 
#406336 



NOMINATION OF ROSEMARY BARRETT, OF 
FLORIDA, TO BE U.S. CIRCUIT JUDGE FOR 
THE ELEVENTH CIRCUIT 



THURSDAY, FEBRUARY 3, 1994 

U.S. Senate, 
Committee on the Judiciary, 

Washington, DC. 

The committee met, pursuant to notice, at 10:14 a.m., in room 
SD-226, Dirksen Senate Office Building, Hon. Joseph R. Biden, Jr., 
chairman of the committee, presiding. 

Also present: Senators Heflin, Simon, Moseley-Braun, Thurmond, 
Hatch, Simpson, Grassley, and Cohen. 

OPENING STATEMENT OF CHAIRMAN BIDEN 

The Chairman. The hearing will come to order. 

I would like to invite the judge, as well as our two esteemed col- 
leagues to the table, if they could. The order in which we will pro- 
ceed is Senator Hatch and I have relatively brief opening state- 
ments, and then we will invite our colleagues from Florida to intro- 
duce to the committee the judge, as well as her small family, and 
then we will swear the judge and we will get under way. 

The committee is convened to consider the nomination of Chief 
Justice Rosemary Barkett, of the Florida Supreme Court, to become 
a judge on the U.S. Court of Appeals for the Eleventh Circuit. 

Justice Barkett enjoys an impressive background, by any meas- 
ure. Her personal story is intriguing, and her professional life is 
marked by commitment to excellence, public service, justice and, I 
might add, integrity. 

Born in Mexico, one of 16 children. Justice Barkett came to the 
United States as a child, speaking only a few words of English. As 
a young woman, Justice Barkett became a nun, a vocation she con- 
tinued until 1967. During her time in the convent, she was known 
as Sister Michael, reminding me of my last mother superior, Sr. 
Michael Murray. I hope you are going to be more lenient on me 
than she was. And she was also a sister of St. Joseph's. [Laughter.] 

During this time, while the nominee taught in elementary and 
secondary schools, she also earned her B.S. degree suma cum laude 
from Spring Hill College. Justice Barkett then entered law school 
at the University of Florida. She finished at the top of her class, 
the class of 1970, earning an award for the outstanding student, 
the outstanding graduate. 

Justice Barkett had a distinguished 9-year career as a lawyer in 
private practice. In 1979, then Gov. Bob Graham appointed her to 

(349) 



350 

fill an unexpired term on the bench as a trial judge. She served as 
a trial judge until 1984, when Grovemor Graham appointed her to 
the court of appeals. One year later, Gk)vemor Graham appointed 
Rosemary Barkett to the Florida Supreme Court, making her the 
first woman to sit on the court. 

Facing an election to retain her seat on the supreme court in 
1992, Justice Barkett garnered a number that any one of us in this 
body would love to get within 10 points of; 61 percent of the people 
of her State decided that she should retain that seat. 

Following that election, her colleagues on the court named her 
chief justice. And I might add, a number of issues raised that will 
be raised here today about your view on the death penalty and the 
rest were raised in your State of Florida when you sought reelec- 
tion. 

One of the things I found somewhat interesting is Florida has 
been, generally speaking, a State that has been, if not preoccupied, 
spent a lot of time on the criminal justice system and concern 
about crime. The fact that 61 percent of them thought you should 
go back on the bench obviously says something about what your at- 
titude on these issues are. 

Thus, Justice Barkett has observed the practice of law from the 
perspective of a litigant, as a trial judge, and ultimately undertak- 
ing the task of appellate review. Her more than 20 years in the 
legal profession, her thousands of cases on the supreme court, court 
of appeals, trial court, and private practice provide her with a 
wealth and a breadth of experience to take with her to the eleventh 
circuit. 

One mark of esteem she held over the years is the fact that, in 
1992, the Academy of Florida Trial Lawyers created the Rosemary 
Barkett Award, which is presented annually to a person who has 
demonstrated outstanding commitment to equal justice under the 
law. 

I mention almost as an aside that, by unanimous vote, the Amer- 
ican Bar Association's Judicial Selection Committee rated Justice 
Barkett well qualified to sit on the eleventh circuit. They cannot 
rate it any higher than that. 

I know that critics of Justice Barkett, both during the retention 
election and now here, have raised concerns about the nominee's 
views on the death penalty. As everyone knows, I support the 
death penalty, and I have looked carefully at this issue. I hope Jus- 
tice Barkett's record will be considered in its entirety, especially 
given that, during her 8 years on the court, she has participated 
in literally hundreds of death penalty cases. 

I will look at Justice Barkett's complete record and focus on 
whether she will apply the law in accordance with the standards 
and precedents that bind eleventh circuit judges. 

A distinction. Judge, I am going to ask you to make is as to how 
you view the distinction between being a supreme court justice in 
the State of Florida, looking at the Florida Constitution, as well as 
the U.S. Constitution, and what you believe the role in your view 
of stare decisis, how it binds you or not as an eleventh circuit court 
of appeals judge in the Federal system. 



351 

I will question Justice Barkett about her role on the State su- 
preme court and ask her to comment on a distinction, as I said, be- 
tween those roles and the role of a Federal appellate judge. 

Further, I am interested in your views of your obligation to ad- 
here to precedent and your view on the restrictive roles of the 
courts and legislatures in determining the meaning of the statute. 
I also will ask you. Justice Barkett, to make a distinction for the 
record as to whether or not applying the law, whether it is a death 
case or any other case, whether your obligation as a supreme court 
justice for the State of Florida requires you to look at the Florida 
Supreme Court where it may or may not diverge from the U.S. Su- 
preme Court or the U.S. Constitution. 

Throughout the 12 years of Republican nominees to the Federal 
bench, I have maintained that three factors should govern my deci- 
sion for a lower court judge. Lower meaning lower than the Su- 
preme Court. I view the Supreme Court the only court in the land 
that can overrule its own decisions. 

First, does the nominee have the capacity, competence, and tem- 
perament to be a court of appeals judge; second, is the nominee of 
good character and free of conflicts of interest; and, third, would 
the nominee faithfully apply the Constitution and the precedents 
of the Supreme Court. 

I have voted for some judges with whom I hardly have anything 
in common, whose view of constitutional interpretation vary sharp- 
ly from mine, but I believed them to be honorable people who have 
a view of stare decisis and would apply the law as the court has 
seen it. I will apply this standard in the case of Justice Barkett, 
as well. 

So I welcome you, Justice Barkett. I look forward to seeing you, 
and I hope that — I say this to all nominees who come before the 
committee — I hope that your graciousness and cordiality will not 
cease once the lifetime robe is placed over your shoulders. 

I see one of the leading lawyers in the State of Florida smiling. 
He knows what I mean. I fmd that all nominees are nice to Sen- 
ators while things are moving on, but after they get confirmed, I 
am almost reminded by all of them how they are not politicians, 
when an awful lot of them got their jobs because they were politi- 
cians. At any rate, excuse the aside, but it is something I often 
speak to and I should not. 

I yield to my friend from Utah, the ranking member. 

OPENING STATEMENT OF SENATOR HATCH 

Senator Hatch. Thank you, Mr. Chairman. 

I welcome you. Justice Barkett, and I certainly welcome our es- 
teemed colleagues, both of whom are very strongly supporting you, 
and that is something that we take great notice of, as well as the 
fine person you are. I welcome you to the committee and I con- 
gratulate you on the honor of being nominated to this very pres- 
tigious position by President Clinton. 

Chief Justice Barkett and I had an opportunity to meet, more 
than once, and I enjoyed our conversations in the past, and I have 
absolutely no doubt as to your competence and ability. 

Where I am concerned, however — and I should state it straight 
up — is about your judicial philosophy, and I intend to explore some 



352 

of these concerns today and, of course, allow you the full oppor- 
tunity to respond. To enable you to do so, I have provided you with 
a list of cases that I probably will explore with you, and hopefully 
that has been helpful to you. 

In my view, Mr. Chairman, the political and policy views of the 
judicial nominee are not relevant to evaluating such a nominee. 
What is important is that the nominee interpret the law according 
to the meaning of its Framers. Differences over such meaning obvi- 
ously can occur. 

But if the touchstone of interpreting our laws is not the intent, 
the meaning of the Framers of the law, then a judge is simply leg- 
islating his or her own policy preferences or political preferences 
from the bench. A judge who does this usurps the role of democrat- 
ically elected legislators reserved to them by the Constitution. 

I should also note that in the case of the Constitution, while its 
meaning in my view remains unchanged, it is clearly applicable to 
changing circumstances. Just as there is a fundamental distinction 
between politics and judges, there is a basic difference between a 
political litmus test and an inquiry into a nominee's jurisprudential 
outlook. 

An essential part of my constitutional duty as a Senator in the 
confirmation process, and certainly as ranking member on this 
committee, is to ensure that judicial nominees will faithfully inter- 
pret and enforce the Constitution and other laws of the United 
States. 

Now, that does not mean, of course, that a nominee must agree 
with my interpretation or any other Senator's interpretation in all 
cases. I have voted to confirm judges nominated by Republican and 
Democratic Presidents who had ruled in other judicial positions or 
who I could anticipate would rule differently from me in a good- 
faith application of the law in more than a few instances. Indeed, 
I voted to confirm such a nominee, Ruth Bader Ginsburg, for the 
Supreme Court last year. 

It does mean, however, that in fulfilling their duties, judges need 
to keep their political and policy views out of the interpretation of 
the law. If a nominee's record or responses give me reason to doubt 
a nominee's ability or willingness to do so, I cannot vote to confirm 
that nominee, no matter how much I may like the person. In this 
case, I happen to like Justice Barkett very much. 

Accordingly, there are a range of jurisprudential issues that con- 
cern me. A nominee's interpretation of the equal protection clause 
and the due process clause of the Constitution, for example, are in- 
dicators of a judge's overall judicial philosophy, and, if a lower 
court judge, certainly are indicative of fidelity to precedent. 

A nominee's view of the community's ability to control obscenity 
is important. A nominee's judicial outlook on enforcement of the 
criminal law is also very important, especially at this time when 
this is probably one of the most important issues in America today. 
I think it has been a very important issue for most of the last 20 
years, certainly all of this country's existence, but especially the 
last 20 years. 

Further, let me emphasize that, with regard to the criminal jus- 
tice arena, I am concerned not just with the death penalty, as some 
people seem to believe. In fact, that may be, as important as it is, 



353 

maybe one of the lesser concerns that I have. I am concerned with 
the broad array of criminal law issues. 

If judicial nominees, for example, are prone to invent hyper-tech- 
nical rules that hamstring law enforcement and that cripple the 
ability of communities to police themselves, if they misuse or ignore 
relevant precedent or the statutes themselves in a manner favoring 
criminal defendants and convicts, then I would question whether 
they have the jurisprudential outlook necessary to be a Federal 
judge, and certainly a circuit court of appeals judge. 

Moreover, let me note that, with respect to the death penalty it- 
self, I am not only concerned about a nominee's views about the 
constitutionality of the death penalty in theory, nor is a proper in- 
quiry about a nominee's judicial outlook in this area ended merely 
by noting that the nominee has upheld the death penalty in some 
or even a number of cases, where even the most activist of judges 
cannot avoid its imposition. 

If a nominee exhibits a clear tendency to strain for unconvincing 
escapes from the imposition of the death penalty in cases where the 
death penalty is in fact appropriate, then that raises concerns in 
my mind about the nominee's fidelity to the law, no matter how 
many times the nominee may have upheld the death penalty in 
other cases. 

In an earlier hearing, I closely questioned two judicial nominees, 
one of whom I later supported and one of whom I opposed. I am 
looking forward to the answers to my questions and will weigh 
them, of course, in the evaluation of the nominee. My natural tend- 
ency is a desire to support the nominee. My natural tendency is a 
desire to support the nominee of the President of the United 
States. He won the election and he ought to be able to make this 
choice. Frankly, I think my record here on the committee has 
shown that through the years. 

That basically would be my feeling this morning, Mr. Chairman. 
I appreciate you giving me this time. 

The Chairman. As a former chairman of this committee. Senator 
Thurmond would say I hope you follow your tendencies. [Laughter.] 

Senator Hatch. I probably will. 

The Chairman. Senator Moseley-Braun, do you have a comment 
you wish to make? 

OPEMNG STATEMENT OF SENATOR MOSELEY-BRAUN 

Senator Moseley-Braun. Well, Mr. Chairman, I had not ex- 
pected to make an opening statement, except to welcome Judge 
Barkett to this panel. I look forward to her testimony. Her creden- 
tials seem to be impeccable, if not outstanding, and I am delighted, 
frankly, if I may add a personal side, to see a woman going on the 
Court of Appeals. 

The Chairman. Thank you. 

Senator Cohen, I am sorry. You have been here the whole time. 
You were here before everyone. I apologize. 

OPENING STATEMENT OF SENATOR COHEN 

Senator Cohen. Thank you, Mr. Chairman. 

I am going to refuse to follow stare decisis in this case. I am 
going to forego the precedent of making a long statement. I wel- 



354 

come the Justice and look forward to hearing from both of our col- 
leagues about your character and qualifications to serve on the 
court. 

Thank you very much. 

The Chairman. Thank you. 

Judge the usual precedent is only the chairman and the ranking 
member get to say anything. Maybe we will reinforce that. 

All kidding aside, let me invite our friend, a former Governor, 
the senior Senator, Senator Graham, to make any comments he 
wishes to, and then we will ask you to speak to us, Connie. 

STATEMENT OF HON. BOB GRAHAM, A U.S. SENATOR FROM 

THE STATE OF FLORffiA 

Senator Graham. Thank you very much, Mr. Chairman, Senator 
Hatch, other members of the committee. 

We appreciate the opportunity to be here today and to introduce 
to you a distinguished Floridian, Justice Rosemary Barkett, a 
nominee of the President for the Eleventh U.S. Circuit Court of Ap- 
peals. 

Mr. Chairman, in your opening statement, you gave a substan- 
tial amount of the history of Justice Barkett, which is also con- 
tained in my statement. So in an effort to avoid repetition, I would 
like to ask that my full statement be included in the record. 

The Chairman. Without objection, it will be. 

Senator Graham. I will omit those parts that are redundant to 
what the Chairman has already placed in the record. 

I would like also to indicate that the Member of Congress who 
represents the Tallahassee area, the city in which the chief justice 
now lives and carrying out her responsibility. Congressman Pete 
Peterson, had intended to be with us today. A conflict in his sched- 
ule in the House prevented him from doing so, and he asked if I 
would convey to the committee his strong support for Justice 
Barkett. 

The Chairman. Thank you. It will be noted. 

Senator Graham. Mr. Chairman, I have had the great fortune of 
knowing Justice Barkett personally for more than 15 years, and in 
that time I have been profoundly impressed by her intelligence, her 
compassion, her curiosity of mind, her humility of spirit. 

It has been said that Justice Barkett's life is a commentary on 
the American dream. You have outlined previously a life that 
stretches from a child bom of immigrant parents in Mexico, who 
came to the Untied States while she was still a young girl, who has 
lived through many experiences that have given her an unusual 
breadth of understanding of the human experience, a background 
which she has applied ably throughout her judicial career. 

She also comes from a very large family. There are approxi- 
mately 35 members of her family who join us today. I would like 
to ask if they would stand. 

The Chairman. Maybe just ask the ones who are not members 
of her family. [Laughter.] 

Senator Graham. That might result in less disruption, Mr. 
Chairman. But I wonder if I could ask the members of her family 
to stand. 

The Chairman. We would be honored to meet the family. 



355 

Senator COHEN. Is this just the immediate family? [Laughter.] 

Senator Graham. This is the immediate family. 

Just to mention her most immediate members of the family who 
are here, her brother Assad Barkett, Jr., of Homestead, FL; her sis- 
ters, Irma Elder of Detroit; Chati Barkett of Homestead; and Car- 
men Doumar of Fort Lauderdale are here. Unfortunately, Justice 
Barkett's parents are not among the family here today. Her aged 
mother, who I understand is about to celebrate her 75th wedding 
anniversary, is ill, and her husband is at her side. But this is cer- 
tainly one of the proudest moments for the parents and all of the 
members of Justice Barkett's family. 

As you mentioned, Mr. Chairman, I had the privilege on three 
occasions to appoint Justice Barkett to positions of increasing re- 
sponsibility in the Florida judiciary. 

I think one of the impressive things about her judicial service is 
that shortly after I had appointed her to a position, she was then 
selected by her peers to be their leader. For instance, I appointed 
her in 1979 to be a trial judge on the fifteenth judicial circuit, 
which is primarily in the Palm Beach County area. She was soon 
elected as the chief judge by her peers. She has now been elected 
by her peers on the Florida Supreme Court to be not only the first 
woman on the court in our State's history, but the first chief justice 
in our State system. 

As you indicated, Justice Barkett has received a number of 
awards and recognitions, including eight honorary doctorates, nu- 
merous other awards, including the Lifetime Achievement Award 
presented by the Latin Business and Professional Women and the 
Hannah G. Solomon Award presented by the National Council of 
Jewish Women. 

As you indicated, Mr. Chairman, the Academy of Florida Trial 
Lawyers has established a Rosemary Barkett Award, which each 
year recognizes a person who has demonstrated outstanding com- 
mitment to equal justice under law. I might say that the first recip- 
ient of that award was Congresswoman Carrie Meek, who you 
know well and can evaluate how significant it is to have a person 
of her quality be recognized by receiving an award named for Jus- 
tice Barkett. 

Justice Barkett has served on numerous commissions and task 
forces, including the American Bar Association's Steering Commit- 
tee on Unmet Legal Needs of Children. She has been asked by the 
Florida Legislature to chair several major commissions, including 
one to reform guardianship law, another to study status and needs 
of Florida's welfare children. 

Throughout her career, Justice Barkett has displayed not only a 
remarkable combination of intelligence and integrity, but also an 
uncompromising respect for the law. In Florida, she is respected 
statewide as a judge who treats all people with equal dignity, with- 
out arrogance or condescension. 

Mr. Chairman, you pointed out a significant fact, and that is 
that, under Florida law, every 6 years members of the Florida Su- 
preme Court undergo a retention campaign in which their names 
are placed before the people. They do not have an opponent other 
than the record that they have compiled as a member of the court. 



356 

In November 1992, Justice Barkett was engaged in such a reten- 
tion campaign. Many of the issues that I anticipate will be raised 
during this hearing were the focal points of that campaign. The 
people of Florida, a State which is very committed to effective 
criminal justice and a State that takes the attitudes of its judges 
very seriously 

The Chairman. I would say conservative on this issue. 

Senator Graham [continuing]. Had an opportunity to hear all of 
the commentary and to evaluate Justice Barkett. After that cam- 
paign, 61 percent of the people of Florida determined that it was 
in their interest and in the interest of the citizens of Florida to re- 
tain Justice Barkett. To me, that is one of the most persuasive 
statements of her judicial qualifications and the public confidence 
in her integrity. 

Mr. Chairman, I have a package of 25 editorials and other arti- 
cles supporting Justice Barkett. Every major newspaper in Florida, 
people who know her well, have endorsed her nomination. I would 
like to include these articles in the record. 

The Chairman. Without objection, they will be included. 

[For the articles referred to, see Submissions for the Record fol- 
lowing this hearing.] 

Senator Graham. As I say, I am aware of the issues that have 
been raised about Justice Barkett's judicial philosophy. I find it 
particularly difficult to understand the allegation that she has not 
carried out her judicial responsibility under Florida's death pen- 
alty. 

Like the chairman and most members of this committee, I sup- 
port the death penalty. As Governor, I signed over 100 death war- 
rants. I was concerned with the judiciary in our State, which would 
have a responsibility in carrying out that law. 

Chief Justice Barkett has demonstrated in more than 200 cases 
her ability to enforce the death penalty. Justice Barkett will fairly 
carry out the law. Justice Barkett's commitment to the law has 
made her one of Florida's most competent and trusted jurists. I am 
confident that those characteristics will make her a superb addition 
to the Eleventh Circuit Court of Appeals. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Graham follows:] 

Prepared Statement of Senator Graham 

Mr. Chairman, I am delighted to be here today to introduce Chief Justice Rose- 
maiy Barkett, as a nominee for the 11th U.S. Circuit Court of Appeals. 

I have had the great fortune of knowing Justice Barkett personally for more than 
15 years, and in that time, I have been awed by her inteUigence, her compassion, 
her curiosity of mind and her humility of spirit. 

To quote the New Yorker Magazine, Justice Barkett's life is a gloss on the Amer- 
ican dream. 

She was bom in Mexico in 1939. When she was five, her family gave up a pros- 
perous business, emigrated to the United States and settled in Miami to begin a 
new life. 

The Barkett family has always been very large and very close. As you can see. 
Justice Barkett has a lot of proud family members and friends. 

Among the 26 relatives who came today to be with Justice Barkett are her brother 
Assad Barkett, Jr. of Homestead, Florida; and her sisters, Irma Elder of Detroit, 
Michigan; Chati Barkett of Homestead; and Carmen Doumar of Fort Lauderdale. 

Unfortunately, Justice Barkett's parents couldn't make it from Florida today. Her 
mother is ill and her father wanted to stay by his wife's side. But this is certainly 
one of the proudest days in the lives of these two immigrants. 



357 

Justice Barkett grew up in Miami. After graduating from high school, she joined 
a convent and worked as an elementary and high school teacher for several years. 

After teaching school for several years, she graduated summa cum laude from 
Spring Hill College in Mobile, Alabama. Then, after leaving the convent, she at- 
tended the University of Florida Law School, where she graduated near the top of 
her class in 1970. 

Justice Barkett worked for several years as an associate and then a partner at 
Parish & Parish, a West Palm Beach trial law firm. She also worked for a year as 
a sole practitioner in West Palm Beach. 

In 1979, while serving as governor, I appointed her as Trial Judge for Florida's 
Fifteenth Judicial Circuit, where she impressed her peers, who elected her chief 
judge of the circuit. 

She served in that position with distinction until 1984, when I appointed her Ap- 
pellate Judge for Florida's Fourth District Court of Appeals. 

In 1985, I appointed Justice Barkett to the Florida Supreme Court. She was the 
first woman to serve on that court and was again chosen by her peers, this time 
to be Chief Justice in July 1992. 

Justice Barkett has received eight honorary doctorates and numerous other 
awards, including the Lifetime Achievement Award presented by Latin Business 
and Professional Women and the Hannah G. Solomond Award, presented by the Na- 
tional Council of Jewish Women. 

The Academy of Florida Trial Lawyers has established a "Rosemary Barkett 
Award," which it presents each year to "a person who has demonstrated outstanding 
commitment to equal justice under the law." The first recipient of that award was 
Congresswoman Carrie Meek. 

Justice Barkett has served on numerous commissions and task forces, including 
the American Bar Association Steering Committee on the Unmet Legal Needs of 
Children. She has also been asked by the Florida legislature to chair several major 
commissions, including one to reform guardianship law and another to study the 
status and needs of Florida's welfare children. 

Throughout her career, Justice Barkett has displayed not only a remarkable com- 
bination of intelligence and integrity but also an uncompromising respect for the 
law. In Florida, she is respected statewide as a judge who treats all people with 
equal dignity and without arrogance or condescension. 

Every six years, Florida's Supreme Court members undergo a retention campaign. 
In November 1992, Justice Barkett retained her seat by a margin of more than 60 
percent. That is one of the most persuasive statements of her judicial qualifications 
and public confidence in her integrity. 

Mr. Chairman, this is a package of 25 editorials and other articles supporting Jus- 
tice Barkett. Every major newspaper in Florida has endorsed her for this judgeship. 
I would like to include these articles in the hearing record. 

I am aware of issues that have been raised aoout Justice Barkett's judicial philos- 
ophy. I find it particularly difficult to understand the allegation that she has not 
carried out her judicial responsibility under Florida's death penalty. The facts are 
Chief Justice Barkett has demonstrated in more than 200 cases her ability to en- 
force the death penalty. Justice Barkett will carry out the law. 

Justice Barkett's commitment to the law has made her one of Florida's most com- 
petent and popular jurists. And I am confident that those characteristics will make 
her a superb addition to the 11th Circuit Court of Appeals. 

The Chairman. Now we will hear from a good friend of this com- 
mittee and a fellow who we worked with very closely in the last 
6 years in judicial appointments, Senator Connie Mack. 

Welcome, Connie. 

STATEMENT OF HON. CONNIE MACK, A U.S. SENATOR FROM 

THE STATE OF FLORIDA 

Senator Mack. Thank you, Mr. Chairman. 

I appreciate those comments. There was a lot of action and activ- 
ity with respect to Federal judges in the State of Florida in the 
first 4 years, and, as I have expressed on many occasions, I appre- 
ciate this committee's responsiveness to the needs of our State. 

Mr. Chairman and members of the committee, today I am 
pleased to join Senator Graham in introducing a fellow Floridian, 



358 

Chief Justice Rosemary Barkett, as nominee for a seat on the Elev- 
enth Circuit Court of Appeals. 

Last fall, I undertook an in-depth evaluation of Justice Barkett's 
qualifications for this position, because, frankly, with the exception 
I think of maybe one occasion, we had not really spent any time 
together, and I was not readly aware of her background. 

As a result, I spoke with a number of respected Florida attor- 
neys, both Democrats and Republicans alike. I reviewed her deci- 
sions and met with the Chief Justice at length on two separate oc- 
casions to discuss her judicial decisions and the nomination. 

As I said when I announced my support for the chief justice, I 
found her to be a decent, caring, experienced, and intelligent jurist, 
whose personality undoubtedly has been forged from her life's expe- 
riences. 

As Senator Graham and the Chairman have indicated. Justice 
Barkett has led a remarkable life. She was bom in a small town 
in Mexico, moved to Miami at a young age, entered a Catholic con- 
vent at the age of 17, and became a U.S. citizen at 19. She later 
graduated from the University of Florida's College of Law and 
began a distinguished career. 

Justice Barkett and I strongly differ on some subjects. I cannot 
deny that. I believe that people can have strong intellectual dif- 
ferences, but both opinions can be built on reasonable foundations. 
Even though I disagree with some of the Chief Justice's conclu- 
sions, I respect her judgment and her integrity. 

As the committee reviews the nomination of Justice Barkett, I 
ask that it consider these questions: Is she a capable jurist? The 
answer, in my opinion, is yes. Do her judicial decisions fall within 
reasonable philosophical bounds? Yes, they do. Is she a judge who 
has represented the people of my State on our supreme court with 
integrity and honor? The answer again is yes. 

I believe Justice Barkett will bring to the eleventh circuit a dem- 
onstrated capacity for intellectual curiosity, for fair-minded and ro- 
bust debate, and for honesty, all of which will serve our Federal ju- 
diciary well. Chief Justice Barkett deserves to be confirmed. I ask 
the committee to move quickly on the nomination to fill this va- 
cancy on the Eleventh Circuit Court of Appeals. 

Thank you, Mr. Chairman. 

The Chairman. Thank you very much. 

I might add I appreciate the way in which you have handled this 
nomination. Senator. You were forthright with the committee. You 
did not know enough about the Justice and you wanted to have 
time to evaluate whether you were for or against. Occasionally, 
Senators in both parties will say things like that to me, and I think 
maybe their real reason is to keep things from moving forward. In 
your case, as you recall, neither of us even questioned your motiva- 
tion and you did your checking. Had you come back and said you 
were opposed or supportive, it would not have mattered, because 
you would have been consistent with what you said, you wanted to 
take a look. We appreciate that. You always deal with our commit- 
tee that way and we appreciate it. 

Judge, I am going to ask you to stand and be sworn and invite 
you to make any statement you want, and then we will begin the 
questioning. 



359 

Do you swear that the testimony you are about to give will be 
the truth, the whole truth, and nothing but the truth, so help you, 
God? 

Justice Barkett. I do. 

TESTIMONY OF HON. ROSEMARY BARKETT, OF FLORIDA, TO 
BE A U.S. CIRCUIT JUDGE FOR THE ELEVENTH CIRCUIT 

The Chairman. Welcome, Judge, and the floor is yours, if you 
wish to make any statement. My colleagues, as you know. Justice, 
they have a thousand other things they have got to do and other 
hearings, and so we appreciate them being here and that is why 
they are leaving. 

Justice Barkett. 

Justice Barkett. Thank you very much. Senator. 

I do not have an opening statement, but I would like to just say 
one or two things and introduce the people who are here who have 
gone to a great deal of trouble to be here. 

I have been blessed in two major ways. As you have heard, we 
are members of a family who came to this country and have been 
extraordinarily blessed by the opportunities that it has provided 
not just to me. You all talk about a remarkable life, but if you had 
the opportunity to hear the stories of the people or individuals who 
are behind me, you would be probably doubly or triply impressed. 

There are two members of my family who are not here, my par- 
ents. Once again, if you thought any of our lives are remarkable, 
I think hearing the factors involved in being double immigrants, 
having been bom in Syria and immigrated in their youth with one 
or two children 

The Chairman. What was your first language when you came to 

Justice Barkett. Spanish, Senator. My parents were bom in 
Syria, immigrated when they were in their twenties, with one or 
two children, to Mexico. They spent some 20-plus years, 25 years 
in Mexico, where I was born and many of my sisters were born, 
and then immigrated again after the Second World War. So their 
life is truly remarkable. My father is 94, and my mother is 88. 
They would have been here, had the cold weather and my mother's 
failing health not precluded it, and then I surely would have wor- 
ried about any hostile question that may have been asked, I have 
to tell you. 

Senator Hatch. You think you would worry, you can imagine 
how we would feel. [Laughter.] 

Justice Barkett. In March, they will be celebrating their 75th 
wedding anniversary, and I think their story is ten times more re- 
markable than anybody that is here. 

My father is one of many brothers and cousins who immigrated 
here, and their descendants are represented in the people who are 
here in this room. We began approximately 26 years ago to have 
a family reunion in Vero Beach, FL, which is in the middle of the 
State. Many of my family members are from Jacksonville, and 
many are from Miami. We meet in the middle, and there has not 
been a year, I do not think, where the numbers of the immediate 
family, my father's brothers and his cousins and their descendants, 
do not number in excess of 100. 



360 

Over the 26 years that we have been doing this, we have become 
much closer than most famihes. Our cousins have blended to be 
extra sisters and brothers, our aunts and uncles are like surrogate 
parents who feel the great responsibility of correcting you when 
your parents are not around, and many times when they are 
around, so you are corrected six or seven times for the same of- 
fense. 

The Chairman. I know the feeling. 

Justice Barkett. I have friend here. In my family, there are not 
outsiders. My family accepts our friends, those of all of us as part 
of the family, so that everybody that is here to me is a member of 
my family. 

I also have to say one other thing before I just read their names 
to you, because they have made a great effort to come from Florida 
in the winter, and that is, lest the committee think that its impor- 
tance is exaggerated, this family uses every — we do this for gradua- 
tions, birthdays and every other event, where 

The Chairman. Use up all those frequent-flyer tickets? 

Justice Barkett. Well, we come together every time an occasion 
even remotely warrants it, where there is any pain that might 
occur or any celebration. I know that everybody hopes it is going 
to be the latter in this instance. So I appreciate your letting me 
take a couple of minutes to read the names of the members of my 
family who have made the effort. 

People ask you if you are nervous here, and I am not. The only 
emotion that I feel today is just a tremendous gratitude for the peo- 
ple that are here. 

The Chairman. Take your time. Justice. 

Justice Barkett. It is just really neat that they did this. My sis- 
ters, of course, Irma Elder and Chati and Carmen Doumar have 
been introduced, as well as my brother Assad Barkett. I should not 
tell you this, but he is approximately 20 years or so older than I 
am, and his children are sort of like my brothers and sisters, but 
his wife, who is also not here, is helping take care of my parents 
and is not well enough to have made the trip, is as much a sister 
as any of my sisters have been, and I wish that she were here. 

I do not want to take up a lot of time, but I just feel like I need 
to read their names. 

The Chairman. Just take your time. This is one shot, just the 
one shot you have. 

Justice Barkett. I will not bore you with how they are related, 
but let me just go down the list and say that Steve Doumar is here, 
Johnny Barkett and Sybill his wife, my niece Mansura Crump, my 
cousins Georgia Abdelnour and Mary Barket and Julia Barket, my 
aunt Lil Barket, Frances Joseph and Louise Korey and Neddie 
Lewis, Richard Crump, Robin Marques and Michael Marques — I 
hope little Michael made it — Lori Nation, and my grand-nephews, 
we are like three or four generations, my nephew Johnny's children 
are here, Johnny Barkett and Dee, and I guess Leslie got to stay 
home. 

The Chairman. Who is the youngest one in the group? There you 
go. What is your name? OK, John. In these hearings, the youngest 
member of the family in attendance has the free run of this place. 
Seriously, if you want to get up and head back here, I think we 



361 

have got some candy and stuff back here. You can do everything 
but question, and occasionally we allow that to happen. [Laughter.] 

Senator Hatch. Yes, we will consider that. 

Justice Barkett. Thank you, Senator. 

Susan Albert, Kristie Milo, Saralyn Korey, Katie Korey, Dee 
Barkett, John David Baxton, Fr. Michael Soukar. I have to then go 
into my extended family. I could not be more pleased to have mem- 
bers of my staif who are here: Chet Kaufman, Professor Steve Guy, 
from Florida State University's College of Law. I almost said the 
wrong name. 

The Chairman. I understand how that could be dangerous in 

Florida. 

Justice Barkett. Yes, in my State, especially. 

Debbie Hulls, who is my assistant judicial assistant, who has be- 
come like another sister to me; my friends Gail Nelson, Alexander 
DeBlassio, Jamie Kevees, Janet Studley should be here, Doug 
Hughs, Kim Meyers, Scott Rogers, Nina Weinstein, Gail Nelson. Of 
course, I could not be more delighted to have with me, who has 
been of enormous support, Chesterfield Smith, whose example has 
been 

The Chairman. We all know Chesterfield. Welcome, Chesterfield. 
It is good to have you back. 

Senator Cohen. Mr. Chairman, could I inquire, are those books 
the family genealogy that you have in front? 

Justice Barkett. No, sir. They would be much more extensive. 

Senator Moseley-Braun. Actually, I was going to ask the Chair- 
man if he would inquire which relatives are from Illinois. 

The Chairman. There is bound to be someone from Illinois. 

Justice Barkett. I do. Lori, where are you? 

The Chairman. There you go. Would you report after school, 
please? [Laughter.] 

Justice Barkett. Thank you, Senator. I just want to say thank 
you to all of them for coming. Everything that I have done right 
in my life has been an emulation of the things they taught me, and 
whatever I have done wrong I take full responsibility for. 

Thank you for your patience in letting me do that. 

The Chairman. It is a great honor. One of the things that I think 
we so seldom pay attention to, we are here in these halls and in 
this great institution, which is not because on occasion of our con- 
duct and because on occasion of the nature of the system is not al- 
ways looked to as such a great institution, but it truly is a phe- 
nomenal honor for anyone to be nominated to the Court of Appeals, 
and this is an occasion that warrants your presence. 

I hope those of you who do not know Washington well, I know 
you are anxious to go back because of the weather, but I hope you 
get a chance to actually feel the ambience of this great city and 
these buildings and these halls that are yours. It is worth seeing. 
It is worth taking the time. It is a reflection of the great institu- 
tions that were wrought a long time ago. 

I have only one more question relating to genealogy. Of the 16, 
what number are you? 

Justice Barkett. I am second from the bottom. Senator. 

The Chairman. Second from the bottom. One last question, the 
only other question I will ask you about your previous occupations: 



362 

When you were a nun in the Sisters of St. Joseph, were you issued 
a clicker? 

Justice Barkett. No, Senator, just a ruler to rap appropriate 
knuckles. I hope it will not be necessary this morning. [Laughter.] 

The Chairman. My ears were never this long before I went to 
Catholic school, and my small hands were in fact not as rough on 
the back before I attended Catholic school, so I understand. 

If I ask you anything or if I — the press will know I have had a 
flashback, if I start saying, "yes, sister," or "no, sister" to your re- 
sponses, but I will try not to do that. I will try to remember my 
role. 

Justice Barkett. Senator, there were, I am told, some judges on 
the fifteenth judicial circuit when I was chief judge there who 
sometimes had the tendency to refer to me as "mother superior." 
[Laughter.] 

The Chairman. Let me get serious for a moment here. Justice 
Barkett, in your 8 years on the Supreme Court, you have upheld 
the death sentence in more than 200 cases. As our research shows, 
200 times death cases have come up to you involving roughly 150 
defendants. Is that correct? 

Justice Barkett. I am told that the numbers are closely to ap- 
proximately 275 or 276 times that there has been an affirmance of 
the death penalty in which I have voted with the majority. If you 
are counting only individuals, rather than double cases, it is some- 
where in the neighborhood of 150 defendants to 200. That is a dif- 
ficult number to ascertain, because a lot of defendants have the 
same name, but somewhere in the neighborhood of 150 to 200 de- 
fendants, I believe. 

The Chairman. So Florida has a death penalty statute, correct? 

Justice Barkett. Yes, it does, Senator. 

The Chairman. Can you tell me whether or not there is discre- 
tion on the Florida statute for a judge to make a judgment, a trial 
court judge to impose the death penalty where the jury may come 
back with a life sentence after conviction? I know you are not now 
a trial court judge. 

Justice Barkett. Yes, Senator. 

The Chairman. But tell me what discretion a trial court judge 
in Florida has relative to the death penalty as a sentence. 

Justice Barkett. In the Florida statutory scheme, the jury 
makes a recommendation to the judge and the judge then has the 
option of following the recommendation of life imprisonment or of 
imposing the death penalty. 

The Chairman. Even if the jury does not recommend death? 

Justice Barkett. Yes, Senator. But prior to my joining the court, 
the court had addressed the question of under what standards can 
a judge overrule a jury's recommendation of life, and the standard 
is a very stringent standard, and the cases interpreting that stand- 
ard are also very stringent, so that the court in a case called Tetter 
V. State has said that only when no reasonable juror could possibly 
have imposed the death penalty, may a trial court judge reverse 
the jury recommendation of life and impose a death sentence, and 
that has been the continuing law of my State on that question. 

The Chairman. Reasonable judges, I suspect, as reasonable 
members of the Senate, can disagree with some of the judgments 



363 

that you have made or not made in those 275 death cases. As I un- 
derstand, among the more than 600 death penalty appeals you 
have confronted in the Florida State Supreme Court, there may be 
cases in which you have upheld the death penalty that I or others 
here may not have, and, likewise, there may be cases in which you 
have voted to reverse the imposition of the death penalty, imposing 
life instead of death which may be disagreed with by members of 
the committee, including me. 

I am not sure, quite frankly, there is much value in pointing out 
individual cases, so long as the overall record demonstrates willing- 
ness to apply the law. Now, in your approach to judging, how do 
you see your job of interpreting our Constitution and the laws of 
the State of Florida and reviewing their application to the facts? 
That seems to me to be the question that I want to know about 
how you approach the business of judging. 

In that regard, I would like to discuss with you three areas: 
First, the difference between your role as a State Supreme Court 
Justice and your role on the court of appeals; and, second, the role 
of precedent in judging as you view it; and, third, the respective 
role of courts and legislatures in determining the meaning of the 
statute. 

You currently serve as Chief Justice of the State of Florida, the 
highest court in the State of Florida, the ultimate arbiter of dis- 
putes arising under the State's Constitution and laws. I have re- 
viewed many, though certainly not all, of the 3,000 opinions you 
have written personally, and the 12,000 cases in which you have 
participated during your 8 years on the court. I might add that you 
have kept our investigative staff very busy, because of the number 
of cases that you have written and/or participated in. 

In many of those cases, litigants invoked provisions of both the 
Federal and State Constitutions and State laws. How would you 
compare and contrast your role as a Chief Justice of the State su- 
preme court with the role you will assume, if you are confirmed, 
on the Eleventh Circuit Court of Appeals? 

Justice Barkett. Senator, as a member of the court of last resort 
in a State, it is the State supreme court's job to look and act, in 
our State, Florida, within the context of Florida's Constitution and 
Florida's law and Florida precedent, which in some instances may 
be different from that of the Federal precedent or the Federal Con- 
stitution. We, of course, must apply the Federal Constitution, but 
State Constitutions may have more protections than the Federal 
Constitution, and it is in the context of Florida law where a Florida 
Supreme Court justice operates. 

In the Federal system, of course, you would not be looking at the 
case in front of you within the context of the ambit of the Florida 
Constitution or the Florida laws. You will, of course, be looking 
only to the Federal laws and be guided by the precedent that the 
U.S. Supreme Court has established, and I of course will do that. 

The Chairman. When your court, the Supreme Court of the State 
of Florida, construes State statutory or constitutional provisions, 
are you bound by the precedents of the U.S. Supreme Court? 

Justice Barkett. We, of course, are, but we may have additional 
requirements under Florida's Constitution. 



364 

The Chairman. I understand what you are saying, but, for the 
record, give me an example, if you can think of one, where the Flor- 
ida State Constitution has an additional safeguard built in. 

Justice Barkett. For example, the voters in my State very re- 
cently passed a constitutional express right of privacy which is de- 
lineated just exactly that way. The people of the State of Florida 
have a right of privacy, the people of the State of Florida have a 
right to be let alone and 

The Chairman. So you do not have to worry about unenumerated 
right of privacy in the State Constitution? 

Justice Barkett. The people of the State of Florida enumerated 
their right of privacy very explicitly, so there would be no question. 
Senator, I believe. 

The Chairman. So in that case, you may very well — and I am not 
looking for a hypothetical, but it is possible that you could conclude 
that, for a particular circumstance, there was not a right of privacy 
guaranteed in the Federal Constitution on a particular issue, but 
may very well be enumerated in the Florida State Constitution? 
You would not be in any way violating the Federal Constitution by 
upholding a more stringent or a more clearly articulated right set 
out in the Florida Constitution? 

Justice Barkett. I would not be interpreting the Florida Con- 
stitution or applying Florida law in a Federal context, except in 
those cases where I am required 

The Chairman. I mean now, as a Florida Supreme Court Justice. 

Justice Barkett. That is correct. Senator. For example, in a pri- 
vacy case, it would not be necessary to deal with any Federal con- 
stitutional issues. We look to them, of course, for persuasiveness 
and for guidance, as we do to many other courts. 

The Chairman. As the Chief Justice of the Supreme Court of the 
State of Florida, in a matter that just deals with Florida statute, 
the Florida Constitution is not in any contravention of any Federal 
constitutional interpretation. Are you able to, in your view, along 
with your associates on the bench of the supreme court, overrule 
standing precedent of the Florida Supreme Court? 

Justice Barkett. Of course. Senator. It is the function of the 
court of last resort to do so. Of course, on the Eleventh Circuit 
Court of Appeals, assuming I have the opportunity to serve there, 
that would be a job reserved for the U.S. Supreme Court. 

The Chairman. Put another way, if you strongly disagree with 
a U.S. Supreme Court ruling, as an appellate judge on the eleventh 
circuit, and you were convinced, though, that the facts were clear, 
the circumstances were clear that it fit clearly on all fours within 
the context of a recent or the standing Supreme Court position on 
a particular issue, even though you disagreed with the reasoning 
of the Supreme Court as to how they reached that conclusion, what 
is your requirement under your oath of office to do? 

Justice Barkett. To follow the law, Senator. That is what I have 
done and that is what I anticipate I will always do as long as I am 
a judge. 

The Chairman. I am sorry to keep focusing on this, but it is im- 
portant. As a supreme court justice in the State of Florida, in the 
literal sense, you need not follow the law as interpreted by your 
colleagues the day before or 10 days before or 30 years before. You 



365 

can sit there and say I think the reasoning was faulty in the case 
of Smith V. Jones, which is the law of the State of Florida, as inter- 
preted by the Florida Supreme Court as it relates to the Constitu- 
tion of the State of Florida, and you can say I think that was faulty 
reasoning, it stood for 30 years or 30 days, I am going to vote to 
overrule that case. So that is, in the literal sense, not upholding 
the law. You are rewriting the law. You are redefining the law, not 
rewriting, redefining the case law. 

As an appellate court judge, is it within your province, under 
your oath of office, if you are sworn in, to similarly act with regard 
to U.S. Supreme Court ruling with which you believe there is 
faulty reasoning and a misapplication of the law? 

Justice Barkett. As a member of the court of last resort in the 
State, you are permitted within the ambit of your authority and it 
is appropriate to on occasion reverse your prior precedent. One 
does not do that lightly, Senator, and it is not a regular occurrence, 
obviously. On the Eleventh Circuit Court of Appeals, a judge does 
not overrule the precedent of the Supreme Court or even of its own 
court, barring, of course, those rare instances where there might be 
an en banc reconsideration of an issue. 
The Chairman. I thank you. My time is up. 

Senator Hatch has questions and he is next, and they asked me 
to wait while he comes in from the reception room in a moment. 
Senator Cohen. I would be happy to proceed in his absence, Mr. 
Chairman. 

The Chairman. As they say, when I look at my colleagues on the 
Republican side and the senior member is waiting to ask questions, 
there is an expression a former Republican leader used to have, "I 
ain't got no dog in that fight," so I am going to wait and let the 
senior member ask his questions. 
Senator COHEN. The senior dog has just arrived. [Laughter.] 
Senator Hatch. I have been called worse, I want you to know. 
We welcome you to the committee, Justice Barkett. 
Justice Barkett. Thank you, Senator. 

Senator Hatch. We appreciate what a wonderful family you 
have. I have met a number of them and I have been called by 
them, and I truly believe you have a wonderful family. 

What I would like to do is go through some preliminary things 
and then start and do as much as I can before I turn to our col- 
leagues on the committee. 

Is it not the case that there will be many issues which will come 
before you, as a circuit court of appeals judge, if confirmed, which 
are not directly governed by precedent? 

Justice Barkett. I suppose, although candidly. Senator, most is- 
sues will have some analogous precedent or some prior expressions. 
Senator Hatch. I believe you will have many cases of first im- 
pression before you. But you are right, there will be a lot of cases 
that involve precedent which you have to consider. For example. 
Congress enacts new laws all the time which require initial consid- 
eration in the lower courts, starting with the district court in most 
cases. Some of them do come directly to the circuit courts, I imag- 
ine. But State legislatures enact laws all the time that also are 
subject to challenge on constitutional grounds. So you will have 
cases that really will be first impression cases. 



366 

But is it not also true that there will be other cases in which the 
scope, the breadth or narrowness of existing precedent will be dis- 
puted? You have had that in your experience as a supreme court 
justice. As you know, the Supreme Court grants review in only a 
tiny fraction of all court of appeals decisions. So it is fair to say, 
is it not, that Federal courts of appeals have the final word in al- 
most all the cases that really come before them? 

Justice Barkett. They have a substantial impact, I am sure, 
Senator. 

Senator Hatch. They do. In light of all of this, it is also fair to 
say that a Federal appellate judge's philosophy or approach to 
judging would naturally be important to us on this committee and 
to everybody else, for that matter. You would agree with that? 

Justice Barkett. I agree that their approach to judging is. I am 
not sure I understand what you mean by philosophy. 

Senator Hatch. I understand that. It is not just the Supreme 
Court justice's judicial philosophy that is significant. Lower court 
decisions cover so many issues, from crime to obscenity to privacy 
to civil rights and so on, that those particular decisions often be- 
come the law of that particular circuit, and it is common to have 
split-circuit opinions, where one circuit may differ from another cir- 
cuit. So there are differences in philosophy, differences in prece- 
dent, differences in cases of first impression, all of which you have 
had to deal with to a limited degree as a justice on the Florida Su- 
preme Court, but which you will have to deal with to a much larger 
degree as a judge on the circuit court of appeals. 

Justice Barkett. Yes, sir. 

Senator Hatch. Let me just turn briefly to the general subject 
of opinion writing. Part of the reason that appellate judges embody 
their decisionmaking in written opinions is to provide guidance to 
lower courts and parties in future cases. I am sure you would agree 
with that. 

Justice Barkett. Yes, sir. 

Senator Hatch. And part of the reason is to satisfy the parties 
and the public that the court is in fact engaged in reasoned deci- 
sionmaking, correct? 

Justice Barkett. Yes, sir. 

Senator Hatch. So you would agree, I trust, that it is important 
for judges to explain their thinking, especially appellate judges, as 
they decide these cases? 

Justice Barkett. Yes. 

Senator Hatch. I want to ask you some questions about your 
judging under the equal protection clause of the Federal Constitu- 
tion. This is extremely important to me and I think to almost any- 
body who is concerned about constitutional decisionmaking. 

Let me just first ask you whether or not you agree with Justice 
Blackmun's formulation of the test for deciding cases under the 
equal protection clause or with equal protection clause implica- 
tions. Writing for the court in a 1992 case, Nordlinger v. Hahn, he 
said, "This Court's cases are clear that, unless a classification war- 
rants some form of heightened review because it jeopardizes exist- 
ence of a fundamental right or categorizes on the basis of an inher- 
ently suspect characteristic, the equal protection clause requires 



367 

only that the classification rationally fiirther a legitimate State in- 
terest." Do you agree with his articulation of that? 

Justice Barkett. I agree that Justice Blackmun said that, yes, 
Senator. 

Senator Hatch. But do you agree with what he said? 

Justice Barkett. I agree that the law of equal protection is what 
has been said by the U.S. Supreme Court and the Federal courts, 
absolutely, and I would follow that precedent without any quarrel. 

Senator Hatch. He basically defined the rational basis test in 
that statement? 

Justice Barkett. Yes, sir. 

Senator Hatch. And that law has been settled for at least the 
last few decades? 

Justice Barkett. I do not have any question about that, Senator, 
on the Federal side, understanding that our requirements under 
the Florida Constitution and under Florida cases differ slightly. 

Senator Hatch. Sure. 

Justice Barkett. Or somewhat. 

Senator Hatch. Justice Blackmun also explained in the 
Nordlinger case how the rational basis standard is to be applied. 
As he reiterated, it is a well settled test. 

Justice Barkett. Yes. 

Senator Hatch. He said, "The Equal Protection Clause is satis- 
fied so long as there is a plausible policy reason for the classifica- 
tion, the legislative facts on which the classification is apparently 
based rationally may have been considered to be true by the gov- 
ernment decisionmaker, and the relationship of the classification to 
its goal is not so attenuated as to render the distinction arbitrary 
or irrational." Do you agree with that statement? 

Justice Barkett. Yes, sir. 

Senator Hatch. Indeed, in 1980, in USRR Retirement Board v. 
Fritz, the Supreme Court noted that so long as there are plausible 
reasons for the legislature's action, the court's inquiry "is at an 
end." Indeed, citing a 1960 decision, the Court there also made it 
clear that it is irrelevant whether these plausible reasons were ar- 
ticulated by the legislature or even actually underlie the legisla- 
tion. That is how deferential the standard is for elected representa- 
tives to make these laws. 

And as the Supreme Court has stated, this standard "is a para- 
digm of judicial restraint," because it protects against courts using 
equal protection as — and it is an interesting quote — "a license to 
judge the wisdom, fairness or logic of legislative choices," as dis- 
tinct from the constitutionality of those choices. That, of course, is 
the FCC V. Beach Communications case. 

So I wanted to go through just to establish that we are both talk- 
ing on the same wave length, when we discuss these equal protec- 
tion cases. 

What I would like to do is just go through some of the cases. I 
am not going through them from the standpoint that I agree or dis- 
agree with the outcome, because that is almost irrelevant. 

Justice Barkett. I understand, Senator. 

Senator Hatch. I am going through them with regard to judicial 
reasoning and philosophy. Let me just turn to your dissenting opin- 
ion in University of Miami v. Echarte. This is a 1993 case. In that 



368 

case, the Florida Supreme Court ruled that a State law placing a 
monetary cap on noneconomic damages — that is damages for pain 
and suffering — in medical malpractice cases did not violate equal 
protection. 

The Florida Legislature had found that there was a financial cri- 
sis in the medical liability insurance industry, that if the crisis was 
not abated, many providers of medical care would "be unable to 
purchase liability insurance and many injured persons [would] 
therefore be unable to recover damages," that the size and fre- 
quency of very large claims was the cause of these problems, and 
that damages for noneconomic losses were being awarded arbitrar- 
ily and irrationally. 

Now, you dissented on a variety of State law grounds, but you 
also dissented on the ground that the caps on noneconomic dam- 
ages, in your view, violated the equal protection of the U.S. Con- 
stitution. Now, I am not concerned here with the merits of caps on 
noneconomic damages in medical malpractice cases or medical li- 
ability cases, as I prefer to call it. 

Justice Barkett. I understand. 

Senator Hatch. My concern goes to your use of the Federal equal 
protection clause as a basis for a court to strike down such caps, 
because it seems to me to be clearly at odds with settled Supreme 
Court precedent on the deference to be given legislative bodies 
under that clause. 

Now, your opinion says, "I fail to see how singling out the most 
seriously injured medical malpractice victims for less than full re- 
covery bears any rational relationship to the legislature's stated 
goal of alleviating the financial crisis in the medical liability insur- 
ance industry." 

Now, it seems to me that the rational relationship between the 
means and the goal is self-evident, namely, limiting the award of 
enormous noneconomic damages can be rationally expected both to 
reduce malpractice premiums which are passed on to patients by 
doctors, and to help alleviate the financial crisis in the medical li- 
ability industry. 

Now, I can understand someone disagreeing with the legislation 
as a matter of policy. I may or may not agree with that myself. But 
given the legislature's judgement about the medical malpractice 
crisis in the State of Florida, where it is even difficult to get obste- 
tricians to deliver babies in certain areas, how can you as a judge 
use the Federal Constitution's Equal Protection Clause to strike 
down that law as irrational? And how can it fairly be said that the 
cap on noneconomic damages, to use your terms, can only be called 
arbitrary and bears no rational relationship to alleviating the medi- 
cal malpractice industry? 

Justice Barkett. I think my answer really has to refer or incor- 
porate much of what I said to Senator Biden, Senator Hatch, in the 
sense that when you are sitting as a State Supreme Court justice, 
you look at these cases totally within the ambit of Florida law and 
Florida cases. That particular case was argued primarily under the 
auspices of being denied access to courts. 

There is a landmark case in Florida called Kluger v. White, 
which said that before a right of access to courts can be restricted, 
a reasonable alternative must be provided or the legislature must 



369 

show an over-powering public necessity for abolishing that right, 
and that there is no alternative means of meeting that public ne- 
cessity. That is a very strong standard, and my court has — this has 
antedated my appearance on the court. 

The argument in the Echarte case about limiting economic dam- 
ages, in essence, really basically was an argument under the access 
to courts provision, which is also included in our Constitution ex- 
pressly, and it is not in the Federal Constitution. 

Senator Hatch. I understand that. 

Justice Barrett. If I can just kind of get the whole tenor out, 
having said that, we also at the same time have a much different 
standard in evaluating equal protection claims under the Florida 
Constitution by case law. Our court's analysis of the rational rela- 
tionship test is a much more stringent test and permits judges, on 
a different standard, to review the relationship between the two. 

I grant you that I used the term "Federal Constitution," but if 
you look at my dissent in that case and that I think of Justice 
Shaw, with whom I concurred, the analysis is totally using Florida 
cases under a Florida system, and if the concern is whether I 
would apply this analysis under the Federal Constitution, I of 
course could not, because the law is very different, as you have laid 
it out to be. That was basically viewed as a KLuger v. White access 
to courts question, which requires, when a cause of action is taken 
away from a plaintiff, that it has to be on the basis of an over- 
whelming necessity that the legislature must show, and that there 
is no other reasonable alternative. 

The Chairman. I would ask unanimous consent, since the Sen- 
ator's time is up, to allow him to finish this line of questioning. 
There is going to be a vote at 11:25, so I am going to leave and 
go vote, so we will not have an interruption. I might suggest that 
maybe those 

Senator Hatch. It may be important to just finish this line, so 
we will get it out of the way. 

Justice Barkett. I would appreciate it. 

Senator Hatch. When I read the case, you relied on equal protec- 
tion language, the Federal equal protection language, and, frankly, 
I could not see how anybody — you are saying if you had to rely on 
Federal equal protection, the decision might have been totally dif- 
ferent? 

Justice Barkett. No, I used the term Federal Constitution. I ap- 
pended it to the Florida Constitution and the Federal Constitution. 
We do use terms of rational relationship, but our test, our ability 
to apply the test differs from the Federal court's ability to apply 
the test. 

Senator Hatch. You see why I was concerned? 

Justice Barkett. Absolutely. 

Senator Hatch. Virtually every State in Federal law classifies 
people in one way or another and draws distinctions between peo- 
ple. 

Justice Barkett. I understand. 

Senator Hatch. For this reason, the Federal equal protection 
clause is one of the most powerful tools for a judge to wield in order 
to override judgments committed under our system to the people or 
their elected legislators. 



370 

Justice Barrett. I have no problem applying the Federal law on 
equal protection or anything else, as a member of the Eleventh Cir- 
cuit, should you permit me to serve in that capacity. Senator. 

Senator Hatch. That is fine. 

Let me just go a little bit further here. You had several State 
court grounds in that case. It did not have to reach out to the Fed- 
eral equal protection clause, and you are saying here that perhaps 
you shouldn't have. 

Justice Barkett. The only reaching out was including the phrase 
"Federal Constitution," I should not have done that. The analysis, 
the cases that I relied on, the cases that the other judges relied on 
were exclusively Florida cases. I do not think you will see one Fed- 
eral case cited in my dissent, Senator. I do understand the dif- 
ference and want to reassure you that there is no problem in apply- 
ing the Federal standard. 

Senator Hatch. I appreciate that. The reason it juniped out at 
me when I read the case, you write "I agree with Justice Shaw that 
the statutes in question violate article I, section 21 of the Florida 
Constitution. I also believe the statutes violate the right to trial by 
jury and the equal protection clauses of the Florida and U.S. Con- 
stitutions." 

Justice Barrett. I understand. 

Senator Hatch. I have concerns about another one of your equal 
protection opinions, and that is Shriners Hospital v. Zrillic. I guess 
I am pronouncing that right. It is a 1990 case. 

Justice Barrett. I have it here, but I did not get a chance to 
look it over. 

Senator Hatch. You may be the first witness in the history of 
this committee who has been given the cases in advance by the 
committee. But it came up in one of our prior hearings, and I 
thought it was a good idea, so I decided to give you all those cases 
and hopefully they will be helpful to you and helpful to us. 

Justice Barrett. Thank you. Senator. 

Senator Hatch. In that case, the Florida statute permitted a di- 
rect heir to cancel a gift to a charity made in a will that was writ- 
ten less than 6 months before the author of the will, the so-called 
testator, died. In short, the statute operated to guard against 
undue influence by charities with people who are making wills. 

You wrote the opinion for a divided court striking down the stat- 
ute. One of the grounds on which you struck it down was the Fed- 
eral equal protection clause. My concern here again is not with the 
wisdom or lack of wisdom in this statute. I am not going to judge 
Florida law on that basis. Rather, I am concerned with the reason- 
ing by which you use the Federal equal protection clause to invali- 
date it. 

In that case, you stated: "Equal protection analysis requires that 
classifications be neither too narrow nor too broad to achieve the 
desired end. Such under-inclusive or over-inclusive classifications 
fail to meet even the minimal standards of the rational basis test." 

Now, your opinion proceeds to hold that the statute is under-in- 
clusive, because it protects against only one type of undue infiuence 
on a person making a will, that is influence by charitable organiza- 
tions. Moreover, you said that the statute is over-inclusive, because 



371 

it would render voidable many donations not tainted by undue in- 
fluence. Are you having any trouble finding that case? 

Justice Barkett. No. 

Senator Hatch. We will get it for you. 

Justice Barkett. I have it. 

Senator Hatch. Your opinion further states that the 6-month pe- 
riod set forth in the statute is irrational. Now, your words are 
"there is no rational distinction to automatically void a devise upon 
request when the testator survives the execution of the bill by 5 
months and 28 days, but not when the testator survives a few days 
longer." Would what I have just said be a fair summary of your 
equal protection holding? 

Justice Barkett. I do not dispute it. Senator. Again, I frankly 
was wondering why you included Shriners Hospital, because I 
could not figure out what interest you all would have in it. 

Senator Hatch. It's the equal protection clause, because let me 
just bring it down to where it is. If your interpretation of the equal 
protection clause as written in the prior case we discussed — but 
you have explained that — and as written in this case is the law, 
that means the judges can do whatever they want to do. They do 
not have to abide by any law. They can just use the equal protec- 
tion clause to justify any decision that they make, based on their 
own personal, political or policy differences with the elected rep- 
resentative statutes. 

Justice Barkett. I understand the concern. Senator, but I do not 
think it is justified in my case. And with reference to Shriners Hos- 
pital, the thrust of that opinion again was grounded in the Florida 
Constitution, which is very specific about providing the right to ac- 
quire, possess and protect property, and it goes on to deal with in- 
heritance issues and so forth, and reposit in individuals the right 
to dispose of their property however they want to. 

Again, when I am thinking equal protection, generally I am 
thinking in terms of the prior case law of my own court in my own 
State, which differs somewhat, but 

Senator Hatch. You can see why I am upset with it, because — 
I am not upset with you, I mean you have a right to feel the way 
you want to. On the courts, we are really upset, when judges then 
start using the equal protection clause to justify any policy change 
they want, regardless of what their elected representatives do. Un- 
fortunately, that has been happening all over this country, and it 
has been happening in a variety of ways. 

When you state in the case — and this is on page 69, in the right 
column, right under IV— "We also find that section 732-803 vio- 
lates the equal protection guarantees of Article I, Section 2 of the 
Florida Constitution, and the Fourteenth Amendment of the United 
States Constitution." 

Justice Barkett. Senator, I understand your concern. As I said, 
I do not think it is warranted in my case, and I think if you take 
a look at my entire record and my view of the separation of powers, 
I think you will find that I have fairly consistently attempted to 
recognize that policymaking is not within the purview of the judici- 
ary, I do not believe in reading things into statutes. 

I, in fact, given the choice of it is something substantive, I vote 
to find it unconstitutional and send it back to the legislature. 



372 

where, in the give and take of legislative debate and consideration 
of issues, which judges do not have the opportunity to do, they 
would have the opportunity to fix the statute so that it would pass 
constitutional muster, not the way judges want to fix it, but the 
way legislatures ought to fix that. I have taken that position fairly 
consistently in my judicial career. 

Senator Hatch. That statement pleases me, and I have to say 
that it is consistent with what I think is good judging. But my con- 
cern is that your application of the rational basis test in this case 
collides head-on with several principles that earlier Supreme Court 
cases — let me just mention some of those precedents and ask you 
to respond to those concerns. 

Senator Simon. I do not mean to cut off Senator Hatch. I would 
like to get in a few questions. I will not be able to return after the 
vote. 

Senator Hatch. I hope it will not take me too long. The vote just 
started? 

Senator Simon. We have a vote on right now. 

Senator Hatch. I have to finish this one point. Let me see if I 
can hurry through this and give you the time to answer a few ques- 
tions. 

The Supreme Court has specifically held that a classification 
does not violate the equal protection clause simply because it is "to 
some extent under-inclusive and over-inclusive," and that is Vance 
V. Bradley. 

Justice Barkett. I have no problem following the Federal law, 
if and when I am in the Federal system, and will certainly not 
apply any Florida precedent to situations in which there already is 
Federal precedent. Senator. I can assure you and the American 
people of that. 

Senator Hatch. Well, I appreciate that comment, but I am trou- 
bled by your ruling that the 6-month period is irrational, simply 
because it produces different results, even under Florida law, when 
the testator survives 5 months and 28 days or maybe a few days 
longer, or 6 months and 1 day. Virtually the same objection could 
be voiced against every time limit in the law, including, for exam- 
ple, a 1-year statute of limitations period or limiting protection 
against age discrimination to those who are 40 years of age or 
older. Such time limits are, by necessity, inherently and inevitably 
arbitrary. 

Justice Barkett. The only thing I can suggest. Senator, is that 
you read the entire case in its context and the history of both of 
the equal protection cases in Florida, as well as the Constitution 
upon which frankly I was focused in that case more than anything 
else, and that is the right of ownership over property and the abil- 
ity to dispose of it as one wishes, that is the testate. 

Senator Hatch. I understand. But can you show me any place 
in Federal authority that would justify that decisionmaking? 

Justice Barkett. All I can tell you there is, whatever the Federal 
authority is, that is what I will be guided by in the eleventh circuit 
court of appeals, assuming I have the opportunity to serve there. 
I do not think there is any question of that, and I do not think 
there is any question really, either, of my applying legislative man- 
dates wherein I have questioned the wisdom of them. 



373 

There have been many opportunities to have expressed a view 
that the law was unwise and, therefore, we were going to overrule 
it. But I do not think it is in the prerogative of judges to do so. 
I have not done so, in my judgment, in the face of unwise laws, and 
I do not intend to do that in the future. 

Senator HATCH. I am not trying to give you a rough time, but 
these are really important positions. The circuit court of appeals is 
very, very important. We have established that they decide finally 
most cases in our society. It is not your position, is it, that your 
obligation to follow the Federal Constitution and Federal laws and 
U.S. Supreme Court precedent is different as a U.S. court of ap- 
peals judge than it would be as a justice on the Florida Supreme 
Court? 

Justice Barrett. I am suggesting that the ambit is different. 
When I am looking at a Florida case, I am looking at the Florida 
law and interpreting and talking about equal protection. I am look- 
ing at the Florida constitutional requirements, and I am looking at 
the totality of the way the arguments are presented and framed. 

In the Federal system, they would not be presented and framed 
or involved with a Florida constitutional provision that is going to 
let you look at things focused mostly on the Florida constitutional 
provision, as opposed to some of the ancillary issues that are 
raised. 

Senator Hatch. Can you cite any precedents under Florida law 
that would allow you to use the equal protection under that Con- 
stitution in this broad a fashion, so you strike down basically the 
classifications by the State legislature? 

Justice Barrett. I can read to you the language in a case, it is 
in the 1970's: "In order to comply with the requirements of the 
Equal Protection Clause, statutory classifications must be reason- 
able and nonarbitrary, and all persons in the same class must be 
treated alike. When the difference between those included in a 
class and those excluded from it bears a substantial relationship to 
the legislative purpose, the classification does not deny equal pro- 
tection." When it does, then it does. There are other lines of cases 
where the analysis is very different from the Federal analysis, as 
it were. 

Senator Hatch. I want to finish this line of questions, because 

it is important. 

Senator SiMON. I do not m.ean to cut you off, but I am going to 
have to get a few things in here. 

Senator Hatch. I think I can do it in a couple of minutes, if we 
do not get into an argument. 

Senator SiMON. Two minutes and then I am going to take over. 

Justice Barrett. What do I do? 

Senator Hatch. You just be yourself. We will handle this one 
way or the other. [Laughter.] 

My concern naturally about your rationale in those two cases — 
and there are only two, and I have a number of others, but you are 
answering these matters — my concern about your rationale in this 
case is it goes far towards transforming rational basis scrutiny into 
strict scrutiny, which is very, very important. 

Indeed, if applied consistently, it seems to me that there are few 
laws that could survive the test that you set forth in that particu- 



374 

lar case. Of equal concern is the prospect that the test would not 
be applied consistently, but would be used arbitrarily and selec- 
tively to strike down particular laws that any judge can say is over- 
broad or unsound. 

If I was to illustrate it, I would compare your opinion in this case 
to your opinion in LeCroy v. State. In that case, the six other Flor- 
ida Supreme Court justices voted to affirm the death sentence for 
a murderer who was 17 years and 10 months old at the time he 
committed two brutal first-degree murders. In your lone dissent, 
you took the position that the eighth amendment ban against cruel 
and unusual punishment prohibits the execution of a person who 
was under 18 at the time of his offense. In short, you took the view 
that the Constitution imposed a bright-line age minimum of 18 for 
offenses that can result in the death penalty. 

Now, let me note incidentally that the U.S. Supreme Court sub- 
sequently rejected the position that you took. For present purposes, 
however, I would like to simply apply the methodology of your 
Zrillic opinion to the position that you took in LeCroy. If you apply 
the Zrillic methodology, one would say that the bright-line age min- 
imum of 18 is both under-inclusive and over-inclusive. It is under- 
inclusive, because it fails to protect from capital punishment those 
persons over 18 who, in the language of your LeCroy dissent, "have 
not fully developed the ability to judge or consider the con- 
sequences of their behavior." 

Senator SiMON. I hate to cut off my colleague from Utah. I have 
great respect for him, but he has used his 2 minutes and I have 
to get a few minutes in here before I vote, and I am not going to 
be able to come back. 

Senator Hatch. All right. 

OPENING STATEMENT OF SENATOR SIMON 

Senator Simon. Let me just comment briefly: You have your crit- 
ics, as you know, Madam Justice. I read, for example, the Washing- 
ton Times that says, "The Clinton administration would be wise to 
withdraw her name before her radical views become an embarrass- 
ment." 

Then I read the newspapers in Florida, where they know you, 
and I get a totally different message. Here is the Orlando Sentinel: 
"Florida Chief Justice Rosemary Barkett, tapped to be a Federal 
appeals judge, is hardly soft on crime, as her opponents say," and 
these articles they keep coming in. 

In regard to the case of someone under the age of 18, I think it 
is important to emphasize what my colleague Senator Hatch said. 
The Supreme Court ruled subsequent to, not prior to, your ruling. 
And let me just add, as one who opposes the death penalty because 
it is a penalty reserved for people of limited means, I also oppose 
the death penalty for people under the age of 18. There are only 
five nations on the face of the earth that in recent years have le- 
gally executed people under the age of 18. Three of them are Iraq, 
Iran, and the United States. We are not keeping the best of com- 
pany in some of these things. 

But the question before us is not the death penalty. You have in 
over 200 cases upheld the death penalty. The question is whether 
you are going to uphold the law. 



375 

I remember when Bill Barr sat in that seat, as a nominee for At- 
torney General and one of my colleagues, I believe it was Senator 
Metzenbaum, asked him what he thought of the Roe v. Wade deci- 
sion, and he said very candidly, "I think it was a bad decision, but 
my job is to uphold the law." And I gather that that is precisely 
the position that you take. I might add that I think this committee 
unanimously approved Bill Barr, no matter which side of the Roe 
V. Wade decision we were on and I think we ought to do the same 
for Justice Barkett, no matter which side of the death penalty we 

are on. 

Am I misconstruing your position? 

Justice Barkett. No, Senator, I think you are construing it cor- 
rectly. When I decided LeCroy, the U.S. Supreme Court in Thomp- 
son had itself put on a bright-line rule saying that you could not 
execute anyone under 16 years old. They left open the question of 
whether or not it would be cruel and unusual punishment to exe- 
cute someone between the ages of 16 and 18, and I took the posi- 
tion that, for the reasons that you can read in my dissent, which 
I think are legally supportable, that the open question of the 18- 
year-old should be decided on the basis of finding it cruel and un- 
usual punishment. 

Subsequent to that time, the U.S. Supreme Court spoke in San- 
ford, and all I can tell you is that I obviously will apply the prece- 
dent of the Supreme Court on the Eleventh Circuit, should I serve, 
and as I have done on the Florida Supreme Court. 

I also have to take pains to add that the selective use of cases 
is, in my judgment, unfair, when one recognizes that I am — I think 
my critics sometimes are using selective cases to suggest that I am 
not in the main stream, but my record reflects otherwise, when you 
recognize that my court is unanimous approximately 70 percent of 
the time, that I have been in the majority in about 91 percent of 
the time on my court, and approximately 85 or so percent on crimi- 
nal cases. So I am hardly out of the main stream. 

Senator Simon. I do not mean to interrupt you, but my staff tells 
me I have 4 minutes left to get over and vote. 

I would simply like to insert in the record at this point the state- 
ment of the National Association of Police Organizations, in which 
using their words, they "wholeheartedly support" your nomination. 

[The letter referred to follows:] 

National Association of Police Organizations, Inc., 

Washington, DC, October 22, 1993. 

Hon. Joseph R. Biden, Jr., 
Chairman, Committee on the Judiciary, 
Dirksen Senate Office Building, Washington, DC. 

Dear Senator Biden: The National Association of Police Organizations ("NAPO") 
which represents over 143,000 sworn law enforcement officers in more than 2000 
associations throughout the United States wholeheartedly supports the nomination 
of Florida Chief Justice Rosemary Barkett to the Federal Judiciary. The 26 000 
NAPO members in Florida are represented by Area Vice Presidents who have 
unanimously voted for this endorsement. 

During the recent retention election in Florida there was much debate and rhet- 
oric. Representatives of the Florida PBA reviewed Justice Barkett's record and the 
Florida PBA Board of Directors, as well as most mainstream law enforcement asso- 
ciations, voted unanimously to endorse Justice Barkett's retention. She subse- 
quently won a resounding victory indicating the electorate's support for her efforts 
on behalf of the citizens of Florida. 



376 

It is our hope that after careful consideration of her record you will agree that 
Justice Barkett has the professional experience, personal integrity and judicial tem- 
perament to serve as a Federal Judge. We respectfully request that you support and 
vote for this nomination. 
Sincerely, 

Robert T. Scully, 

Executive Director. 

Senator Simon. There are other things here that I could enter in 
the record, but I am pleased to support you. I think your response 
and your attitude is the right one. I think you will make an excel- 
lent appellate court judge, and I hope we have the wisdom to ap- 
prove your nomination. 

Justice Barkett. Thank you very much. Senator. 

Senator SiMON. We will stand in recess for a few minutes. 

[Recess.] 

The Chairman. The hearing will come to order. 

A minor departure from the ordinary way of proceeding, we have 
the honor and the privilege of having a former colleague and a very 
good personal friend, now the CJovernor of the State of Florida here 
and he was testifying in another committee down the road, and we 
invited him to come by. 

Welcome, Governor. It is good to see you. 

STATEMENT OF HON. LAWTON CHILES, GOVERNOR OF THE 

STATE OF FLORroA 

Governor Chiles. Thank you, Mr. Chairman. 

I am delighted to be here and say that you are looking well. Of 
course, I remember when you were a boy on the block. [Laughter.] 

The Chairman. I am going to tell a story on you, Lawton. The 
first day I sat on the Senate floor with you, when I got here, I 
turned to you — and you may remember — I turned to you and I said, 
"You know, how long did you spend learning the Senate rules?" I 
had the book in my drawer there of the Senate rules. You looked 
at me and said, "Don't worry about that book." I said, "Why not?" 
I said, you know, you have Jim Allen, who was as master par- 
liamentarian, and Robert Byrd. He said, "Look, there is only one 
rule you have to understand here to do business in the Senate, and 
it is, "I ask unanimous consent." If you get it, it's fine, if you don't, 
don't try." [Laughter.] 

Governor Chiles. Mr. Chairman, I thank you and am delighted 
to have a chance to be here and to speak a word on the part of 
Chief Justice Barkett. She is Chief Justice now of our State su- 
preme court system, and I know she will make a wonderful circuit 
court of appeals judge. She has had good experience in Florida, had 
lawyers like Chesterfield Smith and some others that she has had 
to listen to in arguments. 

The Chairman. Does that speak to her tolerance level? 

Governor Chiles. It speaks to many things. But I think she has 
had an outstanding judicial career in Florida, and we consider her 
one of our brightest, and I certainly hope this committee and the 
Senate will confirm her. 

The Chairman. Thank you, Governor. 

The truth of the matter is the thing that you and I spent most 
of our time working on, even though we sat next to each other on 
the Budget Committee for years, was criminal justice matters, and 



377 

you were one of the people in our party who was always pushing 
for us to have more rational approach to dealing with violence in 
society, and you have a hell of a record in terms of being tough on 
crime issues, and your endorsement here today is taken note of, 
and, at least for my part, I very much appreciate it. 

I welcome you and thank you and hope you stick around, if you 
are able to. I know you have got a thousand things to do. 

Governor Chiles. Thank you. Senator. 

The Chairman. I am now going to yield to our colleague from 
Maine for his opportunity to question the nominee. 

Senator Cohen. Thank you very much, Mr. Chairman. 

Governor Chiles, it is good to see you again. In fact, I took one 
page out of the Governor's book. When he first ran for the Senate, 
he walked across the State of Florida. He was good enough to meet 
with me and tell me how he did it, and I did the same thing in 
Maine. We triumphed by going out and meeting the people. 

It is good to see you again. Governor. 

Justice Barkett. Is that to say I should have walked to Wash- 
ington, Senator? [Laughter.] 

Senator Cohen. Not at this time of the year. 

I was interested in your opening remarks. You said that for all 
the things you have done right in your life, you owe it to the advice 
of your family, and that for all the mistakes you have made, you 
assume personal responsibility. As you said that, I could not help 
but remember the lines that go something like, "In my life's dying 
embers, these are my regrets, when I was right, no one will re- 
member, and when I was wrong, no one will forget." You will find 
that during the course of this confirmation hearing, we will look at 
when we think you were wrong and omit the hundreds, if not thou- 
sands, of times when you were right. 

I also would note that many people are under some delusion 
about the court system. When they look at judges and justices they 
see black robed oracles who sit in quiet chambers alone dispensing 
judicial wisdom, unencumbered by personal views, biases, or predi- 
lections. 

Of course, you know and we all know that is a fiction. Judges are 
real people, and they are brushed by the wing of experience, as all 
of us are. They look out at the world through lenses that are 
clouded, or that are at least covered by a thin film of passion, of 
preference. It is a measure of judicial temperament to restrain 
those emotional components that make us human beings. 

That rigorous discipline, both in personal behavior and profes- 
sional thinking, distinguishes those who wish to serve on the 
bench. There is no way to adhere to this fiction that you and all 
the others who come before us are looking through an absolutely 
clear lens which is unencumbered by any past experiences. In Jus- 
tice Cardozo's little book, "The Nature of the Judicial Process" 
there is a footnote in which he quotes a French author as saying 
"In the final analysis, there is no guarantee except the personality 
of the judge." 

So we are looking at the personality of the judge, and I suspect 
that the people of Florida have already done that. They have 
looked at your personality very closely and at your philosophy and 
have not found it particularly wanting. I would like, nonetheless. 



378 

to at least explore a couple of issues in the remaining time that I 
have. I have used up a lot of it just making an observation. But 
there has been some concern about the death penalty. I am one of 
the few members of this committee who does not support the death 
penalty, and yet I found some of the reasoning in your opinion to 
be curious. I would like to look at the case of Dougan v. State. 

As I understand it, you joined a two-judge dissent to the court's 
affirmance of the death penalty in that case. Dougan stabbed and 
shot a random 17-year-old victim and then sent the victim's mother 
a tape recording describing the crime. The dissent argued that it 
was a "social awareness" case because Dougan's fixation on racial 
injustice, while misguided, served to extenuate the murder. That 
was one aspect I want to go back to and examine in a moment. 

The dissent said — and I am quoting — "the victim was a symbolic 
representation of the class causing the perceived injustices." The 
dissent also noted that Dougan, an intelligent, respected Well-edu- 
cated leader in the black community, had redeeming social values. 
Finally, the dissent concluded, that the death penalty was not mer- 
ited. I would like to examine the components of the dissent. 

There is currently a case, I believe in New York, where we have 
an individual who stepped aboard, a subway and proceeded to 
shoot randomly, killing about seven people and wounding more. 
This apparently, according to reports I have read, was an act of 
outrage against a society that has discriminated against him be- 
cause of his color or background. There seems to be a parallel be- 
tween this case and Dougan v. State. I want you to talk about the 
language used in the dissent where the individual was described as 
being respected, intelligent, well-educated, and a leader in the 
black community. 

Putting aside Dougan's color for a moment, although that is hard 
to do in any of these cases, let us turn it around and say that the 
Defendant was someone like Ted Bundy, who could be described as 
an intelligent, well-educated, leader in the white community. As I 
recall, he was planning to run for Congress on the Republican tick- 
et. Fortunately, we were spared that particular congressional race. 
I suppose you could say that he was an intelligent, well-educated, 
respected leader in the white community and political circles. 

What was the rationale in Dougan v. State as to whether there 
will be similar cases in which the social awareness factor would be 
a determinant in your mind. 

Justice Barkett. If you will indulge me for just about 2 minutes, 
I need to explain. The problem in dealing with individual cases is 
that you are looking at them from the perspective of that one case, 
instead of from the perspective of what the law requires. And I 
need to make a couple of observations, if I may, about that. 

The death penalty jurisprudence is very difficult. The facts of 
cases — and, frankly, it is one of the most difficult parts of my job, 
reading the records of all of these death penalty cases which have 
in them the descriptions of acts of depravity in many instances 
which are overwhelming. And the natural response to this in many 
people's minds is that the death penalty should be applied every 
time a murder occurs, and certainly in some in which the way the 
murder is perpetrated is perhaps more heinous than in other ways. 



379 

But you are not permitted as a judge to respond emotionally ei- 
ther to hatred for the defendant when he, in fact, has been con- 
victed of their heinous crimes or in sympathy for the defendant be- 
cause of what he went through. What you are required to do, 
though, is look beyond the aggravating factors of the crime and not 
stop there, as many people are wont to do. 

The U.S. Supreme Court has required us, in its regulations and 
rules as it has been reflected in the cases, to look not only at the 
aggravating factors, but then we must look to the mitigating fac- 
tors that may make this case not eligible for the death penalty. It 
has nothing to do with the culpability of the defendant in a moral 
sense. It has nothing to do with his conviction or the fact that he 
should be punished and spend his entire life in prison— which is 
what I voted for in Dougan, incidentally. But it has to do with the 
fact that you must consider both things and weigh them to deter- 
mine if someone is legally culpable sufficient for the death penalty, 
not culpable for any other reason. 

So that when you look at what we are looking at in mitigating 
factors, you are looking at things which the Supreme Court has re- 
quired us to look at, things like the background of the individual 
and the circumstances of the crime and the motivation of the 
crime. In looking at that, the dissent, written by Justice McDon- 
ald — and I also as an aside have to point out that I have written 
hundreds and hundreds of cases on the death penalty. Senator, and 
I have no problem in agreeing with Justice McDonald's dissent. But 
the words that he used were not mine. They were Justice McDon- 
ald's. 

But when we are talking about things like the intelligence, some- 
one who is well educated, someone who is a leader in the commu- 
nity, and then the motivation which led him to commit the act — 
and in the case of Dougan, it was a motivation which arose out of 
an oppression and a racial injustice — ^you have to weigh it. In and 
of itself, clearly, feeling racially oppressed is not going to be suffi- 
cient as a mitigating factor. I think you have to look at the whole 
picture and then ultimately decide whether or not it is appropriate. 

Senator Cohen. My time has just about expired. Even though 
the red light is on, I will sneak in one more question. 

Here the dissent in Dougan v. Slate describes the defendant as 
"intelligent," "well educated," "a leader," and "respected." If I were 
to turn that around and say unintelligent, not well educated, not 
a leader, and not respected, would that have an influence as to 
whether a person would be subject to the death penalty? In other 
words, if you are higher up on the scale of intelligence, education, 
respect, is that a mitigating factor as opposed to someone who is 

just the opposite? „ , r> 

Justice Barrett. No. In fact, I have written a case called Rogers 
which delineates how you look at mitigating factors. First of all, 
you have to decide if the evidence supports whatever mitigating 
factor is asserted. Second, you have to look at whether a mitigating 
factor is, indeed, a mitigating factor. An average intelligence is not 
a mitigating factor. One assumes — and I think I said that in that 
case. One assumes that that is a given. Everybody has it and, 
therefore, it cannot be used as a mitigating factor. 



380 

The sense that it was used in this opinion by Justice McDonald 
was in taking a look at his entire record. He was not a habitual 
offender. He had not a long criminal record. There had been no acts 
of violence prior to this heinous, horrible act that he committed. 
And you take a look at all of that in trying to understand the na- 
ture of why he committed this act and whether or not his motiva- 
tion, in conjunction with everything else, mitigated it. 

I also have to tell you that the racial climate in which this oc- 
curred — it occurred a long time ago. This murder occurred in the 
late 1960's, early 1970's, in Jacksonville, FL. And you have to take 
a look at that. This is 20 years later. I am not sure of how that 
would play out under a given set of circumstances today. And I also 
have to tell you that this was a very close case. It was discussed 
very extensively in several conferences. There were times when the 
position which I took — when I took a position different from the 
one I took ultimately in the dissent. It is a very close case. I cannot 
quarrel with a conclusion which would have found it the other way. 
I cannot quarrel with the majority in that case. I can understand 
it. 

Senator COHEN. Did you file a separate dissent? 

Justice Barkett. No. I joined Justice McDonald's dissent. 

Senator COHEN. I am way over my time, and I will have to wait 
for another time to come back. 

Justice Barkett. Sorry. Thank you. 

OPENING STATEMENT OF SENATOR THURMOND 

Senator Thurmond. Good morning. 

Justice Barkett. Grood morning, sir. 

Senator THURMOND. How are you? 

Justice Barkett. Just fine. Thank you. 

Senator THURMOND. Chief Justice Barkett, I would like to dis- 
cuss the case of Cruse v. State. 

Justice Barkett. Yes, sir. 

Senator Thurmond. As I understand from the trial record. Cruse 
loaded an assault rifle, a shotgun, a pistol, and 180 rounds of am- 
munition into his car, and began driving to a shopping center. On 
the way, he fired the shotgun at a 14-year-old boy who was playing 
basketball and then at the boy's parents and brother. 

At the shopping center, he shot and killed two shoppers who 
were leaving a grocery store and wounded a third. He then shot at 
various other customers, killing one and wounding another. 

When Cruse heard sirens approaching, he got back in his car and 
drove across the street to another shopping center. When Officer 
Ronald Grogan approached in police car. Cruse turned, inserted a 
new clip into his rifle, and fired eight times into the car, killing Of- 
ficer Grogan. 

Officer Johnson then entered the parking lot and exited his car. 
Cruse shot at Officer Johnson and wounded him in the leg. Cruse 
then headed into the parking lot searching for the wounded officer. 
When he found him, he shot Officer Johnson several more times, 
killing him. 

As a rescue team attempted to move Officer Grogan's car out of 
Cruse's line of fire, Cruse fired several shots at them and told them 
to, "Get away from the cop. I want the cop to die." 



381 

Cruse then entered a store and began firing at people trying to 
escape. He killed one more and wounded many others. He then 
found two women hiding in the women's dressing room and held 
one of them as a hostage for several hours. In all, Cruse killed 6 
people and wounded 10 others. 

Cruse was found guilty of, among other things, six counts of first- 
degree murder. The jury recommended death on all six counts. The 
trial court imposed the death sentence for the murders of Officers 
Grogan and Johnson. By a vote of 6 to 1, the Florida Supreme 
Court affirmed the convictions and the death sentences. 

Chief Justice Barkett, in your lone dissent, you voted to reverse 
the convictions. In addition, you stated that the death sentence 
was, in any event, inappropriate for Cruse. 

Let me begin with the second part of your opinion where you con- 
clude that even if the convictions were to be upheld, the death sen- 
tence was in any event not warranted and should be reduced to 
life. You conclude that the cold, calculated, and premeditated ag- 
gravator was not met. In particular, you concluded that Cruse had 
the pretense of moral or legal justification for killings because the 
evidence showed that Cruse was acting in response to his delusions 
that people were trying to harm him. But as the majority pointed 
out, the consensus of the experts who testified was that Cruse's de- 
lusions related to a fear that others were trying to turn him into 
a homosexual, not a fear of any physical harm. 

Chief Justice Barkett, how do you respond to this suggestion that 
your argument against the death sentence for Cruse, therefore, 
rests on a serious mischaracterization of the evidence? Do you also 
take the position that even apart from what you see as a pretense 
of moral or legal justification there was insufficient evidence of 
heightened premeditation in the murders of two police officers? 

Chief Justice Barkett, with respect to the murder of Officer 
Grogan, the evidence shows that when Officer Grogan approached 
in his police car, Cruse turned and inserted a new clip into his rifle 
and fired eight times into the car, killing Officer Grogan. In addi- 
tion, as the rescue team attempted to move Officer Grogan's car out 
of Cruse's line of fire. Cruse fired several shots at them and told 
them to "get away from the car. I want to kill the cop." 

Chief Justice Barkett, with respect to the murder of Officer John- 
son, the evidence shows that when Officer Johnson entered the 
parking lot and exited his car. Cruse shot him and wounded him 
in the leg. Cruse then headed into the parking lot, searching for 
the wounded officer. When he found him, he shot Officer Johnson 
several more times, killing him. Again, what additional facts would 
be needed to convince you that Cruse had heightened 
premeditation? 

Now, let me ask you a question about your vote to reverse 
Cruse's convictions. The basis upon which you would have reversed 
the conviction was the prosecutor's alleged failure to make avail- 
able to Cruse so-called Brady evidence. Under the U.S. Supreme 
Court's ruling in Brady v. Maryland, the prosecution must provide 
the accused, upon the accused's request, material evidence in its 
possession that is favorable to the accused. 

As you stated in your opinion, evidence is material when there 
is a reasonable probability that had the evidence been disclosed to 



382 

the defense, the results of the proceeding would have been dif- 
ferent. You would have ruled that evidence of the names of two 
mental health experts the prosecution had contacted should have 
been turned over to Cruse and that the failure to turn over this 
evidence required reversal of the convictions and remand for a new 
trial. 

In your opinion, you reject the majority's opinion that this evi- 
dence was merely cumulative. In addition, you state, "I do not be- 
lieve the fact that other experts at the trial expressed the same 
opinion regarding Cruse's mental state is a pertinent part of the 
inquiry of whether or not a Brady violation occurred." 

Chief Justice Barkett, how do you reconcile your position that it 
is not pertinent under Brady for evidence that is merely cumu- 
lative with your position that evidence is material for purposes of 
Brady only if there is a reasonable probability that disclosure of 
the evidence would have led to a different result at trial? 

Now, let me now turn to Hodges v. — would you care to respond 
on that before I go to another case? 

Justice Barkett. OK, sir. Senator, first of all, I am trying to do 
this in the order in which you asked. I certainly can agree with you 
that there is no moral justification for the actions that Cruse took 
here, as there is no justification when anybody takes a human life 
in a criminal way, however it is done. 

What I tried to do. Senator — and I want to again reiterate, I do 
not look for ways to avoid the law. I only look for ways to apply 
the law, that it has been applied prior to my tenure or prior to the 
case in which we are dealing. 

In this case, the concept of heightened premeditation and the 
concept of no moral justification felt by the defendant were prin- 
ciples that have been decided by other cases in my court, and what 
I am trying to do is apply it in a consistent fashion. There was, for 
example, a case called Banda — I do not have the cite, but I will be 
glad to give it to you — where the unanimous court — I think it was 
unanimous — said that even in a case where there was 
premeditation of the kind where someone dug a grave prior to the 
execution, something of that nature, that because in the mind-set 
of the person he felt that he was being threatened and that some- 
one was going to come after him, that is something that must be 
taken into account. 

With reference to the heightened premeditation, we struggled — 
it is interesting when you are trying to make these distinctions be- 
tween aggravating factors and how to deal with them. Our court 
struggled very mightily in many, many conferences about how to 
differentiate between a premeditated murder and the heightened 
premeditation which the statute requires us to apply in aggravat- 
ing circumstances. And it is very hard to draw that line. 

We knew that the U.S. Supreme Court would not have permitted 
us to apply the death penalty uniformly for premeditated murder. 
The U.S. Supreme Court had said that was unconstitutional. We 
then had to decide, well, then, if we cannot apply it across the 
board for premeditation per se and we must apply the aggravating 
factor of heightened premeditation, we had to develop a way of de- 
fining this heightened premeditation that has to be taken into ac- 
count. 



383 

There are many cases on this point, and what I was trying to do 
in Cruse is show that in other cases in which the same kind of 
thing occurred, the result had been different. 

With reference to the question of the Brady violation, I did not 
view it, as the majority did, as a cumulative thing but as a very 
significant matter that all of the State doctors also agreed, along 
with the defense doctors, or in essence agreed with the significant 
mental disturbance that this defendant had. And ultimately, as to 
your last point in reference to a dissent, dissents happen very, very 
seldom. I think I have dissented approximately 300 times out of 
3,500 times. There are times, however, when judges differ, but we 
have a court that is unanimous, as I have said, approximately 70 
percent of the time, and I have been in the majority approximately 
90 percent of the time. Therefore, I want to make clear that a se- 
lect — one case, whether you agree with it or not, cannot be used to 
fairly examine my record. And I have no hesitancy in applying the 
law which has been established before I — applying the law of the 
death penalty both federally and in Florida, Senator. 

Senator Thurmond. The 6-to-l decision, you are the only one 
that dissented, aren't you? 

Justice Barrett. You sound like my brother. Senator, who is 
here. And every time that happens, he says, "How come you didn't 
agree with the other six?" 

Yes, sir, I did, but I am pointing out that my dissents are very — 
are rare in the totality of the case law. 

Senator Thurmond. Now let me turn to Hodges v. State. As you 
may recall, Billie Ricks was a 20-year-old woman who worked as 
a convenience store clerk. She complained to the police that Hodges 
had indecently exposed himself to her. The same day that Hodges 
was to appear at a hearing on the indecent exposure charge, he 
shot Billie Ricks to death with a rifle in her store's parking lot. 

The jury found Hodges guilty of first-degree murder and rec- 
ommended that he be sentenced to death. The trial judge found two 
aggravating circumstances. First, the murder was committed to 
disrupt or hinder the lawful exercise of a government function by 
eliminating a witness to a pending criminal charge; and, second, it 
was committed in a cold, calculated, and premeditated manner. 

The trial judge further found that the aggravating circumstances 
far outweighed any mitigating circumstances. The Florida Supreme 
Court by a vote of 6 to 1 affirmed Hodges' death sentence. 

In a one-paragraph dissent, you first stated that the aggravating 
factors of witness elimination and cold, calculated, and premedi- 
tated are so intertwined here that they should be considered as 
one. You then found that Hodges' mitigating evidence — that he had 
no significant criminal history and that he was a good employee 
and a good and caring husband and father — outweighed the aggra- 
vating evidence and made the death penalty inappropriate. 

Chief Justice Barkett, I do not understand the significance of 
your observation that the two aggravators were intertwined. 
Aggravators arising out of the same murderous episodes are often, 
if not inevitably, intertwined. That does not at all mean they are 
redundant. Since witness elimination and the cold, calculated, and 
premeditated aggravator involved different evils, why shouldn't the 



384 

statutory scheme which calls for them to be counted separately be 
respected? 

Justice Barkett. Senator, I was trying to apply the precedent of 
my court which prohibits doubling of aggravating factors when they 
refer to the same aspect of the crime. In a case called Cherry v. 
State, the court specifically said that if two aggravating factors are 
based on the same aspect of the criminal episode, they have to be 
considered as a single aggravating circumstanc. There is significant 
jurisprudence in my State that differentiates between aggravating 
factors. 

There are some circumstances where you can have two aggravat- 
ing factors if they are derived from differing aspects of the crime, 
but if they — and that has happened. And in many instances, our 
trial judges will write in their death penalty orders that although 
it may be this, it may be also this, I considered it as one. So that 
is a fairly settled aspect of Florida jurisprudence. 

Senator Thurmond. Chief Justice Barkett, I would like to dis- 
cuss the case of McKinney v. State. Franz Patella, a resident of the 
Bahamas, was driving a rental car in Miami when he stopped to 
ask McKinney for directions. McKinney kidnapped Patella, stole 
his car, shot him multiple times with a shotgun, robbed him, and 
dumped him, semiconscious, in an alley. Patella had seven gunshot 
wounds on the right side of his body and two wounds on his head. 
He died shortly after being taken to a hospital. 

McKinney was convicted of first-degree murder as well as armed 
robbery, armed kidnapping, grand theft auto, and other offenses, 
and was sentenced to death. The trial court found three 
aggravators: the murder was unnecessarily heinous, atrocious, or 
cruel; it was cold, calculated, and premeditated; and it was commit- 
ted in the course of a robbery or kidnapping. 

In your opinion for the court, you reversed the death sentence on 
the ground that two of the aggravators had not been sufficiently 
proven. In your words, "While it is true that the victim was shot 
multiple times, a murder is not heinous, atrocious, or cruel without 
additional facts to raise a shooting to the shocking level required 
by this factor." 

Chief Justice Barkett, it seems to me that there clearly were ad- 
ditional facts. Besides the number of shots that made this shooting 
shocking, it is worth noting that the whole nation has, in fact, been 
shocked by similar recent incidents occurring in the Miami area. In 
this case, among other things, the victim was especially vulnerable. 
He was lost and was seeking help. In addition, he was dumped, 
semiconscious, in an alley. Why did your opinion ignore these facts 
in determining that the killing was not shocking? 

Justice Barkett. Senator, first of all, I must note that this is a 
majority opinion, and the majority of the court concurred in analyz- 
ing the case as we did. I also have to note that since this case, we 
have had reversed on the issue of heinous, atrocious, and cruel, 
many, many Florida cases which have been reversed by the U.S. 
Supreme Court. 

I have been in the majority several times on this question of 
whether or not the facts of a case support the heinous, atrocious, 
and cruel factor. The U.S. Supreme Court told us to take a better 
look at it, reversed a lot of cases which we have subsequently taken 



385 

a look at under Espinosa. The only thing I can suggest to you is 
that we attempt to be as careful as we can in applying Supreme 
Court precedent to the cases before us, and I believe I have done 
so. 

Senator Thurmond. Chief Justice Barkett, in White v. State, 
White was convicted of robbing a small grocery store and shooting 
to death a customer. His conviction and death sentence were af- 
firmed on appeal. In a petition for post-conviction relief, White 
claimed, among other things, that his counsel had been ineffective. 

The Florida Supreme Court, by a vote of 5 to 2, affirmed the de- 
nial of his petition. In particular, the court addressed in detail and 
found meritless White's claim of ineffective assistance of counsel. 

Your entire dissent, joined by Justice Cogan, reads as follows: "I 
cannot concur in the majority's conclusion that appellant received 
a fair trial with effective assistance of counsel." 

Chief Justice Barkett, did you not feel an obligation to offer any 
further explanation why you were overturning a death sentence 
that had been recommended by the jury, that had been imposed by 
the trial, that had been affirmed on direct appeal, that had been 
upheld again by the judge considering the post-conviction petition, 
and by your supreme court colleagues on appeal? 

Justice Barkett. Senator, one of the most important constitu- 
tional duties that I have is to follow the Supreme Court dictates 
that process be fair, especially, as they have said, when the death 
penalty is being imposed, the ultimate penalty and a penalty that 
cannot be corrected at a time after it has been applied. 

When counsel is deficient in providing the assistance of counsel 
that is constitutionally required at a trial to make that determina- 
tion, I felt it inappropriate then to apply the death penalty if one 
felt that the counsel had not been adequate and had not been com- 
petent in providing counsel to this defendant. 

I again have to suggest to you that we write — our court is an ex- 
tremely busy court. We write approximately 50 cases, opinions, per 
judge per year, which is a significant number, and I think probably 
would be among the highest outputs of State supreme courts in the 
United States. I would very much like to have had the opportunity 
to write much more clearly or much more expansively in many, 
many cases, and I would have liked to have had, I am sure, the 
opportunity to have expanded here. But time constraints some- 
times preclude you from amplifying any further than that. 

Senator Thurmond. Chief Justice Barkett, in Engle v. Florida, 
Engle and another man 

The Chairman. Senator, excuse me. Before you go on that case, 
which is fine and you can have as much time as you want. Senator, 
can you give me an idea how much longer this line will go? Because 
we have been going 15 minutes a round, and you are over. It is 
fine, though. I just want to get a sense. 

Senator Thurmond. I have about 10 minutes, 10 or 12 minutes. 

The Chairman. Well, I would ask Senator Grassley, since he is 
next in order to question, whether he minds if the Senator com- 
pletes his line of questioning. That is a tough spot to put you in. 

Senator GRASSLEY. I would rather have the chairman rule. 
[Laughter.] 



386 

The Chairman. Mr. Chairman, before you start the next case, 
why don't we — why don't we give you 10 more minutes? 

Senator Thurmond. Chief Justice Barkett, in Engle v. Florida, 
Engle and another man robbed $67 from a convenience store, took 
the female cashier, Eleanor Cathy Tolan, from the store, and stran- 
gled and stabbed her to death. A four-inch laceration, likely caused 
by a fist, was found in the interior of the victim's vagina. 

The jury recommended life, but the trial judge, finding four 
aggravators and not mitigators, sentenced Engle to death. By a 
vote of 6 to 1, the Florida Supreme Court ruled that there was not 
a reasonable basis for the jury's life recommendation and affirmed 
the death sentence. 

You, in a two-sentence dissent, stated without any further expla- 
nation your belief that the record adequately supports the jury's 
recommendation of life imprisonment. 

Again, Chief Justice Barkett, I ask you, do you believe that this 
conclusory statement satisfies your obligation to provide reasoned 
decision making? Another 6-to-l decision. 

Justice Barkett. Yes, sir. Senator, first of all, the basis for my 
dissent was in a prior case of the Florida Supreme Court, Tetter v. 
State, which is well known in Florida jurisprudence, and it specifi- 
cally provides, as I pointed out in my dissent, that — and I am 
quoting from the Tetter case upon which I relied — that "in order to 
sustain a sentence of death following a jury recommendation of life, 
the facts suggesting a sentence of death should be so clear and con- 
vincing that virtually no reasonable person could differ." 

We give great deference in our State, and I do particularly, to 
jury determinations. It is the jury that is the conscience of the com- 
munity that has heard all of these facts. In this case, a jury had 
heard all of the facts, had heard all of the mitigating evidence, and 
it was the people in the sense of the jury who determined that the 
death penalty was not applicable under the law in this particular 
case. 

I, therefore, was applying the Tetter standard to the case in ques- 
tion, and, again, in reference to your dissents, as I have pointed 
out, dissents are very seldom or very rare. In the overwhelming 
number of cases, I am in the majority, approximately 90 percent. 

Senator Thurmond. Again, six of your colleagues took a different 
position, didn't they? 

Justice Barkett. Pardon me, sir? I am sorry. 

Senator Thurmond. Again, six of your colleagues took a different 
position? 

Justice Barkett. Yes, sir, but there are 3,000-and-some where 
we did not differ. 

Senator Thurmond. Now I want to ask you about another case. 
In Torres -Arboledo v. State, Torres-Arboledo, an illegal alien from 
Colombia, rounded up two other men and went to a car body shop 
where they attempted to take the owner's gold chain. When the 
owner resisted, Torres-Arboledo shot him to death. The jury rec- 
ommended a life sentence, but the trial judge, finding to 
aggravators and not mitigators, overrode it and imposed death. 

The Florida Supreme Court again — again, I repeat — by a 6-to-l 
vote affirmed the death sentence. Chief Justice Barkett, in a three- 
sentence dissent, you opine that, "The standard for overriding a 



387 

jury life recommendation had not been met in light of the totality 
of the circumstances presented, it simply cannot be said that no 
reasonable jury could have recommended life." 

Chief Justice Barkett, if you are going to overturn a death sen- 
tence in this procedural posture, do you feel that you have some 
obligation to identify the circumstances that you think make a life 
sentence reasonable? 

Justice Barkett. Well, again. Senator, there is an enormous def- 
erence under Florida law to what the jury says, and the jury who 
heard the facts in this case and heard all of the testimony pertain- 
ing both to the aggravating factors and to the mitigating factors, 
the people decided that the death penalty should not be imposed. 

My court in Tetter v. State, a decision reached prior to my joining 
the court, has said clearly that it is only in extremely rare cases 
and only when no reasonable person can differ that the judge, the 
trial judge, can override what the jury, the people, have suggested 
ought to be done. 

There have been cases where I think that the jury — ^that no rea- 
sonable person can differ, and in those cases, I have voted to ap- 
prove the override. But they are very, very rare under the Tetter 
standard that we have set forth. 

Senator Thurmond. Next I would like to discuss Hudson v. 
State. 

The Chairman. Senator, if I can interrupt for a second so I un- 
derstand the fact situation, in that case the jury recommended life; 
correct? 

Justice Barkett. Yes, sir. 

The Chairman. The judge imposed death. You dissented and 
said, in effect, the jury was right. 

Justice Barkett. That is correct, sir. 

The Chairman. OK. I just wanted to make sure I understood it. 

Senator Thurmond. It was a 6-to-l decision affirming 

The Chairman. No, I know that. I just 

Senator Thurmond [continuing]. Affirming the case. Six of them 
went one way, you went the other way. 

Justice Barkett. In these few cases that you are asking me 
about, yes, sir. In the vast 

Senator Thurmond. Well, I have got a lot more cases, but I only 
have time to go into about one or two more. 

Justice Barkett. All right, sir. 

Senator Thurmond. I would like to discuss Hudson v. State. Two 
months after breaking up with his girl friend, Hudson, armed with 
a knife, broke into her home during the night. The former girl 
friend, having received threats from him, was spending the night 
elsewhere, but her roommate was at home. When she began 
screaming at him to leave, Hudson stabbed her to death, put her 
body in the trunk of her car, and dumped her in a drainage ditch 
in a tomato field. 

Hudson was convicted and sentenced to death. By a 6-to-l vote, 
the Florida Supreme Court affirmed. In your brief lone dissent, you 
relied on the trial court's finding that Hudson was apparently sur- 
prised by the victim during his burglarizing of a home, and that 
Hudson therefore was unable to a certain extent to conform his 



388 

conduct to the requirements of law. You concluded that the death 
penalty was disproportionate to the offense. 

Chief Justice Barkett, in addition to the findings that you relied 
on, the trial court also found that the aggravating circumstances 
outweighed the mitigating circumstances and that the death pen- 
alty was warranted. How is it that you concluded that the death 
sentence was disproportionate? In my view, anyone who breaks 
into a home that he believes to be occupied should expect to en- 
counter an occupant. I just do not see how an intruder's surprise 
should count seriously as mitigating. 

Justice Barkett. Senator, I think that your comments underlie 
the response that one feels when your house is being invaded and 
these heinous acts are being committed. The point that I was mak- 
ing earlier was that, by law, we are not permitted by the U.S. Su- 
preme Court to only look at the aggravating factors of a crime, 
even though emotionally you may want to apply the death penalty 
in every case in which a murder is committed. 

I also have to say I do not think I have ever said that the death 
penalty was disproportionate to the offense in any of these cases. 
The proportionality aspect of my decisions has to do with the rules 
set forth by the U.S. Supreme Court that says that we must apply 
the death penalty is an evenhanded and equal a way as possible, 
and that we must engage in a proportionality review to determine 
how the facts of this case square with the facts of another case. 

We have often held on the Florida Supreme Court in cases prior 
to this one that when a burglar is surprised or does not have the 
ability to think through the consequences of his or her act, it cer- 
tainly does not make him unculpable. He is certainly liable for a 
life sentence, and that is what I voted for in this case. But the cul- 
pability aspect of it which goes to the question of whether or not 
he is eligible for the death penalty under Supreme Court precedent 
has a different context. And so the proportionality issue had to do 
with other cases which were very similar to this one and in which 
the death penalty was not applied. 

Senator Thurmond. I will just take one more case. I could go on 
here much longer, but I will just take one more case. 

Justice Barkett. All right, sir. 

Senator Thurmond. Chief Justice Barkett, in Burr v. State, Burr 
was convicted of first-degree murder and robbery with a firearm 
and was sentenced to death. His conviction and sentence were af- 
firmed on direct appeal. Following the signing of a death warrant, 
he filed a motion for post-conviction relief, which was denied by the 
trial court. 

By a 6-to-l vote, the Florida Supreme Court affirmed the denial 
of relief In dissent, you would have decided for Burr based on an 
issue that you conceded had not even been raised by Burr: the con- 
sideration of collateral crimes evidenced during the sentencing 
phase. 

Chief Justice Barkett, what limits, if any, do you believe exist on 
your ability to assert claims on behalf of convicted criminals that 
they have not asserted on their own? 

Justice Barkett. Senator, the first observation that I would 
make is that the U.S. Supreme Court reversed Burr on the same 
basis upon which I dissented. We have an obligation also to inde- 



389 

pendently look at the record. This is, again, estabHshed by prior 
case law, and in taking — we have a separate obligation to assure 
ourselves that the death penalty has been appropriately applied, 
and we have a separate obligation to take a look at the whole 
record. 

It is only because we have that separate obligation which the Su- 
preme Court has considered in determining that our death penalty 
is constitutional, this careful scrutiny that we give to the death 
penalty. In this case, the death penalty had been imposed because 
of a prior conviction that this defendant had. It was determined, 
however, that this prior convict had been vacated and, therefore, 
should not be considered. 

The U.S. Supreme Court, when it took Burr, reversed the case 
and said look at it in light of Johnson, which is a case which pre- 
cisely said that you cannot impose the death penalty based upon 
a conviction which had been set aside. And my court, when it was 
returned from the U.S. Supreme Court, then vacated the sentence 
pretty much unanimously. 

Senator Thurmond. My question is about the propriety of mak- 
ing an argument that the defendant himself did not make. The fact 
that the court ultimately vacated the sentence shows that the proc- 
ess worked without the sort of extraordinary judicial intervention 
that you resorted to. 

Given the strong public interest in making sure that brutal mur- 
derers do not get back on the street, would you also make the argu- 
ment on behalf of the State under like circumstances? 

Justice Barkett. No, I think I understand. You are concerned 
that I would just out of the blue pull something out of the air to 
make a ruling upon, and that — because this language suggests that 
we have an independent obligation. My response to that. Senator, 
in different kind of cases perhaps not, certainly not. In this kind 
of case, however, there is prior case law which requires me as a 
supreme court justice, as a court of last resort, not to apply the 
death penalty unless we have done an independent review. And I 
think you are going to find many of our cases where we have stated 
in the majority. We have looked at all of the record, and even 
though there are lots of issues that were not raised, we have looked 
at them and we have satisfied ourselves that the death penalty has 
been appropriate. 

If we do not do this, the death penalty, in my judgment — if we 
do not provide this kind of scrutiny, the death penalty would be 
deemed unconstitutional by the U.S. Supreme Court. 

Senator Thurmond. Well, I am not going to go any further. I be- 
lieve my time is up. I just want to say that case after case after 
case after case, 6 to 1, six other judges going one way, you going 
the other way that takes up for the defendant. That is a strange 
record. 

Thank you. 

The Chairman. Thank you. Senator. 

I am going to switch back to the Democrats for a second so that 
an unrelenting charge has at least another perspective put into it, 
and I am only going to take 5 minutes of the time. 

Senator Grassley. How much time are you going to take? 

The Chairman. Five minutes. 



390 

Let me put in focus about unrelenting — I mean this case after 
case after case after case. In the one case the Senator from South 
Carohna cited, the one involving the fellow who was involved in the 
indecent exposure and then came back and blew the person away, 
if I am not mistaken, the Supreme Court remanded that back to 
you all, didn't it? 

Justice Barkett. Yes, it did. 

The Chairman. How did you rule when they remanded it back? 

Justice Barkett. We vacated the death sentence. Senator. 

The Chairman. You vacated the death sentence. 

I am going to come back to a number of cases, that case where 
the testimony indicated that — ^this is the case of Robinson v. the 
State of Florida, where the testimony indicated that Robinson 
pulled up behind St. George's parked car — I am reading — and or- 
dered her into his car at gunpoint, handcuffed her, drove to the 
cemetery where he sexually assaulted her on the hood of his car, 
then he ordered Fields, the co-defendant, to do the same, and 
Fields complied. Afterwards, Robinson expressed concern that she 
could identify them. He then walked up to her, put a gun to her 
cheek. Fields heard a shot, saw St. George fall, and watched Robin- 
son stand over her and fire a second shot at her. 

How did you rule on that case? 

Justice Barkett. I think I voted to affirm the death penalty. 
Senator. 

The Chairman. You did. 

Another heinous case: in the late morning or early afternoon be- 
fore authorities found the body of Angela Baird in the tall grass in 
a field behind her home. Her body was lying on its right side, 
gagged, hog-tied by the wrists and ankles; the body was nude from 
the waist down. Lying nearby were her school books, jacket, purse, 
and empty paper lunch bag. The autopsy revealed that the victim's 
left — and I will not read the rest of it. 

How did you rule in that case? 

Justice Barkett. The mitigating factors did not outweigh the ag- 
gravating factors in that case, and I voted to affirm the death pen- 
alty. 

The Chairman. I can list tens of these cases like that. 

Justice Barkett. Two hundred and sixty-some. 

The Chairman. And not all as grisly as these, but focusing on 
the grisly facts of an isolated case in which a nominee considered 
the application of the death penalty I think makes it impossible to 
fairly and accurately consider your judicial philosophy. An experi- 
enced and conscientious judge, no matter how liberal or conserv- 
ative, must sometimes vote to reverse a conviction or sentence in 
a case involving heinous and atrocious crimes. 

Consider the case of Justice Scalia, never thought to be a wacko 
liberal by anybody that I know of, and let me read one of his cases 
in isolation. In the 1987 U.S. Supreme Court case of Hitchcock v. 
Bugger, originally a Florida case. Justice Scalia wrote a unanimous 
U.S. Supreme Court opinion reversing the death sentence of a man 
convicted of strangling his 13-year-old step-niece. The defendant 
confessed that he had killed his step-niece because she had threat- 
ened to tell her parents about him having had sexual intercourse 



391 

with him. In other words, the defendant killed the girl to cover up 
the statutory rape of his step-niece. 

The jury found the defendant guilty and recommended the death 
sentence, and the trial judge agreed. Eleven years after the crime, 
however, the Supreme Court overturned the sentence because the 
trial court had considered only listed statutory mitigating factors. 
Justice Scaha wrote for the Court, holding that the Florida trial 
court had erred in failing to consider that the murderer's father 
had died of cancer, that the murderer had sniffed gasoline fumes 
as a child, causing his mind to wander, that he was one of seven 
children in a poor family, and that he was a fond and affectionate 
uncle. 

Despite the decision by both the trial court, the judge and jury, 
that the killer deserved to be sentenced to death. Justice Scaiia, 
writing for a unanimous court, reversed because he had sniffed 
fumes as a kid, his mind wandered, he was one of seven poor chil- 
dren, et cetera. And he reversed. 

The test being applied to you, judge, could be applied to any 
judge. Justice Scalia's opinion in the Hitchcock case illustrates how 
this kind of exercise does not permit, in my view, an accurate por- 
trayal of a nominee's record. Rather than considering the gruesome 
facts of every death penalty case in which the nominee is voted to 
overturn, I think your record should be viewed in context. 

Your record on the death penalty is clear. You voted to affirm the 
death penalty in over 200 cases — 270, I think you said — including 
cases in which a majority of the U.S. Supreme Court had agreed 
that the death sentence should be overturned, Espinosa v. Florida 
and Schlur v. Florida in 1982. 

So I cite that not in any way to criticize Justice Scaiia. He is a 
fine Justice. He is considered one of the most brilliant Justices to 
serve on the Court. He is considered to be the epitome of the con- 
servative point of view on the Court. But he was bound by the law. 
And when I get a chance to question again, I am going to ask you, 
because I do not think, quite frankly. Judge, you have had an op- 
portunity to clearly explain the Florida law as it relates to mitiga- 
tion and aggravation and what you must consider. 

I now yield to my friend from Iowa. 

OPENING STATEMENT OF SENATOR GRASSLEY 

Senator GRASSLEY. Well, do not speak for me when you say 
Scaiia satisfied all conservatives. 

The Chairman. No, no, no, no. I did not say he 

Senator GRASSLEY. Because on the point of congressional intent, 
he will not look beyond the statute, and I think that it is wrong 
for anybody sitting on the Supreme Court not to try to determine 
some congressional intent 

The Chairman. Senator, for the record, let me state, if I said it 
I did not mean it. What I meant to say was — I thought I said that 
Justice Scaiia represents and is thought to represent the conserv- 
ative view in the Court, not that all conservatives agree with Jus- 
tice Scaiia. 

Senator GRASSLEY. Well, then, he does not represent my conserv- 
ative view on the Supreme Court when he does not take congres- 
sional intent into account. 



392 

The Chairman. I happen to agree with you on the merits of that 
position. That makes us both moderates. 

Senator Grassley. Well, I am glad you are moving to the center. 
I am not. [Laughter.] I want to talk about what you and I visited 
about a little bit in my office the other day. One of those things 
was obscenity and child pornography. I would specifically like to 
talk to you about your opinion in the Stall case. For the audience, 
this was a constitutional challenge to the conviction of several por- 
nographers under Florida's RICO statute for predicate violations of 
the State obscenity laws. 

The majority of your court upheld the constitutionality of the ob- 
scenity law. You dissented, and you wrote about the role of judges 
when there is a collision, in your words, "a collision between legal 
principles and personal views of morality." I think that is a perfect 
description of the issue that we are presented with in this hearing, 
your ability to apply the law and leave moral and political ques- 
tions to the political branches. 

In our meeting Tuesday, you expressed your resolution never to 
let your own views affect your application of the law. On its face, 
I cannot find any fault with that statement. But your dissent in 
Stall worries me because, as I understand it, it shows a tendency 
towards judicial activism. Your decision seems infected with moral 
relativism. You say the definition of obscenity is relative, so the 
State cannot outlaw it. 

I personally believe, and the Supreme Court has held, a commu- 
nity can outlaw foul and degrading obscenity consistent with the 
U.S. Constitution. In other words, obscenity is not protected 
speech. In Stall, you said there is "a basic legal problem with the 
criminalization of obscenity, that it cannot be defined." You argued 
that because two people might disagree on what is obscene to 
them, we cannot outlaw material the community considers obscene. 

Do you believe, as you suggested in Stall, that it is unconstitu- 
tional for States to enact any laws prohibiting obscenity? 

Justice Barkett. First of all. Senator, I think it is clear that 
States can pass laws prohibiting obscenity. If I may, I would like 
to go back to the question of personal views, though. If I had my 
druthers and I were applying personal views, there would be much 
in the speech that I have heard in the last 6 months or so that I 
would outlaw and regulate. I think that one does not apply one's 
personal views. There would be much in the pornographic area that 
I do not think would be, any question, in terms of personal views, 
would be offensive in terms of what that has done to the victimiza- 
tion of children and the victimization of women. So 

Senator Grassley. When you talk about your own views, and 
you are talking about the last 6 months, are you talking about the 
direction the Canadian Supreme Court is taking in that area? 

Justice Barkett. No, I am not familiar with that. Senator. I am 
just saying that there is much in free expression that one does not 
agree with, and were one to apply one's personal views, one would 
not be — one would not necessarily be consistent with the first 
amendment and the requirements of the first amendment. 

But, that aside, let me direct my attention to Stall, which is 
what you have asked about. Stall 



393 

Senator Grassley. Basically I want to know if we can outlaw ob- 
scenity based on community standards. 

Justice Barrett. Yes. The Federal 

Senator Grassley. Flat out yes? 

Justice Barrett. Flat out yes. The Federal courts have said so 
in the Federal system, and the Florida courts have said so in the 
Florida system in cases in which I have concurred. Stall dealt with 
a specific statute defining sexual conduct. It had language in it 
which, in my judgment, was very ambiguous and which fell afoul 
of the Florida constitutional provision to make it clear to people 
what acts they were engaging in that would be criminal and would 
be criminally prosecuted. 

In a later case called Schmitt, the Florida Supreme Court had 
before it the very same statute, and in that case the Florida Su- 
preme Court agreed with me that the offending language was un- 
clear. And when they agreed that that part should be taken out of 
the statute, I then concurred with the majority of the court in up- 
holding the statute as constitutional under Florida's law. 

Senator Grassley. Well, in the Stall case, the majority opinion 
was guided by the U.S. Supreme Court's obscenity cases. And your 
dissenting opinion, was quite explicit. You said that the criminal- 
ization of obscenity "runs counter to every principle of notice and 
due process in our society," which would seem to include the U.S. 
Constitution. 

I would like to have you clarify that specific statement. 

Justice Barkett. Senator, I am sorry. I think maybe you were not 
in the room when I was explaining how one views these things. 
And when one is looking as a Florida judge in cases which impact 
some values which the Florida Constitution has expressly valued — 
for example, the right of privacy in our Constitution, which is an 
added concept to the concepts of due process and first amendment 
issues. When one is looking at cases from that perspective, one 
looks at them differently than one looks at Federal cases which are 
governed only by Federal laws. 

There is no question that you cannot take one part of my view 
in Stall and not look at the same judgment or the same view in 
Schmidt. And in both those cases, the same statute was being de- 
cided, the same statute was being considered. In one case, it had 
this language that defined or attempted to describe conduct 
which — well, those of us that watch — I didn't, but those of us that 
had the opportunity to watch the Super Bowl could have deemed 
some of the conduct there violative of this statute. 

When one takes a look at language which could have 
criminalized very innocent behavior and then take a look at the 
very same statute later in Schmidt, where that language was de- 
leted or omitted or found to be unconstitutional by the court, and 
with which I concurred, I do not think you can fairly say that I 
have held that no State regulation of pornography is possible. 

Senator Grassley. There is an entirely different standard on 
child pom than there is on obscenity, and you are comparing a 
child pom? with an obscenity 

Justice Barrett. The definition of the conduct is the same, Sen- 
ator, in my judgment. 



394 

Senator Grassley. Does your statement, then, that criminal ob- 
scenity laws, "run counter to every principle of notice and due proc- 
ess in our society," apply only to Florida law? 

Justice Barkett. It had to do with an attempted definition of 
criminal conduct in the statute in question which really was not 
clear. Senator. And later on, when the court took a second look at 
it, they decided that that language was, indeed, ambiguous, and 
over-broad and could not be appropriately defined and eliminated 
it from the statute. And at that point, I concurred with the con- 
stitutionality of that statute. 

Senator Grassley. Well, I fail to see how the possibility that 
some people might disagree about what is obscene undermines our 
ability to declare that something violates contemporary community 
standards under the test developed by the Supreme Court. There 
are organized groups who argue that child pornography should not 
be permitted, and that does not mean that a State cannot prohibit 
child pornography. 

In the criminal law generally, many laws have a subjective as- 
pect. Reasonable people can probably disagree about what con- 
stitutes criminal negligence or child neglect, but that does not 
mean that those laws are unconstitutional. So how does subjectiv- 
ity make the statute in the Stall case unconstitutional? 

Justice Barkett. I think, Senator, again, when you view these 
cases, you are looking within the context of Florida constitutional 
values and expressions of policy and the Florida Legislature as well 
as the prior cases under the Florida law. 

When a legislature attempts to pass a law, one has to under- 
stand what law is — ^what actions are being criminalized. You must 
be able to understand the general nature of the act that you are 
prohibited or going to be prohibited from engaging in. Therefore, 
under our State laws and constitution, one has to very clearly de- 
lineate what those are. 

In this statute, in the area of pornography, the statute applied 
the Miller test, which is analogous to the Federal test, but in this 
statute they went further, and they attempted to define something 
as obscene which was ambiguous and which could be susceptible to 
differing interpretations. 

When we looked at it from that perspective, it was my judgment 
that under Florida's law that language was ambiguous, under some 
due-process considerations, taking into account the Florida right of 
privacy perspective, and therefore, it failed to pass constitutional 
muster. 

When later on we agreed that that language was ambiguous and 
took it out of the statute, I upheld the statute. Ultimately the only 
thing I can suggest to you is that there is no question that Federal 
law has prohibited pornography and has permitted States to regu- 
late pornography and to prohibit it. And whatever the Federal law 
is is what I would then be governed by on the Eleventh Circuit 
Court of Appeals. And it is that law with which I would comply 
without any hesitation or question. 

Senator Grassley. Again, I will state, the majority in Stall 
based their decision on decisions of the U.S. Supreme Court and 
the Federal Constitution. You rejected that analysis in your dis- 
sent, which was very short: You also joined in that same case with 



395 

Judge Kogan, and enthusiastically endorsed that dissent. That 
opinion argued that we cannot prohibit obscenity, even its produc- 
tion and distribution, because we might interfere with the fun- 
damental right to consume obscenity. 

Justice Barrett. I think that Justice Kogan's dissent is replete 
with citations to Florida cases and Florida law. Senator. All I am 
suggesting is that you look at these cases very differently when you 
are on the State supreme court of last resort and when you are re- 
quired to follow Federal precedent. And I do not think there is any- 
thing in my judicial career which would indicate, from the time I 
was a trial judge, an intermediate appellate court judge, as well as 
on this court, that would indicate that I would fail to follow prece- 
dent as I saw it. 

Senator Grassley. Well, let me read you a paragraph that comes 
from the U.S. Supreme Court's decision in Paris Adult Theater, 
that the majority used in Stall. "A man may be entitled to read an 
obscene book in his room or expose himself indecently there. But 
if he demands a right to obtain the book and pictures he wants in 
the market and to gather in public places, discreet, but accessible 
to all, with others who share his taste, then to grant him his right 
is to affect the world about the rest of us and to impinge on other 
privacies: Even supposing that each of us can, if he wishes, effec- 
tively avert the eye and stop the ear (which in truth we cannot), 
what is commonly read and seen and heard and done intrudes 
upon us all, wanted or not." 

You say that you look to the U.S. Supreme Court for persuasive- 
ness and guidance, even when applying Florida law, I think the 
quote illustrates well how obscenity harms us all. By joining Kogan 
you were endorsing his view that their quote from the Paris case 
was wrong. 

Would you agree that the Federal Constitution does not griaran- 
tee a right to produce and distribute obscene pornography in con- 
trast to the right you and Justice Kogan found in the Florida Con- 
stitution? 

Justice Barkett. I would agree that the Miller test as estab- 
lished by the U.S. Supreme Court is the test that must be applied 
in a Federal context and that I would apply it with no hesitation 
if I have the opportunity to serve in the Federal system, absolutely. 

Senator Grassley. Well, how do you explain your rejection of the 
analysis in the Paris Adult Theater that I just quoted to you? 

Justice Barrett. As I said. Senator, what happens is you look 
at things in the perspective in which you are, and the perspective 
in which we sit as a court of last resort, which has a constitution, 
which values privacy so much that it expressly states it and that 
has a different analysis of such things as substantive due process 
and procedure and equal protection, you look at it from a different 
perspective. 

What I can tell you is that when I am on the — oh, oh, I am so 
sorry. If I have the opportunity to serve on the Eleventh Circuit 
Court of Appeals, when you are looking at it from the perspective 
of a Federal judge, you are looking at it only from the perspective 
of Federal law. And it is a different perspective. 

The Chairman. May I ask a question. Senator? Because I want 
to make sure I understand. If article I, section 23 of the Florida 



396 

Constitution which provides — and I will quote it — "Every natural 
person has the right to be let alone and free from governmental in- 
trusion in his private life except as otherwise provided herein." 
Were there not such a provision in the Florida Constitution, would 
you have ruled differently in the case in question? 

Justice Barkett. If we were governed by Federal law, I would 
have applied Federal law, without any question. 

The Chairman. Would you be governed by Federal law without 
the Florida Constitution provision? 

Justice Barkett. Assuming there were no other constitutional 
provision in Florida impacted, of course, or Florida law. 

The Chairman. Thank you. I am sorry for the interruption. 

Senator Grassley. Well, if the right to consume obscene pornog- 
raphy also protects the production and distribution of obscenity, 
does that mean that I or, even worse, my grandchildren, cannot be 
protected from constant bombardment in the convenience stores, on 
the newsstands, on the theater fronts, or any other public place 
where, obscene acts are being graphically depicted? 

Justice Barkett. Senator, I have no question that Congress can 
regulate or prohibit pornography or obscenity, and I would apply 
the law that pertains to that question should I have the oppor- 
tunity to do so. 

Senator Grassley. But you are saying that obscenity is impos- 
sible to define, and if we cannot define it consistent with due proc- 
ess, how can we, in your judgment, place any restrictions on it? 

Justice Barkett. Well, the Florida Supreme Court has done it. 
In defining what is pornographic, what they did in Stall is they 
added some language which said, to be specific, the touching of 
clothed buttocks is pornographic. And as we all can imagine, there 
are lots of situations in which one touches the clothed buttocks of 
someone that is absolutely innocent. If this statute 

The Chairman. Is that what you meant by a lot of people in the 
Super Bowl would be — 

Justice Barkett. Yes, sir. 

The Chairman. Hell of a lot of guys I played ball with in school 
would be in trouble. 

Justice Barkett. And I think that when one attempts to — there 
is no question that there is a good-faith effort that a legislature is 
attempting to define that which is prohibited so that people know. 
People have a right to know what conduct is going to be 
criminalized, and there certainly is — you can describe it. You can 
describe pornography, as the U.S. Supreme Court has said, to the 
extent — and it can be regulated. It can be prohibited. But, on occa- 
sion, legislatures go further and invade and impinge upon some 
constitutional principles in terms of passing laws that are ambigu- 
ous or that are unclear or that impinge upon some other constitu- 
tional aspects. 

I, again, have to ask for indulgence in terms of repeating myself. 
I do not think it is fair to take a look at someone's record by isolat- 
ing one language or one piece of work rather than taking a look 
at someone's entire judicial career. I have been a judge since 1979. 
I have had the opportunity to serve at every level of court, and I 
think that when you look at a record that is reflective of the major- 
ity or the mainstream of courts such as the Florida Supreme Court, 



397 

I, with all due respect, do not think you can make a case for sug- 
gesting that I am outside of the mainstream. 

In terms of the ultimate concern that you raise, Senator, there 
is no question that obscenity can be regulated, that the U.S. Su- 
preme Court has set forth the parameters of that regulation, and 
that every Federal judge who is going to be true to their oath — and 
I have never, to my knowledge, violated mine — would follow that 
Supreme Court precedent. 

Senator Grassley. You are talking about the Miller case? 

Justice Barkett. Yes, sir. 

Senator Grassley. Well, I guess that would have been my last 
question. If approved by the Senate, and if you sit on the court, 
then you will follow the precedents of that court and uphold State 
prohibitions on obscenity that satisfy the Miller test? 

Justice Barkett. Yes, sir, of course. 

Senator Grassley. This may be going over ground, but I want 
to read to you a couple sentences that you should explain, because 
I do not think these comport with what you just said. You wrote, 
"A basic legal problem with the criminalization of obscenity is that 
it cannot be defined. Such a procedure runs counter to every prin- 
ciple of notice and due process in our society." It seems to me that 
with that basic philosophy, it is going to be hard for you to follow 
Miller. You seem to insert your own views, opposed to applying the 
community standards analysis. Basic to Miller is the fact that we 
uphold laws prohibiting material violating those community stand- 
ards as long as the material has no literary, artistic, political, or 
scientific value, or no appeal exclusively to prurient interests. 

Justice Barkett. I am sorry. I did not — if you are suggesting 

Senator Grassley. The question 

Justice Barkett. I will not have any problem following Federal 
law when I am required and if I am required to follow Federal law. 
But I also have an obligation as a judge in the State court system 
to follow the State Constitution and the State precedent and the 
State law. And sometimes they may differ, Senator. 

Senator Grassley. And you showed that when you agreed with 
Kogan, and went along with him on his dissent when he was find- 
ing fault with the majority, who in turn were or were agreeing with 
the U.S. Supreme Court on some of these issues? 

Justice Barkett. Yes, sir, but in the context of Florida case law 
and Florida constitutional precedent. 

Senator Grassley. Mr. Chairman, I am done with obscenity. 

The Chairman. Thank you very much. 

We are going to take a break now for a minute, but let me take 
just a minute here on this, and then we will break for lunch and 
come back at 1:30. Let's make sure we understand what the tests 
are in the Miller case. We keep referring to them. One is whether 
the material appeals to the prurient interest in sex. Two is whether 
the material portrays sexual conduct in a patently offensive way. 
And, three, whether the work taken as a whole lacks serious lit- 
erary, artistic, political, or scientific value. All three of those 
things. 

Justice Barkett. Yes, sir. 

The Chairman. And reasonable people can have and do and will 
continue to disagree on what they are. But let me make a point 



398 

that I think seems to be continually missed here. It is either being 
missed by me alone or everyone else. 

My understanding is that, as a matter of basic constitutional law 
and the separation of powers doctrine and the notion of Federal- 
ism, taking all three of those concepts, that if the State of Dela- 
ware or the State of Florida wishes to be more expansive in its 
granting of a recognition of rights than the Federal Constitution is, 
it is permitted to do so. The times when the Federal Constitution 
does not permit a State to do such a thing is when the States con- 
clude that they are going to be more cabined in their view of what 
it is a person, an individual, is entitled to do or not to do. 

Case in point: If the Florida State Legislature wanted to say that 
nude dancing was — or it was written in the Florida Constitution 
that nudity on public beaches is constitutionally protected by the 
State of Florida, and the Supreme Court had ruled that nudity in 
public places violates — that the statute written by the U.S. Con- 
gress saying nudity in a public place is illegal, and if the Supreme 
Court had ruled that nudity in public places under that statute is, 
in fact, obscenity, you could still have nudity on public beaches in 
Florida without violating the Federal Constitution. Is that not cor- 
rect? 

Justice Barrett. Yes, sir. 

The Chairman. So one of the issues here is, as I understand it, 
you believe that, among other things, the section of the Florida 
Constitution, I might add, adopted in 1980 by the people — this is 
not adopted, you know, in 1880— by the people of the State of Flor- 
ida, they believed more along the lines of a former Justice who 
used the phrase which is oft quoted, "the right to be let alone." He 
had defined in the penumbra of the Bill of Rights that right to be 
let alone. They figured the heck with penumbras, we are going to 
write it into our Constitution. And it says, "Every natural person 
has a right to be let alone and free from Government intrusion to 
his private life except as otherwise provided herein. This section 
shall not be construed to limit the public's right to access to public 
records and meetings as provided by law." End of section. 

So the Florida folks said, We are not so sure we are going to let 
it up to the Supreme Court of the United States to decide whether 
we have rights that we think we have that are not enumerated in 
the Constitution, in the Federal Constitution, so we are going to 
make it real clear. 

So by any reading of the Federal Constitution and the State con- 
stitution, Florida's Constitution is more expansive. How much 
more? No one knows. But it is clearly more expansive. And it is 
that part of your rationale? 

Justice Barrett. That is precisely correct. Senator. Under my 
obligation as a Supreme Court Justice, it includes applying the 
Florida Constitution to Florida citizens. 

The Chairman. You have no idea how unusual this is to me. 
Never did I think when I was in Holy Rosary grade school I would 
be required to defend a nun against the charge she was soft on por- 
nography. [Laughter.] 

The Chairman. This is really an interesting turn of events for 
me. A former nun, I might add. 



399 

Let me say we will now recess until — we were going to recon- 
vene — I told Senator Hatch that we would reconvene at 1:30 be- 
cause of his schedule, but since we have gone a little longer than 
we thought, we will reconvene with the permission of Senator 
Hatch at 1:45. 

I expect. Justice Barkett, that we will finish this afternoon and 
that Senator Hatch has a number of questions, as do others. I 
think the questions you have been asked have been fair questions 
so far. I think they warrant you having to explain them. And I am 
sure there are going to be others. 

You are doing a fine job. Let's just keep this moving, and hope- 
fully we can finish this at a reasonable hour early this afternoon. 

Justice Barkett. Thank you very much, Senator. 

The Chairman. Thank you. 

Justice Barkett. I appreciate it. 

The Chairman. We are in recess until 1:45. 

[Whereupon, at 1:05 p.m., the committee recessed, to reconvene 
at 1:45 p.m., this same day.] 

afternoon session 

Senator Hatch. Justice Barkett, why don't we begin? Senator 
Biden just said let's just go ahead because we do have a lot of 
things to ask. And let me just state this preliminarily. If you need 
any time or you need to break or you need any kind of a break, 
just let me know. 

Justice Barkett. I will. Thank you very much, Senator. 

Senator Hatch. Because I am surely going to honor your feel- 
ings. 

I think there are real important questions. Let me just say that 
I believe that the rulings on issues of State law are very probative 
of how a judge will rule on the Federal bench. And as we have al- 
ready established, appellate judges have a great deal of discretion 
in determining whether and how existing precedent applies. And as 
I mentioned before, they also face a lot of cases of first impression, 
and it seems to me that where a State judge, in deciding an issue 
of State law, has expressed disagreement with or even hostility to 
a U.S. Supreme Court precedent, one can expect that that very 
same judge may be very stingy or rather stingy in applying that 
precedent. So I very much share the concerns, for example, that 
Senator Grassley raised over your views on obscenity. They worry 
him. They worry me. On the other hand, I am very interested in 
your answers as well. 

I had been mentioning before Senator Simon needed to take the 
microphone that with regard to the LeCroy decision — I had gone 
into that — where the Supreme Court subsequently rejected the po- 
sition you took. For present purposes, however, I would simply like 
to apply the methodology of your Zrillic opinion to the position that 
you took in LeCroy. 

Appl3dng that Zrillic methodology, one would say that a bright- 
line age minimum of 18 is both under-inclusive and over-inclusive. 
It is under-inclusive because it fails to protect from capital punish- 
ment those persons over 18 who, in the language of your LeCroy 
dissent, "have not fully developed the ability to judge or consider 
the consequence of their behavior." It is over-inclusive because it 



400 

does protect those under 18 who have, in fact, fully developed their 
deliberative faculties. 

Moreover, your Zrillic methodology would appear to dictate the 
conclusion that the 18-year bright line is simply irrational since it 
would exempt from the death penalty a heinous murderer who was 
17 years, 11 months, 28 days, at the time of his or her ofTense, but 
would not exempt someone who was a few days older. So it seems 
to me that your Zrillic methodology leads to the conclusion that 
what you thought in LeCroy to be constitutionally mandated under 
the eighth amendment is instead constitutional impermissible 
under the equal protection clause. 

So I would invite any comment you care to make on that, but 
those are some of the things that bother me. 

Justice Barkett. Right, Senator. First of all, the Zrillic meth- 
odology implies that I somehow used equal protection as the focus 
on Zrillic, and I can only tell you that that is really not at all the 
focus which concerned me in Zrillic. I was dealing primarily with 
the property issue. 

I have never thought about the equal protection analysis in 
terms of the death penalty, very candidly, and I am not sure how 
it would — I mean, I do not think there is any question that it has 
application here, so I do not make the connection. 

The only thing I would add to that would be, as I said to Senator 
Simon, when I decided LeCroy, the U.S. Supreme Court had de- 
cided only Thompson, which drew the bright line at 16 years old. 
Under 16 years old, you could not execute a minor, and they left 
open the question of the 18-year-old situation. I determined that it 
would be a violation based upon the analysis that I utilized. I do 
not think there is any question that I would apply whatever law 
the U.S. Supreme Court said was applicable, should I have the op- 
portunity to serve on the eleventh circuit. 

Senator Hatch. Well, one of the things that I have been pointing 
out is I am concerned that you will invoke over-broad principles 
that could be easily manipulated, and naturally I think you would 
see why I would be worried about that, because you do cite the 
equal protection clause of the Constitution in the decision. 

Let me move on. My concerns over how your opinions have ap- 
plied rational basis review under the equal protection clause are 
also triggered by how your opinions have applied rational basis re- 
view under the Federal due process clause. I would cite the case 
of State V. Saiez, which was in 1986. In that case, you wrote an 
opinion for the Florida Supreme Court holding that a State law 
criminalizing the possession of embossing machines capable of 
counterfeiting credit cards, to use your language, "violates sub- 
stantive due process under the Fourteenth Amendment to the Unit- 
ed States Constitution." 

Now, specifically, you stated that the law was "not reasonably re- 
lated to achieving the legitimate legislative purpose" of curtailing 
credit card fraud. And in your words, you said, "It is unreasonable 
to criminalize the mere possession of embossing machines when 
such a prohibition clearly interferes with the legitimate personal 
and property rights of a number of individuals who use embossing 
machines in their businesses and for other non-criminal activities." 



401 

Now, I would like to focus not so much on the result reached in 
Saiez as on the principle set forth, and let me just ask this ques- 
tion: Are you aware of any Federal authority for the proposition 
that criminalizing ownership of an item violates substantive due 
process if that item has legitimate noncriminal uses? You cited no 
such case in your opinion, but are you aware of an3dhing? 

Justice Barkett. No, Senator. The opinions upon which I relied, 
again, were Florida cases, and I can only cite you to a case called 
Leoni, which meikes it — that was a case where the State attempted 
to regulate operations of a drugstore which did not deal with the 
preparation of controlled drugs and medical suppliers. And the lan- 
guage that is used in that case — and, again, I have to point out 
that due process concerns in Florida are different than Federal due 
process concerns. The language in this case, which was written by 
one of our Justices, Justice O'Connell, way before I ever was on the 
bench at all, I think, which talks in terms about to exercise this 
power, that is, the police power, to the detriment of the individual 
or class, it must first be clear that the purpose to be served is not 
merely desirable but one which will so benefit the public as to jus- 
tify interference with or destruction of private rights. And since 
that time, we also codified the Florida Constitution. 

So I am not aware of the same analysis being applicable under 
Federal cases, and I can only reiterate to you my view that when 
you are in the Federal courts, you are looking only at Federal anal- 
yses and Federal cases, and I would apply that. 

Senator Hatch. You say you applied Federal due process law in 
this particular case? 

Justice Barkett. Well, did I say that? My only point — and, 
again, I think I have quoted 

Senator Hatch. Let me point it out to you on page 1127. It is 
the second paragraph in the right column. I have to get my glasses 
on. I am having a rough time seeing this. "Although Saiez's over 
breadth and vagueness challenges fail, section 817.63 is neverthe- 
less unconstitutional. It violates substantive due process under the 
fourteenth amendment to the United States Constitution and arti- 
cle I, section 9, of the Florida Constitution." 

Justice Barkett. I recognize that, Senator. But if you go on to 
look at the language that is used from other cases, they are all 
Florida cases which have utilized the same phrase, but interpreted 
it in a different way. 

Senator Hatch. The next paragraph down, in the middle of it, 
it says, "the due process clauses of our Federal and State constitu- 
tions." 

Justice Barkett. I know. 

Senator Hatch. So, as you can see, I could not help but read that 
and wonder why you would do that, because a broad range of crimi- 
nally proscribed items also have legitimate uses. For instance, 
marijuana can be prescribed as a medicine. Switchblades can be 
used to slice apples. Certain drug paraphernalia can be used for to- 
bacco purposes. Explosive devices can be used to build tunnels. 

I guess the question is: What U.S. Supreme Court authority is 
there for concluding that society, through its elected officials, lacks 
the power to determine that the harmful effects of some or all of 



402 

these so outweigh the beneficial effects that possession should be 
criminalized? 

Justice Barkett. I understand that in the Federal context you 
would not be making that analysis, Senator, but in the Florida con- 
text you would. 

Senator Hatch. You could do that. 

Justice Barkett. You would be required to, and we did, and I 
think that opinion was unanimous, or at least nearly so, if I am 
not mistaken. 

Senator Hatch. Well, I wonder even under the Florida context, 
because I see no reason why the principle stated in your Saiez 
opinion would not apply with full force to all of those examples that 
I just went through. I could add, in my view, that the issue is not 
the substantive wisdom of any given State law. I may agree or dis- 
agree with that, just as you may. The issue is what branch of gov- 
ernment should have the power to make those decisions. And legis- 
lators may make from time to time what some, including you and 
I, consider unwise decisions. But unless those choices contradict 
the Constitution, their constituents, not judges, ought to make the 
final determination as to whether or not they continue. And they 
ought to be the check on such laws if they are wrong. 

The substantive due process theory is just another tool for judges 
to override the legislative process if they want to and override leg- 
islative choices. So I am concerned that an over-broad use of that 
principle can be applied selectively, reflecting the preferences of 
judges reviewing the law acting as a kind of super-legislature. And 
that worries a lot of people up here, including me. 

Justice Barkett. Well, I think. Senator, in terms of the general 
principle of courts acting as legislators and providing any lack that 
they might find in the statute, I have made myself fairly clear over 
my career, suggesting that I do not think that that is appropriate. 

In terms of Saiez, I can only suggest that you look at the cases 
upon which I relied, which express the same principle that I under- 
stand you are having difficulty with, because it is different than 
the Federal standards. But in Delmonico v. State, the court de- 
clared a statute that prohibited the possession of spear-fishing 
equipment in an area of Monroe County to be unconstitutional and 
explained that it included that same principle. In Robinson v. 
State, a statute that prohibited the wearing of any mask or cover- 
ing whereby any portion of the face is hidden, concealed, and so 
forth, to be unreasonable. 

Although the terms, the phrases that are used, may be the same 
in both bodies of law, the meanings that is ascribed to them are 
very different. 

Senator Hatch. Well, the question that naturally arises is: Why, 
then, didn't you apply just the State due process law and not apply 
the Federal due process? 

Justice Barkett. I think in essence I did. Senator, and all I 
can — I mean, I can certainly accept that in a body of law there are 
going to be occasions when you are going to be careless, but I 
think 

Senator Hatch. Oversight. 

Justice Barkett [continuing]. That there is no question that 
when you look at the cases upon which this one relied and upon 



403 

the language which is quoted from other Florida cases, it was clear- 
ly from that perspective that I was acting. 

Senator Hatch. All right. In Florida Society of Ophthalmology v. 
Florida Optometric Association, you stated, "Constitutions are 'liv- 
ing documents,' not easily amended, which demand greater flexibil- 
ity in interpretation than that required by legislatively enacted 
statutes. Consequently, courts are far less circumscribed in con- 
struing langauge in the area of constitutional interpretation than 
in the realm of statutory construction." 

Now, do you believe that courts should be "far less circumscribed 
in construing" constitutional language, irrespective of whether the 
result is to create or deny new rights? 

Justice Barrett. I think the point that I was trying to make 
there is there is a slightly different way of interpreting statutes, 
the plain language of statutes, and in interpreting the plain lan- 
guage of a constitution. In a statute, Congress or the legislature is 
fairly specific and deals with, in essence, one concept, one sentence, 
one provision at a time. In constitutions, the language is extremely 
broad, and although it is a rule of statutory construction that you 
stop at the plain meaning of a statute, what I was suggesting in 
the case that you referred to is that when you are looking at con- 
stitutions, you have to look at the intent of the entire document 
more so than trying to attempt to do that in statutes. 

For example, if you suggested that the same rule of statutory 
construction — that is, that you would only apply the literal letter 
of a constitution, you would then have to say that Congress could 
make no law affecting religion or rights of free speech and so forth 
or that a right to trial by jury would mean that you must have a 
jury in every single case. And I think what occurred when the Su- 
preme Court was looking at those cases and what I was referring 
to is that you take a look at the intent of the entire document more 
so than you do in the legislative, specific, narrow language that is 
being used in one portion of a statute, where the legislature has 
the opportunity to come back and correct it. 

So circumscribe less only in the sense that you take a look at the 
intent of the framers of the document as opposed to simply stop- 
ping with an inquiry of the language if the language gives you an 
indication that this is not what the framers intended. You have to 
look at it in conjunction with the other provisions of the constitu- 
tion. 

The Chairman. Will the Senator yield for a question? 

Senator Hatch. Sure. 

The Chairman. Were you in a minority in both these cases? 

Justice Barrett. No, sir. I think Florida Society of Ophthalmol- 
ogy was a majority, or almost. 

The Chairman. Was it 5 to 2, you wrote the majority opinion? 

Justice Barrett. Yes. 

The Chairman. Five agreed with you. 

Justice Barrett. Yes, sir. 

The Chairman. And in the Saiez case it was 7 to 0? 

Justice Barrett. I believe that is correct. 

The Chairman. Thank you. 



404 

Senator Hatch. Well, I do not know the other members of the 
Florida Supreme Court, and I have not studied their jurisprudence. 
I have to go by the reasoning of the opinions that 

The Chairman. I am not being critical. I just want the record to 
reflect 

Senator Hatch. No, no, but I just want to make this point. I 
know you are not. I have to go by the reasoning that you have au- 
thored, and to a certain extent the opinions you have joined. What 
I want to know, really, in this discussion is whether your judicial 
interpretations of Federal questions are consistent with applicable 
Federal precedent. And if a State court opinion misreads or mis- 
uses the Federal equal protection clause and ignores or misapplies 
principles that are enunciated in U.S. Supreme Court decisions, I 
do not think it makes any difference how many judges join in the 
opinion. That is the point. They would all be wrong in that situa- 
tion. 

Frankly, a nominee could be a lone dissenter in a State court 
case and have the best reasoned opinion in that case. Conversely, 
a nominee might author or join in the unanimous opinion, and that 
could be one of the worst opinions ever rendered. And I have seen 
some of those, too, as have you, I am sure. And I will cite Plessy 
V. Ferguson as a perfect illustration of a case which upheld the odi- 
ous separate-but-equal doctrine under the equal protection clause, 
and that was a 7-to-l decision. So that does not particularly mean 
anything, and I do not think anyone on this committee would sug- 
gest that a nominee who wrote the opinion or voted in the majority 
in a case like that, you know, would take refuge behind the other 
seven people. 

So these questions go a lot more to the way you judge than they 
do to the final results in some of these cases. And as I see it, a key 
premise of your provision is that Constitutions are not easily 
amended. And in my view, this critical fact clearly counsels strong- 
ly against, not in favor of, judicial adventurism in creating new 
rights. 

Justice Barrett. Well, I think I am not suggesting. Senator, that 
one goes outside of the document or that one superimposes one's 
own views on this. I think that the issue here is a very technical 
question of whether or not — what the requirements were of a pro- 
cedure in the Florida Legislature. The language, the specific lan- 
guage in and of itself, might have dictated one result. But when 
one read it in conjunction with other provisions of the constitution, 
which one may do, under that theory of constitutional interpreta- 
tion, in order to ascertain the true meaning of the framers with re- 
gard to that provision, then that is permissible. As opposed to in 
statutory construction, if you are taking a look at one subjective 
line or two in a subsection of a statute, one need not refer to the 
whole body of all of the congressional acts in order to obtain mean- 
ing from it. One stops at the language of that law. That is the only 
thing I was trying to point out there. 

Senator Hatch. Well, the genius of the Constitution, what makes 
it a living document is not that its meaning is to be judicially al- 
tered over time, but, rather, that it gives broad play to the political 
forces to address the great and the maybe not so great issues of 
the day. That is I guess the point I am trying to get to. 



405 

Let me just address some of your fourth amendment decisions in- 
volving drugs. Let me turn to Bostick v. State, if you have that 
handy. That is a decision where you wrote for a 4-3 majority on 
the court, and, of course, this decision was overturned by the U.S. 
Supreme Court. 

In that case, two officers boarded a bus bound from Miami to At- 
lanta at a stopover in Fort Lauderdale. They explained they were 
looking for illegal drugs and asked Bostick to consent to a search 
of his luggage. And as you noted in your opinion, the trial judge 
found that Bostick did consent, that the illegal drugs were found. 

Now, in your opinion, you created a per se, across-the-board rule 
that the police practice of boarding buses during scheduled stops 
and questioning passengers was unconstitutional, and that any 
consent obtained therefrom was, therefore, void. 

Now, the U.S. Supreme Court ruled that the adoption of this 
rigid per se rule was inconsistent with Supreme Court precedent, 
which requires that whether or not consent was valid be deter- 
mined under the totality of the circumstances. And that was the 
Schneckloth v. Bustamonte case in 1973. 

Now, the Supreme Court rejected your per se rule. Why did you 
not find this precedent dispositive and apply this totality of the cir- 
cumstances test in the first place? 

Justice Barkett. Senator, the U.S. Supreme Court determined in 
Bostick — search and seizure I think is one of the most difficult 
areas of the law. 

Senator Hatch. It is. 

Justice Barkett. And one which all courts, including the U.S. 
Supreme Court, have grappled with. They made a determination. 
They interpreted our opinion in Bostick to say that any kind of a 
request for a consensual search on a bus was per se violative of the 
fourth amendment. They then returned it to us, saying look at this 
again in light of the totality of the circumstances. 

I then looked at it from the perspective of the totality of the cir- 
cumstances, and finding no dispute as to the circumstances in 
question, would have found as a matter of law, not because it was 
a bus but because of all of the totality of the circumstances, that 
it violated the search and seizure provisions in terms of being a co- 
ercive request for consent. 

Senator Hatch. But on remand from the U.S. Supreme Court, 
the Florida Supreme Court finally ruled that the search in that 
case was lawful. 

Justice Barkett. Yes. 

Senator Hatch. But you still did not agree, and you dissented in 
the second decision. In your original opinion, you made the follow- 
ing comment: 

The intrusion upon privac rights caused by the Broward County policy is too great 
for a democracy to sustain. Without doubt, the inherently transient nature of drug 
courier activity presents difficult law enforcement problems. Roving patrols, random 
sweeps, and arbitrary searches or seizures would go far to eliminate such crime in 
this State. Nazi German, Soviet Russia, and Communist Cuba have demonstrated 
all too tellingly the effectiveness of such methods. 

Now, I agree that the fourth amendment is the bulwark of our 
liberties and that there are certain police tactics that cannot be tol- 
erated in our free society. But do you really believe that what the 



406 

two officers did here in this particular case, identifying themselves 
and asking for consent to search the luggage of a bus passenger 
rather than just taking the luggage and opening it or dragging the 
passenger off the bus, ought to have been compared to Nazi Ger- 
many, Soviet Russia, or Communist Cuba? 

Justice Barkett. Senator, I would never compare the conduct of 
any of our police officers in this country to those of Nazi Grermany 
or Soviet Russia, and I do not think there is any question but that 
had I made such a comparison, I would not have received the sup- 
port of many of the rank-and-file officers in my State. 

I think it is clear that they are placed in an inordinately difficult 
position in terms of understanding what the law is and what the 
law is not. 

In our democratic system, we, of course, as a free society value 
and have always valued the ability to walk freely in the streets, 
unless we have forfeited that right by virtue of doing something 
which violates the law or giving a police officer a reasonable basis 
to believe that we might have violated the law or probable cause 
to arrest us for having violated the law. 

The bus situation was one in which the State concededly said 
there was absolutely no reasonable suspicion and no probable cause 
to stop and inquire of any of these passengers. My understanding 
of the U.S. Supreme Court's precedent is that one can do that if 
one does it in a context in which the person feels free to not re- 
spond or to say, "I do not want to have a conversation with you." 
And one must look at the circumstances of the case in order to de- 
termine whether or not that citizen felt free. 

We are not talking about a situation where there might have 
been reasonable suspicion to believe that a crime had been commit- 
ted. 

Under the totality of these circumstances, in the crowded bus 
and the fact that there was only a short stop and the fact that 
these police officers were wearing their uniforms, had a gun very 
visible in their pouch and so forth, as delineated by Judge Letz 
below, it seemed to me that the Mendenhall standard would have 
dictated that this was a coercive situation. 

Granted, the Supreme Court has ruled as it has. I would apply 
that. I think under the circumstances here, as a matter of law, 
since there was no debate about the circumstances as a matter of 
law, the fourth amendment was violated. That is what they sent 
it back for us to do, in my judgment. 

Senator Hatch. Well, my only problem was you used that lan- 
guage, and I have to say that nobody is immune from using injudi- 
cious language from time to time. Why, even Senator Biden and 
myself have been known to do that from time to time. 

The Chairman. Once, once. 

Senator Hatch. Only once for him. In my case, I am sure a num- 
ber of times. But you can see why, you know, some police people 
would be upset with that kind of language. Go ahead. 

Justice Barkett. Senator, this was an issue that was raised dur- 
ing my merit retention campaign. Fortunately for me, many mem- 
bers of the police department took the time to sit down with me, 
to read the case themselves, and to come to the conclusion that in 
no way was I attempting to impugn or hold in any less respect 



407 

than people in my State know I hold the police. As a result of that 
meeting, as a result of taking the time to read all of my cases, I 
had the support of the Police Benevolent Association and many po- 
lice officers who helped me during my campaign. I think the ones 
in my State 

The Chairman. The FOP endorsed you, didn't they? 

Justice Barkett. I am sorry. 

The Chairman. Did the FOP endorse you? 

Justice Barkett. Yes, they did during my — and we had the same 
kinds of meetings, Senator. 

The Chairman. And the National Association of Police Organiza- 
tions supports you now; correct? 

Justice Barkett. Yes, sir. And I think that the police officers in 
my State know that I have nothing but the highest regard for 
them. They have a very difficult job to do. They are treated very 
badly, not only by criminals but by many members of our society 
who do not take adequate care of them in many regards. I value 
them. I value their input. In my administrative capacity, I have al- 
ways sought their advice and have conferred with them in a myr- 
iad of different ways simply because I think they have a great 
stake in our court system and they should be consulted. And I do 
not think there is any question by many of the members of the po- 
lice in my State that I hold them in such high regard. 

What I was trying to point out was that if you leave it unfettered 
discretion and give absolute power, without guidance, the result is 
what we have seen in totalitarian countries. I had no intentions of 
even comparing them in specifics to that. 

Senator Hatch. All right. In the recent case called 
Sarantopolous, two police officers received an anonymous tip that 
Sarantopolous was growing marijuana in his back yard. I think 
this one was raised with you, but maybe I am wrong. The two offi- 
cers entered a neighbor's yard, and one of the officers, standing on 
his tiptoes, looked over a 6-foot tall wood fence and spotted mari- 
juana plants. 

The police then went and got a search warrant, and they ar- 
rested Sarantopolous, and by a 5-to-2 vote, your court ruled that 
the search was lawful. The majority said that Sarantopolous lacked 
a reasonable expectation of privacy in his back yard since it was 
protected from view only from those who remained on the ground 
and who were unable to see over the 6-foot fence. 

Now, you, in dissent, said, 

I cannot believe that American citizens sitting on porches or in their back yards 
are not constitutionally protected when Government agents, acting only an anony- 
mous tip, climb on ladders or stretch tiptoes to peer over privacy fences. 

Now, the question I ask is: Isn't it a settled standard under the 
fourth amendment that whether a search is constitutional turns 
not only on whether a person has manifested a subjective expecta- 
tion of privacy, but whether or not that expectation of privacy is 
reasonable? 

Justice Barkett. Yes. I think. 

Senator Hatch. And I think 

Justice Barkett. Was that the — I am sorry. I didn't know wheth- 
er that was the end of the question or not. 



408 

Senator Hatch. No, I think you answered it right. That was the 
question. You answered it right. 

The Chairman. But the issue is, isn't it what is a reasonable ex- 
pectation? 

Senator Hatch. That is right. That is what the issue is. 

Now, while it is understandable to wish to keep the Government 
from looking into our yards, I understand that 

Justice Barkett. Only on anonymous tips, Senator. That is a fac- 
tor which I found very significant here. 

Senator Hatch. That was what turned it for you? You know, the 
standard by which you are bound to decide this case turns on what 
a reasonable expectation of privacy really is. And the majority opin- 
ion addressed that applicable legal issue. Your dissent does not 
meaningfully do so, in my view. 

Now, I do not see why it is unreasonable for an American to ex- 
pect that if he or she is doing something in her or her back yard, 
whether growing drugs or abusing a child or just reading a news- 
paper, a 6-foot tall fence would not block all views. And he or she 
may very well be seen by someone next door. In Katz. v. U.S., this 
was a 1967 case, there was a two-part inquiry that was posited in 
that case. First, has the individual manifested a subjective expecta- 
tion of privacy in the object of the challenged search, and, second, 
is society willing to recognize that expectation as reasonable. That 
case did bother me a little bit, but I would be happy to hear what- 
ever you have to say on it. 

The Chairman. I would like to say something. 

Senator Hatch. Surely. 

The Chairman. If the fence had been 12 feet high, would it be 
reasonable expectation? I am asking you. Judge. You obviously 
think 6 feet is enough. I am asking whether or not would you have 
ruled the same way, had it been a 1-foot fence? 

Justice Barkett. Probably not. Senator. It is very hard to do 
this. 

Senator Hatch. You felt that 6 feet was the 

The Chairman. I am just trying to make the point that reason- 
able, what is subjectively reasonable or objectively reasonable is a 
matter of a place from which you stand, no pun intended. 

Justice Barkett. There was another element here, and that is 
whether or not the police were lawfully in the yard. I think there 
was an element of trespass, and also the concern about the anony- 
mous tip. 

Senator Hatch. So those were the factors? 

Justice Barkett. Yes. 

Senator Hatch. OK. 

Justice Barkett. Again, we have to view this in the context of 
how I think the Floridians view their privacy. 

Senator Hatch. Sure, and I can appreciate that. 

Riley v. State is another one of your criminal law opinions that 
was reversed by the Supreme Court. In that case, that was the hel- 
icopter case, where they were hovering about 400 feet above the 
ground, if you will recall, and they detected from that height mari- 
juana growing in a greenhouse. They then got a warrant to search 
the greenhouse and they arrested Riley. 



I 



409 

In your opinion, you ruled that the helicopter surveillance of Ril- 
ey's greenhouse violated the fourth amendment. In determining 
that Riley had a reasonable expectation of privacy, which is what 
Senator Biden and I are concerned with, that was invaded by the 
helicopter surveillance, you sought to distinguish the U.S. Supreme 
Court's decision in California v. Ciraolo, I guess it is. In Ciraolo, 
the Supreme Court held that surveillance from a fixed-wing air- 
craft flying at 1,000 feet did not violate the fourth amendment. In 
your words, you said, 

We simply cannot dismiss as irrelevant the difference between a fixed-wing air- 
craft flying at 1,000 feet and a helicopter circling and hovering at 400 feet, so that 
its occupants can look through an opening in the roof. 

The U.S. Supreme Court did reverse your ruling. The plurality 
and concurring opinions found Ciraolo indistinguishable from this 
helicopter case. In the words of the plurality opinion, 

There is nothing in the record or before us to suggest that helicopters flying at 
400 feet are sufficiently rare in this country to lend substance to [Riley's] claim that 
he reasonably anticipated that his greenhouse would not be subject to observation 
from that altitude. 

Now, didn't your attempt at distinction depart from Ciraolo's ra- 
tionale? That is, if the question is whether an expectation of pri- 
vacy is reasonable, shouldn't you have looked under the principle 
of Ciraolo to whether helicopter flights of 400 feet are legal or com- 
mon, rather than to compare what can be seen from a helicopter 
flying at 400 feet compared to a plane at 1,000 feet? 

Justice Barkett. I think. Senator, that the U.S. Supreme Court 
agreed that one could have a reasonable expectation of privacy 
from peering helicopters. The issue that the U.S. Supreme Court 
reversed upon was that the defendant had not presented any evi- 
dence or maintained its burden of proof as to whether or not heli- 
copters were used to flying overhead in Pasco County or never flew 
and, therefore, that was an inquiry that should have been made, 
which we did not make. Ciraolo was as fixed-wing aircraft. This 
was a unanimous opinion of my court that there should be a 
bright-line rule for helicopters, based upon a reasonable expecta- 
tion of privacy. 

I recognize that the U.S. Supreme Court has reversed it. I cannot 
help but add, you say "another of your opinions that the Supreme 
Court reversed," there were only three. Senator. 

Senator Hatch. I did not mean to imply that, so I am glad you 
corrected me. 

Justice Barkett. They found that in order to establish this, that 
the defendant has to present proof on this issue, and I accept that. 
I certainly will follow that on the 11th Circuit, should I have the 
opportunity to be there. 

Senator Hatch. Let me go to Cross v. State, which is one of the 
cases I gave you, which is a 1990 decision. Three detectives, as you 
will recall, combatting the drug trade spotted Cross at an Amtrak 
station and asked for permission to search her tote bag, but ad- 
vised her that she did not have to consent. She consented. Inside 
the tote bag, they found a hard baseball-shaped object wrapped in 
brown tape inside a woman's slip. 

Now, having seen cocaine packaged like this they say on hun- 
dreds of occasions in their combined 20 years of law enforcement 



410 

experience, they then arrested Cross, and the contents of the pack- 
age did indeed prove to be cocaine. By a 5-to-2 vote, the Florida Su- 
preme Court held that probable cause existed for the arrest. You 
dissented, adopting the reason stated by a judge on an intermedi- 
ate court, who opined that the taped package did not create prob- 
able cause. 

Now, in the opinion you adopted as your own, the lower court 
said, 

Based on no more than that the item was tape-wrapped, hard and baseball- 
shaped, the officer concluded that he had probable cause for a destructive intrusion. 

But the police officers testified that, in their experience, they had 
seen cocaine packaged in that precise way or in that similar way 
hundreds of times. 

Now, what I want to ask you here is why did you fail to acknowl- 
edge, much less credit, the experience of the police officers that co- 
caine is often packaged in that rather unusual manner? 

Justice Barkett. My concern in that case. Senator, was to the 
quality of the evidence presented. The conclusion of a police officer 
that it was his experience that this is the way it was does not com- 
port, in my judgment, with evidence, a simple conclusory statement 
does not comport with the requisite evidence. 

Perhaps, though, that case could be read in the context of my 
opinion in Doctor v. State of Florida, where I pointed out a sort of 
similar kind of situation, where the totality of the circumstance 
gave the police officer cause to believe that a bulge in the pocket — 
well, it wasn't the pocket — a bulge on a prospective defendant is 
not exactly the right term, but you understand what I mean. 

Senator Hatch. I understand. 

Justice Barkett [continuing]. Gave probable cause by the feel 
and by the touch and by the appearance of it to be deemed contra- 
band. In this case, I anticipated before the Supreme Court ruled on 
the plain field doctrine, not before this case, but before their case, 
the U.S. Supreme Court had indicated that you could only feel for 
that which you thought might be a weapon to endanger a police of- 
ficer. Later on, they decided that if you felt something that you 
could tell based upon your experience was contraband, that could 
give you probably cause. 

In this case, I pointed out that, as opposed to the facts in Cross, 
the State did provide specific actual basis for the deputy's experi- 
ence to establish its claim. He testified that he had made approxi- 
mately 250 arrest — and I am not saying you need to say there has 
to be 250, but you need to give some factual basis for your conclu- 
sions. 

In this case, the officer testified as to how many arrests he had 
made for possession of a controlled substance, he had been present 
during however many arrests, he had seen or felt it or seen it 
packaged in this way during those arrests and so forth, and then 
later on I point out that in this case the totality of the cir- 
cumstance gave the officer probably cause to believe that he was 
carrying crack cocaine in this bulge on his person and permitted 
the search on that basis. 

Senator Hatch. I think you were right in that case. I think you 
are wrong in the other one. 



411 

You see, the point I am getting to is not necessarily your batting 
average, because it has been quite good. There is no reason why 
anybody is going to jump on you for that, and I am certainly not 
jumping on you. 

Justice Barkett. I understand. 

Senator Hatch. It is not just the one case that bothers me. In 
looking at these opinions in Bostick, Sarantopolous, Riley and 
Cross, what jumps out at me is a pattern of unduly restrictive 
search and seizure decisions that would ham-string police in their 
battle against drugs, you know, if your views had prevailed. 

You see, one of my criticisms this year — and I am not trying to 
be mean to the administration, but I really do not believe that they 
have been serious about drug policy. We have now passed another 
deadline where they should have the administration's drug policy 
to us up here. Frankly, we are seeing the effects — and I do not 
blame this administration for these problems — the effects of an in- 
creased use of drugs all over this country and I am worried about 
it. 

As you can see, I am clearly raising these issues here, because 
if you look at those cases together, it looks as though that you are 
taking an unduly lenient stance with regard to curtailing the police 
in these areas. 

Justice Barkett. I can appreciate your being troubled by the 
drug trafficking. I come from a State, Senator, where it is an over- 
whelming problem. But at the same time, in my judgment, there 
are instances where you have to apply the Constitution, and I at- 
tempted to do so. I recognize that you may not feel that the conclu- 
sion was correct, but I did attempt to follow the constitutional re- 
quirements under the Fourth Amendment. 

Senator Hatch. I understand. When I saw those four cases, I 
thought, my goodness, this does tend to indicate that there is a 
problem here. 

Well, let me go on to Foster v. Florida. In that case, the Foster 
case, two young woman and another man, Lanier, drove to a de- 
serted area where one of the women was to make some money by 
having sex with Lanier. As Lanier, who was very drunk, was dis- 
robing, Foster suddenly began hitting him and held a knife to his 
throat and sliced his throat. Foster and the women then dragged 
a still-breathing Lanier into the bushes and covered him with 
branches and leaves. Foster then took his knife out and cut 
Lanier's spine, and then they took his wallet and he and the two 
women split the money that was in his wallet. 

Now, Foster was convicted of murder and sentenced to death in 
1975. In his most recent appeal, Foster claimed his death sentence 
was the product of racial discrimination against black victims. Inci- 
dentally, according to the newspaper reports, as I understand it, 
Foster is white and the victim Lanier was also white. 

Now, the majority of your court rejected Foster's claim. Specifi- 
cally, they determined that Foster's statistical evidence purporting 
to show the killers of white victims in one country were more likely 
to get the death penalty than black victim defendants failed to es- 
tablish a constitutional violation. 

In dissent on this point, you relied on the Florida Constitution's 
Equal Protection Clause to reach a result rejected by the Supreme 



412 

Court in McCleskcy v. Kemp. In McCleskcy, the court ruled that a 
capital defendant claiming a violation of the Federal equal protec- 
tion clause has to show the existence of purposeful discrimination 
and a discriminatory effect on him. Now, in your opinion, you criti- 
cized the McCleskcy standard for failing to address what you la- 
beled "unconscious discrimination." 

Now, you stated your belief that statistical evidence of discrimi- 
natory impact in capital sentencing that cannot be traced to bla- 
tant or overt discrimination should establish a violation of Florida's 
equal protection clause. You further stated that this statistical evi- 
dence should be construed broadly to include not only analysis of 
the disposition of first-degree murder cases, but also other informa- 
tion that could suggest discrimination, such as the resources de- 
voted to the prosecution of cases involving white victims as con- 
trasted to those involving minority victims, and the general con- 
duct of a State attorney's office, including hiring practices and the 
use of racial epithets and jokes. 

Now, under your approach, at least as I read it, once the defend- 
ant has met that initial burden of showing statistical disparities, 
the burden shifts to the State to show that the practices in ques- 
tion are not racially motivated. 

Let me ask you preliminarily how one aspect of your test would 
work. You say that the general conduct of a State attorneys office, 
including hiring practices, would be part of the proof of discrimina- 
tion in a death penalty case. Now, suppose that 20 percent of the 
pool of available lawyers are black, but only 10 percent of the State 
attorneys office prosecutors are black. Under your viewpoint, would 
that statistical disparity constitute evidence in your view that a 
white death penalty defendant charged with killing a white victim 
could cite as part of his or her case racial discrimination in the ap- 
plication of the death penalty in that jurisdiction? 

Justice Barkett. My only concern in Foster, Senator, is that 
there would be a vehicle by which a defendant could assert that the 
law was being discriminatorily applied against a racial minority. 
My reading of Supreme Court cases and my reading of our own 
cases in my State preclude the use of a law to be applied in a ra- 
cially discriminatory manner. 

I did not purport to suggest what proof would be sufficient to 
overcome that burden, although I recognize that it would have to 
be a substantial burden of proof, if that claim were to prevail. But 
the essence of my concerns in Foster revolved around providing a 
process when there was an occasion that a defendant could assert 
that a particular prosecutor, for example, was only applying the 
death penalty against black defendants or only when the victims 
were white or things of that nature. 

Senator Hatch. I think that is different from applying statistical 
disparity. If you read your opinion carefully — well, let me just say 
I am very concerned that your approach would paralyze the imple- 
mentation of the death penalty. 

Now, I myself have lots of qualms about the death penalty. I 
would use it very sparingly, and then only in cases where there is 
absolute proof of guilt, where there is no evidence of discrimina- 
tion, and where the murder is a particularly heinous murder. 



413 

There may be other factors, but those are three that I would want 
to find in every case. 

Let me just add that I am hardly alone in this concern. Many 
of my Senate colleagues, for example, have voiced similar concerns 
in opposition to legislation labeled by its advocates as the Racial 
Justice Act. That legislation, which also developed in reaction to 
the McClesky case decided by the Supreme Court, takes the same 
or virtually the same statistical approach as your dissent in Foster. 

During the debate on the so-called Racial Justice Act in 1991, 
Senator Graham, who spoke eloquently on your behalf today and 
influentially to me, as did Senator Mack, but Senator Graham had 
this to say: 

The reality is that, by enacting the Racial Justice Act, this Congress, in a bill de- 
signed to enhance Federal criminal justice standards, procedures and laws, will de- 
stroy the right of a State to impose the death penalty in a constitutional manner. 
The Racial Justice Act of 1991 might more appropriately be called the Death Pen- 
alty Abolition Act of 1991. Seldom has a proposed Federal law gone so far at one 
time as to unravel first the interest of the States in protecting citizens from mur- 
derers, second, to unravel the prosecutorial discretion recognized in every State, 
and, third, to unravel the jury system. 

He goes on to say: 

The very natiu^e of the criminal justice program does not lend itself to statistical 
precision. Each death-eligible decision is inJierently individualized and not nec- 
essarily subject to being categorized. 

Now, as you can see, he and I share the same view on the Racial 
Justice Act, and we have defeated it consistently in our debates 
over the crime bills that we have had. Let me just ask you to re- 
spond to some criticisms of what your theory was in that case. 

For instance, Justice Powell noted in McClesky that implementa- 
tion of murder statutes inherently requires discretion, which he 
said is essential to the criminal justice process. He explained that 
this process is unique, and that "the nature of capital sentencing 
decision and the relationship of the statistics to that decision are 
fundamentally different from the corresponding elements in [jury 
pool selection and employment discrimination cases.] In those 
cases, the statistics relate to fewer entities and fewer variables and 
are relevant to the challenged decisions." 

For example, from the time of his arrest until the time of sen- 
tencing, you have independent entities functioning: the prosecutor 
who decides to seek the death penalty, a defendant who may or 
may not choose to plea bargain, a judge or jury who have to impose 
it. It is not the same as one employer hiring plumbers or a court 
administrator seeking a jury pool or other cases where decisions 
are readily attributable to one entity. 

Justice Powell also said this. He said: 

Another important difference between the cases in which we have accepted statis- 
tics as proof of discriminatory intent in this case is that, in the [jury pool selection 
and emplojrment discrimination cases,] the decision-maker has the opportunity to 
explain the statistical disparity. Here the State has no practical opportunity to rebut 
the statistical study. Controlling considerations of public policy dictate that jurors 
cannot be called to testify to the motives and influences that led to their verdict. 

Now, he added even further. He said: 

Similarly, the policy considerations behind a prosecutor's traditionally wide discre- 
tion suggest that the impropriety of law requiring prosecutors to defend their deci- 
sions to seek death penalties often years afler they were made. 



414 

Now, one study — I am sorry this is so long. 

Justice Barkett. That is all right. 

Senator Hatch. It is important, because it is a matter of great 
debate here, as well. Many of us who believe that the death penalty 
is provided by the Constitution and is important know that the rea- 
son for the Racial Justice Act is to knock out the death penalty. 

One study you pointed to found, that prosecutors sought the 
death penalty 27 percent of the time when white victims were in- 
volved, and only 14 percent of the time when minority victims were 
involved. But each and every one of those cases had different facts 
and different circumstances. They do not seem susceptible to those 
who really study this area to statistical comparison such as you 
called for in the Foster case. 

Gro ahead. 

Justice Barkett. I do not think that there is anything in this 
opinion nor in anything I have written nor in anything I haVe ever 
said or feel that suggests that discretion is not a part of this proc- 
ess and has to be a part of the process for many of the reasons that 
you have enumerated. Senator. 

What I think I am sajdng in this case, however, and what I think 
the U.S. Supreme Court has said in other contexts, for example, 
the whole Swain v. Alabama and Batson v. Kentucky context, is 
that discretion cannot be used to selectively enforce the law in a 
racially discriminatory msinner. And I do not think there is any 
dispute about that principle. 

The second aspect of your question which I would address is that 
I have not suggested in this opinion or anywhere else that statis- 
tics is the be-all and the end-all of the inquiry. I do believe that 
perhaps statistics may be something that could be submitted to be 
included in an offer of proof on this question, but I clearly do not 
believe that some questions can be resolved only by use of statis- 
tical analysis. 

And I think that the passage that you read indicates why it 
would be so troublesome, if you attempted to challenge a whole 
State's use of statistics or statistics which impact an entire State 
as dispositive of anything. There are many prosecutors in a State, 
there are many districts, and so on and so forth. 

But when an allegation is made that there is one prosecutor who 
is unambiguously using his or her discretion in a way to only selec- 
tively enforce the law or apply the law in a racially discriminatory 
manner, there has to be a vehicle in which a person can raise this 
claim and in which it can be decided. 

Senator Hatch. But that was not the claim in the Foster case. 
In this case, you said — I have a LEXIS/NEXIS, I do not know 
whether you have the same thing I do, so I cannot really tell you 
the page, but it is near the end of your opinion, I would say about 
five paragraphs before the end — ^you say: 

I believe that statistical evidence of discrimination in capital sentencing decisions 
should similarly establish a violation of Article I, section 2 of the Florida Constitu- 
tion. Statistical evidence should be construed broadly to include not only historical 
analysis of the disposition of first-degree murder cases in a particular jurisdiction, 
but also other information that could suggest discrimination, such as the resources 
devoted to the prosecution of cases involving white victims as contrasted to those 
involving minority victims 

Justice Barkett. Exactly. 



415 



Senator Hatch [continuing]. 



And the general conduct of a State attorneys office, including hiring practices and 
the use of racial epithets and jokes. When racial bias, whether conscious or uncon- 
scious, exists in an environment where decisions about seeking the death penalty 
are made, all aspects of that bias should be available for evaluation by the court 
in reviewing evidence of discrimination. 

That may be in reviewing evidence of discrimination, but not in 
making the final decision as to whether capital punishment should 
be imposed. 

Justice Barkett. I think if you continue in the opinion, Senator, 
you will find that what I am talking about is using all of these 
things, certainly not exclusively. And as I point out at the very end 
of the opinion, it is impossible to anticipate the circumstances in 
which it may be manifested, the trial judge should make a deter- 
mination, and I suggest a vehicle which provides a specific stand- 
ard, that is, the defendant has the burden of showing a very strong 
likelihood of discrimination, and the trial court would then hear 
whatever evidence, which would not be simply statistical evidence 
as the only evidence to be considered. 

Senator Hatch. As I read the opinion, your standard is very 
open-ended. For example, a prosecutor's decision as to how much 
resources to put into the case turns on many subjective factors, 
amount of investigation, trial preparation, attorney resources need- 
ed in the case, as well as available resources. 

And since the facts of any set of cases are never alike, how is 
it possible to draw meaningful comparisons for that kind of statis- 
tical analysis? 

Justice Barkett. Suppose, Senator, I guess if you take the best 
case scenario, that there had been 100 murders in a particular 
county and 90 of them were against black victims, only 10 against 
white victims, and the death penalty was sought only in those 10 
or only in the one case, where there may be many, many others. 
All I am trying to suggest to you is I believe there would be a sce- 
nario where it would be clear that the death penalty was being ap- 
plied in a racially discriminatory manner. 

The only thing I was suggesting in Foster is that there be a vehi- 
cle by which one can bring that claim to the court and the court 
can evaluate it. I was not attempting to suggest, nor do I suggest 
now, that there is a particular way of making that proof. I was sug- 
gesting different ways that certainly could be considered by the 
trial court. 

Senator Hatch. The point I was making is that your standard 
is a vague, manipulable standard that would absolutely paralyze 
the death penalty, if it were adopted by courts, under which the 
burden would be placed upon the State to prove a negative, and 
that is what bothered me about that case. 

Like I say, every murder case is unique. You cannot compare, for 
example, resources applied between cases or the decision to seek 
the death penalty in those cases in a meaningfully statistical way 
and come to a conclusion about racial discrimination. Comparing 
what happens in two murder cases is like comparing an apple to 
an orange. 

Justice Barkett. Absolutely. 



416 

Senator Hatch. So you feel that if you go on the Circuit Court 
of Appeals, you would be bound by the McClesky case? 

Justice Barkett. I do not think there is any question of that, 
Senator. 

Senator Hatch. The concern that a lot of people that are con- 
cerned about your nomination have and who expect these types of 
questions to be asked is really an evaluation of how Federal prece- 
dents are going to be treated by you as a nominee or you as a judge 
once you reach the Circuit Court of Appeals, whether they are con- 
strued narrowly so as to distinguish them in order to reach a de- 
sired result in a given case. 

That particular opinion, the way it is written — I am not going to 
hold you to any one single opinion. I would not want to do that. 
But to me it was telling, in light of claims of your supporters that 
you have upheld a certain number of death sentences. If your opin- 
ion became the law of the land in that case, I cannot conceive of 
another death penalty case where the death penalty would be en- 
forced or implemented. 

I have a real difficult time with the response that the adminis- 
tration provided me on this particular point. But even aside from 
them, had your approach been applied in these other cases, it is 
virtually certain that few, if any, death penalties would have been 
upheld, and that is something that bothers me. 

You are having a little bit of difficulty explaining something you 
claim to be required under the Constitution, and I think you can 
probably appreciate why I am concerned about that. 

Justice Barkett. Senator, my position has no relevance to mak- 
ing a statewide claim based solely on statistical analysis. I was con- 
cerned about a specific charge against a specific prosecutor. It real- 
ly is a different situation than suggesting that the whole death 
penalty statute of an entire State would be suspect. 

Senator Hatch. You can see why I am concerned. The White 
House weighed in on this, as I asked some questions about it, and 
other of your supporters have made statistical claims regarding 
your death penalty record, in an effort to rebut charges that you 
may be soft on the death penalty. 

In support of the statistical claims, the White House has pro- 
duced a lengthy table of your death penalty rulings. Let me just 
take a second or two to respond to their claims. Let me say at the 
outset that I believe that judges should be judged by the quality 
of their legal reasoning, and I should also say by their fidelity to 
the law, which you are saying you will be bound by. 

A careful examination of particular opinions is, in the eyes of 
many, the best particular measurement of these qualities. And it 
is precisely such an examination that I have conducted and hope 
to continue with this hearing. By contrast, because the craft of 
judging lies foremost in the reasoning and not in results, broad sta- 
tistical compilations of results often obscure far more than they 
clarify. Unfortunately in this case, the White House's statistic suf- 
fer from more than the usual deficiencies. 

In the first place, the table of death penalty cases contains perva- 
sive double counting. In particular, where as routinely happens, 
the Florida Supreme Court addresses both a rule 3.850 post-convic- 
tion petition and a habeas petition in the same case, the White 



417 

House counts the case as two cases. This double counting has the 
predictable effect of padding the list of cases in which the White 
House says that you have voted to enforce the death penalty. 

Even more remarkably, it has the perverse effect of including in 
this list of supposed votes to enforce the death penalty numerous 
cases in which you have, in fact, voted to grant relief to the peti- 
tioning convicted murderer. 

Second, the White House list of cases in which you have voted 
with the majority, according to them, is not limited to those cases 
in which you have been part of the majority. It includes, for exam- 
ple, a substantial number of cases in which you have refused to 
join the majority and have instead either dissented in part or relied 
on grounds significantly more adverse to the death penalty. It also 
includes a very large number of cases in which, I might add, with- 
out offering any explanation, you have merely concurred in the re- 
sult. 

The combined effect of these first two features is, I think, amply 
illustrated by the fact that a case like Foster v. State in which you 
in partial dissent take a position that would virtually paralyze im- 
plementation of the death penalty, the White House listed as a case 
in which you and the majority are in agreement. 

So, you know, I will give you an example: Melendez v. State. That 
is No. 576 on the White House list. It is identified as a case in 
which the majority and you were in agreement even though you, 
writing separately in that case, opined that you 

Believed that the evidence does not rise to the level of certainty that would sup- 
port imposition of the death penalty. 

Likewise, if one starts running through the list chronologically, 
three of the very first cases — Kennedy v. Wainwright, Adams v. 
Wainwright, and Thomas v. Wainwright — ^you voted to stay the pe- 
titioner's execution and the majority did not. But the White House 
fails to identify this type of disagreement. 

There was a third basic flaw in the White House's statistical 
analysis, and that is that the White House fails to compile, much 
less analyze, case histories of death-sentence convicts. It is not at 
all unusual for a death-sentence murderer to make numerous 
passes through the court system. This point is shown by the fact 
that the set of 275 occasions on which the White House says that 
you have voted to enforce the death penalty comprises well under 
200 separate convicted murderers, many or most of whom will 
make yet more passes at escaping their sentence. 

Now, in this regard, it bears mention that of these fewer than 
200 murderers you would have granted relief even beyond what the 
court had elsewhere granted or what your positions in yet other 
cases might dictate to some one-third of them somewhere along the 
line. 

You know, that kind of stuff really bothers me because the White 
House knows that I want to vote for you. They know that I want 
to support them. But they make certain statistical claims regarding 
your death penalty cases and the U.S. Supreme Court. 

For instance, they state, for example, that 

On eight occasions since 1987, Justice Barkett has voted to impose the death pen- 
alty in cases where a majority of the U.S. Supreme Court has voted to vacate that 
punishment. 



418 

But the White House fails to make clear a number of relevant 
matters. In none of those cases did the U.S. Supreme Court rule 
that the death sentence could not be imposed or even that 
resentencing was necessary. Indeed, only one of these eight cases 
was even argued before the Court. In the other seven cases, the Su- 
preme Court used the procedural device known as the GVR — that 
is, a grant, vacate, and remand — to enable the State supreme court 
to consider the possible impact of an intervening U.S. Supreme 
Court decision. 

Now, the Supreme Court liberally uses this GVR device, espe- 
cially in death cases. A GVR does not necessarily reflect disagree- 
ment with the State supreme court's ruling; rather, it simply gives 
the State supreme court the opportunity to consider the possible 
application of the intervening U.S. Supreme Court decision. 

In one case that was decided on the merits, the Supreme Court 
remanded so that the Florida Supreme Court could make the basis 
for its ruling more clear. In seven of these eight cases, the death 
penalty was imposed on remand from the Supreme Court. 

In short, those particular cases provide no meaningful basis for 
comparison of how you stand in relation to the Supreme Court on 
the death penalty. 

Now, there are some other — I want to give you a — if I could just 
take 1 or 2 more minutes. 

Justice Barkett. Of course. At your pleasure. Senator. 

Senator Hatch. The White House asserts — I am a little irritated 
with the White House because of some of the statistical analysis 
they have done and they have put to us up here as reality. They 
assert that, 

In four cases in which Justice Barkett dissented from a death sentence and that 
case was reviewed by the U.S. Supreme Court, the Court agreed with Justice 
Barkett and not the Florida Supreme Court majority. 

In fact, however, the Supreme Court did not agree with the legal 
position that you took in any of those four cases, to my knowledge. 
Instead, it relied on other grounds in summarily vacating the death 
sentence in one of the cases in issuing GVR's in light of intervening 
precedent in the other three. And for those same reasons, the 
White House's claim regarding "the nine instances in which the 
U.S. Supreme Court has reached a conclusion different from Rose- 
mary Barkett's in a capital case" misses the mark. 

I also have to note that the White House fails to consider those 
cases from other jurisdictions in which the U.S. Supreme Court has 
rejected the very positions taken by you. Justice Barkett, in other 
cases. The White House also fails to observe a striking fact that the 
statistics do show, even if one accepts the White House's — and I 
think the word is not too strong — loaded numbers, these numbers 
show that there have been more than 100 occasions on which you 
have dissented from the Florida Supreme Court's decision to en- 
force the death penalty. And, by contrast, there has not been one 
occasion, not one single occasion, to my knowledge — and I think I 
am right on this; I would like to be shown that I am wrong, but 
I think I am right — on which you have been in dissent from a ma- 
jority decision to grant relief to a convicted capital murderer. 

Now, that drastic disparity makes all the more telling the White 
House's refusal to compile or at least to disclose data on any cases 



419 

in which even a single Justice has taken a position more favorable 
to the convicted murderer than yours. And so I emphasize again 
that I believe that a careful reading of your cases is the best means 
of examining your record, and I really believe the White House has 
been very misleading in this statistical analysis of these cases. 

Now, I do not expect you to answer this today. I would like you 
to consider what I have said here, and we will be happy to get you 
a reprint of what I have just said and see if I am wrong. But I do 
not think I am. And it bothers me that the White House, knowing 
that I want to be fair to you and every judicial nominee who comes 
here, has sent up misleading information. And I am concerned that 
if your approach in this case becomes law in any way, it will para- 
lyze the death penalty. 

Again, I have probably the same qualms you do or many people 
do about the overuse or misuse of the death penalty. No question 
about it. Under the standard as you wrote it in that case, 

In every capital case involving either a non-white defendant or a white victim, the 
capital defendant would be able to investigate the general practices of the State at- 
torney's office. 

That would paralyze prosecutions in this society. I cannot imag- 
ine a more burdensome inquiry than that, and it would tie this 
country in knots. 

Justice Powell pointed out in his opinion in McCleskey — and I do 
not mean to beat this to death, but it is really that important — that 
there is no reason why your standard would be limited to cases 
with nonwhite defendants or white victims. There is also no reason 
why it should be limited to death penalty cases. Your theory would 
apply equally to robbery, rape, and each and every other crime. 
And to paraphrase Justice Powell again, to use his words, 

McCleskey's claim, taken to its logical conclusion, throws into serious question the 
principles that underlie our entire criminal justice system. 

Now, I have to say that you are not the only one who has 
thought maybe a statistical approach to this is right. There are 
many Members of Congress. But they are elected representatives 
who can be replaced. Once you are on the Circuit Court of Appeals, 
you really, for all intents and purposes, cannot be replaced. So 
these are kind of important issues, and I am sorry this takes so 
long. But as you can see, I am very concerned about them, and I 
am representative of a lot of people who are concerned. I think the 
Dougan case — I take it the other colleagues went into it, and that 
is fine with me. 

The Chairman. Senator, can I interrupt for a moment? 

Senator Hatch. Sure. 

The Chairman. Is it appropriate if we take a break? 

Senator Hatch. I think we should take a break. Unless you want 
to say something about this? 

Justice Barkett. No 

The Chairman. You can respond, and then we ought to give you 
a chance to stretch your legs. 

Justice Barkett. Thank you very much. Senator. I appreciate it 
very much. 



420 

The Chairman. Let's recess for — ^before we do, do you have any 
estimate — I am not pressing you. Do you have any estimate of how 
much longer you will go? 

Senator Hatch. Well, I am trying to — I hope not too much 
longer. I will also submit some questions in writing to save you 
time today. But if I could go through a few more, that would be 
helpful. 

The Chairman. Sure. 

Justice Barkett. I would just as soon resolve everything, any 
concerns the Senator has today. 

Senator Hatch. We appreciate it. 

The Chairman. All right. We will recess for 5 minutes. 

Justice Barkett. Thank you very much. 

[Recess.] 

The Chairman. Welcome back. Judge. 

Justice Barkett. Thank you. Senator. 

The Chairman. I am going to just ask one very brief question. 
Our friend from Iowa, Senator Grassley, is here. He has some ques- 
tions. I will yield to him, and then I may have questions, and we 
will go back to the Senator from Utah. 

Judge let me ask you a couple broad questions here. I think the 
questions that Senator Hatch is asking you are totally appropriate, 
but, again, I think we have to, from my perspective, anyway, look 
at the broad picture. Regardless of whether or not the statistics 
that the White House provided — requested by Senator Hatch — are 
precisely accurately, but let's assume for the sake of discussion 
they are not, is it beyond any question that you have had before 
you cases on the death penalty that involved at least 125 individ- 
uals, defendants who had been sentenced to death by a lower court 
and on appeal came up to you? 

Justice Barkett. Yes. 

The Chairman. I know your staff says it is 161. I believe that 
is the exact number. But let's assume it is not right. But it is at 
least somewhere between 125 and 150. No one could dispute that. 
Correct? 

Justice Barkett. Yes. I believe that is correct. 

The Chairman. Now, is it true that you have voted to uphold the 
death sentence in the vast majority of those appeals that came to 
you? In other words, of those 125 individuals, the vast majority of 
them went away with the same sentence they came up to you on 
and with your vote? 

Justice Barkett. I think what I can say. Senator, is that in 125, 
as a minimum, different individuals' cases, I have voted to affirm 
the death penalty. That is correct. I think the cases total 

The Chairman. So you have affirmed the death penalty a whole 
heck of a lot more times than you have overruled the death pen- 
alty, whether you are in the majority or minority in the court, 
right? 

Justice Barkett. I think, but I have not personally counted num- 
bers. Senator. What I can tell you is that the U.S. Supreme Court 
has told us, has mandated, that we veiy carefully look at cases in 
which the death penalty has been applied; that the death penalty 
has to be reserved for the worst of the worst, both in terms of the 
kind of crime and in terms of the defendant; that the Supreme 



421 

Court has returned to us cases where they have said that we have 
not looked carefully enough to determine if it is, indeed, the worst 
of the worst; and that I try very conscientiously to apply the law 
of the United States on that issue and of the Florida courts on that 
issue. And I neither flinch from applying it when the death penalty 
is called for, nor do I flinch from vacating it when I think the law 
requires it. And the numbers are, I guess, significant to show that 
I have not flinched from imposing it, notwithstanding other peo- 
ple's suggestions to the contrary. 

The Chairman. OK. I do not have any further questions. 

Senator Grassley. 

Justice Barrett. Hi, Senator. 

Senator Grassley. You are still here. 

Justice Barrett. Yes, sir. Welcome back. 

Senator GRASSLEY. You are a strong individual. 

There was a case involving the constitutionality of a Senate Joint 
Resolution 2G. That was the Florida redistricting case. Your court 
selected from among six different modifications, a portion of the 
State legislature's redistricting plan regarding Hillsborough Coun- 
ty, which the Justice Department had objected to pursuant to the 
preclearance provisions of the Voting Rights Act. The two largest 
minorities, I am told, were African Americans and Hispanics. 

Writing to express your doubts about the correctness of the ma- 
jority opinion, you stated that you were 

Loath to agree to any of the convoluted plans submitted under these hurried cir- 
cumstances. If I had to choose only among those presented, however, I would choose 
the plan submitted by the NAACP simply because this is the organization that had 
traditionally represented and promoted the position that advances all minority in- 
terests. 

I suppose it sounds a bit cheeky if I say — and maybe it is meant 
to be a little, but that point of view expressed about an individual 
organization is something, I have problems with. It would be like 
me saying if I were a judge because I am a farmer, that anything 
the American Farm Bureau Federation argues ought to be pre- 
ferred. 

Do you believe that giving special weight to a position based on 
who offered it — in this case, the NAACP — rather than on its intrin- 
sic merits is consistent with the judge's duty of impartiality? 

Justice Barrett. Absolutely not. And I do have to set the record 
straight in terms of the import of your question. I never have nor 
would I ever decide a case based upon the identity of a party, and 
I think anybody that knows me at all knows that to be the case. 

What I was saying, and concededly very inartfully there, is that 
we were faced with several reapportionment plans which different 
parties had submitted. I feel, candidly, very uncomfortable in the 
position of having to choose a reapportionment plan within a very 
short period of time. We had all been hoping that the legislature 
would be able to arrive in a much more expeditious manner than 
they did upon their ultimate conclusion. But the time constraints 
involved constitutionally required us to decide this case in a matter 
of a couple of days and to choose a plan. 

The plan which I felt more adequately represented all minority 
interests was that submitted by the NAACP. What I was attempt- 
ing to say in that dissent was in rebuttal to a claim that the 



422 

NAACP did not adequately represent the interests of African- 
Americans. And I was trying to rebut that by simply saying clearly 
the NAACP would not be the plan who would not be responsive to 
African-Americans. It did include African-Americans in their plan, 
but it also included Hispanics and more adequately, in my judg- 
ment, met the requirements of redistricting and reapportioning in 
conjunction with that. 

I can understand in this case why you would read it the way you 
would read it. It is inartful, and I wish I had the opportunity to 
edit that more than anything else that we have been talking about. 

Senator Grassley. Well, if you feel the NAACP is representative 
of minority interests more than any other organization, explain to 
me how it is more so, in your mind, than any other group rep- 
resenting African-Americans or any Hispanic-American group or 
any Asian-American group or any Jewish-American group or any 
other ethnic or religious group you want to put together. 

Justice Barkett. I am not sure I understand the question. All 
I was attempting to do was rebut the allegation that the NAACP 
was being insensitive to African-American concerns in their plan. 

Senator Grassley. Well, in just a very general way, then, let me 
ask you for the record: if the NAACP is a party to a voting rights 
case before you again, can you assure the committee, and future 
litigants before you, that other parties in that case would not be 
at some disadvantage because of what seems to be an acknowl- 
edged — ^bias on your part toward the NAACP? 

Justice Barkett. Senator, I have voted against the NAACP when 
they have been involved in death cases in my court. I have voted 
for the Republican Party when they have been a party in my court 
for the NRA. Parties mean absolutely nothing to me. Legal issues 
are the issues upon which I attempt to base all of my decisions, 
and the legal analysis set forth by precedent, by what I perceive 
to be my requirements under the Constitutions that I have sworn 
to uphold are the things that dictate the solution or the result or 
the conclusion in any given case. I can certainly assure you of that. 

Senator Grassley. So your statement, that the NAACP "has tra- 
ditionally represented the position that advances all minority inter- 
ests" is applicable just to that decision? It does not signal any 
weight that you give to that group on any other issues? 

Justice Barkett. This case involved a very specific plan of re- 
apportionment submitted by the NAACP as a response to the 
State's attempt to reapportion its districts in conformity with the 
U.S. law and the dictates to assure adequate representation for all 
minorities, Senator. The allegation was made by other proponents 
of other plans that the NAACP plan was not adequately sensitive 
or did not adequately represent the minority interests of African- 
Americans. 

The sentence to which you refer was intended to rebut the as- 
sumption or the presumption or the allegation or the assertion 
made in the briefs and in the arguments that the NAACP plan did 
not adequately represent the minority interests of African-Ameri- 
cans. It had nothing to do — the identity of the party had nothing 
to do with my ultimate decision that their plan more adequately at- 
tempted to acknowledge questions of contiguity and representation 



423 

and involved other minority interests beyond those just of African- 
Americans. I attempted to do that. 

Senator Grassley. Well, then, let me ask you, because this was 
a voting rights case, let's say that you in your mind could give that 
weight to the NAACP in voting rights cases. Why would it not be 
reasonable, then, to assume if somebody had a case before you, that 
it would not be given the same weight in a housing discrimination 
case, an employment discrimination case, public accommodation 
cases or poUce brutality cases or in any other type of cases where 
the NAACP might have a position? 

Justice Barkett. I was not giving weight to the NAACP as an 
identity. Senator. I was addiossing, albeit inartfully, an argument 
that was being made that the plan was not viable because it did 
not adequately — ^was not adequately responsive to the interests of 
African-Americans, And I was pointing out that the NAACP has 
traditionally represented the minority interests of African-Ameri- 
cans, and, therefore, that criticism of their plan was not reason- 
able. I voted for the plan not because it was the NAACP's but be- 
cause it more adequately than the other plans assured other mi- 
norities of equal representation. 

Senator Grassley. On another subject, there has been at this 
hearing some congratulatory talk about the award named after you 
by the Academy of Florida Trial Lawyers. Now, unlike others that 
were holding this up as something for you to be honored by, my 
concerns deal with the propriety of allowing this award to be 
named after you and what signals it might send. 

I would say I have a particular question about how it would re- 
late to the University of Miami v. Echarte case, which was dis- 
cussed earUer. The Academy of Florida Trial Lawyers, submitted 
an amicus brief in that case in October 1991. The trial lawyers' 
brief argued that the cap on non-economic damages in medical mal- 
practice cases ./as unconstitutional. In 1992, the same group of 
trial lawyers created this award, the Rosemary Barkett Award, to 
be given each year to a person who, in the view of the trial lawyers, 
has made an outstanding contribution to the law. 

In November 1992, you agreed to present the first annual award 
at the trial lawyers' annual convention. In May 1993, you in dis- 
sent accepted the trial lawyers argument that the cap on non- 
economic damages was unconstitutional. 

Do you believe that it is consistent with your obligation to main- 
tain both the fact and the appearance of impartiality for you to de- 
cide a case in which an organization that has named an award for 
you has filed a brief? 

Justice Barkett. The Academy of Trial Lawyers, as does many 
other entities, file amicus briefs, Senator, and this award, as I un- 
derstood it then and as I understand it now, involved a group's 
commitment not to a particular legal position but a group's commit- 
ment to assure that there is equal justice under the law. The first 
recipient of that award was not a trial lawyer. It was not a lawyer 
at all. It was Representative Carrie Meek, and it had to do with 
many of the things that I think I have done outside of the context 
of substantive law. That is the commitment that I have tried to be 
true to: to work with children and to provide judicial education, to 
provide and assure access to courts. Many of the reforms which T 



424 

have attempted to implement in order to assure that there is much 
more access to the courts in a much more comfortable way for the 
people who use the courts, I think all of those things are what this 
award attempted to address, and I can only say I am proud that 
it was given to Representative Meek. 

Senator Grassley. OK. Let me ask you if you believe that your 
conduct on having this award set up for you is 

Justice Barrett, Excuse me, Senator. I did not have this award 
set up for me. 

Senator Grassley. You did not. 

Justice Barrett. This was not at my suggestion and I had noth- 
ing to do with it. 

Senator Grassley. I withdraw that statement. 

Justice Barrett. Thank you, Senator. 

Senator Grassley. You did not. That is right. But the award was 
set up. And I want to ask, whether you believe that your conduct 
was consistent with the ABA Code of Judicial Conduct, Canon 2, 
Subpart B, stating that a judge "should not lend the prestige of her 
office to advance the private interests of others, nor should she con- 
vey or permit others to convey the impression that they are in a 
special position to influence her," and Canon 3, Subpart C(l), 
which states that a judge should "disqualify herself in a proceeding 
in which her impartiality might reasonably be questioned." 

Justice Barrett. I did not construe — clearly had I in any way, 
shape, or form thought that this was inappropriate, I would not 
have participated in it. This I did not deem to have anything to do 
with the private interests of anyone but that of a group who was 
attempting to, ancillary to its other interests, assure equal justice. 
Senator. But I can assure you that if something is deemed to be 
violative of the canons of ethics, I surely would not engage in that 
conduct. 

Senator Grassley. I note that the trial lawyers scheduled the 
presentation of your award for the week after your successful re- 
tention election. I gather that the creation of the award itself was 
announced sometime during the retention campaign; is that cor- 
rect? 

Justice Barrett. I have no idea. 

Senator Grassley. I guess one of the reasons I bring this up, 
might not be totally related to you. But I still remember how a lot 
of liberal groups in this town, including our liberal press, lambast 
Clarence Thomas when he wants to appear before some conserv- 
ative group to make a speech. They just raise Cain with his doing 
that. And I guess he has decided not to do it on a couple of occa- 
sions. He has not followed through. 

And yet there is no question about groups like the Trial Lawyers 
Association setting up awards that might indicate that a judge is 
part of the system of determining the correct approach to decisions 
that affect the income of those particular groups. 

Senator Hatch. Senator Grassley, could I ask a favor of you? My 
Governor is in town, and I have to take him over to Senator 
Nunn's. Could I interrupt for maybe 5 minutes to finish up what 
I was 

Senator Grassley. Yes, if you can do it in 5 minutes, sure. I will 
)'e glad to let you. 



425 

Senator Hatch. I will sure try to do it. I just want to finish, and 
then I will submit some questions in writing about other things 
that I am concerned about, and that will give you a chance to re- 
spond to those that have been raised with others that I am sup- 
posed to raise. 

Let me just say a final word about the death penalty statistics 
that we were on with regard to the Foster case, and especially — 
I believe that the White House has attempted to make the death 
penalty an issue by referring to these statistics whenever one of 
your death penalty opinions is cited. My concern has nothing to do 
with your personal view of the death penalty. I have not even 
asked you your position. Rather, some of your opinions raise impor- 
tant questions about jurisprudence and your fidelity to precedent, 
and that is what I am interested in. So anything you can give us 
that will help us in those areas would be appreciated. 

I am also concerned that this disparate impact analysis that you 
embraced in your Foster opinion has disturbing implications out- 
side of the sentencing area itself. Your view appears, for example, 
to lead readily to the adoption of perverse race and sex quotas, and 
in that regard, let me just ask you about a report issued last year 
by the Florida Commission on the "Status of Women," of which you 
were or maybe still are a member. 

According to newspaper accounts in the St. Petersburg Times, 
this report recommended passage of State legislation requiring that 
all of Florida's decisionmaking boards, councils, and commissions 
be half male and half female by 1998. According to this article, you 
as a member of the commission defended it against charges that 
its report advocated a quota system by saying, "It is not in the con- 
text of a quota system. It is simply an acknowledgment that 
women make up half of the population of this State." 

My feeling is if there is a rigid requirement that positions be 
filled according to population, that is a quota. And I cite Governor 
Chiles' approach to it, too, because he refused to, as I understand 
it — according to the Orlando Sentinel Tribune, "Lawton Chiles op- 
posed the commission proposal because he recognized that it would 
create a quota system." So I am concerned if you agreed with him 
or feel otherwise. 

Justice Barrett. The goal of every women's group, Senator, that 
I am aware of and the goal of every minority group is that there 
be representation in policy-making bodies that are going to affect 
their lives, whether it is in the private sector or in the public sec- 
tor. And I think that that is a goal that is laudable. There are 
many different ways of trying to achieve it, but I do not think that 
there is any question that it should be achieved, and I am commit- 
ted to that, if that is your question. 

Senator Hatch. Well, I will let it go at that. 

Thank you, Senator Grassley, for giving me the time. 

Senator Grassley. Yes. I want to move on to another subject, 
and this will be my last one. 

Justice Barrett. That is okay. 

Senator Grassley. It will probably take about — ^well, you know, 
it always takes a Kttle longer than I think it will. 

Justice Barrett. It may be because of my long answers. I will 
try not to be so lengthy, Senator. 



426 

Senator Grassley. I want to turn to another area that I have 
some concern about, and it relates to the fact, as you know, that 
many communities are very fed up with criminal street activities 
such as prostitution and drug dealing. And they often respond by 
enacting anti-loitering statutes aimed at that criminality. In sev- 
eral cases, you have questioned the constitutionality of such stat- 
utes. 

In Wyche, you struck down a statute prohibiting loitering for the 
purpose of prostitution, citing several constitutional defects in the 
statute. You used the rule in Wyche to strike down a similar stat- 
ute prohibiting loitering for the purpose of engaging in drug-related 
activities in E.L. v. State and Holliday v. Tampa. 

In Wyche, you said the State could not empower the police to pre- 
vent known prostitutes from soliciting their illicit commerce. For 
authority, you cited "the inherent right to window shop, saunter 
down the sideway, and wave to friends and passers-by with no fear 
of arrest." I do not know whether you meant to say that those are 
fundamental rights, but I do not know them to be. 

More importantly, I have trouble understanding how you could 
conclude that a statute prohibiting loitering "in a manner and cir- 
cumstances manifesting the purposes of soliciting prostitution" 
could not be construed as requiring criminal intent. Such a holding 
seems to be contrary to the obligation of any judge to construe stat- 
utes to preserve their constitutionality wherever possible. 

In your opinion, you claimed that construing the statute in this 
way would be to "legislate" from the bench, — ^but wouldn't it have 
been more consistent with your judicial role to "avoid a holding of 
unconstitutionality in a fair construction of legislative will to 
allow." Couldn't you have easily read the statute in Wyche as re- 
quiring proof of intent to engage in unlawful acts of prostitution? 

Justice Barrett. Senator, the Wyche case, again, was decided 
primarily under Florida law under the due process vagueness 
standards. The entire court agreed that the statute was defective. 
The dissent attempted to remedy it. I believe that under our prior 
cases and under the requirements of our law that that is a function 
better left to the legislature. 

Senator Grassley. I think you are making an argument for judi- 
cial restraint. That is one that would be music to my ears. But, 
don't you also have the responsibility of making an effort to effec- 
tuate the intent of the legislature within the confines of the Con- 
stitution? 

Justice Barkett. I do not think that the judges should legislate. 
Senator, which is the essence of what this case suggests. It was 
found to be defective by the whole court — that is, unconstitutional. 
I think it is up to the legislature to decide in what manner they 
want to remedy the statute. 

Senator Grassley. Well, at least the work we have done leads 
us to believe that only two Justices agreed that specific intent 
could not be read into the statute in Wyche^ as opposed to the 
whole court. 

Justice Barkett. The whole court agreed that the statute was 
defective. What the dissent said is that they could read into it or 
supply the missing element. The difference that the majority had 
with the dissent — and I was, of course, with the majority of the 



427 

court — was that it is inappropriate to supply an element of the 
crime, for example, when the legislature has not done so and that 
it should then be deemed to be unconstitutional, and let the legisla- 
ture have the opportunity to redraft it in whatever manner they 
thought appropriate rather than having the judges do it. 

Senator Grassley. Well, it seems that it is at odds with an ear- 
lier Florida Supreme Court case. State v. Ecker which held that an 
anti-loitering statute was constitutional, citing the court's obliga- 
tion to try to construe statutes to preserve the constitutionality. In 
Wyche you seem to overrule Ecker without even mentioning it. 

How do you reconcile your holdings in Wyche with your own 
court's prior ruling in Ecker? 

Justice Barkett. Well, it was the majority of my court that 
joined with me in interpreting the statute or in seeing the statute 
as defective, as we, in fact, saw it. Senator. And I can only refer 
you to the analysis and the prior cases cited for the proposition 
that under Florida's due process vagueness standards this did not 
pass constitutional muster. As I pointed out, the dissent agreed it 
did not but just supplied what they thought was missing from the 
statute, and I think that is not appropriate. 

Senator Grassley. We looked at your opinion in Wyche and your 
opinion in Tal-Mason. You know the case I am talking about? 

Justice Barkett. Off the top of my head, not 

Senator Grassley. It was a 1987 case. In that case, you cited the 
court's "clear obligation to interpret statutes in a manner consist- 
ent with the constitutional rights whenever possible." You then in- 
terpreted language requiring a judge to grant defendants "credit for 
all the time spent in the county jail before sentence," as including 
time spent in custody in a State mental hospital. The effect was a 
convicted murderer was eligible for very early release. 

Whether it is the Wyche case, the Ecker case, the Tal Mason 
case, I guess what I want you to comment on the impression one 
gets that you use the law selectively to achieve a uniform result — 
giving the criminal defendant a break. If that is the wrong impres- 
sion, correct it for me, but that is the impression that I get from 
those three cases. 

Justice Barkett. I do think that is the wrong impression. Sen- 
ator, and I think that you cannot take selective cases that are deal- 
ing with different aspects of the law and use them for a proposition 
which is refuted by my entire record when you take a look at it and 
when you take a look at it in conjunction with how I have voted 
with the majority and how unanimous our court is. 

Tel Mason, now that you have refreshed my memory, had to do 
with the interpretation of specific statutes where there was ambi- 
guity, and the principle of statutory construction is: When there is 
ambiguity, then you attempt to decipher what the intent of the leg- 
islature is by other means, legislative history and so on and so 
forth. 

When you are talking about an absence of a specific element of 
a crime that leaves vague, unclear definitions of what conduct is 
going to be criminalized, that is a constitutional deficiency which 
I do not think can be remedied except by the legislature in a way 
in which they choose to do so. 

Senator Grassley. Well, I thank you very much. 



428 



Justice Barkett. Thank you, Senator. 

Senator ^SSLEY. At the request of the chairman, I am going 
to recess the committee for a few minutes. How long, I do not 

know. „ , 

Justice Barkett. I will not go anywhere. 
Senator Grassley. We stand in recess 
Justice Barkett. Thank you very much, benator. 

FRecess 1 

The Chairman. The hearing will come to order. 

Judge, it has been a pleasure having you We are adjourned. 

Justice Barkett. My pleasure. Senator. Thank you. 

[Whereupon, at 4:05 p.m., the committee was adjourned.] 

[Submissions for the record follow:] 



429 

SUBMISSIONS FOR THE RECORD 



UNITED STATES SENATE 
COMMITTEE ON THE JUDICIARY 
WASHINGTON, DC 20510-6276 

QUESTIONNAIRE FOR JUDICIAL NOMINEES 

PART I. 
BIOGRAPHICAL INFORMATION (PUBLIC) 

1. Full name (include any former names used.) 

Rosemary Barkett 

Known as Sister St. Michael, from 1959-1967, during my 
service in a Roman Catholic religious order 

Born as Rosemary Baralcat; name changed by order of the 
circuit court of Dade County in approximately 1967 to 
correspond to our Miami relatives ' name and to our 
commonly used name. 

2. Address: List current place of residence and office 
address (es) . 

Office: Florida Supreme Court 
500 S. Duval Street 
Tallahassee, Florida 32399-1925 

Home: 3318 Dartmoor Drive 

Tallahassee, Florida 32312 

3. Date and place of birth. 

Born August 29, 1939, in Ciudad Victoria, Tamaulipas, 
Mexico. Naturalized on January 22, 1958, at Fort Pierce, 
Florida. 

4. Marital Status (include maiden name of wife, or husband's 
name) . List spouse's occupation, employer's name and business 
address (es) . 

Single. 

5. Education : List each college and law school you have 
attended, including dates of attendance, degrees received, and 
dates degrees were granted. 

St. Joseph's College, Jensen Beach, Florida, A. A. degree, 

1959. 

Spring Hill College, Mobile, Alabama, B.S. degree, summa 
cum laude, 1967. 



430 



University of Florida Law School, Gainesville, Florida, 
J.D. degree in 1970. Received the J. Hillis Miller 
Memorial Award, awarded to the outstanding senior 
graduate. 

Employment Record : List (by year) all business or 
professional corporations, companies, firms, or other 
enterprises, partnerships, institutions and organizations, 
nonprofit or otherwise, including firms, with which you were 
connected as an officer, director, partner, proprietor, or 
employee since graduation from college. 

1985 -present: Chief Justice- Justice, Florida Supreme 
Court 

1984-1985: Appellate Judge, Florida Fourth District 
Court of Appeal 

1979-1984: Trial Judge, Fifteenth Judicial Circuit 
of Florida 

1979: Sole practitioner in West Palm Beach, 
Florida 

1971-1978: Associate and then Partner, Parish & 
Farish law firm in West Palm Beach, 
Florida 

1960-1968: Taught in elementary and junior high 
schools, primarily as a member of a Roman 
Catholic religious community, the Sisters 
of St. Joseph of St. Augustine, Florida 

Military Service : Have you had any military service? If so, 
give particulars, including the dates, branch of service, rank 
or rate, serial number and type of discharge received. 

No military service. 

Honors and Awards : List any scholarships, fellowships, 
honorary degrees, and honorary society memberships that you 
believe would be of interest to the Comr.ittee. 

Received the J. Hillis Miller Memorial Award, 
awarded to the outstanding senior graduate at the 
University of Florida Law School. 

Was chosen as a member of the University of Florida 
Law School Moot Court Team. 



431 



Honorary Degrees: 

1992 - Honorary Doctorate of Laws, presented by Nova 
University, Fort Lauderdale, Florida 

1992 - Honorary Doctorate of Laws, presented by 

Rollins College, Winter Park, Florida 

1990 - Honorary Do.ctorate of Civil Laws, presented by 
Spring Hill College, Mobile, Aleubama 

1990 - Honorary Doctorate of Humane Letters, 
presented by the University of South Florida, 
Tampa, Florida 

1990 - Honorary Doctorate of Laws, presented by John 

Marshall Law School, Chicago, Illinois 

1987 - Honorary Doctorate of Humane Letters, 
presented by Florida International University, 
Boca Raton, Florida 

1987 - Honorary Doctorate of Laws, presented by 
Stetson University, St. Petersburg, Florida 

Some Other Honors and Awards : 

1993 - Statewide Distinguished Service Award, 

Judiciary Category, presented by the Florida 
Council on Crime and Delinquency 

1992 - The Rosemary Barkett Award, an award named in 
my honor and presented each year by the 
Academy of Florida Trial Lawyers to a person 
who has demonstrated outstanding commitment to 
equal justice under the law; "Given in Honor 
of Chief Justice Rosemary Barkett, the First 
Woman Justice of the Florida Supreme Court and 
an Independent and Fierce Defender of Equality 
for All." The first recipient was 
Congresswoman Carrie Meek of Florida. 

1992 - Lifetime Achievement Award, presented by Latin 
Business and Professional Women 

1991 - Judge Mattie Belle Davis Award, presented by 

the Florida Association for Women Lawyers, 
Dade County 

1991 - Hannah G. Solomon Award, presented by the 
National Council of Jewish Women 



432 



1988 - Achievement Award, presented by the Academy of 
Florida Trial Lawyers to the outstanding 
jurist dedicated to the preservation of 
individual rights and free access to the 
courts 

1986 - Inducted into Florida Women's Hall of Fame 

1985 - Woman of Achievement Award, presented by the 
Palm Beach County Commission on the Status of 
Women for outstanding contributions in the 
field of family law and criminal justice 

19 84 - American Academy of Matrimonial Lawyers Award 
for the most outstanding contribution to the 
field of matrimonial law by a member of the 
judiciary 

Bar Associations : List all bar associations, legal or 
judicial -related committees or conferences of which you are or 
have been a member and give the titles and dates of any 
offices which you have held in such groups. 

American Bar Association: 

Steering Committee on the Unmet Legal Needs of 
Children 

Unmet Legal Needs of Children Committee, 

Families in the Courts Cluster Group, convener, 

1993 

Judicial Administration Division, Appellate Judges 
Conference, Committee on Continuing Appellate 
Education 

Task Force on Death Penalty Habeas Corpus 

Standing Committee on Lawyer Public Service 
Responsibility, Subcommittee on Involving the 
Judiciary, chair, 1993 

The' Florida Bar: 

Committee on Civil Procedure 

Committee on Appellate Rules 

Family Law Section 

'Individual Rights and Responsibilities Committee 



433 

Palm Beach County Bar Association 

National Association of Women Judges 

Florida Association of Women Lawyers 

American Judicature Society, Board of Directors, member, 
1990-92 

Florida State-Federal Judicial Council, chair by virtue 
of my position as Chief Justice, 1992-93 

Academy of Matrimonial Lawyers, fellow 

National Association for Court Management 

Conference of Chief Justices 

Court Statistics and Workload Committee, chair, 1984-89 

Children, Feunilies, and the Law National Judicial Council 

Child Welfare Study Commission, chair (created by the 
Florida Legislature), 1989-91 

Child Support Study Commission, chair (created by the 
Florida Legislature), 1986-87 

Study Commission on Guardianship Law, chair (created by 
the Florida Legislature), 1988-89 

Florida Bar Foundation: 

Board of Directors, 1992-93 

Legal Assistance to the Poor Committee 

Florida Kids Count Advisory Council 

Juvenile Justice Center, board member, 1993 

Palm Beach Marine Institute, Inc., chair, 1982-84, and 
current board member (a marine -related educational and 
rehabilitative alternative program for juvenile 
delinquents and problem youths) 

Florida Sentencing Guidelines Commission, former member 

Florida Commission on the Status of Women 

Gender Bias Study Implementation Commission 



434 



statewide Prosecution Fixnction Commission (created by the 
Florida Legislature) 

"The Florida Judges Manual," member of the editorial 
board, 1985 and 1991 

10. Other Memberships : List all organizations to which you belong 
that are active in lobbying before public bodies. Please list 
all other organizations to which you belong. 

To the extent that they lobby, the organizations listed 
above. I also am a member of the following: 

University of Miami School of Law, member of the Visiting 
Committee 

St. Thomas University School of Law, member of the Board 
of Visitors 

Shepard Broad Law Center at Nova University, member of 
the Board of Governors 

University of Florida Center for Governmental 
Responsibility, member of the Board of Advisors 

11. Court Admission : List all courts in which you have been 
admitted to practice, with dates of admission and lapses if 
any such memberships lapsed. Please explain the reason for 
any lapse of membership. Give the same information for 
administrative bodies which require special admission to 
practice. 

Supreme Court of the United States, August 16, 1976 

United States Court of Appeals, Fifth Circuit, April 26, 
1971 

United States District Court, Southern District, April 
22, 1971 

All Florida courts, March 5, 1971 

12. Published Writings : List the titles, publishers, and dates of 
books, article, reports, or other published material you have 
written or edited. Please supply one copy of all published 
material not readily available to the Committee. Also, please 
supply a copy of all speeches by you on issues involving 
constitutional law or legal policy. If there were press 



435 

reports about the speech, and they are readily available to 
you, please supply them. 

I have attached a speech I gave to the Florida House of 
Representatives on February 11, 1993. Although I have 
given many speeches over the years, I only have hand- 
written notes of same, which are meaningful only to me. 

13. Health ; What is the present state of your health? List the 
date of your last physical examination. 

Excellent. Most recent general physical exam was in May 
of 1993. 

14. Judicial Office : State (chronologically) any judicial of f ices 
you have held, whether such position was elected or appointed, 
and a description of the jurisdiction of each such court. 

a. CHIEF JUSTICE, FLORIDA SUPREME COURT. I was chosen 
by my fellow justices to serve as the Chief Justice 
of the Florida Supreme Court for a term of two 
years, commencing July 1, 1992. 

The Chief Justice is the chief administrative 
officer of the state's judicial system, responsible 
for general supervision of 726 judges and 
approximately 1,500 support personnel. I am 
responsible for the direct supervision of the staff 
of the Office of the State Courts Administrator, as 
well as staff of the Supreme Court Clerk, Marshal, 
and Library. I am responsible for overall 
management of the supreme court's caseload and 
preside at all proceedings of the court. 

I supervise the compilation and presentation of the 
judicial branch budget to the Florida Legislature, 
which totals more than $160 million. 

I develop a variety of judicial branch policies and 
orchestrate their implementation. This includes 
ongoing policy related to budget, personnel, and 
purchasing administration; ju-iicial education; and 
information systems support. Policy development 
also embraces specialized areas, such as the 
organization of family divisions in the trial 
courts, jury management, alternative dispute 
resolution (mediation and arbitration) , guardian ad 
litem services, and court reporting, among others. 

b. JUSTICE, FLORIDA SUPREME COURT. I was appointed by 
then-Governor Bob Graham as a justice of the 
Florida Supreme Court in 1985. In Florida, supreme 



436 



court justices are initially appointed by the 
governor and then are subject to a merit retention 
vote at the end of every six-year term. The 
Florida voters have retained me in office during 
two general elections, in 1986 and 1992. 

JURISDICTION, FLORIDA SUPREME COURT. The court 
must review final orders imposing death sentences, 
district court decisions declaring a state statute 
or provision of the state constitution invalid, 
bond validations, and actions of statewide agencies 
relating to public utilities. 

In addition to these forms of mandatory review 
authority, the court in its discretion may review 
any decision of a district court of appeal that 
expressly declares valid a state statute, construes 
a provision of the state or federal constitution, 
affects a class of constitutional or state 
officers, or directly conflicts with a decision of 
another district court or of the supreme court on 
the same question of law. The supreme court may 
review certain categories of judgments, decisions, 
and questions or law certified to it by the 
district courts of appeal and federal appellate 
courts. 

The supreme court has the constitutional authority 
to issue the extraordinary writs of prohibition, 
mandamus, quo warranto, and habeas corpus, and to 
issue all other writs necessary to complete the 
exercise of its jurisdiction, such as an order to 
stay lower court proceedings. 

The supreme court also renders advisory opinions to 
the governor, upon request, on questions relating 
to the governor's constitutional duties and powers. 

As the state's highest tribunal, the supreme court 
also possesses certain distinctive powers that are 
essential to the exercise of the state's judicial 
power but that are not, strictly speaking, 
decision -making powers in contested cases. The 
court promulgates rules governing the practice and 
procedure in all Florida courts, subject to the 
power of the Legislature to repeal any rule by a 
two- thirds vote of its membership, and the court 
has the authority to repeal (if five justices 
concur) any rule adopted by the Judicial 
Qualifications Commission. 



437 



The court has exclusive authority to regulate the 
admission and discipline of lawyers in Florida. 
Finally, the court has been assigned the 
responsibility to discipline and remove judicial 
officers. 

JUDGE, DISTRICT COURT OF APPEAL. I served on the 
Florida Fourth District Court of Appeal from 1984 
through 1985. This position was appointed by then- 
Governor Bob Graham. 

JURISDICTION, DISTRICT COURT OF APPEAL. The 
jurisdiction of Florida's district courts of appeal 
extends to appeals from final judgments or orders 
of trial courts in cases that either are not 
directly appealable to the supreme court or are not 
taken from a county court to a circuit court, and 
to the review of certain non- final orders. By 
general law, the district courts have been granted 
the power to review most actions taken by state 
agencies in carrying out the duties of the 
executive branch of government. Finally, the 
district courts have been granted constitutional 
authority to issue the extraordinary writs of 
certiorari, prohibition, mandamus, quo warranto, 
and hedseas corpus, as well as all other writs 
necessary to the complete exercise of their 
jurisdiction. 

JUDGE, CIRCUIT COURT. My first judicial service 
was on the Fifteenth Judicial Circuit of Florida, 
in and for Palm Beach County, where I served from 
1979 through 1984. I was initially appointed to 
this office by then-Governor Bob Graham in 
September of 1979, and in November of 1980, I was 
elected to a six-year term in an unopposed, non- 
partisan campaign. 

While on the Fifteenth Judicial Circuit, I served 
as a circuit court judge from 1979 to 1982, as the 
administrative judge of the civil division from 
1982 to 1983, and was elected by our judges in the 
circuit as the chief judge of the circuit from 1983 
to 1984. 

A chief judge of the circuit court is responsible 
for developing and implementing a plan for the 
efficient and proper administration of all courts 
within the judicial circuit. Primary 
administrative duties include caseload management; 
assignment of supplemental hearing resources such 
as traffic magistrates, child support hearing 



438 



officers, mediators, arbitrators, and general and 
special masters; development of budgets for 
submission and the administration of such budgets; 
general supervision of all court personnel within 
the circuit; management of all court facilities 
within the circuit; assignment of court reporters, 
court interpreters, guardiauis ad litem, and public 
guardians . 

JURISDICTION, CIRCUIT COURT. Circuit courts have 
general trial jurisdiction over matters not 
assigned by statute to the county courts, amd also 
hear appeals from county court cases. Thus, 
circuit courts are simultaneously the highest trial 
courts and the lowest appellate courts in Florida's 
judicial system. 

The trial jurisdiction of Florida's circuit courts 
includes, among other matters, original 
jurisdiction over civil disputes involving more 
than $15,000; controversies involving the estates 
of decedents, minors, and persons adjudicated to be 
incompetent; cases relating to juveniles; criminal 
prosecutions for all felonies; tax disputes, 
actions to determine the title and boundaries of 
real property; suits for declaratory judgments; and 
requests for injunctions to prevent persons or 
entities from acting in a manner that is asserted 
to be unlawful. Lastly, circuit judges are also 
granted the power to issue the extraordinary writs 
of certiorari, prohibition, mandamus, quo warranto, 
and habeas corpus, as well as all other writs 
necessary to the compete exercise of their 
jurisdiction. 

15. Citations : If you are or have been a judge, provide: (1) 
citations for the ten most significant opinions you have 
written; (2) a short summary of and citations for all 
appellate opinions where your decisions were reversed or where 
your judgment was affirmed with significant criticism of your 
substantive or procedural rulings; and (3) citations for 
significant opinions on federal or state constitutional 
issues, together with the citation to appellate court rulings 
on such opinions. If any of the opinions listed were not 
officially reported, please provide copies of the opinions. 

(1) Citations of significant opinions: 

a) Chiles v. Children A. B. C , D- E. and F. 589 
So. 2d 260 (Fla. 1991) 



10 



439 



b) In re Guardianship of Browning. 568 So. 2d 4 
(Fla. 1990) 

c) Department of Law Enforcement v. Real 
Property . 588 So. 2d 957 (Fla. 1991) 

d) Bvrd V. Richardson -Greenshields Securities. 
Inc. . 552 So. 2d 1099 (Fla. 1989) 

e) State v. Slappv . 522 So. 2d 18 (Fla.); ggrt, 
denied . 487 U.S. 1219, 108 S.Ct. 2873, 101 L. 
Ed. 2d 909 (1988) 

f ) Shriners Hosps. for Crip pled Children v^. 

Zrillic . 563 So. 2d 64 (Fla. 1990) 

g) Joint Ventures. Inc. v. Department of Transp.. 
563 So. 2d 622 (Fla. 1990) 

h) Rogers v. State . 511 So. 2d 526 (Fla. 1987), 
cert, denied . 484 U.S. 1020, 108 S.Ct. 733, 98 
L. Ed. 2d 681 (1988) 

i) Foster v. State . 614 So. 2d 455 (Fla. 1992) 
(concurring in part, dissenting in part) 

j) Della-Donna v. Gore Newspapers Co. , 489 So. 2d 
72 (Fla. App. 4 Dist.), review denied . 494 So. 
2d 1150 (Fla. 1986) , and cert, denied 479 U.S. 
1088, 107 S.Ct. 1294, 94 L. Ed. 2d 150 (1987) 

k) Abramson and Abramson v. Cloister Beach Towers 
Association . Case No. 78-4363 CA(L)01 B, 
Fifteenth Judicial Circuit of Florida, in and 
for Palm Beach County, Florida (not reported) , 
December 17, 1979 

(2) The following are cases in which the United States 
Supreme Court reversed the Florida Supreme Court's 
decision in cases in which I wrote the decision for 
the majority of the court: 

a) In Rilev V. State . 511 So. 2d 282 (Fla. 1987), 
the Florida Supreme Court held that the 
defendant had a reasonable expectation of 
privacy in the greenhouse attached to his home 
and its contents against aerial observations 
by a police officer flying in a helicopter 400 
feet above the ground. Therefore, such 
observation constituted a "search" under the 
Fourth Amendment, and accordingly, the 
evidence seized after the search was properly 

11 



440 



suppressed. The United States Supreme Court 
reversed in a plurality decision, 488 U.S. 445 
(1989). See also Rilev v. State . 549 So. 2d 
673 (Fla. 1989) (on remand) . 



b) In Bostick V. State . 554 So. 2d 1153 (Fla. 
1989), the issue focused on the Broward County 
Sheriff's Department's standard procedure of 
"working the buses" whereby deputies randomly 
select bus passengers, ask them potentially 
incriminating questions, and seek their 
consent to search their belongings. The Court 
ruled that pursuant to the sheriff's policy, 
officers unconstitutionally "seized" Bostick 
and conducted an unlawful search of his 
baggage. The United States Supreme Court 
reversed. 111 S. Ct. 2382 (1991), holding that 
there is no per se rule holding this 
investigative technique unconstitutional. 
Instead, each case must be decided on the 
totality of the circumstances. See also 
Bostick v. State . 593 So. 2d 494 (1992) (on 
remand) . 

c) In Gaskin v. State . 591 So. 2d 917 (Fla. 
1991) , we upheld two first-degree murder 
convictions and death sentences. The United 
States Supreme Court vacated, 112 S. Ct. 3022 
(1992) , and remanded for consideration in 
light of Espinosa v. Florida . 112 S. Ct. 2926 
(1992), which invalidated the Florida jury 
instruction on the heinous, atrocious, or 
cruel aggravating circumstance. See also 
Gaskin v. State . 615 So. 2d 679 (Fla. 1993) 
(on remand) , cert, denied . 1993 WL 374902 
(U.S. Oct. 12, 1993) . 

(3) All of my appellate opinions have been pxoblished in 
the Southern Reporter, Second Series. The 
following cases are those in which I wrote the 
majority opinion and which expressly construe 
provisions of the United States Constitution or the 
Florida Constitution. 

National Distributing Co. v. State 
Comptroller . 523 So. 2d 156 (Fla. 1988) . 

Winshare Club v. Dept. of Legal Aff. . 542 So. 
2d 974 (Fla. 1989) . 

Poore v. State . 531 So. 2d 161 (Fla. 1988) . 
12 



441 



pnhinson v. State . 574 SO. 2d 108 (fla. 1988) . 
rprt denied^ l2 S. Ct. 131 (1991). 

fihafp V. Wavne . 531 So. 2d 160 (Fla. 1988). 

wr^ahf V. state . 586 So. 2d 1024 (Fla. 1991). 

npAvala V. Florida Farm Bureau Pas, TPg . C9t> 
543 So. 2d 204 (Fla. 1989) . 

Palm Har b or Snec. Fjrp C.ont . Pi St. v, K$1;y , 
516 So. 2d 249 (Fla. 1987) . 

7.rillic T 563 SO. 2d 64 (Fla. 1990). 

pacmn^...pn V , '^n- Fla. Blood Serv,. 500 So. 2d 
533 (Fla. 1987) . 

pnpv V. State . 511 So. 2d 282 (Fla. 1987). 
reVd . 488 uTs. 445 (1989). 

pnc^^rv V. State . 554 So. 2d 1153 (Fla. 1989) , 
rev-d 111 S. Ct. 2382 (1991). on TCT^P"?. 593 
So. 2d 494 (Fla. 1992) . 

r.man V. State . 531 So. 2d 88 (Fla. 1988). 
rTr-l denied . 489 U.S. 1099 (1989). 

p.K^n.nn V. state . 537 So. 2d 95 (Fla 1989). 

c ,^ p^p V. wells . 539 So. 2d 464 (Fla 1989), 
iiili, 495 u" 1 (1990). 

■ininf VPntur pp ^ nppt. of Trans, > 563 SO. 2d 

622 (Fla. 1990) . 

^1^^^^. c,^.. V. B.J.F.. 530 SO. 2d 286 (Fla. 

U.S. 984 (1987); Pffg »;go El^nM-^^.!-^ 
B J.F. . 491 U.S. 524 (1989), £SX£r£iiia 499 So 
2d883 (Fla. 1st DCA 1986), review d$n;gd. 509 
So. 2d 1117 (Fla. 1987) . 

c^ ^^p V, Jones . 488 So. 2d 527 (Fla. 1986). 
p^a^p V. wavne . 531 So. 2d 160 (Fla. 1988). 

Florida .Soc f r ^ll^-^'-^^'^^^^ TiiB'"?ui ^ 
o pt-oTHPfric Assoc. 489 So. ^a 

1986) . 

13 



442 



Public Health Tr^ish r^f Dade Co. v. Lopez . 531 
So. 2d 946 (Fla. 1988) . 

In re Guardianshin of Brown inn. 568 So. 2d 4 
(Fla. 1990). 

Shaktman v. State. 553 So. 2d 148 (Fla. 1989). 

FDLE V. Real Pronertv. 588 So. 2d 957 (Fla. 

1991) . 

State V. Smith. 547 So. 2d 131 (Fla. 1989). 

Harris v. Martin Re gency Ltd. . 576 So. 2d 1294 
(Fla. 1991). 

State V. John.son. 561 So. 2d 1139 (Fla. 1990). 

Chiles V. Children A. B. C. P . E. & F . 589 So. 
2d 260 (Fla. 1991) . 

Murray v. Lewi.s. 576 So. 2d 264 (Fla. 1990) . 

In re Forfeiture of 1969 Pine r Navaio . 592 So. 
2d 233 (Fla. 1992) . 

State V. Saiez. 489 So. 2d 1125 (Fla. 1986). 

In re Adoption of a Minor Child . 593 So. 2d 
185 (Fla. 1991). 

Bostick V. State. 593 So. 2d 494 (Fla. 1992), 
on remand from HI S. Ct. 2382 (1991). 

Doctor V. State . 596 So. 2d 442 (Fla. 1992). 

Rose V. State. 601 So. 2d 1181 (Fla. 1992). 

Hall V. Daee . 602 So. 2d 512 (Fla. 1992). 

Marshall v. State. 604 So. 2d 799 (Fla. 1992), 
cert, denied. 113 S. Ct. 2355 (1993). 

Butterworth v. Caaaiano. 605 So. 2d 56 (Fla. 

1992) . 

Power V. State . 605 So. 2d 856 (Fla. 1992), 
cert, denied. 113 S. Ct. 1863 (1993). 

Thomas v. State . 614 So. 2d 468 (Fla. 1993). 

Gaskin v. State . 615 So. 2d 679 (Fla. 1993), 

15 



i3 



cert, denied . 1993 WL 374902 (U.S. October 12, 
1993); see also naskin v. State . 591 So. 2d 
917 (Fla. 1991), cert, gra nted and -Judgment 
vacated . 112 S. Ct. 3022 (1992). 

Wvche V. State . 619 So. 2d 231 (Fla. 1993). 

Thomason v. State . 620 So. 2d 1234 (Fla. 
1993) . 

16. Public Office : State (chronologically) any public off ices you 
have held, other than judicial offices, including the terms of 
service and whether such positions were elected or appointed. 
State (chronologically) any unsuccessful candidacies for 
elective public office. 

None. 

17. fcgq^l C^yggy: 

a. Describe chronologically your law practice and experience 
after graduation from law school including: 

1. whether you served as clerk to a judge, and if so, 
the name of the judge, the court, and the dates of 
the period you were a clerk; 

Did not serve as clerk to a judge. 

2. whether you practiced alone, and if so, the 
addresses and dates; 

Sole practitioner in West Palm Beach, Florida, 
from January 1, 1979, through August 31, 1979. 

3. the dates, names and addresses of law firms or 
offices, companies or governmental agencies with 
which you have been connected, auid the nature of 
your connection with each; 

Associate and then partner at the firm of 
Farish & Farish in West Palm Beach, Florida, 
from law school graduation in 1971 through 
December 31, 1978. 

b. 1. What has been the general character of your law 

practice, dividing it into periods with dates if 
its character has changed over the years? 

General civil practice, primarily trial work, 
both jury and nonjury, with a majority 
emphasis on personal injury claims. My 

16 



444 



practice also encompassed family law, eminent 
domain, real property, commercial, and to a 
lesser degree probate, banking, and 
corporation work. 

2. Describe your typical former clients, and mention 
the areas, if any, in which you have specialized. 

I represented individuals, as well as a few 
corporate clients, including a municipality. 
Mostly, however, I represented middle income 
individuals with ordinary legal problems, and 
higher income clients in dissolutions of 
marriage. Area of specialty: personal injury 
litigation. 

1. Did you appear in court frequently, occasionally, 
or not at all? If the frequency of your 
appeareinces in court varied, describe each such 
variance, giving dates. 

Appeared frequently in court. 

2. What percentage of these appearances was in: 

(a) federal courts; 

0% (maybe two occasions) 

(b) state courts of record; 

95% 

(c) other courts. 

5% (mainly appellate courts, but also 
administrative agencies in a few cases) 

3. What percentage of your litigation was: 

(a) civil; 

90% 

(b) criminal 

10% 

4. State the number of cases in courts of record you 
. tried to verdict or judgment (rather than settled) , 

indicating whether you were sole counsel, chief 
counsel, or associate counsel. 

17 



445 



The majority of my cases went to trial. At 
this date (14 years later), there is no way I 
can determine the precise number of cases I 
handled, or the percentage that went to trial 
compared to the percentage that were settled. 
The bulk of my time, however, was spent 
bringing cases to trial. We were a small firm 
with only seven or eight lawyers; 
consequently, I tried most cases as sole 
counsel, although, on some occasions, some 
members of the firm tried cases together. 

5. What percentage of these trials was: 

(a) jury; 

50% 

(b) non-jury. 

50% 

18. Litigation : Describe the ten most significant litigated 
matters which you personally handled. Give the citations, if 
the cases were reported, and the docket number and date if 
unreported. Give a capsule summary of the substance of each 
case. Identify the party or parties whom you represented; 
describe in detail the nature of your participation in the 
litigation and the final disposition of the case. Also state 
as to each case: 

(a) the date of representation; 

(b) the name of the court and the name of the judge or judges 
before whom the case was litigated; and 

(c) the individual name, addresses, and telephone numbers of 
CO -counsel and of principal counsel for each of the other 
parties. 

It is impossible after all these years to 
reconstruct the "ten most significant litigated 
matters" which I personally handled. The best I 
can do is refer you to some of the lawyers with 
whom and against whom I litigated various types of 
cases and the judges before whom they were tried, 
as well as have appeared before me: 

John R. Beranek 

P. 0. Box 11307 

Tallahassee. Florida 32302-3307 

904/681-7766 

18 



446 



Joel D. Eaton 

800 City National Bank 

25 W. Flagler Street 

Miami, Florida 33130-1720 

305/358-2800 

Lake Lytal, Jr. 

Joseph Reiter 

Lytal emd Reiter 

515 N. Flagler Drive, Suite 1000 

West Palm Beach, Florida 33402 

407/655-1990 

Justus Webb Reid 

Reid, Ricca & Rigell 

P. 0. Box 2926 

West Palm Beach, Florida 33402 

407/659-7700 

Robert Montgomery, Jr. 

P. 0. Drawer 3066 

West Palm Beach, Florida 33402 

407/832-2880 

Earl Denney 

Chris Searcy 

2139 Palm Beach Lakes Boulevard 

West Palm Beach, Florida 33402 

407/686-6300 

Ronald Sales 

1551 Forvim Place, Suite 300F 

West Palm Beach, Florida 33402 

407/686-2333 

Sidney A. Stubbs, Jr. and 

Adeuns Weaver 

Jones, Foster, et al. 

P. 0. Drawer E 

West Palm Beach, Florida 33402 

407/659-3000 

Edna Louise Caruso 

Barristers Building 

1615 For\un Place, Suite 4B 

West Palm Beach, Florida 33401-2317 

407/686-8010 

Larry Alan Klein 

Fourth District Court of Appeal 

P. 0. Box 3315 

West Palm Beach, Florida 33402 

19 



447 



407/686-1903 

Lois Frankel 

2161 Palm Beach Lakes Boulevard, #103 

West Palm Beach, Florida 33409-6601 

407/640-6150 

Barry Krischer 

Office of the State Attorney 

401 N. Dixie Highway 

West Palm Beach, Florida 33401-4209 

407/355-7270 

Jane Kreusler-Walsh 

503 Flagler Center 

West Palm Beach, Florida 33401-5913 

407/659-5455 

Some of the judges before whom I tried cases: Judge 
James Stewart, Judge Thomas Sholts, Judge Robert Hewitt, 
Judge Hugh McMillan, Judge James Downey, and Judge James 
Payne, all presently still in West Palm Beach, Florida. 

19. Legal Activities : Describe the most significant legal 
activities you have pursued, including significant litigation 
which did not progress to trial or legal matters that did not 
involve litigation. Describe the nature of your participation 
in this question, please omit any information protected by the 
attorney-client privilege (unless the privilege has been 
waived.) 

In addition to the work reflected in the responses to the 
other questions regarding my bar and professional 
activities as well as the opinions I have written, I have 
also contributed to the legal education of the judiciary 
and others in the legal profession. During my years as 
a judge, I have regularly participated as faculty at: 

National Judicial College (have taught courses on 
The Jury Trial /Jury Management, Individual and 
Society, Gender Fairness Faculty Development 
Workshops) 

Florida Judicial College and Florida College of 
Advanced Judicial Studies (Case Management and 
Delay Reduction Techniques, Role of the Judge at 
Trial, Constitutional Law, Jury Trial Management, 
Judicial Conduct, Common Reasons for Reversals and 
How to Avoid Them, Labelling Rights and Fundamental 
Rights) 



20 



448 



ABA Appellate Judges Education Seminars 
(Implementing Batson v. Kentucky . Appellate 
Practice Institute, Right to Privacy) 

Institute of Judicial Administration, New York 
University, Appellate Judges Seminar (Overview of 
Criminal Law, Bias in the Courts, Collegial 
Decision Making) 

Florida State University College of Law (adjunct 
professor in a constitutional law class) 

Florida Bar Continuing Legal Education Courses and 
"Bridge the Gap" Seminars (Professionalism in 
Ethics) 

Tutored minority law students at Florida State 
University, College of Law 

While I was a circuit judge, I worked with the Florida 
Legislature in changing the law to implement shared 
parental responsibility laws. I am now in the process of 
establishing a statewide family court system that will 
assure a more responsive judiciary to the needs of 
today's families in the courts, making them easier and 
more accessible. 



21 



449 



PART II. 
FINANCIAL DATA AND COMPENSATION 

1. List sources, amounts and dates of all anticipated receipts 
from deferred income arrangements, stocks, options, 
uncompleted contracts and other future benefits which you 
expect to derive from previous business relationships, 
professional services, firm memberships, fon.ier employers, 
clients, or customers. Please describe the arrangements you 
have made to be compensated in the future for any financial or 
business interest. 

State retirement benefits, rental income from two 
condominiioms , KEOGH and IRA plans. 

2. Explain how you will resolve any potential conflict of 
interest, including the procedure you will follow in 
determining these areas of concern. Identify the categories 
of litigation and financial arrangements that are likely to 
present potential conflicts-of -interest during your initial 
service in the position to which you have been nominated. 

Should a conflict ever arise, I will recuse myself from 
hearing that particular case. In all instances, I would 
follow the Canons of Judicial Ethics as they might apply 
to any circumstance. 

3. Do you have any plans, commitments, or agreements to pursue 
outside employment, with or without compensation, during your 
service with the court? If so, explain. 

No. 

4. List sources and amounts of all income received during the 
calendar year preceding your nomination and for the current 
calendar year, including all salaries, fees, dividends, 
interest, gifts, rents, royalties, patents, honoraria, and 
other items exceeding $500 or more (If you prefer to do so, 
copies of the financial disclosure report, required by the 
Ethics in Government act of 1978, may be substituted hexe.) 

See attached form AG- 10. 

>. Please complete the attached finaincial net worth statement in 
detail (Add schedules as called for) . 

Please see attached finsoicial net worth statement. 



22 



450 



6. Have you ever held a position or played a role in a political 
campaign? If so, please identify the particulars of the 
campaign, including the candidate, dates of the campaign, your 
title and responsibilities. 

None, except for my own non-partisan judicial merit 
retention campaign in 1992 and in 19 86, amd as a 
candidate for election as a trial judge in 1980. 



23 



451 



PART III. 
GENERAL (PUBLIC) 

An ethical consideration under Canon 2 of the American Bar 
Association's Code of Professional Responsibility calls for 
"every lawyer, regardless of professional prominence or 
professional workload, to find some time to participate in 
serving the disadvantaged." Describe what you have done to 
fulfill these responsibilities, listing specific instances and 
the amo\ant of time devoted to each. 

During the time that I was in private practice I provided 
pro bono representation for indigent clients. While on 
the bench, I have participated, to the extent that judges 
Ccin, in the activities of pro bono programs, and have 
felt that all of my participation as reflected in the 
answers to Questions 9 and 10 was a responsibility that 
all judges have to serve their profession emd their 
community aJoove and beyond the parameters of their 
defined duties. Specific projects I have participated in 
include the ABA Steering Committee on the Unmet Legal 
Needs of Children, the national Children, Families, and 
the Law Judicial Council, the Florida Child Support and 
Florida Child Welfare Study Commissions, the Associated 
Marine Institutes (which provides rehabilitative 
alternative programs for juvenile delinquents and problem 
youth), and the Florida Kids Count project. I have also 
tutored minority students at Florida State University 
College of Law. 

The American Bar Association's Commentary to its Code of 
Judicial Conduct states that it is inappropriate for a judge 
to hold membership in emy organization that invidiously 
discriminates on the basis of race, sex, or religion. Do you 
currently belong, or have you belonged, to any organization 
which discriminates- -through either formal membership 
requirements or the practical implementation of membership 
policies? If so, list, with dates of membership. What you 
have done to try to cheuige these policies? 

None. 

Is there a selection commission in your jurisdiction to 
recommend candidates for nomination to the federal courts? If 
so, did it recommend your nomination? Please describe your 
experience in the entire judicial selection process, from 
beginning to end (including the circumstances which led to 
your nomination and interviews in which you participated) . 

It is my understanding that several individuals and 
groups submitted my name for the President's 
consideration. I was interviewed by representatives of 

24 



452 



the ABA and the FBI and was required to fill out 
informational questionnaires. 

Has anyone involved in the process of selecting you as a 
judicial nominee discussed with you any specific case, legal 
issue or question in a manner that could reasonably be 
interpreted as asking how you would rule on such case, issue, 
or question? If so, please explain fully. 

No. 

Please discuss your views on the following criticism involving 
"judicial activism." 

The role of the Federal judiciary within the Federal 
government, and within society generally, has become the 
subject of increasing controversy in recent years. It has 
become the target of both popular and academic criticism that 
alleges that the judicial branch has usurped many of the 
prerogatives of other branches and levels of government. 

Some of the characteristics of this "judicial activism" have 
been said to include: 

a. A tendency by the judiciary toward problem- resolution 
rather than grievance resolution; 

b. A tendency by the judiciary to employ the individual 
plaintiff as a vehicle for the imposition of far-reaching 
orders extending to broad classes of individuals; 

c. A tendency by the judiciary to impose broad, affirmative 
duties upon governments and society; 

d. A tendency by the judiciary toward loosening 
jurisdictional requirements such as standing and 
ripeness ; and 

e. A tendency by the judiciary to impose itself upon other 
institutions in the manner of an administrator with 
continuing oversight responsibilities. 

Under our constitutional system the governance of 
the people is shared by three separate branches 
with distinct roles. The Legislative Branch 
exercises the responsibility of establishing laws 
eind the Executive Branch exercises the 
responsibility of executing those laws. The role 
of the Judicial Branch in this constitutional 
system is to apply the law and interpret it when 
necessary in those cases that are appropriately and 
timely brought before the court. 

25 



453 



STATE OF FLORIDA 
COUNTY OF LEON 



AFFIDAVIT 



I, Rosemary Barkett, do swear that the information provided in 
this statement is, to the best of my k nowledge, true and 
accurate. 



f)rPl!f.lii^ 



DATE 




NAME 



The foregoing instrument was acknowledged before me on this 
|Mt»^ day of OCToi>e^ , 1993, by Rosemary Barkett, who is 



personally known to me and who did take an oath. 



oi^nfUL KIdTAkY UAL 

CHFT KAUFMAN 
NOTARY PUBLIC STATC OF FLORIDA 

COMMISSION NO. OCZ21147 
MY COMMISSION EXP AUG. U.19» 




454 



FINANCIAI, STATEMEKT 
NET WORTH 

ROSEMARY BARRETT 

261-54-4014 (social security no ■ 1 

Provide a complete, current financial net worth statement which 
itemizes in detail all assets (including accounts, real estate, securities, 
trusts, investments, and other financial holdings) all liabilities 
(including mortgages, loans, and other financial obligations) of yourself, 
your spouse, and other immediate members of your household. 



i ASSETS 




1 LIABILITIES 




Cash on hand and in banks 


6500.00 


INotes payable to banks-secured 




iUS Government securities-add 
schedule 






Notes payable to banks-unsecured 




; Listed securities-add schedule { (Notes payable to relatives 




.Unlisted securities-add schedule | 


Notes payable to others 




Total Securities (see Form AO-10 i 
lattachedj i 833000.00 








lAccounts and notes receivable: i 




Accounts and t>ills due 


3000.00 


Due from relatives and friends | 




Unpaid income tax 




Due from others 






Real estate mongates payable-add 
schedule (see anached Form AO-10) 


374600.00 


Doubtful 


25000.00 




Chattel mortgages and other liens 
payabte 




Real estate ovtmed-add schedule (see 

Form AO-10 attached) 


850500.00 




Other debts-Itemize; 




Real estate monqaqes receivatjie 






Auto lease payments 


4920.00 


Autos and other personal property 


75000.00 




- 




Cash value-lite insurance 










Other assets-itemize: 






hrotal Uabiltties 


382520.00 






iNet Worth 


1407480.00 


Total assets 


1790000.00 




Total Liabilities and Networth 


1790000.00 








1 t 






















CONTINGENT UABILfTIES 






GENERAL INFORMATION 




As endorser, comaker or guaramtor 






Are any assets pledged? (add 
schedule) 


No 


On leases or contracts 






Are you defendant in any suits or legal 
acUons? 


No. other than 
as a member of 
the Court 


Legal Claims 






Have you ever taken bankruptcy' 


No 


Provision for Federal Income Tax 










Other Special Debt 





















455 



FINANCIAL DISCLOSURE REPORT 



MCorm hez of 1919, Pob. L. Bo. 
101-194. %a*^abmx JO, 1989 
(S D.C.CU.. App. 6. tSlOl-lU) 



I. Vance Baponlsg (l«t um, tint, mUdl* lalrlil) 

Barkett, Rosemary 


2. Ceorc cr 0zv«nXuc4oa 

Nominated to the U.S. Court 
of Appeals for the Eleventh 
Circuit 


3. D«t« of Staport 

9/2A/93 


4. TlUa (&rtlel« Xn 3ad9aa Lmaicmtm veclv* or 

•«ttlar aratsw; H*9iacr«ca Jiidg— ladleata 

presently Chief Justice of the 
Florida Supreme Court 


5. teporc Typ* (cm»c» •ppnprl«t« typa) 
X »_i„tlo».I).t. 9/24/93 

iBltlaX wsiul riMl 


e. HapscUsg railix) 

1/1/92-8/30/93 


presently 500 South Duval Street 
Tallahassee. Florida 32399-1925 


•. Od tto bull oC t&a linnraatleci cwmlmm Is uls laporc, Iz 
K, Is ar oplalos, la tmplluca olts appUeaUa lava and 
ntnlarlnna 

VaviavlD^ nrflcar Sionatorc 


IMPORTANT NOTBj" The "aamioma accompanyjig this form must be faltowoL Complele all parts, 
checUng the NO^fE box tta eaex sccfinn nbert: jwi hare no reportable infoisiatlon. Sign on last page. 



POSITIONS. (Reponing individnal only; see pp. ys of Instructions.) 

POSITION NAME OF ORGANIZATION/ENTnT 



n 



NONE (■ 



Please see attached 



AGREEMENTS. (R^Kming indmitual oaty, see p. 8-9 of Instruoioos.) 
DATE PARTIES AND TERMS 



n 



NONE (8o nportaUa 



The only "agreements" that seem to possibly fall within this definition 



would be under sectio n (d), to vit, my deferred cotnpensation plan and 

ecirement plan with the State of Florida and the KEOGH plan left over 



."iuui m;/ law picLLltid - 
. NON-INVESTMENT INCOME (R^wning individual and spouse; see pp. 9-12 of Instructions.) 

SOURCE AND TYPE GROSS INCOME 

~ ~ (yours, not spouse's) 



DATE 
(Honoraria only) 



j I NONE do 

1993 (to date) State of Florida Judicial Salary 



1992 



5 66,962.00 
State of Florida Judicial Salary S 100,442.00 

State of Florida Adjunct Professor Salary (for s ^.SOC.J- 

one seineszer) 

Stare of Florida .Tudici al Salarv 



S 100.443. 
S 



456 



FINANCIAL DISCLOSURE REPORT (cont'd) 



Mamm of rftrsoo laporLlag 

Barkett, Rosemary 



tecs of Moport 

9/24/93 



IV. REIMBURSEMENTS and GIFTS - transportation, lodging, food, entertainment. 

(Indades those to spouse and depcBdent chUdren: use the pmrentheticals *(S)' and '(PQ* to lodlcmte rcpoitable 
Rlmbarscments and gifts ircdvcd by spouse and dependent children, respectively. See pp.13-15 of Instnutloas.) 



n 



SOURCE DESCRIPTION 

NONE (lo nch nportabl* r«labiirmiHt» or gltu) EXEMPT 

EXEMPT 



V. OTHER GIFTS, (includes those to spouse and dependent children; use the parentheticals '(S)' and '(DC)' to 
■' ■■ " ' ■■ 1 depei ■ . . - 



indicate other gifts received by spouse and dependent children, respectively. Sec pp.If-16 of Instructions.) 



n 



SOURCE 
NO^fE (io aueb ropoxxAblo gift*) 

EXEMPT 



DESCRIPTION 

EXEMPT 



VALUE 



VI. LIABILrrlES. (Includes those of spouse and dependent children; indicate where applicable, person responsible 
for liability by using the parenthetical '(S)' for separate Uabilitv of spouse, '(J)' for joint liabilitv of reporting 
individual and spouse, and '(DC)' for liability of a dependent child, bee pp.lfr.18 orlnstructioni.) 



n 



rBFnrrnw 

NONE (la raporuuls 11*S1UUM) 



DESCRIPTION 



VALUE CODE* 



Barnett Bank, Jacksonville, FL Real estate mortgage 
?irst Union Bank, West Palny, FL Real estate mortgage 



T.Rosencrans . Lake Park. FL Real estate mortgage 

Dalamar Corp, Boca Raton. FL Real estate mortgai:e 

1st Federal S&L, West Palm. FL Real estate mortt-ai^e 

"arm Credit. Homestead. FL Real estate mortgage 



V\UJZ COOU: J - S-.J.OCO or !«•• K - SIS. 001 M 390,000 1 - 550, CO'. ;s 5:50,000 

B - 5250,001 U> 5500,000 O - 5500,001 to 51,000,000 P - Mora i.n*3 51,000.000 



51K,CC1 -.0 5:90,000 



FINANCIAL DISCLOSORE REPORT 
(cont'd) 



457 



MB* oC r«r*an MportliK 

Rosemary Barkett 



D«c* of lt«pert _ , - * * » 

Septeinber 24, 1993 



VII, 


INVESTMENTS and TRUSTS -- income, value, transactions. 




A. 
Du«np«laa of A«»«t« 


•- 

Inci3»i OurLno 


c. 

CrOBS Vftlutt AC 

end oe Reporting 
Pirlod 


0. 

TrftnsAetion* 

Ourlnij 

Reporting 

rirlod 


111 


(21 
div.. rent 


111 

v«lvi« 

codi 


131 
»«lu« 
Hcchod 


51* 


Advanced Bio therapy Concepts 
1000 shares 


A 

(none) 


N/A 


J 


T 


Exempt 




Aetna Deferred Comp. Plan 


B 


div. 


L 


T 


Exempt 


603 


Ahmanson 

1000 shares (sold 2/13/92) 


A 


div. 


J 
none 


N/A 


Exempt 


603 


Alico Inc (ALCO) 
500 shares 


A 


div. 


J 


T 


Exempt 


603 


American Capital (tax exempt 
mutual fund) 
2291.802 units 


A 


N/A 


K 


T 


Exempt 


603 


Aura System (ADRA) 
1000 shares 


A 


N/A 


J 


T 


Exempt 


43 


Bamett Bank (BBI) 
200 shares 


A 


div. 


J , 


T 


Exempt 


PW 


Bayou Steel (BYX) 
200 shares 


A 
none 


N/A 


J 


T 


Exempt 


603 


Boynton Beach (muni bond) 
100000 units (Zero Coupon 
Bond) 


A 
(none) 


N/A 


K 


T 


Exempt 


^^ 


Brovrard County Res Rec Rev 
(muni bond) 
10000 units 


B 


int. 


J 


T 


Exempt 


603 


Broward County School Board 
(muni bond) 15000 units 


A 


irt. 


K 


T 


Exempt 









CC91. c: i 311 



**f is.osa sr '.«•« 

■■1250.00-. ::= :::.: 



<'9.t.zz: = iz.3Si 






Vi:.ia «■:.*.£: c:s«- c*Appra:j«: 






Mxton *.".«.-■ i^.QOQ.aao 



i*s:aa.3c; ^ ;53.s:o 



T«Cjjr.'«*r<«-- 



•The nimbers in the 1=: 
should be disregarded. 



cclunn are my psracnal account numbers and 



458 



51 


Capital Realty Investors Tax 

Exempt Fund (CRL) 

400 shares (Imtd partnership) 


A 

(none) 


N/A 


J 


T 


Exempt 


35 


CATS Series 

20000 units (Zero Coupon) 


A 

(none) 


N/A 


J 


T 


Exempt 


603 


Claire Stores 

1000 shares (sold 1992) 


A 


div. 








PW 


Coca Cola (KO) 
45 shares 


A 


N/A 


J 


T 


Exempt 


603 


Colonial High Income Municipal 
Trust Fund (CXE) 
1000 shares 


B 


div. 


J 


T 


Exempt 


603 


Columbia Labs (COB) 
500 shares 


A 
(none) 


N/A 


J 


T 


Exempt 


51 


Connecticut State (muni bond) 
10000 units (sold 7/1/92) 


B 


int. 


N/A 


N/A 


Exempt 


603 


Dade County GTD (muni bond) 
100000 units (Zero Coupon) 


A 
(none) 


N/A 


K 


T . 


Exempt 


603 


Dade County GTD (muni bond) 
50000 units (Zero Coupon) 


A 

(none) 


N/A 


J 


T 


Exempt 


603 


Dallas Utility (muni bond) 
75000 units (Zero Coupon) 


A 
(none) 


N/A 


K 


T 


Exempt 


603 


Delta Air Lines (DAL) 
300 shares 


A 
(none) 


N/A 


K 


T 


Exempt 


51 


Esco Electronics (ESE) 
1000 shares stoc)c 


A 
(none) 


N/A 


J 


T 


Exempt 


603 


Florida State Bd Ed Cap Outlay 

(muni bond) 

100000 (Zero Coupon) 


A 
(none) 


N/A 


K 


T 


Exempt 


603 


Franlclin Tax Free (mutual 

fund) 

1185.815 units 


A 


reinv. 
shares 


J 


T 


Exempt 


603 


Freeport McMoran (FMR) 
1000 units 


C 


roy- 
alty 


J 


T 


Exempt 


PW 


Genentech Inc. (GNE) 
100 shares 


A 

(none) 


N/A 


J 


T 


Exempt 1 


603 


Geo. L. Smich-Ga Ctr (muni 

bond) 

25000 units 


C 


int. 


K 


T 


Exempt 1 


PW 


Hanoar Orrhcoedic Group (HGR) 
250 sharas 


A 

(none) 


N/A 


J 


T 


1 


51 


Hawaii State (muni bond) 
lOOCC ■-.'.-.= 


B 


int. 


J 


T 


--•^- ! 



■The numbers ir. tr.e leiz column are my personal account numbers and sr.: 
be disregarded. 



459 



603 


Hillsborough County (muni 

bond) 

10000 units 


B 


int. 


J 


T 


Exempt 


603 


Household Inf 1 

2000 shares (sold 1992) 


A 


div. 








35 


Hyperion (HTT) 
600 sharas 


A 


div. 


J 


T 


Exempt 


603 


Jac)csonville Health Authority 

(muni bond) 

20000 


C 


int. 


K 


T 


Exempt 


603 


Jundt Growth Fund (sold 1992) 


A 


div. 






Exempt 


43 


Kemper Multimarlcet Income 
Trust (KMM) 
1000 shares 


A 


div. 


J 


T 


Exempt 


43 


Krupp Cash Plus II 

200 units (Imtd partnership- 

real estate) 


A 

(none) 


N/A 


J 


T 


Exempt 


35 


Krupp Institutional Mtg Fund 
4 units (Imted -partnership) 


A 


distr. 


J 


T 


Exempt 


603 


Latin America Fund 


A 


reinv. 
shares 


J 


T 


Exempt 


43 


Lincorp 
100 shares 


A 

(none) 


N/A 


J 


T 


Exempt 


603 


Lucas -Northgate Ohio (muni 

bond) 

20000 units 


C 


int 


K 


T 


Exempt 


35 


MFS Govt. M)tts Income Trust 
(MGF) 
200 shares 


A 


div. 


J 


T 


Exempt 


603 


MFS High Yield Mun Bd Fund 
(mutual fund) 
3385.332 units 


B 


reinv. 
shares 


K 


T 


Exempt 


35 


MFS Lifetime Govt Mtg Fund 
(mutual fund) 
448.679 units 


A 


int. 


J 


T 


Exempt 


51 


MFS Multimar)cet Trust (MMT) 
500 shares 


A 


div. 


J 


T 


Exempt 




Nationwide 


B 


div. 
shares 


L 


1^ 


Exempt 


51 


New Jersey (muni bond) 
10000 units 


B 


int. 


J T Exemp t 
1 



•The numbers in the left column are my personal account nu.T. 
:e disregarded. 



■j:=r3 ar.d should 



460 



51 


N. Palm Beach County Water 
Control District #18 (muni 
bond) 
10000 units 


B 


int. 


J 


T 


Exempt 


51 


N. Palm Beach County Water 
Control District #23 (muni 
bond) 
10000 units 


B 


int. 


J 


T 


Exempt 


603 


N. Palm Beach County Water 
Control District #24-A(muni 
bond) 
30000 units 


C 


int. 


K 


T 


Exempt 


603 


N. Palm Beach County Water 
Control District #31 (muni 
bond) 
25000 units 


C 


int. 


K 


T 


Exempt 


43 


Novell, Inc. (NOVL) 
900 shares 


A 
(none) 


N/A 


J 


T 


fxempt 


43 


Office Depot (ODP) 
150 shares 


A 


N/A 


J 


T 


Exempt 


603 


Port Everglades Port Authority 

(muni bond) 

50000 units (Zero Coupon 

Bond) 


A 
(none) 


N/A 


K 


T 


Exempt 


603 


Port Everglades Port Authority 

(muni bond) 

50000 units (Zero Coupon 

Bond) 


A 
(none) 


N/A 


K 


T 


Exempt 


603 


Port Orange Water & Sewer 

(muni bond) 

100000 (Zero Coupon Bond) 


A 
(none) 


N/A 


K 


T 


Exempt 


43 


Prime Plus (ltd partnership -- 
real estate) 
40 units 


A 

(none) 


N/A 


K 


T 


Exempt 


51 


Prudential Utility Fund 
(mutual fund) 
518.857 shares 


A 


reinv. 
shares 


J 


T 


Exempt 


51 


Rapid American (corporate 

bond) 

5000 units 


A 

(none) 


N/A 


J 


T 


Exempt 


603 


Rayonier Timber lands (ICG! 
500 units 


A 
(none) 


N/A 


K 


T 


Exe-Tipt 


43 


Resource Mta Caoital (R-'-L^.) 
1000 shares (sold 3/25 '9} 


B 


div. 


J 
none 


T 


Exe.mpt 


43 


RJR Nabiscc Holding Ccr- . 
500 shares 


(r.cr.e) 


N/A 


J 


T 


Exempt 



•The numbers in 
be disregarded. 



the left colu.T-. ire my personal account numbers and should 



461 



603 


S. Indian River Water Control 
(muni bond) 
25000 units 


C 


int. 


K 


T 


Exempt 


603 


S. Indian River Water Control 
Sect 15 (muni bond) 
25000 units 


A 

(none) 


N/A 


K 


T 


Exempt 


51 


S. Indian River Water Control 
(muni bond) 
10000 units 


B 


int. 


J 


T 


Exempt 


51 


Safeguard Scientifics (SFE) 
500 shares 


A 
(none) 


N/A 


J 


T 


Exempt 


603 


Sarasota County (muni bond) 
100000 units 


A 

(none) 


N/A 


K 


T 


Exempt 


51 


Slcandia (annuity) 


B 


div. 


K 


T 


Exempt 


51 


Smith Barney (money marlcet 

fund) 
45598 units 


B 


div. 

in 

shares 


K 


T 


Exempt 


35 


Smith Barney Retirement (money 
mar)cet fund) 
826 units 


A 


div. 

in 

shares 


J 


T 


Exempt 


43 


Smith Barney Retirement (money 
marlcet fund) 
7176 vinits 


A 


div. 

in 

shares 


J 


T 


Exempt 


603 


Smith Barney Utility (mutual 

fund) 
2401.927 


B 


reinv. 
shares 


K 


T 


Exempt 


603 


Smith Corona 

1000 shares (sold 1992) 


A 


div. 








51 


Software Toolworlcs (TWRX) 
500 shares stocJc 


A 
(none) 


N/A 


J 


T 


Exempt 


603 


Sunrise Utilities (muni bond) 
30000 units (zero coupon bond) 


A 
(none) 


N/A 


J 


T 


Exempt 


603 


Tax Free Money Fund (money 
mar)cet fund) 
85760 units 


D 


div. 
in 

shares 


L 


T 


Exempt 


603 


Van Kampen Merritt Munic. 

Trust 

2000 (sold 2/7/92) , 


B 


int. 




T 


Exempt 


51 


Vantage Cash Port, (money 
marlcet fund) (sold 1992) 


B 


div. 




T 


Exempt 


603 


W Coast Regl Wtr {muni bend) 
80000 units 


A 


N/A 


K 


T 


Exempt 


PW 


Walt Disney (Dis; 
100 shares 


A 

(non=) 


N/A 


J 


T 


Exe.-pi: 
1 



"The numbers in the ief- c=lu=:r. are my 

be disregarded. 



personal account numbers and shoulc 



462 



51 


Westin Hotel (ltd partnership) 
10 units 


A 

(none) 


N/A 


J 


T 


Exempt 


43 


Wolverine 
1000 shares 


a' 
(none) 


N/A 


J 


T 


Exempt 




Real Estate - Parcel 1 
Tallahassee, Florida 


A 
(none) 


N/A 


L 


T 


Exempt 




Real Estate - Parcel 2 
Lake Park, Florida 


A 
(none) 


N/A 


N 


T 


Exempt 




Real Estate - Parcel 3 
Lake Park, Florida 


A 

(none) 


N/A 


M 


T 


Exempt 




Real Estate - Parcel 4 
Lake Worth, Florida 


C 


rent 


K 


T 


Exempt 




Real Estate - Parcel 5 
Jupiter, Florida 


c 


rent 


K 


T 


Exempt 




Real Estate - Parcel 6 
Homestead, Florida 


c 


ag. 
sales 


L 


T 


Exempt 




Real Estate - Parcel 7 
Homestead, Florida 


c 


ag. 
sales 


L 


T 


Exempt 

















•The numbers in the left column are my personal account numbers and shcu. 
:s disregarded. 



463 



FINANOAL DISCXOSURE REPORT (cont'd) 



Mamm of Paraoo lUpoRlng 

Rosemary Barkecc 



Dat« of Raport 

9/24/93 



Vlll. ADDITIONAL INFORMATION or EXPLANATIONS, (indicate p«t or Report.) 



IX. CERTIFICATION. 

In compliancE with the provisions of 28 VS.C. § 455 and of Ailvisory Opinion No. 57 of the Advisory Committee on 
Judicial Activities, and to the best of my knowledge at the time after reasonable inquiry, I did not perform any adjudicatory 
funaion in any litigation during tie period covered by this repon in which I, my spouse, or my minor or dependent children 
had a financial interest, as defined in Canon 3C(3)(c), in the outcome of such litigation. 

I certify that all information given above (including information pertaining to my spouse and minor or dependent children, 
if any) is accurate, true, and complete to the best of my knowledge and belief, and thai any information not reported was 
withheld because it met applicable statutory provisions permitting non^disdosure. 

I further certify that earned income from outside employment and honoraria and the acceptance of gifts which have been 
reported are in compliance with the provisions of 5 U.S.CA. app. 7. § 501 et. seq.. 5 U.S.C 5 7353 and Judicial Conference 



Date 




Signature 



NOTE: ANY DtolVIDUAL 
MAY BE SUBJECT TO CIVIL 



WHO 1 
- A-NTD 




KNOWINGLY AND WnjTJLLY FALSIFIES OR FAILS TO PJLE THIS REPORT 
CRIMINAL SANCTIONS (5 U.S.CA. APP. 6, § 104. AND 18 VS.C § 1001.) 



FILING INSTRUCTIONS 
Mail signed original and 3 additional copies to; 



Judicial Ethics Comminee 
Administrative Office of the 

United States Courts 
Washington, DC 20544 



464 



FINANCIAL DISCLOSURE REPORT 



BARKETT, ROSEMARY 
DATE OF REPORT: 9/24/93 



I . POSITIONS 

Florida Bar Foundation Board o£ Directors, member 

Juvenile Justice Center, board member 

Palm Beach Marine Institute, Inc., former chair; board member (a 
marine-related educational and rehabilitative alternative program 
for juvenile delincjuents and problem youths) 

American Judicature Society, board member 

Institute of Judicial Administration, New York University, 
Appellate Judges Seminar, faculty member 

One-half partner in the ownership of a rental condominium in Lake 
Worth, Florida 

One -fourth partner in the ownership of a rental condominium in 
Jupiter, Florida 

One- third partner in the ownership of a 10-acre avocado grove in 
Homestead, Florida 

One-half partner in the ownership of a 10-acre avocado grove in 
Homestead, Florida 



In the interest of full disclosure, I aim also attaching my resume 
listing all other memberships in the event they may be 
encompassed in this question. 



465 



ROSEMARY BARKETT 

Chief Justice, Florida Supreme Court 

Tallahassee, Florida 32399-1925 

Telephone 904/488-0357 



JTTDTCTAL KXPERTENCE 

FLORIDA SUPREME COURT 

1992 - present. Chief Justice 
1985 - present. Justice 

FOURTH DISTRICT COURT OF APPEAL, STATE OF FLORIDA 
1984 - 1985, Appellate Judge 

FIFTEENTH JUDICIAL CIRCUIT, STATE OF FLORIDA 
1983 - 1984. Chief Judge 

1982 - 1983, Administrative Judge, Civil Division 
1979 - 1982, Circuit Judge 

LEGAL EXPERIENCE 

1971 - 1979, Private civil and trial law practice. West Palm 
Beach, Florida 

OTHER PRO FF.q.qTnNAI. FXPERTENCE 

Former Teacher in Elementary auid Junior High Schools, 

Primarily as a Member of a Religious Teaching Order 

PERSONAL 

Born August 29, 1939, in Ciudad Victoria, Tamaulipas, Mexico 
Naturalized January 22, 1958. at Fort Pierce, Florida 

EDUCATION 

University of Florida Law School, Gainesville, Florida, 

1970. J.D. 
Spring Hill College, Mobile, Alabama. 1967, B.S., Summa Cum 

Laude 

HnNORARY DEGREES 

1992 - Honorary Doctorate of Laws, presented by Nova 

University 
1992 - Honorary Ooctorate of Laws, presented by Rollins 

College _ > ^^ 

1990 - Honorary Doctorate of Civil Laws, presented oy s.^.-ng 

Hill College . , 

1990 - Honorary Doctorate of Humane Letters, presentea =y 

University of South Florida 
1990 - Honorary Doctorate of Laws, presented by Johr. 

Marshall Law School . . 

19 87 - Honorary Doctorate of Humane Letters, pre3£r.:;s= => 

Florida International University 
1987 - Honorary Doctorate of Laws, presented by Stsrscr. 

University 



466 



COMMTTMFNTS / ASSOCIATIONS f former and eurrpnf^ 

AMERICAN BAR ASSOCIATION 

Families in the Courts Cluster Group, convener 

Committee on Continuing Appellate Education, member 

Task Force on Death Penalty Hsibeas Corpus, member 

Standing Committee on Lawyer Public Service 
Responsibility, member 

FLORIDA BAR 

Committee on Civil Procedure, liaison/member 
Committee on Appellate Rules, liaison/member 

FLORIDA BAR FOUNDATION 

Board of Directors, member 

Legal Assistance to the Poor Committee, member 

CHILDREN, FAMILIES, AND THE LAW JUDICIAL COUNCIL, member 

CHILD WELFARE STUDY COMMISSION, chair 

Commissioned by the Florida Legislature 

CHILD SUPPORT STUDY COMMISSION, chair 

Commissioned by the Florida Legislature 

STUDY COMMISSION ON GUARDIANSHIP LAW, chair 

Commissioned by the Florida Legislature 

FLORIDA KIDS COUNT ADVISORY COUNCIL, member 

JUVENILE JUSTICE CENTER, board member 

PALM BEACH MARINE INSTITUTE, INC., former chair; board member (a 
marine-related educational and rehabilitative 
alternative program for juvenile delinquents and 
problem youths) 

NATIONAL ASSOCIATION OF WOMEN JUDGES, member 

FLORIDA COMMISSION ON THE STATUS OF WOMEN, member 

GENDER BIAS STUDY IMPLEMENTATION COMMISSION, member 

FLORIDA ASSOCIATION OF WOMEN LAWYERS, member 

ACADEMY OF MATRIMONIAL LAWYERS, fellow 

NATIONAL ASSOCIATION FOR COURT MANAGEMENT, member 

AMERICAN JUDICATURE SOCIETY, board member 

COURT STATISTICS AND WORKLOAD COMMITTEE, former chair; liaison 

SENTENCING GUIDELINES COMMISSION, member 

Commissioned by the Florida Legislature 

STATEWIDE PROSECUTION FUNCTION COMMISSION, member 
Com.-nissioned by -r.= Florida Legislature 



467 



MAJOR HONORS AND AWARDS 

1993 Breaking the Glass Ceiling Award, presented by the Florida 
Federation of Business and Professional Women's Clubs, Inc. 

1992 The Rosemary Barkett Award, Presented Each Year by the 
Academy of Florida Trial Lawyers to a Person Who Has 
Demonstrated Outstanding Commitment to Equal Justice Under 
the Law; Given in Honor of Chief Justice Rosemary Barkett 
the First woman Justice of the Florida Supreme Court and an 
Independent and Fierce Defender of Equality for All 

1992 Latin Business and Professional Women Lifetime Achievement 
Award 

1992 ABA Minority Justice Award Honoree 

1991 Judge Mattie Belle Davis Award, presented by the Florida 
Association for Women Lawyers, Dade Covinty 

1991 Hannah G. Solomon Award, presented by National Council of 
Jewish Women 

1988 Achievement Award, presented by the Academy of Florida Trial 
Lawyers for outstanding jurist dedicated to the preservation 
of individual rights and free access to the courts 

1986 Inducted into Florida Women's Hall of Fame 

1986 Judicial Achievement Award for the State of Florida, 

presented by the Association of Trial Lawyers of American in 
recognition of outstanding efforts as a lawyer and a jurist 
championing and protecting the rights of the individual 

1985 Woman of Achievement Award, presented by the Palm Beach 
County Commission on the Status of Women for outstanding 
contributions in the field of faunily law and criminal 
justice 

1984 American Academy of Matrimonial Lawyers Award for the most 
outstanding contribution to the field of matrimonial law by 
a member of the judiciary 

1970 J. Hillis Miller Memorial Award (awarded to outstanding 
senior graduate) , University of Florida Law School 



468 



TEACHTNn AND ADVISORY POSTTTONS (formpr anri rurrpnt^ 

NATIONAL JUDICIAL COLLEGE, faculty member 

FLORIDA JUDICIAL COLLEGE, faculty member 

AMERICAN BAR ASSOCIATION APPELLATE JUDGES CONTINUING EDUCATION 
SEMINARS, faculty member 

INSTITUTE OF JUDICIAL ADMINISTRATION, NEW YORK UNIVERSITY, 
APPELLATE JUDGES SEMINARS, faculty member 

FLORIDA STATE UNIVERSITY COLLEGE OF LAW, adjunct professor. 
Constitutional Law Class 

"THE FLORIDA JUDGES MANUAL" 
Editorial Board, member 

UNIVERSITY OF MIAMI SCHOOL OF LAW 
Visiting Committee, member 

ST. THOMAS UNIVERSITY SCHOOL OF LAW 
Board of visitors, member 

SHEPARD BROAD LAW CENTER AT NOVA UNIVERSITY 
Board of Governors, member 

UNIVERSITY OF FLORIDA CENTER FOR GOVERNMENTAL RESPONSIBILITY 
Board of Advisors, member 

BAR AND COURT ADMISSIONS 

Admitted to The Florida Bar; Supreme Court of United States; 
United States Court of Appeals, Fifth Circuit; United States 
District Court, Southern District; All Florida Courts 



4 



469 



SENATOR HATCH 

WRITTEN QUESTIONS FOR CHIEF JUSTICE BARRETT 

Porter v. State , 564 So. 2d 1060 (Fla. 1990) 

Porter was the live-in companion of Evelyn Williams . Their 
stormy relationship was marked by several violent incidents, 
including Porter's threat to kill Williams and her daughter. 
Porter then left town for a few months, during which time 
Williams established a relationship with another man. Burrows. 

When Porter returned to town, Williams refused to see him. 
Porter contacted Williams' mother, who told him that Williams did 
not wish to see him anymore. A few days before the murders, 
Williams asked to borrow a gun from a friend; the friend 
declined, but the gun vanished from his home. Porter told 
another friend that she would be reading about him in the 
newspaper. During each of the two days before the murder. Porter 
was seen driving past Williams' home. Then, the morning after a 
night of heavy drinking. Porter invaded Williams' home, shot her 
to death, threatened to kill her daughter, and then killed 
Burrows in a scuffle. Porter pled guilty to the two murders, and 
was sentenced to death for the murder of Williams. 

By a vote of 5 to 2, the Florida Supreme Court affirmed the 
death sentence. Among other things, the majority noted that it 
was "clear that [Porter] contemplated this murder well in 
advance." You, joined by Justice Kogan in dissent with respect 
to the death sentence, characterized the killing as arising "from 
a lovers' quarrel or domestic dispute," and concluded that the 
cold-calculated-and-premeditated aggravator had therefore not 
been met and that the death penalty was disproportionate. 

1. Since the relationship between Porter and Williams had ended 
months before and since they no longer shared the same home, 
I am puzzled by your description of the murder as arising 
from "a lovers' quarrel or domestic dispute." When in your 
view can ex-lovers be held fully accountable for violence 
that they inflict on one another? 

King v. State , 514 So. 2d 354 (Fla. 1987) 

While an inmate at a work-release correctional facility, 
King killed an elderly woman and robbed and burned her home. He 
was convicted of first-degree murder and was sentenced to death. 
The conviction and death sentence were affirmed on direct appeal, 
and his state postconviction petition was denied. On federal 
habeas, he obtained resentencing, but was again sentenced to 
death . 

By a 5-2 vote, the Florida Supreme Court affirmed the 
resentence of death. Dissenting on this issue, you, joined by 
Justice Kogan, opined that a capital defendant must be permitted 
to offer at the penalty phase so-called "lingering doubt 
evidence" — that is, evidence that the defendant might not 
actually be guilty of the crime of which he has just been 
convicted beyond a reasonable doubt. 

2. If the defendant has been found guilty beyond a reasonable 
doubt, it follows that any evidence suggestive of his 
innocence either has already been rejected by the jury and 
the judge as not credible or would give rise, at most, only 
to unreasonable or whimsical doubts. Why should evidence 
that does not give rise to even a reasonable doubt of guilt 
and that is not otherwise relevant in any respect be 



470 



required to be admitted in the sentencing phase as evidence 
of possible innocence? 



LeCrov V. State . 533 So . 2d 750 (Fla. 1988) 

By a vote of six to one, the Florida Supreme Court affirmed 
a death sentence for two brutal first-degree murders by LeCroy, 
who was 17 years and ten months when he committed the murders. 
The court noted, among other things, that the sentencing judge 
gave great weight to LeCroy' s youth but found him mentally and 
emotionally mature. It also noted that Florida statutes clearly 
provided that 17-year-olds charged with capital crimes should be 
punished as adults. Construing U.S. Supreme Court precedent, it 
ruled that there was no constitutional bar to the imposition of 
the death penalty on those who were 17 at the time of the. capital 
offense. 

In your lone dissent, you stated your belief that both the 
Eighth Amendment of the federal Constitution and the Florida 
constitution prohibit imposition of the death penalty on one who 
was a "child" at the time of the crime. In your words, "the 
death penalty is totally inappropriate when applied to persons 
who, because of their youth, have not fully developed the ability 
to judge or consider the consequences of their behavior." [533 
So. 2d, at 758.] You further stated: "I am confident that most 
reasonable persons would agree that the death penalty cannot be 
imposed on children below a certain age. ... In my view, that 
line should be drawn where the law otherwise distinguishes 
'minors' from adults." ^d.. , at 759. 

3. Why aren't the existing statutes, both in Florida and in 
other States, the most reliable barometer of what "most 
reasonable persons would agree" regarding the death penalty 
for 17-year-olds? 

4. As the majority emphasizes, the trial court found that 
LeCroy 's ability to judge the consequences of his behavior 
was fully developed. Why should a judge forbid a State from 
choosing to structure its determination of the maturity of a 
17-year-old on an individualistic basis and instead require 
it to engage in the fiction that the moment a person turns 
18, he acquires a maturity that did not previously exist? 

5. In some 50 or so death penalty cases, you have provided no 
explanation -- or at times only a conclusory statement -- 
when you have refused to join the opinion of the court. Do 
you see any tension between this practice and the obligation 
of appellate judges to engage in reasoned decisionmaking and 
to explain that reasoning? 

I want to ask you about a 2 to 1 decision you wrote in 1984 
while on the district court of appeals in Florida. In State v. 
Bivona [460 So. 2d 469 (Fla. DCA 1984], Bivona was arrested for 
committing a crime in California in June 1983. The State of 
Florida had also charged him with a previous bank robbery in 
Florida. At Florida's request, California held him in jail 
pending extradition to Florida, which occurred in August 1983. 
In January 1984, Bivona filed a motion asserting that Florida had 
failed to bring him to trial within 180 days as required under 
Florida law. Bivona ' s motion counted from the time he was first 
arrested in California, not from the time he was returned to 
Florida . 

In your court, the state relied on a Florida law that read: 



471 



"A person who is . . . incarcerated in a jail or 
correctional institution outside the jurisdiction of this 
State, or who is charged by indictment or information issued 
or filed under the laws of this state, is not entitled to 
the benefit of [the 180-day time period] until that person 
returns or is returned to the jurisdiction of the court 
within which the Florida charge is pending and until written 
notice of this fact is filed with the court and served upon 
the prosecutor." [Rule 3.191(b)(1)] 

Despite this unambiguous language, your 2 to 1 opinion for 
the District Court of Appeals ruled that the charges against 
Bivona had to be dismissed. Noting that Bivona had cooperated in 
being extradited, you stated that the law I just read "must be 
interpreted to apply [only] when a defendant is incarcerated in 
jails outside the jurisdiction of this state on charges pending 
in the other state." 

The Florida Supreme court unanimously reversed. It found 
the language of the law to be "without ambiguity" and criticized 
you for "put [ting] a gloss on it, unwarranted by anything that 
appears in [ it ] . " 

6. How does your opinion in this case comport with your 

obligation to apply the letter of the law where the language 
of the law is unambiguous? 



472 



Respongeg of Rogenary BarXett 

to WrictftH Ouegtiong tx>sed bv Senator Hatch 

February 6. 1994 

Question 1 of Senator Hatch re. Porter v. State . 564 So. 2d 1060 

(Fla. 1990): 

Since the relationship between Porter and Williams had 
ended months before and since they no longer shared the 
same home, 1 am puzzled by your description of the 
murder as arising from "a lovers' quarrel or domestic 
dispute." When in your view can ex- lovers be held 
fully accountable for violence that they inflict on one 
another? 

Answer: 

My dissent in Porter was based on many Florida 
precedents where, under similar circumstances, the death 
sentence was not allowed to stand. Accordingly, Porter's 
sentence was disproportional under ca^e law. The portion of 
the dissent upon which your question is directed did not 
suggest that a murderer cannot be held accountable if the 
murder arises out of a lover's quarrel or domestic dispute. 
Rather, that portion of the dissent focused on the Court's 
historic recognition that a murder committed while under the 
influence of "inflamed passion" and -intense emotions" gives 
rise to "substantial mitigation" of the death sentence. The 
dissenting opinion fully documented that historic fact with 
numerous case citations. Moreover, the dissent also focused 
upon another well -settled mitigating factor present in this 
case, Porter's drunkenness just before the murder. The 
dissenting opinion concluded that these two factors combined 
to make the death penalty disproportional punishment when 
compared to other cases. 

Please note that in Duncan v. State . 619 So. 2d 279 
(Fla. 1993), I voted to affirm the death sentence of a 
defendant who murdered his fiance after he and the victim 
had argued. The facts in that case were different from 
those in porter and compelled a different result based on 
the arguments presented. (Incidentally, Duncan was a 5-2 
decision in which I joined the majority in affirming the 
death penalty. Two dissenting Justices said Duncan should 
have been given a new sentencing proceeding.) 

Ultimately, the final judgment depends on the facts and 
arguments presented in each case, and the balance of 
aggravating and mitigating circumstances, which is required 
by the united States Supreme Court. As I said at the 
hearing, I judge each case on its merits. 



Question 2 of Senator Hatch re. Kino v. State . 514 So. 2d 354 

(Fla. 1987): 

If the defendant had been found guilty beyond a rea.sona±>le 
doubt, it follows that any evidence suggestive of his 
innocence either has already been rejected by the jury and 
the judge as not credible or would give rise, at most, only 
to unreasonable or whimsical doubts. Why should evidence 
that does not give rise to even a reasonable do\ibt of guilt 
and that is not otherwise relevant in any respect be 
required to be admitted in the sentencing phase as evidence 
of possible innocence? 

Answer : 

Prior to writing my dissent, the Onited States Supreme 
Court had n«ver squaorely addressed this question. I relied 
upon the principle of Lockett v. Ohio . 438 U.S. 536 (1978) 
and the Eleventh Circuit's decision in Smith v. Wainwriqht . 
741 P. 2d 1248 (11th Cir. 1984), cert, denied . 470 U.S. 1087 



473 



(1985), which held that a trial counsel's failure to 
introduce lingering doubt evidence may constitute 
ineffective assistance of counsel. 

Subsequent to my opinion in King and the Eleventh 
Circuit's decision in Smith , the United States Supreme Court 
decided Franklin v. Lvnauah 487 U.S. 164 (1988) 
(plurality) , which held that a prisoner did not have an 
Eighth Amendment right to have a jury instructed that it 
could consider residual doubts about guilt as mitigating 
circumstances in the penalty phase of a capital trial. 
Franklin is now the law of the land, and I have applied it 
faithfully. For example, in Downs v. state . 572 So. 2d 895 
(Fla. 1990), I wrote a majority opinion affirming the death 
sentence, relying on Franklin and King to reject the 
prisoner's argument that the jury should have been 
instructed to consider "residual doubt" about whether the 
defendant was the triggenoan in determining capital 
punishment, if confirmed as a federal judge, I will 
continue to follow decisions of the Uiiited States Supreme 
Court, 



Question 3 of Senator Hatch re, LeCrov v. State . 533 So, 2d 750 

(Fla. 1988): 

Why aren't the existing statutes, both in Florida and in 
other states, the most reliable barometer of what "most 
reasonable persons would agree" regarding the death penalty 
for 17 -year -olds? 

Answer: 

Prior to deciding LeCrpy . the United States Supreme 
Court in Thompson v. Oklahoma . 108 S. Ct. 2687 (1988) 
decided that it was unconstitutional to execute a minor 
under the age of 16. The Court left open the question of 
whether it was unconstitutional to execute a minor between 
the ages of 16 and 18. Because the Court had not squarely 
addressed the issue of whether a 17 -year-old may be 
executed, I sought the guidance of the closest Supreme Court 
opinion on point, Thompson . Justice O'Connor's pivotal 
opinion in that case focused her Eighth Amendment analysis 
on whether the Legislature had clearly and e;<pressly 
considered the propriety of executing a minor. 

My opinion in LeCrov indicates that pursuant to the 
Supreme Court's direction in ThompS-on . I regarded 
legislative enactments as one reliable barometer of what 
reasonable persons believe regarding to the death penalty. 
That is why I looked to the entire body of Florida law to 
determine how the Legislature has chosen to regard the legal 
responsibility of minors. As with the Oklahoma statute, 
there waa no express evidence that the Florida Legislature 
had considered the question. I viewed that fact in 
conjunction with numerous Florida laws where the Legislature 
expressly treated 17 -year-olds not as mature adults capable 
of exercising judgment or discretion. Based on the unclear 
legislation about ca^jltal punishment of juveniles, and the 
clear legislation about the incapacity of juveniles in a 
multitude of contexts, I concluded that the Legislature had 
not sufficiently expressed its intent to execute juveniles 
to satisfy the Eighth Amendment. 

Since LeCrov vras decided, the United States Supreme 
Court decided SJtanford v. KentuO^y - 109 S.Ct. 2969 (1989), 
which held that the Eight Amendment does not per se prohibit 
the execution of 16- and 17 -year olds. That case set forth 
the Eighth Amendment analysis that would have been 
applicable had LeCrov been decided today. If I am confirmed 
as a federal judge, I shall apply the federal law announced 
in Stanford and as it develops in future cases. 



474 



Question 4 of Senator Hatch re. LeCrov v. State . 533 So. 2d 750 

(Fla. 1988): 

As the majority emphasizes, the trial court found that 
LeCroy's ai>ility to judge the consequences of his behavior 
was fully developed. Vftiy should a judge forbid a State from 
choosing to structure its determination of the maturity of a 
17 -year-old on sm individualistic basis and instead require 
it to engage in the fiction that the moment a person turns 
18, he acquires a maturity that did not previously exist? 

Answer : 

As Justice O'Connor noted, every Justice of the Supreme 
Court acknowledged in Tfaompson that there is some age below 
which a juvenile's crime can never be constitutionally 
punished by death. The Court drew a line at vmder 16 years 
of age in Thomp^n . I sought to gauge the evolving 
standards of decency in this State to see whether a line 
should be drawn at 17. Stanford subsequently held that, it 
should not. Stamford and Thompson are now the prevailing 
federal law. I shall follow those decisions if I am 
confirmed - 



Question '5 of Senator Hatch: 

In some 50 or so death penalty cases, you have provided no 
explanation - - or at times only a conclusory statement - - 
when you have ref\ised to join the opinion of the court. Do 
you see any tension between this practice and the obligation 
of appellate judges to engage in reasoned decisionmaking and 
to explain that reasoning? 

J^swer : 

I subscribe to the principle that appellate judges 
should engage in reasoned decisionmaiking and es^lain that 
reasoning. I believe my record reflects that i do so 
despite work load requirements much heaver than those of 
many other state supreme courts. As you can tell by looking 
at my entire judicial record, I have written full opinions, 
including dissents, frequently and on a variety of subjects. 

Moreover, as I said at the hearing, my dissents are 
few, I am in the majority of the Florida Supreme Court 
91% of the time in cases decided by opinion. 



Question 6 of Senator Hatch re. State v. Bivona . 460 So. 2d 469 

(Fla. 4th OCA 1984) : 

How does your opinion in Bivona ccoport with your obligation 
to apply the letter of the law where the language of the law 
is unambiguous? 

Answer : 

Although the language of the subsection at issue may 
have been, on its face, xmajnbiguous , it was not consistent 
with the remainder of the language of the Rule as it was 
applied. Accordingly, the majority applied the principle of 
construction requiring language to be harmonized, if 
possible. 

In this case, under the State's reading of Rule 
3.191 (b) (1) , the defendant could have been held in 
California for an indefinite period of time. This outcome 
seemed inconsistent with his speedy trial rights under the 
rest of Rule 3.191. Rule 3.191 provides that a defendant's 
speedy trial rights commence when a person is taken into 
"custody" which, under Rule 3.191(a)(4), is when a "person 
is arrested as a result of the conduct or criminal episode 
which oava rise to the crime charged ." It was unrebutted 
and unquestioned that Bivona was being held in California 



475 



solely as & result of the Florida criminal char<jes. Bivona 
did nothing to thwart any efforts to bring him to Florida. 
Nonetheless < he was confined in California on Florida 
charges for 34 days. The State construed 3.19 1 (b) (1) in 
such a manner that it rendered the language of Rule 
3.191 (a) (4) meaningless because neither Bivona 's 
incarceration nor the length of his incarceration in 
California would effect his right to a speedy trial, 

Reading Rule 3.191 in its entirety, the majority 
concluded that Rule 3.191(b)(1) should be interpreted to 
apply when a defendant is incarcerated outside of Florida on 
charges pending in other states but not when a defendant was 
incarcerated ooly on Florida charges. This gave meaning to 
both subsections (b) (1) and (a)(4) of Rule 3.191 and 
afforded defendant reasonable speedy trial rights. 

As an aside, I would note that while on the Fourth 
District Court of Appeal, only 4 of the 61 majority opinions 
I authored were subsequently quashed by the Florida Supreme 
Court . i 



476 



SENATOR HATCH 
SUPPLEMENTAL WRITTEN QUESTIONS FOR CHIEF JUSTICE BARRETT 

1. Is it a correct statement of Florida law that a defendant 
who has been convicted of first-degree murder faces either 
the death penalty or so-called life imprisonment? (If not, 
please explain.) 

2. Is it a correct statement of Florida law that anyone 
sentenced to life imprisonment in Florida is actually 
eligible to be considered for parole after 25 years? (If 
not, please explain.) 



Responses of Rosemary Baricett 

to Senator Hatch's Supoigmencal Oueaticng 

p^marv 6. 1994 

Supplemental Question 1 of Senator Hatch: 

Is it a correct statement of Florida law that a defendant 
who has been convicted of first-degree murder facfes either 
the death penalty or so-called life imprisonment? (If not, 
plesLse explain.) 

Answer : 

Yes. 



Supplemental Queation 2 of Senator Hatch: 

Is it a correct stat«nant of Florida law that anyone 
sentenced to life iipprlsopment in Florida is actually 
eligible to be considered for parole after 25 years? (If 
not, please explain.) 

Answer: 

Yes. Moreover, to the best of my tanowledge no prisoner 
whose death sentence was reduced to life has ever been 
released from prison on parole since the death sentence was 
reauthorized after the United States Supreme Court in Purman 
V. Georgia struck down capital punishment statutes. 



477 



QUESTION FROM SENATOR THURMOND 

1. Chief Justice Barkett, I would now like to ask you a few 
questions on Cruse v. State . As I understand from the trial 
record. Cruse loaded an assault rifle, a shotgun, a pistol, and 
180 rounds of ammunition into his car and began driving to a 
shopping center. On the way, he fired the shotgun at a 14-year- 
old boy who was playing basketball and then at the boy's parents 
and brother. At the shopping center, he shot and killed two 
shoppers who were leaving a grocery store and wounded a third. 
He then shot at various other customers, killing one and wounding 
another. 

When Cruse heard sirens approaching, he got back in his car 
and drove across the street to another shopping center. When 
Officer Ronald Grogan approached in his police care. Cruse 
turned, inserted a new clip into his rifle, and fired eight times 
into the car, killing Officer Grogan. 

Officer Gerald Johnson then entered the parking lot and 
exited his car. Cruse shot at Officer Johnson and wounded him in 
the leg. Cruse then headed into the parking lot, searching for 
the wounded officer. When he found him, he shot Officer Johnson 
several more times, killing him. As a rescue team attempted to 
move Officer Grogan 's car out of Cruse 's line of fire. Cruse 
fired several shots at them and told them to "get away from the 
cop. I want the cop to die." 

Cruse then entered a store and began firing at people trying 
to escape. He killed one more and wounded many others. He then 

found two women hiding in the women's restroom and held one as a 
hostage for several hours. In all. Cruse killed six people and 
wounded 10 others. 

Cruse was found guilty of, among other things, six counts of 
first-degree murder. The jury recommended death on all six 
counts. The trial court imposed the death penalty for the 
murders of Officers Grogan and Johnson. 



478 



By a vote of 6 to 1, the Florida Supreme Court affirmed the 
convictions and the death sentences. Chief Justice Barkett, in 
your lone dissent, you voted to reverse the convictions. In 
addition, you stated that the death sentence was in any event 
inappropriate for Cruse. 

Let rae begin with the second part of your opinion, where you 
conclude that even if the convictions were to be upheld, the 
death sentence was in any event not warranted and should be 
reduced to life. You conclude that the cold-calculated-and- 
premeditated aggravator was not met. In particular, you 
concluded that Cruse had the "pretense of moral or legal 
justification" for his killings because "the evidence shows that 
Cruse was acting in response to his delusions that people were 
trying to harm him." But, as the majority pointed out, the 
consensus of the experts who testified was that Cruse 's delusions 
related to a fear that others were trying to turn him into a 
homosexual, not to a fear of any physical harm. 

Chief Justice Barkett, how do you respond to the suggestion 
that your argument against the death sentence for Cruse therefore 

rests on a serious mischaracterization of the evidence? 

You also take the position that even apari: from what you see 
as a pretense of moral or legal justification, there was 
insufficient evidence of heightened premeditation in the murders 
of the two police officers. 

Chief Justice Barkett, with respect to the murder of Officer 
Grogan, the evidence shows that when Office Grogan approached in 
his police care. Cruse turned, inserted a new clip into his 
rifle, and fired eight times into the car, killing Officer 
Grogan. In addition, as a rescue team attempted to move Officer 
Grogan 's car out of Cruse 's line of fire. Cruse fired several 
shots at them and told them to "get away from the cop. I want 
the cop to die." What additional facts would be needed to 
convince you that Cruse had heightened premeditation? 

Chief Justice Barkett, with respect to the murder of Officer 



479 



Johnson, the evidence shows that when Officer Johnson entered the 
parking lot and exited his car, Cruse shot at him and wounded him 
in the leg. Cruse then headed into the parking lot, searching 
for the wounded officer. When he found him, he shot Officer 
Johnson several more times, killing him. Again, what additional 
facts would be needed to convince you that Cruse had heightened 
premeditation? 

Now, let me ask you a question about your vote to reverse 
Cruse 's convictions. The basis upon which you would have 
reversed the conviction was the prosecution's alleged failure to 
make available to Cruse so-called "Brady evidence." Under the 
U.S. Supreme Court's ruling in Brady v. Maryland , [373 U.S. 83 
(1963)], the prosecution must provide the accused, upon the 
accused's request, material evidence in its possession that is 
favorable to the accused. As you stated in your opinion, 
"Evidence is material when "there is a reasonable probability 
that, had the evidence been disclosed to the defense, the result 
of the proceeding would have been different.'" 

You would have ruled that evidence of the names of two 
mental health experts whom the prosecution had contacted should 
have been turned over to Cruse, and that the failure to turn over 
this evidence required reversal of the convictions and remand for 
a new trial. In your opinion, you reject the majority's opinion 
that this evidence was merely cumulative. In addition, you 
state, "I do not believe that the fact that other experts at 
trial expressed the same opinion [regarding Cruse 's mental state] 
is a pertinent part of the inquiry of whether or not a Brady 
violation occurred." 

Chief Justice Barkett, how do you reconcile your position 
that it is not pertinent under Brady whether evidence is merely 
cumulative with your position that evidence is material for 
purposes of Brady only if there is a reasonable probability that 
disclosure of the evidence would have led to a different result 
at trial? 



480 



Posed by Senator Thmraond 
FebiruaxY 8, 1994 

Question 1 of Senator Thurmond re. Cruae v. State . 588 So. 2d 983 

(Fla. 1991) : 

How <io you respond to the suggestion that your argument 
against the death penalty for Cruse (i.e., finding that 
Cruse was deluded into believing that people were trying to 
haj?n him) rests on a serious mischaracterization of the 
evidence? 

The legislature has made clear that in order for the 
aggravating factor of cold, calculating and premeditated to 
be found, there must not be evidence of "pretense of moral 
or legal justification." § 921.141(5) (i) . My reading of 
the facts contained in the record supports my view that 
Cruse' s delusions met the legal definition of a "pretense of 
moral or legal justification' in his mind, under Florida 
law. This, of course, does not mean that he was justified 
in his actions or that his fears were reasonable. 

There were also other significant mitigating factors 
which, under previous case law, dictated that the death 
penalty was not proportional in this case. 

Questions 2 & 3 of Senator Thurmond re. cnjse v. State . 588 So. 
2d 983 (Fla. 1991) : 

With respect to the murders of both officers, you found that 

there was insufficient evidence of heightened premeditation. 

What additional facts would be needed to convince you that 

Cruse had heightened premeditation? 

Answer: 

As I stated at the hearing, Florida law provides that 
premeditation alone cannot support the aggravating factor of 
cold, calcula